Exhibit 10H
EXECUTION COPY
--------------
Dated July 25, 2000
Xxxxxxx Corporation
(Euro)300,000,000
6 1/4 percent Notes due 2005
_____________________________________
FISCAL AGENCY AGREEMENT
_____________________________________
CONTENTS
Clause Page
1. INTERPRETATION............................................... 1
2. APPOINTMENT OF PAYING AGENTS................................. 3
3. AUTHENTICATION AND DELIVERY OF NOTES......................... 3
4. PAYMENT TO THE FISCAL AGENT.................................. 4
5. NOTIFICATION OF NON-PAYMENT BY THE ISSUER.................... 4
6. DUTIES OF THE PAYING AGENTS.................................. 4
7. REIMBURSEMENT OF THE PAYING AGENTS........................... 5
8. NOTICE OF ANY WITHHOLDING OR DEDUCTION....................... 5
9. DUTIES OF THE FISCAL AGENT IN CONNECTION WITH REDEMPTION
FOR TAXATION REASONS....................................... 5
10. RECEIPT AND PUBLICATION OF NOTICES........................... 5
11. CANCELLATION OF NOTES AND COUPONS............................ 6
12. ISSUE OF REPLACEMENT NOTES AND COUPONS....................... 6
13. RECORDS AND CERTIFICATES..................................... 7
14. COPIES OF THIS AGREEMENT AVAILABLE FOR INSPECTION............ 7
15. COMMISSIONS AND EXPENSES..................................... 7
16. INDEMNITY.................................................... 8
17. REPAYMENT BY FISCAL AGENT.................................... 8
18. CONDITIONS OF APPOINTMENT.................................... 8
19. COMMUNICATION WITH PAYING AGENTS............................. 9
20. TERMINATION OF APPOINTMENT................................... 9
21. MEETINGS OF NOTEHOLDERS...................................... 11
22. NOTICES...................................................... 12
23. TAXES........................................................ 12
24. COUNTERPARTS................................................. 13
25. DESCRIPTIVE HEADINGS......................................... 13
26. GOVERNING LAW AND SUBMISSION TO JURISDICTION................. 13
27. AMENDMENTS................................................... 13
SCHEDULE 1......................................................... 14
PART 1 - FORM OF THE TEMPORARY GLOBAL NOTE................ 14
PART 2 - FORM OF THE PERMANENT GLOBAL NOTE................ 25
SCHEDULE 2......................................................... 33
PART 1 - FORM OF DEFINITIVE NOTE AND COUPON............... 33
PART 2 - CONDITIONS OF THE NOTES.......................... 38
SCHEDULE 3
PROVISIONS FOR MEETINGS OF NOTEHOLDERS............................. 51
XXXXXXX CORPORATION
(Euro)300,000,000
6 1/4 percent Notes due 2005
FISCAL AGENCY AGREEMENT
Xxxxxxx Corporation
0000 00xx Xxxxxx, X.X.Xxxxx of Contents
Xxxxxxxxxx, X.X. 00000
July 25, 2000
Ladies and Gentlemen:
WHEREAS:
(A) Xxxxxxx Corporation (the "Issuer") has agreed to issue
(Euro)300,000,000 6 1/4 percent Notes due 2005 (the "Notes" which
expression shall include, unless the context otherwise requires, any
further Notes issued pursuant to Condition 16 and forming a single
series with the Notes).
(B) The Notes will be issued in bearer form in the denominations of
(Euro)1,000, (Euro)10,000 and (Euro)100,000 each having, in the case of
definitive Notes (the "Definitive Notes"), interest coupons ("Coupons")
attached.
(C) The Notes will initially be represented by a temporary Global Note (the
"Temporary Global Note") in or substantially in the form set out in
Part 1 of Schedule 1 which will be exchanged in accordance with its
terms for a permanent Global Note (the "Permanent Global Note" and,
together with the Temporary Global Note, the "Global Notes") in or
substantially in the form set out in Part 2 of Schedule 1.
(D) If issued, the Definitive Notes and Coupons will be in or substantially
in the respective forms set out in Part 1 of Schedule 2. The Terms and
Conditions of the Notes (the "Conditions") will be in or substantially
in the form set out in Part 2 of Schedule 2.
We wish to record the arrangements agreed between us for this purpose:
1. INTERPRETATION
1.1 In this Agreement, any reference to principal or interest includes any
additional amounts payable in relation thereto under Condition 9.
1.2 Terms and expressions used but not defined herein have the respective
meanings given to them in the Conditions.
1.3 As used in this Agreement and in the Conditions:
"Conditions" means the Terms and Conditions of the Notes (as set out in
Part 2 of Schedule 2 to this Agreement and as modified from time to
time in accordance with their terms), and any reference to a numbered
"Condition" is to the correspondingly numbered provision thereof;
"(Euro)" and "euro" mean the single currency introduced at the start of
the third stage of European economic and monetary union pursuant to the
Treaty;
"Fiscal Agent" and "Paying Agent" mean and include each Fiscal Agent
and Paying Agent from time to time appointed to exercise the powers and
undertake the duties conferred and imposed upon it by this Agreement
and notified to the Noteholders under clause 20;
"Noteholders" means the holders of the Notes for the time being;
"Outstanding" means, in relation to the Notes, all the Notes issued
other than:
(a) those Notes which have been redeemed in full and cancelled
pursuant to Condition 7 or otherwise pursuant to the Conditions;
(b) those Notes in respect of which the due date for redemption under
the Conditions has occurred and all sums due in respect of such
Note (including all accrued interest) have been received by the
Fiscal Agent in the manner provided in Clause 4 and remain
available for payment against presentation and surrender of such
Note or (as the case may be) the relevant Coupons;
(c) those Notes which have been purchased and cancelled under
Condition 7;
(d) those Notes which have become void under Condition 11;
(e) those mutilated or defaced Notes which have been surrendered and
cancelled and in respect of which replacements have been issued
pursuant to Condition 12;
(f) (for the purposes only of ascertaining the principal amount of
the Notes outstanding and without prejudice to the status for any
other purpose of the relevant Notes) those Notes which are
alleged to have been lost, stolen or destroyed and in respect of
which replacements have been issued pursuant to Condition 12; or
(g) the Temporary Global Note to the extent that it has been duly
exchanged for the Permanent Global Notes and/or Notes in
definitive form and the Permanent Global Note to the extent that
it has been exchanged for Notes in definitive form, in each case
pursuant to their respective provisions,
provided that for each of the following purposes, namely:
(i) the right to attend and vote at any meeting of the
Noteholders or any of them; and
(ii) the determination of how many and which Notes are for the
time being outstanding for the purposes of Schedule 3;
those Notes (if any) which are for the time being held by any person
(including but not limited to, the Issuer or any of its Subsidiaries)
for the benefit of the Issuer or any of its Subsidiaries shall (unless
and until ceasing to be so held) be deemed not to remain outstanding;
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"specified office" means in relation to any Fiscal Agent and Paying
Agent the offices specified in clause 22 or any other specified offices
as the Issuer may from time to time be duly notified pursuant to clause
22; and
"Treaty" means the Treaty establishing the European Community, as
amended by the Treaty of European Union.
2. APPOINTMENT OF PAYING AGENTS
2.1 The Issuer appoints, on the terms and subject to the conditions of this
Agreement:
(a) Deutsche Bank AG London as fiscal and principal paying agent (the
"Fiscal Agent") in respect of the Notes; and
(b) Deutsche Bank Luxembourg, S.A. and UBS AG as paying agents
(together with the Fiscal Agent, the "Paying Agents") for the
payment of principal of, and interest on, the Notes, in each case
acting at its specified office.
2.2 The obligations of the Paying Agents are several and not joint.
3. AUTHENTICATION AND DELIVERY OF NOTES
3.1 The Issuer undertakes that the Permanent Global Note (duly executed on
behalf of the Issuer) will be available to be exchanged for interests
in the Temporary Global Note in accordance with the terms of the
Temporary Global Note.
3.2 The Issuer undertakes that it will deliver to, or to the order of, the
Fiscal Agent, not later than 10 days prior, to the Exchange Date (as
defined in the Permanent Global Note), the Definitive Notes (with
Coupons attached) in an aggregate principal amount of (Euro)300,000,000
or such lesser amount as is equal to the principal amount of Notes then
outstanding. Each Definitive Note so delivered shall be duly executed
on behalf of the Issuer.
3.3 The Issuer authorizes and instructs the Fiscal Agent (or its authorized
agent) to authenticate the Global Notes and any Definitive Notes
delivered pursuant to subclause 3.2.
3.4 The Issuer authorizes and instructs the Fiscal Agent to cause interests
in the Temporary Global Note to be exchanged for interests in the
Permanent Global Note or Definitive Notes, as the case may be, and
interests in the Permanent Global Note to be exchanged for Definitive
Notes, in each case in accordance with their respective terms.
Following the exchange of the last interest in a Global Note, the
Fiscal Agent shall cause the Global Note to be cancelled and delivered
to the Issuer or as it may direct.
3.5 The Fiscal Agent shall cause all Notes delivered to and held by it
under this Agreement to be maintained in safe custody and shall ensure
that interests in the Temporary Global Note are only exchanged for
interests in the Permanent Global Note or Definitive Notes, as the case
may be, in accordance with the terms of the Temporary Global Note and
this Agreement and that the Definitive Notes are issued only in
accordance with the terms of the Permanent Global Note and this
Agreement.
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3.6 So long as any of the Notes is outstanding the Fiscal Agent shall,
within seven days of any request by the Issuer, certify to the Issuer
the number and principal amount of Notes held by it under this
Agreement.
4. PAYMENT TO THE FISCAL AGENT
4.1 The Issuer shall, not later than 10.00 a.m. (Central European time) on
each date on which any payment of principal and/or interest in respect
of any of the Notes becomes due and payable, transfer to an account
specified by the Fiscal Agent such amount of euro as shall be
sufficient for the purposes of the payment of principal and/or interest
in immediately available funds or in such funds and at such times
(being not later than 10.00 a.m. (Central European time) on the
relevant due date) as may be determined by the Fiscal Agent to be
customary for the settlement of similar transactions.
4.2 The Issuer shall ensure that, not later than 10.00 a.m. (London time)
on the second Business Day immediately preceding the date on which any
payment is to be made to the Fiscal Agent pursuant to subclause 4.1,
that the bank effecting payment on its behalf confirms to the Fiscal
Agent by tested telex or authenticated SWIFT message that it has issued
irrevocable payment instructions for the transfer of the relevant sum
due on that date to the account of the Fiscal Agent. For the purposes
of this subclause 4.2, "Business Day" means a day on which banks are
open for business in London and on which the TARGET System is open. The
Fiscal Agent will forthwith notify the Issuer by telex if it has not by
10.00 a.m. (London time) on the relevant Business Day received the
confirmation and details referred to in this subclause and in the event
that such failure is continuing at 3.00 p.m. (London time) on such day
the Fiscal Agent will forthwith notify the other Paying Agents and the
Issuer and in such event the Paying Agents shall not be bound to make
payment in respect of the Notes until the Fiscal Agent notifies by
telex each of the other Paying Agents that it has received
unconditionally the full amount of any sum due in respect of the Notes.
5. NOTIFICATION OF NON-PAYMENT BY THE ISSUER
The Fiscal Agent shall notify by telex each of the other Paying Agents
forthwith:
(a) if it has not by the specified time on the relevant date
specified in clause 4.1 received unconditionally the full amount
in euro required for the payment; and
(b) if it receives unconditionally the full amount of any sum due in
respect of the Notes or Coupons after such date.
Upon receipt of a notice from the Fiscal Agent as described in
subparagraph (a) and until receipt of a notice from the Fiscal Agent as
described in subparagraph (b), no Paying Agent shall be obliged to make
any payment in respect of the Notes. The Fiscal Agent shall, at the
expense of the Issuer, forthwith upon receipt of any amount as
described in subparagraph (b), cause notice of that receipt to be
published under Condition 15.
6. DUTIES OF THE PAYING AGENTS
6.1 Subject to the payments to the Fiscal Agent provided for by clause 4.1
being duly made and subject to clause 4.2, the Paying Agents shall act
as paying agents of the Issuer in respect of the Notes and pay or cause
to be paid on behalf of the Issuer, on and after each date on which any
payment becomes due and payable, the amounts of principal and/or
interest then payable on
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surrender or, in the case of a Global Note, endorsement, of Notes or
Coupons under the Conditions and this Agreement. If any payment
provided for by clause 4 is made late but otherwise under the terms of
this Agreement, the Paying Agents shall nevertheless act as paying
agents.
6.2 If default is made by the Issuer in respect of any payment, unless and
until the full amount of the payment has been made under the terms of
this Agreement (except as to the time of making the same) or other
arrangements satisfactory to the Fiscal Agent have been made, neither
the Fiscal Agent nor any of the other Paying Agents shall be bound to
act as paying agents.
6.3 If on presentation of a Note or Coupon the amount payable in respect of
the Note or Coupon is not paid in full (otherwise than as a result of
the circumstances provided in Condition 7(b) or Condition 9) the Paying
Agent to whom the Note or Coupon is presented shall procure that the
Note or Coupon is enfaced with a memorandum of the amount paid and the
date of payment.
6.4 If the Fiscal Agent pays any amounts to Noteholders or to the other
Paying Agents at a time when it has not received payment in full in
respect of such Note the Issuer shall, in addition to paying amounts
due under clause 4.1, pay to the Fiscal Agent on demand interest at a
rate reasonably determined by the Fiscal Agent to represent its cost of
funding until receipt in full by the Fiscal Agent of the funds.
7. REIMBURSEMENT OF THE PAYING AGENTS
The Fiscal Agent shall charge the account referred to in clause 4 for
all payments made by it under this Agreement and will credit or
transfer to the respective accounts of the other Paying Agents the
amount of all payments made by them under the Conditions immediately
upon notification from them, subject in each case to any applicable
laws or regulations.
8. NOTICE OF ANY WITHHOLDING OR DEDUCTION
If the Issuer is, in respect of any payment in respect of the Notes,
compelled to withhold or deduct any amount as contemplated by Condition
7(b) or Condition 9, the Issuer shall give notice to the Fiscal Agent
as soon as reasonably practicable after it becomes aware of the
requirement to make the withholding or deduction and shall give to the
Fiscal Agent such information as the Fiscal Agent shall require to
enable it to comply with the requirement.
9. DUTIES OF THE FISCAL AGENT IN CONNECTION WITH REDEMPTION FOR TAXATION
REASONS
If the Issuer decides to redeem all the Notes for the time being
outstanding under Condition 7(b) it shall give notice of the decision
to the Fiscal Agent at least 15 days before the date on which notice is
to be given to the Noteholders as required by Condition 15 and shall
deliver the certificate and opinion referred to in Condition 7.
10. RECEIPT AND PUBLICATION OF NOTICES
10.1 Forthwith upon the receipt by the Fiscal Agent of a demand or notice
from any Noteholder under Condition 10, the Fiscal Agent shall forward
a copy of the demand or notice to the Issuer.
10.2 On behalf of and at the request and expense of the Issuer, the Fiscal
Agent shall cause to be published all notices required to be given by
the Issuer under the Conditions.
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11. CANCELLATION OF NOTES AND COUPONS
11.1 All Notes which are surrendered in connection with redemption,
(together with all unmatured Coupons attached to or delivered with
Notes) and all Coupons which are paid shall be cancelled by the Paying
Agent to which they are surrendered. Each of the Paying Agents shall
give to the Fiscal Agent details of all payments made by it and shall
deliver all cancelled Notes and Coupons to the Fiscal Agent (or as the
Fiscal Agent may specify). Where Notes are purchased by or on behalf of
the Issuer, the Issuer may ensure that the Notes (together with all
unmatured Coupons appertaining to the Notes) are promptly cancelled and
delivered to any Paying Agent.
11.2 Paying Agents shall (unless otherwise instructed by the Issuer in
writing and save as provided in clause 13.1) destroy all cancelled
Notes and Coupons and furnish the Issuer with a certificate of
destruction containing written particulars of the serial numbers of the
Notes and the number by maturity date of Coupons so destroyed.
12. ISSUE OF REPLACEMENT NOTES AND COUPONS
12.1 The Issuer shall cause a sufficient quantity of additional forms of
Notes and Coupons to be available, upon request, to the Fiscal Agent at
its specified office for the purpose of issuing replacement Notes or
Coupons as provided below.
12.2 The Fiscal Agent shall, subject to and in accordance with Condition 12
and the following provisions of this clause, cause to be authenticated
(in the case only of replacement Notes) and delivered any replacement
Notes or Coupons which the Issuer may determine to issue in place of
Notes or Coupons which have been lost, stolen, mutilated, defaced or
destroyed.
12.3 In the case of a mutilated or defaced Definitive Note, the Fiscal Agent
shall ensure that (unless otherwise covered by such indemnity as the
Issuer may require) any replacement Definitive Note only has attached
to it Coupons corresponding to those attached to the mutilated or
defaced Definitive Note which is presented for replacement.
12.4 The Fiscal Agent shall endeavour to obtain verification, in the case of
an allegedly lost, stolen or destroyed Note or Coupon in respect of
which the serial number is known, that the Note or Coupon has not
previously been redeemed or paid. The Fiscal Agent shall not issue a
replacement Note or Coupon unless and until the applicant has:
(a) paid such costs as may be incurred in connection with the
replacement;
(b) furnished it with such evidence and indemnity or otherwise as the
Issuer and the Fiscal Agent may reasonably require; and
(c) in the case of a mutilated or defaced Note or Coupon, surrendered
it to the Fiscal Agent.
12.5 The Fiscal Agent shall cancel mutilated or defaced Notes or Coupons in
respect of which replacement Notes or Coupons have been issued pursuant
to this clause. The Fiscal Agent shall furnish the Issuer with a
certificate stating the serial numbers of the Notes or Coupons received
by it and cancelled pursuant to this clause and shall, unless otherwise
requested by the Issuer, destroy all those Notes and Coupons and
furnish the Issuer with a destruction certificate containing the
information specified in clause 11.2.
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12.6 The Fiscal Agent shall, on issuing any replacement Note or Coupon,
forthwith inform the Issuer and the other Paying Agents of the serial
number of the replacement Note or Coupon issued and (if known) of the
serial number of the Note or Coupon in place of which the replacement
Note or Coupon has been issued. Whenever replacement Coupons are issued
under this clause, the Fiscal Agent shall also notify the other Paying
Agents of the maturity dates of the lost, stolen, mutilated, defaced or
destroyed Coupons and of the replacement Coupons issued.
12.7 Whenever a Note or Coupon for which a replacement Note or Coupon has
been issued and the serial number of which is known is presented to a
Paying Agent for payment, the relevant Paying Agent shall immediately
send notice to the Issuer and the Fiscal Agent.
13. RECORDS AND CERTIFICATES
13.1 The Fiscal Agent shall (a) keep a full and complete record of all Notes
and Coupons (other than serial numbers of Coupons) and of their
redemption and/or purchase by or on behalf of the Issuer (other than
purchases in the open market or by tender or by private agreement),
cancellation or payment (as the case may be) and of all replacement
Notes or Coupons issued in substitution for lost, stolen, mutilated,
defaced or destroyed Notes or Coupons and (b) in respect of the Coupons
of each maturity, retain until the expiry of five years from the
Relevant Date in respect of the Coupons a list of the total numbers of
Coupons of that maturity still remaining unpaid. The Fiscal Agent shall
at all reasonable times make the records and Coupons (if any) available
to the Issuer.
13.2 The Fiscal Agent shall give to the Issuer, as soon as possible and in
any event within four months after the date of redemption, purchase,
payment or replacement of a Note or Coupon (as the case may be), a
certificate stating (a) the aggregate principal amount of Notes which
have been redeemed and the aggregate amount in respect of Coupons which
have been paid, (b) the serial numbers of those Notes in definitive
form, (c) the total number of each denomination by maturity date of
those Coupons, (d) the aggregate principal amounts of Notes (if any)
which have been purchased by or on behalf of the Issuer and cancelled
(subject to delivery of the Notes to the Fiscal Agent) and the serial
numbers of such Notes in definitive form and the total number of each
denomination by maturity date of the Coupons attached to or surrendered
with the purchased Notes, (e) the aggregate principal amount of Notes
and the aggregate amounts in respect of Coupons which have been
surrendered and replaced and the serial numbers of those Notes in
definitive form and the total number of each denomination by maturity
date of the Coupons surrendered therewith and (f) the total number of
each denomination by maturity date of unmatured Coupons missing from
Notes which have been redeemed or surrendered and replaced and the
serial numbers of the Notes in definitive form to which the missing
unmatured Coupons appertained.
14. COPIES OF THIS AGREEMENT AVAILABLE FOR INSPECTION
The Paying Agents shall hold copies of this Agreement available for
inspection by Noteholders and Couponholders. For this purpose, the
Issuer shall furnish the Paying Agents with sufficient copies of such
document.
15. COMMISSIONS AND EXPENSES
15.1 The Issuer shall pay to the Fiscal Agent such commissions in respect of
the services of the Paying Agents under this Agreement as shall be
agreed between the Issuer and the Fiscal Agent. The Issuer shall not be
concerned with the apportionment of payment among the Paying Agents.
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15.2 The Issuer shall also pay to the Fiscal Agent an amount equal to any
value added tax which may be payable in respect of the commissions
together with all reasonable documented expenses including, without
limitation, legal, advertising, cable and postage expenses, insurance
costs and publication expenses incurred by the Paying Agents in
connection with their services under this Agreement.
15.3 The Fiscal Agent shall arrange for payment of the commissions due to
the other Paying Agents and arrange for the reimbursement of their
reasonable documented expenses promptly after receipt of the relevant
moneys from the Issuer.
16. INDEMNITY
16.1 The Issuer undertakes to indemnify each of the Paying Agents and their
directors, officers, employees and controlling persons against all
losses, liabilities, costs, claims, actions, damages, expenses or
demands which any of them may incur or which may be made against any of
them as a result of or in connection with the appointment of or the
exercise of the powers and duties by any Paying Agent under this
Agreement except as may result from its wilful default, negligence or
bad faith or that of its directors, officers, employees or controlling
persons or any of them, or breach by it of the terms of this Agreement.
16.2 Each of the Paying Agents severally undertakes to indemnify the Issuer
and the Issuer's directors, officers, employees and controlling persons
against all losses, liabilities, costs, claims, actions, damages,
expenses or demands which any of them may incur or which may be made
against any of them as a result of its wilful default, negligence or
bad faith or that of its directors, officers, employees or controlling
persons or any of them, or breach by it of the terms of this Agreement.
16.3 This clause shall survive the termination or expiry of this Agreement.
17. REPAYMENT BY FISCAL AGENT
Sums paid by or by arrangement with the Issuer to the Fiscal Agent
pursuant to the terms of this Agreement shall not be required to be
repaid to the Issuer unless and until any Note or Coupon becomes void
under the provisions of Condition 11 but in that event the Fiscal Agent
shall forthwith repay to the Issuer sums equivalent to the amounts
which would otherwise have been payable in respect of the relevant Note
or Coupon.
18. CONDITIONS OF APPOINTMENT
18.1 Subject as provided in subclause 18.3 of this clause the Fiscal Agent
shall he entitled to deal with money paid to it by the Issuer for the
purposes of this Agreement in the same manner as other money paid to a
banker by its customers and shall not be liable to account to the
Issuer for any interest or other amounts in respect of the money. No
money held by any Paying Agent need be segregated except as required by
law.
18.2 In acting under this Agreement and in connection with the Notes and the
Coupons the Paying Agents shall act solely as agents of the Issuer and
will not assume any obligation towards or relationship of agency or
trust for or with any of the owners or holders of the Notes or the
Coupons.
18.3 No Paying Agent shall exercise any right of set-off or lien against the
Issuer or any holders of Notes or Coupons in respect of any moneys
payable to or by it under the terms of this Agreement.
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18.4 Except as ordered by a court of competent jurisdiction or required by
law or otherwise instructed by the Issuer, each of the Paying Agents
shall be entitled to treat the holder of any Note or Coupon as the
absolute owner thereof (whether or not the Note or Coupon shall be
overdue and notwithstanding any notice of ownership or writing thereon,
any notice of previous loss or theft thereof, or any notice of any
trust or other interest therein) for the purpose of making payment and
for all other purposes and shall not be required to obtain any proof
thereof or as to the identity of such holder.
18.5 The Paying Agents shall be obliged to perform such duties and only such
duties as are set out in this Agreement and the Notes and no implied
duties or obligations shall be read into this Agreement or the Notes
against the Paying Agents.
18.6 The Fiscal Agent may consult with legal and other professional advisers
and the opinion of the advisers shall be full and complete protection
in respect of action taken, omitted or suffered under this Agreement in
good faith and in accordance with the opinion of the advisers. The
Issuer agrees to reimburse the Fiscal Agent for all reasonable expenses
incurred in consultation with such legal or other professional
advisers.
18.7 Each of the Paying Agents shall be protected and shall incur no
liability for or in respect of action taken, omitted or suffered in
good faith in reliance upon any instruction, request or order from the
Issuer or any other Paying Agent, or any Note or Coupon, or any notice,
resolution, direction, consent, certificate, affidavit, statement,
facsimile, telex or other paper or document which it reasonably
believes to be genuine and to have been delivered, signed or sent by
the proper party or parties or upon written instructions from the
Issuer.
18.8 Any of the Paying Agents, their officers, directors, employees or
controlling persons, may become the owner of, or acquire any interest
in, Notes or Coupons with the same rights that it or he would have if
the Paying Agent concerned were not appointed under this Agreement, and
may engage or be interested in any financial or other transaction with
the Issuer, and may act on, or as depository, trustee or agent for, any
committee or body of holders of Notes or Coupons or other obligations
of the Issuer, as freely as if the Paying Agent concerned were not
appointed under this Agreement and without accounting for any profit.
18.9 The Fiscal Agent shall not be under any obligation to take any action
under this Agreement which it expects will result in any expense or
liability accruing to it, the payment of which within a reasonable time
is not, in its opinion, assured to it.
19. COMMUNICATION WITH PAYING AGENTS
A copy of all communications relating to the subject matter of this
Agreement between the Issuer and any of the Paying Agents other than
the Fiscal Agent shall be sent to the Fiscal Agent.
20. TERMINATION OF APPOINTMENT
20.1 The Issuer may terminate the appointment of any Paying Agent at any
time and/or appoint additional or other Paying Agents by giving to the
Paying Agent whose appointment is concerned and, where appropriate, the
Fiscal Agent, at least 90 days' prior written notice to that effect,
provided that, so long as any of the Notes is outstanding:
(a) in the case of a Paying Agent, the notice shall not expire less
than 45 days before any due date for the payment of interest; and
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(b) notice shall be given under Condition 15 not less than 30 days,
nor more than 45 days, before the removal or appointment of a
Paying Agent.
20.2 Notwithstanding the provisions of subclause 20.1, if at any time a
Paying Agent becomes incapable of acting, or is adjudged bankrupt or
insolvent, or files a voluntary petition in bankruptcy or makes an
assignment for the benefit of its creditors or consents to the
appointment of an administrator, liquidator or administrative or other
receiver of all or any substantial part of its property, or if an
administrator, liquidator or administrative or other receiver of it or
of all or a substantial part of its property is appointed, or it admits
in writing its inability to pay or meet its debts as they may mature or
suspends payment of its debts, or if an order of any court is entered
approving any petition filed by or against it under the provisions of
any applicable bankruptcy or insolvency law or if a public officer
takes charge or control of the Paying Agent or of its property or
affairs for the purpose of rehabilitation, administration or
liquidation, the Issuer may forthwith without notice terminate the
appointment of the Paying Agent, in which event notice shall be given
to the Noteholders under Condition 15 as soon as is practicable.
20.3 The termination of the appointment of a Paying Agent under this
Agreement shall not entitle the Paying Agent to any amount by way of
compensation but shall be without prejudice to any amount then accrued
due.
20.4 All or any of the Paying Agents may resign their respective
appointments under this Agreement at any time by giving to the Issuer
and, where appropriate, the Fiscal Agent at least 90 days' prior
written notice to that effect provided that, so long as any of the
Notes is outstanding, the notice shall not expire less than 45 days
before any due date for the payment of interest. Following receipt of a
notice of resignation from a Paying Agent, the Issuer shall promptly,
and in any event not less than 30 days before the resignation takes
effect, give notice to the Noteholders (through the Fiscal Agent) under
Condition 15. If any Paying Agent shall resign or be removed pursuant
to subclauses 20.1 or 20.2 above or in accordance with this subclause
20.4, the Issuer shall promptly and in any event within 30 days appoint
a successor. If the Issuer fails to appoint a successor within such
period, the relevant Paying Agent may select a leading bank (which, in
the case of the Fiscal Agent, shall be a leading bank acting through
its office in London) to act as Paying Agent hereunder and the Issuer
shall appoint that bank as the successor Paying Agent.
20.5 Notwithstanding the provisions of subclauses 20.1, 20.2 and 20.4, so
long as any of the Notes is outstanding, the termination of the
appointment of a Paying Agent (whether by the Issuer or by the
resignation of the Paying Agent) shall not be effective unless upon the
expiry of the relevant notice there is:
(a) a Fiscal Agent; and
(b) at least one Paying Agent having a specified office in a city in
western Europe which, so long as the Notes are listed on the
Luxembourg Stock Exchange, will be in Luxembourg.
20.6 Any successor Paying Agent shall execute and deliver to its
predecessor, the Issuer, and, where appropriate, the Fiscal Agent an
instrument accepting the appointment under this Agreement, and the
successor Paying Agent, without any further act, deed or conveyance,
shall become vested with all the authority, rights, powers, trusts,
immunities, duties and obligations of the predecessor with like effect
as if originally named as a Paying Agent.
20.7 If the appointment of a Paying Agent under this Agreement is terminated
(whether by the Issuer or by the resignation of the Paying Agent), the
Paying Agent shall on the date on which the
10
termination takes effect deliver to its successor Paying Agent (or, if
none, the Fiscal Agent) all Notes and Coupons surrendered to it but not
yet destroyed and all records concerning the Notes and Coupons
maintained by it (except such documents and records as it is obliged by
law or regulation to retain or not to release) and pay to its successor
Paying Agent (or, if none, to the Fiscal Agent) the amounts (if any)
held by it in respect of Notes or Coupons which have become due and
payable but which have not been presented for payment, but shall have
no other duties or responsibilities under this Agreement.
20.8 If the Fiscal Agent or any of the other Paying Agents shall change its
specified office, it shall give to the Issuer and, where appropriate,
the Fiscal Agent not less than 45 days' prior written notice to that
effect giving the address of the new specified office. As soon as
practicable thereafter and in any event at least 30 days before the
change, the Fiscal Agent shall give to the Noteholders on behalf of and
at the expense of the Issuer notice of the change and the address of
the new specified office under Condition 15.
20.9 A corporation into which any Paying Agent for the time being may be
merged or converted or a corporation with which the Paying Agent may be
consolidated or a corporation resulting from a merger, conversion or
consolidation to which the Paying Agent shall be a party shall, to the
extent permitted by applicable law, be the successor Paying Agent under
this Agreement without the execution or filing of any paper or any
further act on the part of any of the parties to this Agreement. Notice
of any merger, conversion or consolidation shall forthwith be given to
the Issuer and, where appropriate, the Fiscal Agent.
21. MEETINGS OF NOTEHOLDERS
21.1 The provisions of Schedule 3 shall apply to meetings of the Noteholders
and shall have effect in the same manner as if set out in this
Agreement provided that, so long as any of the Notes are represented by
a Global Note, the expression "Noteholders" shall include the persons
for the time being shown in the records of Xxxxxx Guaranty Trust
Company of New York, Brussels office, as operator of the Euroclear
System ("Euroclear") and/or Clearstream Banking, societe anonyme,
Luxembourg ("Clearstream, Luxembourg"), as the holders of a particular
principal amount of such Notes (each an "Accountholder") (in which
regard a certificate or other document issued by Euroclear or
Clearstream, Luxembourg as to the principal amount of such Notes
standing to the account of any person shall be conclusive and binding)
for all purposes other than with respect to the payment of principal
and interest on such Notes, the right to which shall be vested as
against the Issuer solely in the bearer of each Global Note in
accordance with and subject to its terms, and the expressions "holder"
and "holders" shall be construed accordingly and in connection with the
meetings of Noteholders the expression "Notes" shall mean units of .
(Euro)1,000 principal amount of Notes.
21.2 Without prejudice to subclause 21.1, each of the Paying Agents shall,
on the request of any holder of Notes, issue Voting Certificates and
Block Voting Instructions (as defined in paragraph 1 of Schedule 3)
together, if so required by the Issuer, with reasonable proof
satisfactory to the Issuer of their due execution on behalf of the
Paying Agent under the provisions of Schedule 3 and shall forthwith
give notice to the Issuer under Schedule 3 of any revocation or
amendment of a Voting Certificate or Block Voting Instruction. Each
Paying Agent shall keep a full and complete record of all Voting
Certificates and Block Voting Instructions issued by it and shall, not
less than 24 hours before the time appointed for holding any meeting or
adjourned meeting, deposit at such place as the Fiscal Agent shall
designate or approve, full particulars of all Voting Certificates and
Block Voting Instructions issued by it in respect of any meeting or
adjourned meeting.
11
22. NOTICES
Any notice required to be given under this Agreement to any of the
parties shall be delivered in person, sent by pre-paid post (first
class if inland, first class airmail if overseas) or by facsimile or
telex addressed to:
The Issuer: Xxxxxxx Corporation
0000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Telex No: 202-828-0850
Facsimile No: 000-000-0000
(Attention: Xxxxxxx Xxxxxxxx)
The Fiscal Agent: Deutsche Bank AG London
Winchester House
0 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telex No: 883341 BANT
Facsimile No: (0000)0000000
(Attention: Corporate Trust and Agency
Services)
The Paying Agents:
Deutsche Bank Luxembourg S.A. UBS AG
2 Boulevard Xxxxxx Xxxxxxxx Xxxxxxxxxxxxxx 00
X-0000 Xxxxxxxxxx XX-0000 Xxxxxx
Xxxxxxxxxxx
Telex No: 3392 BTLLU
Facsimile No: 00 000 000 000 Telex No: 8128581 BVZCH
(Attention: Coupon Paying Department) Facsimile No: 00 411 236 5333
(Attention:WS-Coupons)
or such other address of which notice in writing has been given to the
other parties to this Agreement under the provisions of this clause.
Any notice shall take effect on receipt, provided that if sent by telex
it shall be deemed to be received if and when the addressee's
answerback shall have been received at the end of transmission, and
provided further that any notice, request, demand or other
communication received on a non-working day or after business hours in
the place of receipt shall be deemed to be received on the next
following working day in such place.
23. TAXES
The Issuer agrees to pay any and all stamp and other documentary taxes
or duties which shall be payable in connection with the execution,
delivery, performance and enforcement of this Agreement (except any
stamp and other documentary taxes or duties resulting from the
enforcement of this Agreement which are payable pursuant to clause
16.2).
12
24. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed
shall be deemed an original and all of which taken together shall
constitute one and the same agreement.
25. DESCRIPTIVE HEADINGS
The descriptive headings in this Agreement are for convenience of
reference only and shall not define or limit the provisions of this
Agreement.
26. GOVERNING LAW AND SUBMISSION TO JURISDICTION
26.1 The provisions of this Agreement are governed by, and shall be
construed in accordance with, the laws of the State of New York.
26.2 The Issuer agrees that any State or federal courts sitting in the
Borough of Manhattan, The City of New York, shall have jurisdiction to
settle any disputes which may arise out of or in connection with this
Agreement and accordingly any legal action or proceedings arising out
of or in connection with the Notes or the Coupons (the "Proceedings")
may be brought in such courts. The Issuer irrevocably submits to the
jurisdiction of such courts and waives any objection which it may now
or hereafter have to Proceedings in any such courts whether on the
ground of the laying of venue or on the ground that the Proceedings
have been brought in an inconvenient forum. This submission is made for
the exclusive benefit of each of the Paying Agents and shall not limit
the right of any of them to take Proceedings in any other court of
competent jurisdiction nor shall the taking of Proceedings in one or
more jurisdictions preclude the taking of Proceedings in any other
jurisdiction (whether concurrently or not).
To the extent that the Issuer has or hereafter may acquire any immunity
from jurisdiction of any court or from any legal process with respect
to itself or its property, the Issuer irrevocably waives such immunity
in respect of its obligations under this Agreement.
27. AMENDMENTS
This Agreement may be amended by all of the parties, without the
consent of any Noteholder or Couponholder, either:
(a) for the purpose of curing any ambiguity or of curing, correcting
or supplementing any defective provision contained in this
Agreement; or
(b) in any manner which the parties may mutually deem necessary or
desirable and which shall not be inconsistent with the Conditions
and shall not be materially prejudicial to the interests of the
Noteholders.
SIGNED by each of the parties (or their duly authorized
representatives) as of the date first above written.
13
SCHEDULE 1
PART 1
FORM OF TEMPORARY GLOBAL NOTE
XXXXXXX CORPORATION
(incorporated under the laws of the State of Delaware)
TEMPORARY GLOBAL NOTE
(Euro)300,000,000
6 1/4 percent Notes due 2005
This temporary Global Note is issued in respect of the 6 1/4 percent Notes due
2005 (the "Notes") of Xxxxxxx Corporation (the "Issuer"). The Notes are issued
subject to and with the benefit of a Fiscal Agency Agreement (the "Fiscal Agency
Agreement") dated July 25, 2000 between, inter alios, the Issuer and Deutsche
Bank AG London as Fiscal Agent (the "Fiscal Agent). The Notes are issued subject
to and with the benefit of the Terms and Conditions of the Notes (the
"Conditions") set out in Part 2 of Schedule 2 to the Fiscal Agency Agreement.
1. Promise To Pay
Subject as provided in this temporary Global Note, the Issuer, for
value received, promises to pay the bearer upon presentation and
surrender of this temporary Global Note the sum of (Euro)300,000,000 or
such lesser sum as is shown by the latest entry in Part I or Part II of
the Schedule to this temporary Global Note on July 26, 2005 or on such
earlier date as the principal of this temporary Global Note may become
due under the Conditions and to pay interest on the principal sum for
the time being outstanding at the rate of 6 1/4 percent per annum from
July 26, 2000 payable annually in arrears on July 26 in each year until
payment of the principal sum has been made or duly provided for in full
together with any other amounts as may be payable, all subject to and
under the Conditions.
2. Exchange For Permanent Global Note And Cancellations
The permanent Global Note to be issued on exchange for interests in
this temporary Global Note will be substantially in the form set out in
Part 2 of Schedule 1 to the Fiscal Agency Agreement.
Subject as provided below, the permanent Global Note will only have an
entry made to represent Definitive Notes after the date which is 90
days after the closing date for the Notes.
Interests in this temporary Global Note may be exchanged for interests
in a duly executed and authenticated permanent Global Note without
charge and the Fiscal Agent or such other person as the Fiscal Agent
may direct (the "Exchange Agent") shall make the appropriate entry on
Part I of the Schedule to the permanent Global Note in full or partial
exchange for this temporary Global Note, in order that the permanent
Global Note represents an aggregate principal amount of Notes equal to
the principal amount of this temporary Global Note submitted for
exchange. Notwithstanding the foregoing, no such entry shall be made on
the permanent Global Note unless there shall have been presented to the
Exchange Agent a certificate from Xxxxxx Guaranty Trust
14
Company of New York, Brussels office, as operator of the Euroclear
System ("Euroclear") or Clearstream Banking, societe anonyme,
Luxembourg ("Clearstream, Luxembourg") substantially in the form of the
certificate attached as Exhibit A.
Notwithstanding the foregoing, where this temporary Global Note has
been exchanged in part for the permanent Global Note pursuant to the
foregoing and Definitive Notes have been issued in exchange for the
total amount of Notes represented by the permanent Global Note pursuant
to its terms, then interests in this temporary Global Note will no
longer be exchangeable for interests in the permanent Global Note but
will be exchangeable, in full or partial exchange, for duly executed
and authenticated Definitive Notes, without charge, in the
denominations of 1,000, 10,000 and 100,000 each with interest coupons
attached, such Definitive Notes to be substantially in the form set out
in Part 1 of Schedule 2 to the Fiscal Agency Agreement. Notwithstanding
the foregoing, Definitive Notes shall not be so issued and delivered
unless there shall have been presented to the Exchange Agent a
certificate from Euroclear or Clearstream, Luxembourg substantially in
the form of the certificate attached as Exhibit A.
Any person who would, but for the provisions of this temporary Global
Note and of the Fiscal Agency Agreement, otherwise be entitled to
receive either (i) an interest in the permanent Global Note or (ii)
Definitive Notes shall not be entitled to require the exchange of an
appropriate part of this temporary Global Note for an interest in the
permanent Global Note or Definitive Notes unless and until he shall
have delivered or caused to be delivered to Euroclear or Clearstream,
Luxembourg a certificate in substantially the form of the certificate
attached as Exhibit B (copies of which form of certificate will be
available at the offices of Euroclear in Brussels and Clearstream,
Luxembourg in Luxembourg and the specified offices of each Paying Agent
named in the Fiscal Agency Agreement).
Upon (a) any exchange of the whole or a part of this temporary Global
Note for an interest in the permanent Global Note or for a Definitive
Note or (b) receipt of instructions from Euroclear or Clearstream,
Luxembourg that, following the purchase by or on behalf of the Issuer
of the whole or a part of this temporary Global Note, part is to be
cancelled, the portion of the principal amount of this temporary Global
Note so exchanged or cancelled shall be entered by or on behalf of the
Fiscal Agent on Part I of the Schedule to this temporary Global Note,
whereupon the principal amount of this temporary Global Note shall be
reduced for all purposes by the amount so exchanged or cancelled and
entered.
3. Benefits
Until the entire principal amount of this temporary Global Note has
been extinguished in exchange for the permanent Global Note and/or
Definitive Notes, this temporary Global Note shall in all respects be
entitled to the same benefits as the Definitive Notes referred to
above, except that the holder of this temporary Global Note shall only
be entitled to receive any payment on this temporary Global Note on
presentation of certificates as provided below.
4. Payments
Payments due in respect of Notes for the time being represented by this
temporary Global Note shall be made to the bearer of this temporary
Global Note only upon presentation by Euroclear or, as the case may be,
Clearstream, Luxembourg, to the Fiscal Agent at its specified office of
a certificate, substantially in the form of the certificate attached as
Exhibit A, to the effect that Euroclear, or as the case may be,
Clearstream, Luxembourg, has received a certificate substantially in
the form of the certificate attached as Exhibit B.
15
Upon any payment in respect of the Notes represented by this temporary
Global Note, the amount so paid shall be endorsed by or on behalf of
the Fiscal Agent on Part II of the Schedule to this temporary Global
Note, which endorsement shall, in the absence of manifest error, be
prima facie evidence that such payment has been made in respect of the
Notes. In the case of any payment of principal the principal amount of
this temporary Global Note shall be reduced for all purposes by the
amount so paid and the remaining principal amount of this temporary
Global Note shall be entered by or on behalf of the Fiscal Agent on
Part II of the Schedule to this temporary Global Note.
On and after October 24, 2000, no payment will be made on this
temporary Global Note unless exchange for an interest in the permanent
Global Note is improperly withheld or refused.
5. Accountholders
For so long as any of the Notes is represented by this temporary Global
Note and this temporary Global Note is held on behalf of Euroclear
and/or Clearstream, Luxembourg, each person who is for the time being
shown in the records of Euroclear and/or Clearstream, Luxembourg as the
holder of a particular principal amount of such Notes (each an
"Accountholder") (in which regard any certificate or other document
issued by Euroclear or Clearstream, Luxembourg as to the principal
amount of such Notes standing to the account of any such person shall
be conclusive and binding for all purposes) shall be treated as the
holder of that principal amount of such Notes for all purposes
(including for the purposes of any quorum requirements of, or the right
to demand a poll at, meetings of the Noteholders) other than with
respect to the payment of principal and interest on such Notes, the
right to which shall be vested, as against the Issuer and the Paying
Agents, solely in the bearer of this temporary Global Note in
accordance with and subject to its terms. Each Accountholder must look
solely to Euroclear or Clearstream, Luxembourg, as the case may be, for
its share of each payment made to the bearer of this temporary Global
Note.
Notes represented by this temporary Global Note are transferable in
accordance with the rules and procedures for the time being of
Euroclear or Clearstream, Luxembourg as appropriate.
The Issuer covenants in favour of each Accountholder that it will make
all payments in respect of the Notes, for the time being shown in the
records of Euroclear and/or Clearstream, Luxembourg as being held by
the Accountholder and represented by this temporary Global Note to the
bearer of this temporary Global Note in accordance with clause 1 above
and acknowledges that each Accountholder may take proceedings to
enforce this covenant and any of the other rights which it has under
the first paragraph of this clause directly against the Issuer.
6. Notices
Notices to be given by the Issuer will be given at least once by
publication in a daily newspaper in the English language with general
circulation in London, England, and, so long as the Notes are listed on
the Luxembourg Stock Exchange and the rules of the Luxembourg Stock
Exchange so require, in a daily newspaper of general circulation in
Luxembourg. If publication in London or Luxembourg is impractical,
notices shall be published by such means as will, so far as may be
reasonably practicable, approximate publication in such newspaper.
Publication is expected to be made in the Luxemburger Wort in
Luxembourg and the Financial Times in London. Such notices will be
deemed to have been given on the date of such publication or, if
published more than once, on the date of the first such publication.
16
For so long as any of the Notes are represented by this temporary
Global Note and/or the permanent Global Note and this temporary Global
Note and/or the permanent Global Note is/are held on behalf of
Euroclear and/or Clearstream, Luxembourg, notices may be given by
delivery of the relevant notice to Euroclear and/or Clearstream,
Luxembourg (as the case may be) for communication to the relative
Accountholders rather than by publication as required in the preceding
paragraph provided that, so long as the Notes are listed on the
Luxembourg Stock Exchange, and the rules of that stock exchange so
require, notices to Noteholders will be published in one daily
newspaper in Luxembourg (which is expected to be the Luxemburger Wort).
Any such notice shall be deemed to have been given to the Noteholders
on the day after such notice is delivered to Euroclear and or
Clearstream, Luxembourg (as the case may be) as aforesaid or the date
of publication, whichever is earlier.
7. Prescription
Claims against the Issuer in respect of principal and interest on the
Notes represented by this temporary Global Note will be prescribed
after 10 years (in the case of principal) and five years (in the case
of interest) from the Relevant Date (as defined in Condition 4).
8. Cancellation
Cancellation of any Note represented by this temporary Global Note will
be effected by endorsement by or on behalf of the Fiscal Agent of the
reduction in the principal amount of this temporary Global Note on Part
I of the Schedule hereto.
9. Authentication
This temporary Global Note shall not become valid or enforceable for
any purpose unless and until it has been authenticated by or on behalf
of the Fiscal Agent.
10. Governing Law
This temporary Global Note is governed by, and shall be construed in
accordance with, the laws of the State of New York.
17
IN WITNESS whereof the Issuer has caused this temporary Global Note to be duly
executed under its corporate seal to be affixed or imported hereon.
XXXXXXX CORPORATION
By: __________________________________
Name: __________________________________
Title: __________________________________
Attest: __________________________________
Name: __________________________________
Title: __________________________________
Issued on July __, 2000
CERTIFICATE OF AUTHENTICATION
This is the temporary Global Note
described in the Fiscal Agency Agreement
By or on behalf of
Deutsche Bank AG London, as Fiscal Agent
(without recourse, warranty or liability)
By: __________________________________
Authorized Signatory
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE
18
THE SCHEDULE TO THE TEMPORARY GLOBAL NOTE
Part I
EXCHANGES FOR THE PERMANENT GLOBAL NOTE/DEFINITIVE NOTES
AND CANCELLATIONS
The following exchanges of a part of this temporary Global Note for interests in
the permanent Global Note/Definitive Notes and cancellations of a part of the
aggregate principal amount of this temporary Global Note have been made:
Date of exchange or Part of the Part of the Remaining principal Notation made by or
cancellation aggregate principal aggregate principal amount of this on behalf of the
amount of this amount of this temporary Global Fiscal Agent
temporary Global temporary Global Note following
Note exchanged for Note cancelled exchange or
interests in the cancellation
permanent Global
Note/Definitive Notes
(Euro) (Euro) (Euro)
_______________ _______________ _______________ _______________ _______________
_______________ _______________ _______________ _______________ _______________
_______________ _______________ _______________ _______________ _______________
_______________ _______________ _______________ _______________ _______________
_______________ _______________ _______________ _______________ _______________
_______________ _______________ _______________ _______________ _______________
_______________ _______________ _______________ _______________ _______________
_______________ _______________ _______________ _______________ _______________
_______________ _______________ _______________ _______________ _______________
_______________ _______________ _______________ _______________ _______________
19
Part II
PAYMENTS
The following payments in respect of the Notes represented by this temporary
Global Note have been made:
Date of payment Amount of interest Amount of principal Remaining principal Notation made by or
paid paid amount of this on behalf of the
temporary Global Fiscal Agent
Note following
payment of principal
(Euro) (Euro) (Euro)
_______________ _______________ _______________ _______________ _______________
_______________ _______________ _______________ _______________ _______________
_______________ _______________ _______________ _______________ _______________
_______________ _______________ _______________ _______________ _______________
_______________ _______________ _______________ _______________ _______________
_______________ _______________ _______________ _______________ _______________
_______________ _______________ _______________ _______________ _______________
_______________ _______________ _______________ _______________ _______________
_______________ _______________ _______________ _______________ _______________
_______________ _______________ _______________ _______________ _______________
_______________ _______________ _______________ _______________ _______________
_______________ _______________ _______________ _______________ _______________
20
EXHIBIT A
XXXXXXX CORPORATION
(incorporated under the laws of the State of Delaware)
(Euro)300,000,000
6 1/4 percent Notes due 2005
(the "Securities")
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organizations
appearing in our records as persons being entitled to a portion of the principal
amount set forth below (our "Member Organizations") (such certifications "Member
Certifications") substantially to the effect set forth in the Fiscal Agency
Agreement, as of the date hereof, (Euro)300,000,000 principal amount of the
above-captioned Securities (i) is owned by persons that are not citizens or
residents of the United States, domestic partnerships, domestic corporations or
any estate or trust the income of which is subject to United States federal
income taxation regardless of its source ("United States persons"), (ii) is
owned by United States persons that (a) are foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (b) acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such United States financial institution has agreed, on its own behalf or
through its agent, that we may advise the Issuer or the Issuer's agent that it
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) is owned by United States or foreign financial institutions for purposes
of resale during the restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that United States or
foreign financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified that they have not acquired
the Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
If the Securities are of the category contemplated in Section 230.903(c)(3) of
Regulation S under the Securities Act of 1933, as amended, then this is also to
certify with respect to such principal amount of Securities set forth above
that, except as set forth below, we have received in writing, by tested telex or
by electronic transmission, from our Member Organizations entitled to a portion
of such principal amount, certifications with respect to such portion,
substantially to the effect set forth in the Fiscal Agency Agreement.
We further certify (i) that we are not making available herewith for exchange
(or, if relevant, exercise of any rights or collection of any interest) any
portion of the temporary global Security excepted in such certifications, (ii)
that as of the date hereof we have not received any notification from any of our
Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, exercise of any rights or collection of any interest)
are no longer true and cannot be relied upon as of the date hereof and (iii)
that we shall retain the Member Certifications for a period of four calendar
years following the year such Member Certifications were obtained.
21
We understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would he relevant,
we irrevocably authorize you to produce this certification to any interested
party in such proceedings.
*Dated
[Xxxxxx Guaranty Trust Company of New York,
Brussels office, as operator of the
Euroclear System] [Clearstream, Luxembourg]
By ______________________________
Authorized Signatory
__________________________
* To be dated no earlier than the date to which this certification relates,
namely (a) payment date or (b) the date set for the exchange of the temporary
Global Note for an interest in the permanent Global Note.
22
EXHIBIT B
XXXXXXX CORPORATION
(incorporated under the laws of the State of Delaware)
(Euro)300,000,000
6 1/4 percent Notes due 2005
(the "Securities")
This is to certify that as of the date hereof, and except as set forth below,
the above-captioned Securities held by you for our account (i) are owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) that (a)
are foreign branches of United States financial institutions (as defined in U.S.
Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions")
purchasing for their own account or for resale, or (b) acquired the Securities
through foreign branches of United States financial institutions and who hold
the Securities through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you may
advise the Issuer or the Issuer's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) are owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and in addition if the owner of the Securities is a
United States or foreign financial institution described in clause (iii) above
(whether or not also described in clause (i) or (ii)) this is further to certify
that such financial institution has not acquired the Securities for the purposes
of resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
If the Securities are of the category contemplated in Section 230.903(c)(3) of
Regulation S under the Securities Act of 1933, as amended (the "Act"), then this
is also to certify that, except as set forth below (i) in the case of debt
securities, the Securities are beneficially owned by (a) non-U.S. person(s) or
(b) U.S. person(s) who purchased the Securities in transactions which did not
require registration under the Act; or (ii) in the case of equity securities,
the Securities are owned by (x) non-U.S. person(s) (and such person(s) are not
acquiring the Securities for the account or benefit of U.S. person(s)) or (y)
U.S. person(s) who purchased the Securities in a transaction which did not
require registration under the Act. If this certification is being delivered in
connection with the exercise of warrants pursuant to Section 230.902(m) of
Regulation S under the Act, then this is further to certify that, except as set
forth below, the Securities are being exercised by and on behalf of non-U.S.
person(s). As used in this paragraph the term "U.S. person" has the meaning
given to it by Regulation S under the Act.
As used herein, "United States" means the United States of America (including
the States and the District of Columbia); and its "possessions" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the Securities held by
you for our account in accordance with your documented procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
23
This certification excepts and does not relate to (Euro) [ ] of such
interest in the above Securities in respect of which we are not able to certify
and as to which we understand exchange and delivery of definitive Securities
(or, if relevant, exercise of any rights or collection of any interest) cannot
be made until we do so certify.
We understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorize you to produce this certification to any interested
party in such proceedings.
*Dated
By ____________________________
Qualified Account Holder
__________________________
* To be dated no earlier than the date to which this certification relates,
namely (a) payment date or (b) the date set for the exchange of the temporary
Global Note for an interest in the permanent Global Note.
24
SCHEDULE 1
PART 2
FORM OF THE PERMANENT GLOBAL NOTE
XXXXXXX CORPORATION
(incorporated under the laws of the State of Delaware)
PERMANENT GLOBAL NOTE
(Euro)300,000,000
6 1/4 percent Notes due 2005
This permanent Global Note is issued in respect of the (Euro)300,000,000 6 1/4
percent Notes due 2005 (the "Notes") of Xxxxxxx Corporation (the "Issuer"). The
Notes are initially represented by a temporary Global Note, interests in which
will be exchanged in accordance with the terms of the temporary Global Note for
interests in this permanent Global Note and, if applicable, Definitive Notes.
The Notes are issued subject to and with the benefit of a Fiscal Agency
Agreement (the "Fiscal Agency Agreement") dated July 25, 2000 between, inter
alios, the Issuer and Deutsche Bank AG London as Fiscal Agent (the "Fiscal
Agent"). The Notes are issued subject to and with the benefit of the Terms and
Conditions of the Notes (the "Conditions") set out in Part 2 of Schedule 2 to
the Fiscal Agency Agreement.
1. Promise To Pay
Subject as provided in this permanent Global Note, the Issuer, for
value received, promises to pay the bearer upon presentation and
surrender of this permanent Global Note such sum as is equal to the
principal amount of the Notes represented by this permanent Global Note
as shown by the latest entry in Part I, Part II or Part III of the
Schedule to this permanent Global Note on July 26, 2005 or on such
earlier date as the principal of this permanent Global Note may become
due under the Conditions and to pay interest on the principal sum for
the time being outstanding at the rate of 6 1/4 percent per annum from
July 26, 2000 payable annually in arrears on July 26 in each year until
payment of the principal sum has been made or duly provided for in full
together with any other amounts as may be payable, all subject to and
under the Conditions.
2. Exchange Of Interests In The Temporary Global Note For Interests In
This Permanent Global Note
Upon any exchange of an interest in the temporary Global Note
representing the Notes for an interest in this permanent Global Note,
the Fiscal Agent shall make the appropriate entry in Part I of the
Schedule to this permanent Global Note in order to indicate the
principal amount of Notes represented by this permanent Global Note
following such exchange.
3. Exchange For Definitive Notes And Cancellations
This permanent Global Note will be exchangeable in whole but not in
part (free of charge to the holder) for Definitive Notes only (i) so
long as an Event of Default has occurred and is continuing, (ii) if
either Xxxxxx Guaranty Trust Company of New York, Brussels office, as
operator of Euroclear System ("Euroclear") or Clearstream Banking,
societe anonyme,
00
Xxxxxxxxxx ("Xxxxxxxxxxx, Xxxxxxxxxx") is closed for business period
for a continuous period of 14 days (other than by reason of holiday,
statutory or otherwise) or announces an intention permanently to cease
business or does in fact do so and no alternative clearing system
satisfactory to the Fiscal Agent is available, (iii) if the Issuer
would suffer a disadvantage as a result of a change in laws or
regulations (taxation or otherwise) or as a result of a change in the
practice of Euroclear and/or Clearstream, Luxembourg which would not be
suffered were the Notes in definitive form and a certificate to such
effect signed by two Directors of the Issuer is given to the Fiscal
Agent or (iv) at the option of an Accountholder (as defined below),
such option to be exercisable by the giving of instructions to that
effect by the Accountholder to the holder of the permanent Global Note.
Thereupon (in the case of (i) and (ii) above) the holder of this
permanent Global Note (acting on the instructions of (an)
Accountholder(s) (as defined below)) may or (in the case of (iv) above)
shall give notice to the Fiscal Agent and the Issuer, and (in the case
of (iii) above) the Issuer may give notice to the Fiscal Agent and the
Noteholders, of its intention to exchange this permanent Global Note
for Definitive Notes on or after the Exchange Date (as defined below).
On or after the Exchange Date the holder of this permanent Global Note
may or, in the case of (iii) and (iv) above, shall surrender this
permanent Global Note to or to the order of the Fiscal Agent. In
exchange for this permanent Global Note the Issuer will deliver, or
procure the delivery of, an equal aggregate principal amount of
Definitive Notes in the denominations of (Euro)1,000, (Euro)10,000 and
(Euro)100,000 (having attached to them all Coupons in respect of
interest which has not already been paid on this permanent Global
Note), security printed in accordance with any applicable legal and
stock exchange requirements and in or substantially in the form set out
in Part 1 of Schedule 2 to the Fiscal Agency Agreement. On exchange of
this permanent Global Note, the Issuer will ensure that this permanent
Global Note is cancelled.
"Exchange Date" means a day specified in the notice requiring exchange
falling not less than 45 days after that on which such notice is given
and on which banks are open for business in the city in which the
specified office of the Fiscal Agent is located and in the city in
which the relevant clearing system is located.
Upon receipt of instructions from Euroclear or Clearstream, Luxembourg
that, following the purchase by or on behalf of the Issuer of the whole
or a part of this permanent Global Note, part is to be cancelled, the
portion of the principal amount of this permanent Global Note so
cancelled shall be entered by or on behalf of the Fiscal Agent on Part
II of the Schedule to this permanent Global Note, whereupon the
principal amount of this permanent Global Note shall be reduced for all
purposes by the amount so cancelled and entered.
4. Benefits
Until the entire principal amount of this permanent Global Note has
been extinguished in exchange for Definitive Notes or in any other
manner envisaged by the Conditions, this permanent Global Note shall in
all respects be entitled to the same benefits as the Definitive Notes
referred to above.
5. Payments
Payments due in respect of Notes for the time being represented by this
permanent Global Note shall be made to the bearer of this permanent
Global Note.
26
Upon any payment in respect of the Notes represented by this permanent
Global Note, the amount so paid shall be endorsed by or on behalf of
the Fiscal Agent on Part III of the Schedule to this permanent Global
Note, which endorsement shall, in the absence of manifest error, be
prima facie evidence that such payment has been made in respect of the
Notes. In the case of any payment of principal the principal amount of
this permanent Global Note shall be reduced for all purposes by the
amount so paid and the remaining principal amount of this permanent
Global Note shall be entered by or on behalf of the Fiscal Agent on
Part III of the Schedule to this permanent Global Note.
6. Accountholders
For so long as any of the Notes is represented by this permanent Global
Note and this permanent Global Note is held on behalf of Euroclear
and/or Clearstream, Luxembourg, each person who is for the time being
shown in the records of Euroclear and/or Clearstream, Luxembourg as the
holder of a particular principal amount of Notes (each an
"Accountholder") (in which regard any certificate or other document
issued by Euroclear or Clearstream, Luxembourg as to the principal
amount of such Notes standing to the account of any person shall be
conclusive and binding for all purposes) shall be treated as the holder
of that principal amount of such Notes for all purposes (including for
the purposes of any quorum requirements of, or the right to demand a
poll at, meetings of the Noteholders) other than with respect to the
payment of principal and interest on such Notes, the right to which
shall be vested, as against the Issuer and the Paying Agents, solely in
the bearer of this permanent Global Note in accordance with and subject
to its terms. Each Accountholder must look solely to Euroclear or
Clearstream, Luxembourg, as the case may be, for its share of each
payment made to the bearer of this permanent Global Note.
Notes represented by this permanent Global Note are transferable in
accordance with the rules and procedures for the time being of
Euroclear or Clearstream, Luxembourg as appropriate.
The Issuer covenants in favour of each Accountholder that it will make
all payments in respect of the Notes for the time being shown in the
records of Euroclear and/or Clearstream, Luxembourg as being held by
the Accountholder and represented by this permanent Global Note to the
bearer of this permanent Global Note in accordance with clause 1 above
and acknowledges that each Accountholder may take proceedings to
enforce this covenant and any of the other rights which it has under
the first paragraph of this clause directly against the Issuer.
7. Notices
Notices to be given by the Issuer will be given at least once by
publication in a daily newspaper in the English language with general
circulation in London, England, and, so long as the Notes are listed on
the Luxembourg Stock Exchange and the rules of the Luxembourg Stock
Exchange so require, in a daily newspaper of general circulation in
Luxembourg. If publication in London or Luxembourg is impractical,
notices shall be published by such means as will, so far as may be
reasonably practicable, approximate publication in such newspaper.
Publication is expected to be made in the Luxemburger Wort in
Luxembourg and the Financial Times in London. Such notices will be
deemed to have been given on the date of such publication or, if
published more than once, on the date of the first such publication.
For so long as any of the Notes are represented by this permanent
Global Note and/or the temporary Global Note and this permanent Global
Note and/or the temporary Global Note is/are held on behalf of
Euroclear and/or Clearstream, Luxembourg, notices may he given by
delivery of the relevant notice to Euroclear and/or Clearstream,
Luxembourg (as the case may be) for
27
communication to the relative Accountholders rather than by publication
as required in the preceding paragraph provided that, so long as the
Notes are listed on the Luxembourg Stock Exchange, and the rules of
that stock exchange so require, notices to Noteholders will be
published in one daily newspaper in Luxembourg (which is expected to be
the Luxemburger Wort. Any such notice shall be deemed to have been
given to the Noteholders on the day after such notice is delivered to
Euroclear and/or Clearstream, Luxembourg (as the case may be) as
aforesaid or the date of publication, whichever is earlier.
8. Prescription
Claims against the Issuer in respect of principal and interest on the
Notes represented by this permanent Global Note will be prescribed
after 10 years (in the case of principal) and five years (in the case
of interest) from the Relevant Date (as defined in Condition 4).
9. Cancellation
Cancellation of any Note represented by this permanent Global Note will
be effected by endorsement by or on behalf of the Fiscal Agent of the
reduction in the principal amount of this permanent Global Note on Part
II of the Schedule hereto.
10. Authentication
This permanent Global Note shall not become valid or enforceable for
any purpose unless and until it has been authenticated by or on behalf
of the Fiscal Agent.
11. Governing Law
This permanent Global Note is governed by, and shall be construed in
accordance with, the laws of the State of New York.
28
IN WITNESS whereof the Issuer has caused this permanent Global Note to be duly
executed under its corporate seal to be affixed or imported hereon.
XXXXXXX CORPORATION
By: ________________________________
Name: ________________________________
Title: ________________________________
Attest: ________________________________
Name: ________________________________
Title: ________________________________
Issued on July __, 2000
CERTIFICATE OF AUTHENTICATION
This is the permanent Global Note
described in the Fiscal Agency Agreement
By or on behalf of
Deutsche Bank AG London, as Fiscal Agent
(without recourse, warranty or liability)
By: ________________________________
Authorized Signatory
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
29
THE SCHEDULE TO THE PERMANENT GLOBAL NOTE
Part I
EXCHANGES OF THE TEMPORARY GLOBAL NOTE
The following exchanges of part of the temporary Global Note for interests in
this permanent Global Note have been made:
Date of exchange Part of aggregate Aggregate principal amount Notation made by or on
principal amount of the of Notes represented by behalf of the Fiscal Agent
temporary Global Note this permanent Global Note
exchanged for this following exchange
permanent Global Note
(Euro) (Euro)
_________________ _________________ _________________ _________________
_________________ _________________ _________________ _________________
_________________ _________________ _________________ _________________
_________________ _________________ _________________ _________________
_________________ _________________ _________________ _________________
_________________ _________________ _________________ _________________
_________________ _________________ _________________ _________________
_________________ _________________ _________________ _________________
_________________ _________________ _________________ _________________
_________________ _________________ _________________ _________________
_________________ _________________ _________________ _________________
30
Part II
CANCELLATIONS
The following cancellations of a part of the aggregate principal amount of this
permanent Global Note have been made:
Date of cancellation Part of the aggregate Remaining principal amount Notation made by or on
principal amount of this of this permanent Global behalf of the Fiscal Agent
permanent Global Note Note following cancellation
cancelled
(Euro) (Euro)
_________________ _________________ _________________ _________________
_________________ _________________ _________________ _________________
_________________ _________________ _________________ _________________
_________________ _________________ _________________ _________________
_________________ _________________ _________________ _________________
_________________ _________________ _________________ _________________
_________________ _________________ _________________ _________________
_________________ _________________ _________________ _________________
_________________ _________________ _________________ _________________
_________________ _________________ _________________ _________________
_________________ _________________ _________________ _________________
_________________ _________________ _________________ _________________
31
Part III
PAYMENTS
The following payments in respect of the Notes represented by this
permanent Global Note have been made:
Date of payment Amount of interest Amount of principal Remaining principal Notation made by or
paid paid amount of this on behalf of the
permanent Global Fiscal Agent
Note following
payment of principal
(Euro) (Euro) (Euro)
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
32
SCHEDULE 2
PART 1
FORM OF DEFINITIVE NOTE AND COUPON
(Face of Note)
________________________________________________________________________________
XSO114750515 011475051
________________________________________________________________________________
XXXXXXX CORPORATION
(incorporated under the laws of the State of Delaware)
(Euro)300,000,000
6 1/4 percent Notes due 2005
The issue of the Notes was authorized by a resolution of the board of directors
of Xxxxxxx Corporation (the "Issuer") passed on June 2, 2000.
This Note forms one of a series of Notes issued as bearer Notes in the
denominations of (Euro)1,000, (Euro)10,000 and (Euro)100,000, each in an
aggregate principal amount of (Euro)300,000,000.
The Issuer for value received and subject to and in accordance with the Terms
and Conditions endorsed hereon (the "Conditions") hereby promises to pay to the
bearer on July 26, 2005 (or on such earlier date as the principal sum may become
repayable under the said Conditions) the principal sum of:
(Euro)[1,000]/[10,000]/(100,000]
together with interest on the principal sum of (Euro) [1,000]/[10,000]/[100,000]
at the rate of 6 1/4 percent per annum payable annually in arrears on July 26 in
each year and together with such other amounts as may be payable, all subject to
and under the Conditions.
The Notes are issued pursuant to a Fiscal Agency Agreement (the "Fiscal Agency
Agreement") dated July 25, 2000 between, inter alios, the Issuer and Deutsche
Bank AG London as Fiscal Agent. The Notes have the benefit of, and are subject
to, the provisions contained in the Fiscal Agency Agreement and the Conditions.
Neither this Note nor any of the Coupons relating to this Note shall become
valid or enforceable for any purpose unless and until this Note has been
authenticated by or on behalf of the Fiscal Agent.
33
IN WITNESS WHEREOF this Note has been executed on behalf of the Issuer.
Dated as of July __, 2000
Issued in London, England.
Xxxxxxx Corporation
By:
-------------------------------------
CERTIFICATE OF AUTHENTICATION
This is one of the Notes described
in the Fiscal Agency Agreement.
By or on behalf of Deutsche Bank
AG London, as Fiscal Agent
(without recourse, warranty or
liability)
-------------------------------------
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
34
(Reverse of Note)
CONDITIONS OF THE NOTES
(as set out in Part 2 of this Schedule 2)
FISCAL AND PRINCIPAL PAYING AGENT
Deutsche Bank AG London
Winchester House
1 Great Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
THE OTHER PAYING AGENT
Deutsche Bank Luxembourg S.A.
0 Xxxxxxxxx Xxxxxx Xxxxxxxx
X-0000 Xxxxxxxxxx
UBS AG
Xxxxxxxxxxxxxx 00
XX-0000 Xxxxxx
Xxxxxxxxxxx
and/or such other or further Fiscal Agent or Paying Agents and/or specified
offices as may from time to time be appointed by the Issuer and notice of which
has been given to the Noteholders.
35
- FORM OF COUPON -
(Face of Coupon)
Xxxxxxx Corporation
(Euro)300,000,000 6 1/4 percent Notes due 2005
This Coupon relating to a Note payable in the
denomination of (Euro) [1,000]/[10,000]/[100,000]
is payable to bearer, separately negotiable and
subject to the Conditions of the Notes
Coupon for (Euro)[62.5]/[625]/[6,250] due on 20__
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
________________________________________________________________________________
XSO114750515 011475051
________________________________________________________________________________
36
(Reverse of Coupon)
FISCAL AND PRINCIPAL PAYING AGENT:
Deutsche Bank AG London
Winchester House
0 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
THE OTHER PAYING AGENTS:
Deutsche Bank Luxembourg S.A.
0 Xxxxxxxxx Xxxxxx Xxxxxxxx
X-0000 Xxxxxxxxxx
UBS AG
Xxxxxxxxxxxxxx 00
XX-0000 Xxxxxx
Xxxxxxxxxxx
37
SCHEDULE 2
PART 2
CONDITIONS OF THE NOTES
The Notes are issued pursuant to a Fiscal Agency Agreement dated July 25, 2000
(the "Fiscal Agency Agreement") among the Issuer, Deutsche Bank AG London as
fiscal agent (in such capacity, the "Fiscal Agent," which expression shall
include any successors thereto), and the paying agents named therein (together
with the Fiscal Agent, the "Paying Agents," which expression shall include any
successors thereto). The statements in these Terms and Conditions include
summaries of, and are subject to, the detailed provisions of the Fiscal Agency
Agreement, which includes the form of the Notes, the interest coupons
appertaining to any definitive Notes (the "Coupons") and which also includes
provisions that are not summarized herein. Copies of the Fiscal Agency Agreement
are available for inspection during normal business hours at the specified
office of the Fiscal Agent and each of the other Paying Agents. The holders of
the Notes (the "Noteholders") and holders of the Coupons (the "Couponholders")
are entitled to the benefit of the Fiscal Agency Agreement and are deemed to
have notice of all the provisions of the Fiscal Agency Agreement, which
provisions are binding on such holders.
1. Form, Denomination and Title
The Notes are in bearer form, and in the case of definitive Notes,
serially numbered, in the denominations of (Euro)1,000, (Euro)10,000
and (Euro)100,000, with Coupons attached on issue. Title to the Notes
and the Coupons will pass by delivery. The Issuer, the Fiscal Agent and
any other Paying Agent may (to the fullest extent permitted by
applicable law) treat any Noteholder or Couponholder as the absolute
owner thereof (whether or not such Note or Coupon shall be overdue and
notwithstanding any notice of ownership or writing thereon, any notice
of previous loss or theft thereof, or any notice of any trust or other
interest therein) for the purpose of making payment and for all other
purposes.
2. Status
The Notes will be senior unsecured obligations of the Issuer and will
rank pari passu without preference among themselves, with other senior
unsecured obligations of the Issuer, and will rank senior to all
existing and future subordinated indebtedness of the Issuer.
3. Covenants
(a) Limitation on Secured Debt
The Issuer will not, and will not permit any Subsidiary to, create,
assume, or guarantee any Secured Debt without making effective
provision for securities by the Notes equally and ratably secured with
such Secured Debt. The foregoing restrictions shall not apply, however,
to debt secured to by:
(1) purchase money mortgages created to secure payment for the acquisition
or construction of any property including, but not limited to, any
indebtedness incurred by the Issuer or a Subsidiary prior to, at the
time of, or within 180 days after the later of the acquisition, the
completion of construction (including any improvements on an existing
property) or the commencement of commercial operation of such property,
which indebtedness is
38
incurred for the purpose of financing all or any part of the purchase
price of such property or construction or improvements on such
property;
(2) mortgages, pledges, liens, security interest or encumbrances
(collectively referred to herein as "security interests") on property,
or any conditional sales agreement or any title retention with respect
to property, existing at the time of acquisition thereof, whether or
not assumed by the Issuer or a Subsidiary;
(3) security interests on property or shares of capital stock or
indebtedness of any corporation or firm existing at the time such
corporation or firm becomes a Subsidiary;
(4) security interests in property or shares of capital stock or
indebtedness of a corporation existing at the time such corporation is
merged into or consolidated with the Issuer or a Subsidiary or at the
time of a sale, lease, or other disposition of the properties of a
corporation or firm as an entirety or substantially as an entirety to
the Issuer or a Subsidiary, provided that no such security interests
shall extend to any other Principal Property of the Issuer or such
Subsidiary prior to such acquisition or to other Principal Property
thereafter acquired other than additions or improvements to the
acquired property;
(5) security interests on property of the Issuer or a Subsidiary in favor
of the United States of America or any state thereof, or in favor of
any other country, or any department, agency, instrumentality or
political subdivision thereof (including, without limitation, security
interests to secure indebtedness of the pollution control or industrial
revenue type) in order to permit the Issuer or any Subsidiary to
perform a contract or to secure indebtedness incurred for the purpose
of financing all or any part of the purchase price for the cost of
constructing or improving the property subject to such security
interests or which is required by law or regulation as a condition to
the transaction of any business or the exercise of any privilege,
franchise or license;
(6) security interests on any property or assets of any Subsidiary to
secure indebtedness owing by it to the Issuer or to another Subsidiary;
(7) any mechanics', materialmen's, carriers' or other similar lien arising
in the ordinary course of business (including construction of
facilities) in respect of obligations which are not yet due or which
are being contested in good faith;
(8) any security interest for taxes, assessments or government charges or
levies not yet delinquent, or already delinquent, but the validity of
which is being contested in good faith;
(9) any security interest arising in connection with legal proceedings
being contested in good faith, including any judgment lien so long as
execution thereof is being stayed;
(10) landlords' liens on fixtures located on premises leased by the Issuer
or a Subsidiary in the ordinary course of business; or
(11) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any security
interest referred to in the foregoing clauses (1) to (10) inclusive.
39
(b) Limitations on Sale and Leaseback Transactions
The Issuer will not, and will not permit any Subsidiary to, enter any
lease longer than three years (excluding leases of newly acquired,
improved or constructed property) covering any Principal Property of
the Issuer or any Subsidiary that is sold to any other person in
connection with such lease (a "Sale and Leaseback Transaction"), unless
either:
(1) the Issuer or such Subsidiary would be entitled, without equally and
ratably securing the Notes, to incur Indebtedness secured by a mortgage
on the Principal Property leased pursuant to clauses (1) through (11)
under Condition 3(a); or
(2) an amount equal to the value of the Principal Property so leased is
applied to the retirement, within 120 days of the effective date of
such arrangement, of indebtedness for borrowed money incurred or
assumed by the Issuer or a Subsidiary which is recorded as Funded Debt
(defined to include the Notes and other long-term indebtedness of the
Issuer or any Subsidiary) as shown on the most recent consolidated
balance sheet of the Issuer and which in the case of such Indebtedness
of the Issuer, is not subordinate and junior in right of payment to the
prior payment of the Notes.
(c) Exempted Indebtedness
Notwithstanding Conditions 3(a) and 3(b), the Issuer and any one or
more Subsidiaries may, without securing the Notes, issue, assume, or
guarantee Secured Debt or enter into any Sale and Leaseback Transaction
which would otherwise be subject to the foregoing restrictions,
provided that, after giving effect thereto, the aggregate amount of
such Secured Debt then outstanding (not including Secured Debt
permitted under the exceptions set forth in Condition 3(a)) and the
Attributable Debt of Sale and Leaseback Transactions (other than Sale
and Leaseback Transactions in connection with clauses (1) or (2) in
Condition 3(b)) at such time does not exceed 15% of Consolidated Net
Assets.
(d) Payment of Principal and Interest
The Issuer covenants and agrees for the benefit of the Noteholders that
it will duly and punctually pay the principal of and interest, if any,
on the Notes in accordance with the terms of the Notes and these
Conditions
(e) Stay, Extension and Usury Laws
The Issuer covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury
law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of these Conditions or the
Notes and the Issuer (to the extent it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants
that it will not by resort to any such law, hinder, delay or impede the
execution of any power granted under the Fiscal Agency Agreement to the
Fiscal Agent, but will suffer and permit the execution of every such
power as though no such law has been enacted.
40
(f) Taxes
The Issuer shall, and shall cause each of its Significant Subsidiaries
to, pay prior to delinquency all their respective taxes, assessments
and governmental levies, except as contested in good faith and by
appropriate proceedings.
4. Definitions
For the purpose of these Conditions:
"Attributable Debt" means in respect of a Sale and Leaseback
Transaction, as of any particular time, the present value (discounted
at the rate of interest implicit in the lease involved in such Sale and
Leaseback Transaction, as determined in good faith by the Issuer) of
the obligation of the lessee thereunder for rental payments (excluding,
however, any amounts required to be paid by such lessee, whether or not
designated as rent or additional rent, on account of maintenance and
repairs, insurance, taxes, assessments, water rates or similar charges
or any amounts required to be paid by such lessee thereunder contingent
upon the amount of sales, maintenance and repairs, insurance, taxes,
assessments, water rates or similar charges) during the remaining term
of such lease (including any period for which such lease has been
extended or may, at the option of the lessor, be extended).
"Consolidated Assets" means the aggregate of all assets of the Issuer
and its Subsidiaries (including the value of all existing Sale and
Leaseback Transactions and any assets resulting from the capitalization
of other long-term lease obligations in accordance with GAAP),
appearing on the most recent available consolidated balance sheet of
the Issuer and its Subsidiaries at their net book values, after
deducting related depreciation, amortization and other valuation
reserves, all prepared in accordance with GAAP.
"Consolidated Current Liabilities" means the aggregate of the current
liabilities of the Company and its Subsidiaries appearing on the most
recent available consolidated balance sheet of the Company and its
Subsidiaries, all in accordance with GAAP. In no event shall
Consolidated Current Liabilities include any obligation of the Company
and its Subsidiaries issued under a revolving credit or similar
agreement if the obligation issued under such agreement matures by its
terms within twelve months from the date thereof but by the terms of
such agreement such obligation may be renewed or extended or the amount
thereof reborrowed or refunded at the option of the Company or any
Subsidiary for a term in excess of 12 months from the date of
determination.
"Consolidated Current Liabilities," means the aggregate of the current
liabilities of the Issuer and its Subsidiaries appearing on the most
recent available consolidated balance sheet of the Issuer and its
Subsidiaries, all in accordance with GAAP. In no event shall
Consolidated Current Liabilities include any obligation of the Issuer
and its Subsidiaries issued under a revolving credit or similar
agreement if the obligation issued under such agreement matures by its
terms within 12 months from the date thereof but by the terms of such
agreement such obligation may be renewed or extended or the amount
thereof reborrowed or refunded at the option of the Issuer or any
Subsidiary for a term in excess of 12 months from the date of
determination.
"Consolidated Net Assets" means Consolidated Assets after deduction of
Consolidated Current Liabilities.
41
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default;
"Funded Debt" means all indebtedness for money borrowed having a
maturity of more than twelve months from the date of the most recent
consolidated balance sheet of the Issuer and its Subsidiaries or
renewable and extendable beyond twelve months at the option of the
borrower and all obligations in respect of lease rentals which under
GAAP would be shown on the consolidated balance sheet of the Issuer as
a liability item other than a current liability; provided, however,
that Funded Debt shall not include any of the foregoing to the extent
that such indebtedness or obligations are not required by GAAP to be
shown on the balance sheet of the Issuer.
"Indebtedness" means, with respect to a Person, (i) all liabilities
representing borrowed money or purchase money obligations as shown on
the liability side of a balance sheet, (ii) all indebtedness secured by
any Lien existing on property owned subject to such Lien, whether or
not such secured indebtedness has been assumed and (iii) contingent
obligations in respect of, or to purchase or otherwise acquire, any
such indebtedness of others described in the foregoing clauses (i) or
(ii) above, including guarantees and endorsements (other than for
purposes of collection in the ordinary course of business of any such
indebtedness).
"Lien" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, security interest,
lien or other security arrangement of any kind or nature whatsoever on
or with respect to such property or assets (including any conditional
sale or other title retention agreement having substantially the same
economic effect as any of the foregoing).
"Person" means any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Principal Property" means any manufacturing plant, warehouse, office
building or parcel of real property (including fixtures but excluding
leases and other contract rights which might otherwise be deemed real
property) owned by the Issuer or any Subsidiary, whether owned at the
date of issue of the Notes or thereafter, provided each such plant,
warehouse, office building or parcel of real property has a gross book
value (without deduction for any depreciation reserves) at the date as
of which the determination is being made of in excess of two percent of
the Consolidated Net Assets of the Issuer and the Subsidiaries, other
than any such plant, warehouse, office building or parcel of real
property or portion thereof which, in the opinion of the Board of
Directors of the Issuer (evidenced by a certified Board Resolution), is
not of material importance to the business conducted by the Issuer and
its Subsidiaries taken as a whole.
"Relevant Date" means (i) the date on which payment on any Note or
Coupon first becomes due or (ii) if payment to the Fiscal Agent on or
prior to such due date is improperly withheld or refused, the date on
which all moneys then due for payment shall have been so received and
notice to that effect shall have been duly given in accordance with
"Condition 15" below.
"Secured Debt" means Indebtedness for borrowed money and any Funded
Debt which is secured by a security interest in (a) any Principal
Property or (b) any shares of capital stock or Indebtedness of any
Subsidiary.
42
"Significant Subsidiary" means any direct or indirect Subsidiary of the
Issuer that would be a "significant subsidiary" as defined in Article
I, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities
Act of 1933, as amended, as such regulation is in effect on the date
hereof.
"Subsidiary" of any specified Person means any corporation or other
entity (including, without limitation, partnerships, joint ventures and
associations) of which at least a majority of the outstanding stock
having by the terms thereof ordinary voting power for the election of
directors of such corporation or other entity (irrespective of whether
or not at the time stock of any other class or classes of such
corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time directly or indirectly
owned by such Person, or by one or more Subsidiaries, or by such
Persons and one or more other Subsidiaries.
5. Successor
(a) Merger
The Issuer may not merge or consolidate with, or sell, lease or convey
all or substantially all of its assets to any other corporation,
unless:
(1) the successor entity is a corporation, partnership or trust organized
and existing under the laws of the United States, any State or the
District of Columbia and such entity shall expressly assume the due and
punctual payment of the principal of (and premium, if any) and interest
on all the Notes, according to their terms, and the due and punctual
performance and observance of all the covenants and conditions of the
Notes to be performed by the Issuer; and
(2) immediately after giving effect to the transaction, no Default shall
have occurred and be continuing.
(b) Successor Corporation Substituted
Upon any consolidation or merger, or any sale, lease, conveyance or
other disposition of all or substantially all of the assets of the
Issuer in accordance with Condition 5(a), the successor corporation
formed by such consolidation or into or with which the Issuer is merged
or to which such sale, lease, conveyance or other disposition is made
shall succeed to, and be substituted for, and may exercise every right
and power of, the Issuer under this Agreement with the same effect as
if such successor person has been named as the Issuer herein; provided,
however, that the predecessor Issuer in the case of a sale, lease,
conveyance or other disposition shall not be released from the
obligation to pay the principal of and interest, if any, on the Notes.
6. Interest
(a) Interest on the Notes will be payable in arrears on July 26 of each
year until maturity (each, an "annual interest payment date"),
beginning July 26, 2001. The Notes will bear interest at the rate of 6"
percent per annum. Interest on the Notes payable on each annual
interest payment date will include interest accrued from and including
July 26, 2000 (the "Issue Date") or from and including the most recent
date to which interest has been paid or duly provided for to but
excluding the next annual interest payment date, including the maturity
date.
43
(b) Interest on the Notes that is required to be calculated for a period of
less than one year will be calculated on the basis of the actual number
of days elapsed divided by the actual number of days in the period from
and including the immediately preceding annual interest payment date to
but excluding the next annual interest payment date.
7. Redemption and Purchase
(a) Redemption at Maturity
Unless earlier redeemed or purchased and cancelled as provided below,
the Issuer will redeem the Notes at their principal amount on July 26,
2005.
(b) Redemption for Taxation Reasons
Except as set forth hereunder, the Notes may not be redeemed prior to
maturity. If (a) as a result of any change in, or amendment to, the
laws (or any regulations or rulings promulgated thereunder) of the
United States (or any political subdivision or taxing authority thereof
or therein), or any change in, or amendment to, the official position
regarding the application or interpretation of such laws, regulations
or rulings, which change or amendment is announced or becomes effective
on or after July 25, 2000, the Issuer becomes or will become obligated
to pay additional amounts as described herein under the heading
"Payment of Additional Amounts" or (b) any act is taken by a taxing
authority of the United States on or after July 25, 2000, whether or
not such act is taken with respect to the Issuer or any affiliate, that
results in a substantial probability that the Issuer will or may be
required to pay such additional amounts, then the Issuer may, at its
option, redeem the Notes, as a whole but not in part, upon not less
than 35 days' nor more than 60 days' published notice in accordance
with "Notices" below at 100% of their principal amount together with
interest accrued thereon to the respective date fixed for redemption;
provided that the Issuer determines in its business judgment, that the
obligation to pay such additional amounts cannot be avoided by the use
of reasonable measures available to the Issuer, not including
substitution of the obligor under the Notes. No redemption pursuant to
(b) above may be made unless the Issuer shall have received an opinion
of independent counsel to the effect that an act taken by a taxing
authority of the United States results in a substantial probability
that it will or may be required to pay the additional amounts described
herein under the heading "Payment of Additional Amounts" and the Issuer
shall have delivered to the Fiscal Agent a certificate, signed by a
duly authorized officer, stating that based on such opinion the Issuer
is entitled to redeem the Notes pursuant to their terms.
(c) Purchase
The Issuer may at any time purchase Notes (provided that all unmatured
Coupons related thereto are attached or surrendered therewith) in the
open market or by tender or by private agreement at any price. Such
Notes may be held, resold or, at the option of the Issuer, surrendered
to any Paying Agent for cancellation.
44
(d) Cancellation
All Notes redeemed pursuant to the provisions of this Condition will be
cancelled forthwith, together with all unmatured Coupons surrendered
therewith, and may not be resold or reissued.
8. Payment
(a) Payments of the principal and interest in respect of each Note and
Coupon will be made in euro against presentation and surrender (or, in
the case of part payment only, endorsement) of such Note or Coupon
(subject as provided below), as the case may be, at the office of any
Paying Agent outside the United States and its possessions. Such
payments will be made, at the option of the holder, by euro cheque or
by credit of or transfer to a designated euro account subject in all
cases to any fiscal or other laws and regulations applicable in the
place of payment, but without prejudice to the provisions under the
heading "Payment of Additional Amounts." No payment with respect to any
Note or Coupon will be made at any office of a Paying Agent located in
the United States or its possessions, nor will any payment be made by
transfer to an account maintained in the United States. Each definitive
Note shall be presented for payment together with all related unmatured
Coupons, failing which the amount of any missing unmatured Coupon will
be deducted from the sum due for payment. Any amount so deducted will
be paid in the manner mentioned above against surrender of the relevant
missing Coupons within a period ending 10 years from the Relevant Date
(as defined under the heading "Prescription") in respect of the Note to
which such Coupon appertained. If any day for payment of principal or
interest in respect of any Note or Coupon is not a Business Day (as
defined below), the holder shall not be entitled to payment until the
next Business Day following such day in such place or to any interest
or other sums in respect of such postponed payment. If the date for
redemption of a Note is not an annual interest payment date, the
accrued interest from the previous annual interest payment date or the
Issue Date, as the case may be, shall be payable only against
presentation of such Note.
"Business Day" means a day which is both a day on which commercial
banks and foreign exchange markets settle payments in the place where
the specified office of the Paying Agent to which the Note or Coupon is
surrendered for payment is located and a day on which the
Trans-European Automated Real-Time Gross Settlement Express Transfer
System or any successor thereto is operating.
(b) The Issuer reserves the right to terminate the appointment of the
Fiscal Agent and any Paying Agent, to vary the appointment of the
Fiscal Agent and/or any Paying Agent, and to appoint additional or
other Paying Agents provided that it will, so long as any of the Notes
remains outstanding, always maintain a Paying Agent having a specified
office in a city in western Europe which, so long as the Notes are
listed on the Luxembourg Stock Exchange, will be in Luxembourg. Not
less than 30 nor more than 45 days' prior notice (except in the case of
termination by reason of the insolvency or default of the Fiscal Agent
or any Paying Agent, when such notice shall be effective forthwith) of
any such termination, variation or appointment, or any changes in the
specified office of the Fiscal Agent or any of the other Paying Agents,
will be given to the Noteholders in accordance with "Condition 15."
45
9. Payment of Additional Amounts
All payments of principal and interest in respect of the Notes and
Coupons by the Issuer will be made without withholding or deduction for
or on account of any present or future taxes, duties, assessments or
governmental charges of whatever nature imposed, levied, withheld or
assessed by or within the United States or any political subdivision or
any authority thereof or therein having power to tax, unless such
withholding or deduction is required by law. In such event the Issuer
will, subject to the exceptions and limitations set forth below, pay as
additional interest on the Notes, such additional amounts as are
necessary in order that the net payment by the Issuer or a paying agent
of the principal of and interest on the Notes or the Coupons to a
holder who is not a United States person (as defined below), after
deduction for any present or future tax, assessment or governmental
charge of the United States or a political subdivision or taxing
authority thereof or therein, imposed by withholding with respect to
the payment, will not be less than the amount provided in the Notes or
any coupons to be then due and payable; provided, however, that the
foregoing obligation to pay additional amounts shall not apply:
(a) in respect of any Note or Coupon presented for payment by the holder of
any Note or Coupon who is not a United States Alien (as defined
herein):
(b) to a tax, assessment or governmental charge that is imposed or withheld
solely by reason of the holder, or a fiduciary, settlor, beneficiary,
member or shareholder of the holder if the holder is an estate, trust,
partnership or corporation, or a person holding a power over an estate
or trust administered by a fiduciary holder, being considered as:
(i) being or having been present or engaged in trade or
business in the United States or having or having had a
permanent establishment in the United States;
(ii) having a current or former relationship with the United
States, including a relationship as a citizen or resident
thereof;
(iii) a personal holding company, a foreign personal holding
company with respect to the United States, a controlled
foreign corporation or a passive foreign investment company
for United States tax purposes or a corporation subject to
the accumulated earnings tax;
(iv) being or having been (i) a "10-percent shareholder" of the
Issuer as defined in section 871(h)(3) of the United States
Internal Revenue Code of 1986, as amended (the "Code") or
(ii) such holder being a bank receiving interests described
in Section 881(d)(3)(A) of the Code; or
(c) to a tax, assessment or governmental charge that is imposed or withheld
solely by reason of the payment being made in the United States on a
Note or Coupon;
(d) to a tax, assessment or governmental charge that is imposed or withheld
solely by reason of the failure to comply with certification,
identification or information reporting requirements concerning the
nationality, residence, identity or connection with the United States
of the holder or beneficial owner of such Note or any coupon
appertaining thereto, if compliance is required by statute or by
regulation of the United States Treasury Department or income tax
treaty as a precondition to exemption from such tax, assessment or
other governmental charge;
46
(e) to a tax, assessment or governmental charge that is imposed otherwise
than by withholding by the Issuer or a paying agent from the payment;
(f) to a tax, assessment or governmental charge that would not have been
imposed or withheld but for the presentation by the holder of such Note
or Coupon appertaining thereto for payment on a date more than 30 days
after the Relevant Date (as defined herein);
(g) in respect of any estate, inheritance, gift, sales, transfer, personal
property or similar tax, assessment or governmental charge;
(h) in respect of any tax, assessment or other governmental charge which is
payable by a holder that is not the beneficial owner of the Note or
Coupon, or a portion of either, or that is a foreign or fiduciary
partnership, but only to the extent that a beneficial owner, settlor
with respect to such fiduciary or member of the partnership would not
have been entitled to the payment of such additional amounts had the
beneficial owner or member received directly its beneficial or
distributive share of the payment;
(i) in respect of any tax assessment or other governmental charge required
to be withheld by any paying agent from any payment of the principal of
or interest on any Note or Coupon, if such payment can be made without
such withholding by any other paying agent; or
(j) in the case of any combination of items (a), (b), (c), (d), (e), (f),
(g),(h) and (i).
The Notes and Coupons are subject in all cases to any tax, fiscal or
other law or regulation or administrative or judicial interpretation
applicable thereto. Except as specifically provided under this heading
and under the heading "Redemption for Taxation Reasons", the Issuer
shall not be required to make any payment with respect to any tax,
assessment or governmental charge imposed by any government or a
political subdivision or taxing authority thereof or therein.
As used in this Condition, the term "United States" means the United
States of America (including the States and the District of Columbia)
and its territories, its possessions and other areas subject to its
jurisdiction and "United States person" means any individual who is a
citizen or resident of the United States, a corporation, partnership or
other entity created or organized in or under the laws of the United
States or any estate or trust the income of which is subject to United
States federal income taxation regardless of its source; provided,
however, that elsewhere in the Fiscal Agency Agreement (and the
schedules attached thereto) such terms shall have the meanings given to
them by the United States Internal Revenue Code or Regulation S under
the United States Securities Act of 1933, as amended, as applicable.
10. Events of Default
If any one or more of the following events (each, an "Event of
Default") shall occur:
(a) default for 15 days in payment of any interest on the Notes;
(b) failure to pay principal with respect to the Notes, if any, when
due;
47
(c) default by the Issuer in the performance or observance of any
other of the covenants in the Notes if such default continues for
60 days after written notice thereof by any Noteholder to the
Issuer requiring the same to be continued;
(d) any indebtedness of the Issuer or any of its Subsidiaries becomes
due and repayable prematurely by reason of an event of default
(however described) or the Issuer or any of its Subsidiaries
fails to make any payment in respect of any indebtedness on the
due date for payment (as extended by an originally applicable
grace period) or any security given by the Issuer or any of its
Subsidiaries for any indebtedness becomes enforceable or if
default is made by the Issuer or any Subsidiary in making any
payment due under any guarantee and/or indemnity given by it in
relation to any indebtedness of any other person (as extended by
any originally applicable grace period), provided, however, that
no such event shall constitute an event of default unless the
indebtedness relating to all such events which shall have
occurred and be continuing whether individually or in the
aggregate shall amount to at least $30,000,000 (or its equivalent
in any other currency); or
(e) the Issuer or any of its Significant Subsidiaries pursuant to or
within the meaning of any Bankruptcy Law (i) commences a
voluntary case, (ii) consents to the entry of an order for relief
against it in an involuntary case, (iii) consents to the
appointment of a Custodian of it or for all or substantially all
of its property, (iv) makes a general assignment for the benefit
of its creditors, or (v) generally is unable to pay its debts as
the same become due; or
(f) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that (i) is for relief against the Issuer or
any of its Significant Subsidiaries in an involuntary case, (ii)
appoints a Custodian of the Issuer or any of its Significant
Subsidiaries or for all or substantially all of its property, or
(iii) orders the liquidation of the Issuer or any of its
Significant Subsidiaries, and the order or decree remains
unstayed and in effect for 90 days;
then any Noteholder may, by written notice to the Issuer at the
specified office of the Fiscal Agent, effective upon the date of
receipt thereof by the Fiscal Agent, declare the Note held by the
holder to be forthwith due and payable whereupon the same shall become
forthwith due and payable at par, together with accrued interest (if
any) to the date of repayment, without presentment, demand, protest or
other notice of any kind. The term "Bankruptcy Law" means Title 11,
U.S. Code or any similar Federal or State law for the relief of
debtors. The term "Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
11. Prescription
The Notes and Coupons will become void unless presented for payment
within a period of 10 years (in the case of principal) and five years
(in the case of interest) after the Relevant Date therefore.
12. Replacement of Notes and Coupons
If any Note or Coupon is mutilated, defaced, destroyed, stolen, or
lost, it may be replaced at the specified office of the Fiscal Agent,
subject to all applicable laws and stock exchange requirements, upon
payment by the claimant of such costs as may be incurred in connection
48
therewith and on such terms as to evidence and indemnity or otherwise
as the Issuer and the Fiscal Agent may reasonably require. Mutilated or
defaced Notes or Coupons must be surrendered before replacements will
be issued.
13. Meetings of Noteholders, Modification and Waiver
The Fiscal Agency Agreement contains provisions for convening meetings
of the Noteholders to consider any matters affecting their interests,
including the sanctioning of a modification of the Notes, the Coupons
or any of the provisions of the Fiscal Agency Agreement. Such a meeting
may be convened by the Issuer or Noteholders holding not less than 10
percent of the aggregate principal amount of the Notes then
outstanding. The quorum at any such meeting is one or more persons
holding or representing not less than 50 percent of the aggregate
amount of the Notes then outstanding, or at any adjourned meeting 50
percent of the aggregate principal amount of the Notes then outstanding
represented or held by the persons present at such previously adjourned
meeting, except that at any such meeting the business of which includes
the modifications of certain provisions of the Notes or the Coupons
(including modifying the date of maturity of the Notes or at any date
for payment of interest thereon, reducing or canceling the amount of
principal or the rate of interest payable in respect of the Notes or
altering the currency of payment of the Notes or the Coupons), the
quorum should be one or more persons holding or representing not less
than two-thirds of the aggregate principal amount of the Notes then
outstanding, or at any adjourned such meeting one or more persons
holding or representing not less than one-third in aggregate principal
amount of the Notes then outstanding. A resolution passed at any
meeting of the Noteholders shall be binding on all the Noteholders,
whether or not they are present, and on all Couponholders. The Fiscal
Agent and Issuer may agree, without the consent of the Noteholders or
Couponholders, to
(i) any modification (except as mentioned above) of the Fiscal
Agency Agreement which is not prejudicial to the interests
of the Noteholders, or
(ii) any modification of the Notes, the Coupons or the Fiscal
Agency Agreement which is of a formal, minor, or technical
nature or is made to correct a manifest error or to comply
with mandatory provisions of the law.
Any such modification shall be binding on the Noteholders and the
Couponholders and any such modification shall be notified to the
Noteholders in accordance with the preceding paragraph as soon as
practicable thereafter.
14. Fiscal Agent and Paying Agents
In acting under the Fiscal Agency Agreement and in connection with the
Notes and the Coupons, the Fiscal Agent and the other Paying Agents are
acting solely as agents of the Issuer and do not assume any obligation
towards, or relationship of agency or trust for or with, any Noteholder
or Couponholder. The Fiscal Agency Agreement contains provisions for
the indemnification of the Fiscal Agent and the other Paying Agents and
for their relief from responsibility. The Fiscal Agent and the other
Paying Agents are entitled to enter into business transactions with the
Issuer without accounting for any profit.
15. Notices
49
(a) Notices to be given by the Issuer will be given at least once by
publication in a daily newspaper in the English language with
general circulation in London, England, and, so long as the Notes
are listed on the Luxembourg Stock Exchange and the rules of the
Luxembourg Stock Exchange so require, in a daily newspaper of
general circulation in Luxembourg. If publication in London or
Luxembourg is impractical, notices shall be published by such
means as will, so far as may be reasonably practicable,
approximate publication in such newspaper. Publication is
expected to be made in the Luxemburger Wort in Luxembourg and the
Financial Times in London. Such notices will be deemed to have
been given on the date of such publication or, if published more
than once, on the date of the first such publication.
(b) For so long as all of the Notes are represented by one or both of
the Global Notes and such Global Note(s) is/are held on behalf of
Euroclear and/or Clearstream, Luxembourg, notices to holders of
Notes represented by such Global Note(s) may be given by delivery
of the relevant notice to Euroclear and/or Clearstream,
Luxembourg (as the case may be) for communication to the relative
Accountholders rather than by publication as required in (a)
above provided that, so long as the Notes are listed on the
Luxembourg Stock Exchange, and the rules of that stock exchange
so require, notices to Noteholders will be published in one daily
newspaper in Luxembourg (which is expected to be the Luxemburger
Wort). Any such notice shall be deemed to have been given to the
Noteholders on the day after such notice is delivered to
Euroclear and/or Clearstream, Luxembourg (as the case may be) as
aforesaid.
16. Further Issues
The Issuer may, without notice to or the consent of the holders of the
Notes, issue additional Notes of the same tenor as the Notes so that
such additional Notes and the Notes offered hereby shall form a single
series, and references herein to the Notes shall include (unless the
context otherwise requires) any further Notes issued as described in
this paragraph.
17. Governing Law
The Fiscal Agency Agreement, the Notes and the Coupons will be governed
by and construed in accordance with the laws of the State of New York.
Any State or federal courts sitting in the Borough of Manhattan, The
City of New York, shall have jurisdiction to settle any disputes which
may arise out of or in connection with the Notes or the Coupons and
accordingly any legal action or proceedings arising out of or in
connection with the Notes or the Coupons (the "Proceedings") may be
brought in such courts. The Issuer irrevocably submits to the
jurisdiction of such courts and waives any objection which it may now
or hereafter have to Proceedings in any such courts whether on the
ground of the laying of venue or on the ground that the Proceedings
have been brought in an inconvenient forum. This submission is made for
the benefit of each of the Noteholders and Couponholders and shall not
limit the right of any of them to take Proceedings in any other court
of competent jurisdiction nor shall the taking of Proceedings in one or
more jurisdictions preclude the taking of Proceedings in any other
jurisdiction (whether concurrently or not).
To the extent that the Issuer has or hereafter may acquire any immunity
from jurisdiction of any court or from any legal process with respect
to itself or its property, the Issuer irrevocably waives such immunity
in respect of its obligations under any Note or Coupon.
50
SCHEDULE 2
PROVISIONS FOR MEETINGS OF NOTEHOLDERS
1. Definitions
In this Agreement and the Conditions, 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
Issuer;
(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) authorizing 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 paragraph 7;
"Constitutive Quorum" means:
(a) for voting on Ordinary Resolutions, more than half of the
aggregate principal amount of the outstanding Notes; and
(b) for voting on any Extraordinary Resolution, more than two-thirds
of the aggregate principal amount of the outstanding Notes;
provided, however, that, in the case of a Meeting which has resumed
after adjournment for want of a quorum it means:
(i) for voting on Ordinary Resolutions more than half of the
aggregate principal amount of the Notes then outstanding
represented or held by the Voters actually present at such
previously adjourned Meeting; and
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(ii) for voting on any Extraordinary Resolution more than one
third of the aggregate principal amount of Notes
outstanding.
"Extraordinary Resolution" means a resolution passed at a duly convened
Meeting passed by the favorable vote of one or more Voters holding or
representing in the aggregate more than half of the aggregate principal
amount of outstanding Notes;
"Meeting" means a meeting of Noteholders (whether originally convened
or resumed following an adjournment) convened to resolve an ordinary or
extraordinary matters;
"Ordinary Resolution" means any resolution for all business other than
voting on an Extraordinary Resolution;
"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;
(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; and
(c) a director, auditor or employee of the Issuer or any of its
controlled companies.
"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:
(i) the conclusion of the Meeting; and
(ii) 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 resolution in writing signed by or on
behalf of all holders of Notes who for the time being are entitled to
receive notice of a Meeting in accordance with the provisions of this
Schedule, 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 Specified Offices (disregarding for this
purpose the day upon
52
which such Meeting is to be held) and such period 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 2 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 the Temporary Global Note and/or the
Permanent 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 Issuer may convene a Meeting at any time. The Issuer shall be
obliged to convene a Meeting upon the request in writing of Noteholders
holding not less than one tenth of the aggregate principal amount of
the outstanding Notes.
6. Notice
At least 30 days' written 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 Noteholders and the Paying Agents (with a copy to the Issuer).
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 Noteholder) nominated in
writing by the Issuer 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 Issuer 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
A Meeting shall be deemed validly convened if at least one or more
Voters representing or holding not less than the Constitutive Quorum
are present at the Meeting provided, however, that, so long as at least
the Constitutive Quorum of the aggregate principal amount of the
outstanding Notes is represented by the Temporary Global Note and/or
the Permanent Global Note, a single Proxy representing the holder
thereof shall be deemed to be two Voters for the purpose of forming a
quorum.
9. Adjournment for want of quorum
If within 15 minutes after the time fixed for any Meeting a quorum is
not present, then:
(a) in the case of a Meeting requested by Noteholders, 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 Issuer 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
Paragraph 6 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;
(b) representatives of the Issuer and the Fiscal Agent;
(c) the financial advisers of the Issuer;
(d) the legal counsel to the Issuer 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. 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
Issuer 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 one vote in respect of each Note held by him.
In the case of a voting tie the Chairman shall have a casting vote.
Unless the terms of any Block Voting Instruction state otherwise, a
Voter shall not be obliged to exercise all the votes to which he is
entitled or to cast all the votes which he 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 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
55
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 duly convened Meeting shall have power (exercisable by either
Ordinary Resolution or Extraordinary Resolution), without prejudice to
any other powers conferred on it or any other person and in accordance
with the provision of Clause 8:
(a) To approve all business other than an Extraordinary Resolution,
with a majority of at least one more than half of the Voters
present at the Meeting, in first or second call; and
(b) to approve any of the following Extraordinary Resolutions with a
majority of one more than half of the aggregate principal amount
of the outstanding Notes, at the first call or second call; (i)
to change any date fixed for payment of principal or interest in
respect of the Notes, to reduce the amount of principal or
interest payable on any date in respect of the Notes or to alter
the method of calculating the amount of any payment in respect of
the Notes on redemption or maturity or the date for any such
payment; (ii) to effect the exchange or substitution of the Notes
for, or the conversion of the Notes into, shares, Notes or other
obligations or securities of the Issuer or any other person or
body corporate formed or to be formed; (iii) to change the
currency in which amounts due in respect of the Notes are
payable; (iv) to change the quorum required at any Meeting or the
majority required to pass an Extraordinary Resolution; (v) to
amend this definition; (vi) the substitution of any person for
the Issuer (or any previous substitute) as principal obligor
under the Notes and the Deed of Covenant; (vii) waiver to any
breach or authorization of any proposed breach by the Issuer of
its obligations under or in respect of the Notes or the Deed of
Covenant or any act or omission which might otherwise constitute
an event of default under the Notes; (vii) authorization of the
Fiscal Agent or any other person to execute all documents and do
all things necessary to give effect to any Extraordinary
Resolution; (ix) any other authorization or approval which is
required to be given by Extraordinary Resolution; (x) appointment
of any persons as a committee to represent the interests of the
Noteholders and to confer upon such committee any powers which
the Noteholders could themselves exercise by Extraordinary
Resolution; (xi) adopt a proposal for controlled administration
or composition with creditors of the Issuer; (xii) create of a
fund for the expenses incurred by the Noteholders in respect of
the Notes; and (xiii) any matter of interest to the Noteholders.
18. Extraordinary Resolution binds all holders
An Extraordinary Resolution shall be binding upon all Noteholders and
holders of Coupons whether or not present at such Meeting and each of
the Noteholders shall be bound to give effect to it accordingly. Notice
of the result of every vote on an Extraordinary Resolution shall be
given to the Noteholders and the Paying Agents (with a copy to the
Issuer) within 14 days of the conclusion of the Meeting.
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
56
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 an Extraordinary
Resolution.
57
Please confirm that this letter correctly sets out the arrangements agreed
between us.
Yours faithfully,
DEUTSCHE BANK AG LONDON
By: /s/ Xxxx Xxxxx /s/ Xxxxxxx Xxxx
-------------------------------------------------
Name: Xxxx Xxxxx Xxxxxxx Xxxx
Title: Vice President Assistant Vice President
DEUTSCHE BANK LUXEMBOURG S.A.
By: /s/ Xxxx Xxxxx
-------------------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
UBS AG
By: /s/ Xxxx Xxxxx
-------------------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
We agree to the foregoing.
XXXXXXX CORPORATION
By: /s/ Xxxxx XxXxxxx
-------------------------------------------------
Name: Xxxxx XxXxxxx
Title: V.P. and Controller
58
