Subscription Agreement
Dated 29 March 2010
In relation to the
A$450,000,000 5.50% Notes due 15 February 2016
(to be consolidated, form a single series and be fungible with the
A$400,000,000 5.50% Notes due 15 February 2016 issued on
15 February 2006)
Asian Development Bank (“Issuer”)
Australia and New Zealand Banking Group Limited
Royal Bank of Canada
The Toronto-Dominion Bank
(“Lead Managers and Dealers”)
Mallesons Xxxxxxx Xxxxxx
Xxxxx 00
Xxxxxxxx Xxxxxxx Tower
0 Xxxxxx Xxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
T x00 0 0000 0000
F x00 0 0000 0000
DX 000 Xxxxxx
xxx.xxxxxxxxx.xxx
Ref: PJH:KGD
Details
Interpretation - Definitions are at the end of this agreement.
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Parties
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Issuer and Lead Managers and Dealers as described below.
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| Issuer | Name | Asian Development Bank |
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Address
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0 XXX Xxxxxx
Xxxxxxxxxxx Xxxx
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx
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Fax
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(000) 000 0000
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Telephone
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(000) 000 0000
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| Attention | Assistant Treasurer, Funding Division, Treasury Department | |
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Lead Managers
and Dealers
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Name:
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Australia and New Zealand Banking Group Limited |
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ABN:
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11 005 357 522
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Address:
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Xxxxx 0
00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
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Telephone:
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x00 0 0000 0000
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Fax:
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+ 00 0 0000 0000
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| Attention: |
Head of Debt Syndicate, Global Markets
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Name:
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Royal Bank of Canada
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ABN:
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86 076 940 880
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| Address: |
Xxxxx 00
0 Xxxx Xxxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
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| Telephone: |
x00 0 0000 0000
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| Fax: |
x00 0 0000 0000
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| Attention: |
Head of Debt Capital Markets
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Name:
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The Toronto-Dominion Bank
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ABN:
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74 082 818 175
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Address:
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Xxxxx 00
0 Xxxxxxxxxxx Xxxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
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Notices to:
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Address:
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0 Xxxxxxx Xxxxxx
#00-00 Xxxxxxxx Xxxxx
Xxxxxxxxx 000000
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Telephone:
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+ 00 0000 0000
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Fax:
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+ 00 0000 0000
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Email:
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xxx.xxxxxx@xxxxxxxxxxxx.xxx, with a copy to xxx@xxxxxxxxxxxx.xxx
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| Attention: | Head of Syndicate, Asia Pacific | |
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Programme
Agreement
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Programme Agreement dated 13 February 2006 (as amended by a Supplemental Agreement dated 20 November 2006) in relation to the A$5,000,000,000 Australian Dollar Domestic Medium Term Note Programme of Asian Development Bank.
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Governing law
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New South Wales
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Notes to be
subscribed for
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A$450,000,000 5.50% Notes due 15 February 2016 (to be consolidated, form a single series and be fungible with the A$400,000,000 5.50% Notes due 15 February 2016 issued on 15 February 2006) (“Notes”)
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Date of Subscription
Agreement
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29 March 2010
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General terms
Interpretation - Definitions are at the end of this agreement.
1 Appointment of Dealer
In accordance with clause 13 (“Dealer appointment and termination”) of the Programme Agreement, the Issuer appoints each of Australia and New Zealand Banking Group Limited (“ANZ”), Royal Bank of Canada (“RBC”) and The Toronto-Dominion Bank (“TD”) to act as a Lead Manager and a Dealer in respect of the Notes on the terms set out in the Programme Agreement. Each Lead Manager and Dealer agrees to perform and comply with all duties and obligations expressed to be assumed by a Lead Manager and Dealer under the Programme Agreement in respect of the Notes. Each Lead Manager and Dealer acknowledges that such appointment will terminate upon the issue of the Notes, but without prejudice to any rights, duties or obligations of the relevant Lead Manager and Dealer that have arisen prior to such termination.
2 Acknowledgments by Lead Managers and Dealers
Each Lead Manager and Dealer acknowledges that it has received:
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(i)
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a copy of the Programme Agreement; and
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(ii)
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copies of the Information Memorandum for the Notes.
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3 Subscription
3.1 Subscription
On 30 March 2010 or any other date as is agreed between the Issuer and the Lead Managers and Dealers (“Issue Date”):
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(i)
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the Issuer agrees to issue and sell the Notes in accordance with this agreement and the Programme Agreement; and
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(ii)
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each Lead Manager and Dealer severally agrees to subscribe for the Notes specified below by paying the Purchase Price for those Notes as set out against their name in immediately available funds.
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Name of Dealer
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Principal
Amount of Notes
to be subscribed
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Purchase Price
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ANZ
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A$150,000,000
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A$146,199,000
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RBC
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A$150,000,000
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A$146,199,000
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TD
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A$150,000,000
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A$146,199,000
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Total
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A$450,000,000
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A$438,597,000
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Amounts set out in the Purchase Price column include a deduction for the dealer fee set out in clause 7 (“Fees”).
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3.2 Pricing Supplement
The Issuer confirms that it has signed a pricing supplement (“Pricing Supplement”) dated 29 March 2010 in connection with the issue of the Notes.
3.3 Authority to distribute
The Issuer authorises each Lead Manager and Dealer to distribute copies of the following documents in connection with the offering and sale of the Notes in accordance with the Programme Agreement:
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(i)
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the Information Memorandum for the Notes;
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(ii)
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the Pricing Supplement; and
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(iii)
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any other documents prepared and approved by the Issuer in connection with the Programme and the issue of the Notes.
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3.4 Obligations - individual and independent
Except as expressly provided in this agreement, the obligations of the Issuer and each Lead Manager and Dealer under this agreement are individual and independent and:
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(i)
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the failure of one or more of them to comply with their obligations under this agreement does not relieve the others of any of their respective obligations;
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(ii)
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no one of them is responsible for the failure of one or more of the others to comply with their obligations under this agreement; and
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(iii)
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each of them may separately enforce its rights against the others.
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3.5 Payment
Notwithstanding clause 3.1 (“Subscription”) and clause 3.4 (“Obligations - individual and independent”), the Issuer and each Lead Manager and Dealer agree that settlement shall take place on the following basis:
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(i)
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TD agrees to pay the aggregate Purchase Price for the Notes to the account nominated by the Issuer in the manner agreed between them;
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(ii)
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the Issuer agrees to deliver the Notes to TD; and
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(iii)
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TD agrees to deliver the Notes to the other Lead Managers and Dealers in the amount specified as set out against their respective names in column 2 of the schedule in clause 3.1 (“Subscription”) against payment to TD of an amount equal to their respective settlement amounts specified as set out against their respective names in column 3 of the table in clause 3.1 (“Subscription”) through the Austraclear System or in any other manner agreed between them.
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4
Nothing in this clause 3.5 relieves the Issuer from the obligation to sell the Notes or the Lead Managers and Dealers from their respective obligations to purchase the Notes in accordance with the other provisions of this agreement.
TD is not responsible to any other party if the Issuer or the other Lead Managers and Dealers do not comply with their respective obligations under this agreement and if a Lead Manager and Dealer becomes insolvent or otherwise unable to perform its obligations on or before the Issue Date, the Issuer need not issue the Notes to be delivered to that Lead Manager and Dealer under paragraph (iii) and TD need not pay the Issuer the proportionate amount of the Purchase Price attributable to those Notes.
4 Programme Agreement
For the purposes of the Programme Agreement:
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(i)
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the Notes are Notes as defined in the Programme Agreement;
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(ii)
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this agreement is a Subscription Agreement;
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(iii)
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each Lead Manager and Dealer is a Dealer on the terms set out in the Programme Agreement; and
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(iv)
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each Lead Manager and Dealer accepts its appointment as a Lead Manager on the terms set out in the Programme Agreement.
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5 Procedures
Each Lead Manager and Dealer acknowledges that:
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(i)
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the issue of Notes under this agreement is a Syndicated Issue of Notes, and that clause 3 (“Procedures for offer and acceptance of Notes”) of the Programme Agreement relating to Syndicated Issues applies to Notes issued under this agreement; and
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(ii)
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the selling restrictions set out in Schedule 4 of the Programme Agreement are amended as set out in Schedule 1 to the Pricing Supplement.
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6 Conditions precedent
6.1 Acknowledgment
The Issuer acknowledges that each Lead Manager and Dealer’s obligations to subscribe and pay for the Notes on the Issue Date are subject to the satisfaction of the conditions precedent set out in clause 2.2 (“Conditions to each issue”) of the Programme Agreement.
6.2 Termination
If any of the conditions in clause 2.2 (“Conditions to each issue”) of the Programme Agreement are not satisfied or waived by the Issue Date, each Lead Manager and Dealer may terminate this agreement and the relevant Lead Manager and Dealer is released from their respective obligations under it.
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7 Fees
The Issuer agrees to pay to the Lead Managers and Dealers on the Issue Date an aggregate dealer fee of 0.144 per cent of the aggregate principal amount of the Notes (being A$648,000). The Lead Managers and Dealers agree that such fee shall be divided between them in equal shares. The Issuer shall pay such fee by accepting the aggregate Purchase Price for the Notes which is calculated to include a deduction of such fee. The obligation of the Issuer under this clause is subject to this agreement not having been terminated under clause 6.2 (“Termination”).
Unless otherwise agreed, each party agrees to pay its own Costs in connection with the negotiation, preparation and execution of this agreement.
For the avoidance of doubt, the Lead Managers and Dealers agree to pay, in 1/3 shares, the fees of Mallesons Xxxxxxx Xxxxxx and Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP for acting as Issuer’s counsel with regard to the issue of the Notes and all fees, costs and charges relating to the listing of the Notes on the stock exchange operated by ASX Limited.
9 Notices
Clause 17 (“Notices”) of the Programme Agreement applies to this agreement.
This agreement may consist of a number of copies, each signed by one or more parties to the agreement. If so, the signed copies are treated as making up the one document.
This agreement is governed by the law in force in the place specified in the Details and the parties submit to the non-exclusive jurisdiction of the courts of that place, provided however, that, in accordance with Article 50, paragraph 2 of the Charter, no action shall be brought against the Issuer by any member of the Issuer, or by any agency or instrumentality of a member, or by any entity or person directly or indirectly acting for or deriving claims from a member, or from an agency or instrumentality of a member, and that, in accordance with Article 50, paragraph 3 of the Charter, the property and assets of the Issuer shall, wheresoever located and by whomsoever held, be immune from all forms of seizure, attachment or execution before the delivery of final judgment against the Issuer.
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12.1 Interpretation and definitions
The “Interpretation” clause of the Programme Agreement applies to this agreement as if it was fully set out in this agreement except these meanings apply unless the contrary intention appears:
Lead Manager and Dealer means each person so described in the Details;
Note means the notes to be subscribed for under this agreement as set out in the Details;
Programme Agreement means the agreement so described in the Details; and
Purchase Price means, in respect of a Note, the purchase price of that Note set out in clause 3.1 (“Subscription”).
12.2 Inconsistency with Programme Agreement
This agreement prevails to the extent it is inconsistent with the Programme Agreement.
EXECUTED as an agreement
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ISSUER
SIGNED by Xxxxxx Xxxxxxxx
/s/Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx
Assistant Treasurer
LEAD MANAGERS AND DEALERS
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SIGNED by XXXXX XXXXXX
as attorney for AUSTRALIA AND
NEW ZEALAND BANKING
GROUP LIMITED under power of
attorney in the presence of:
/s/Xxxxx Madoc
Signature of witness
XXXXX MADOC
Name of witness (block letters)
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/s/Xxxxx Xxxxxx
By executing this agreement the
attorney states that the attorney has
received no notice of revocation of
the power of attorney
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SIGNED by ROD IRELAND
as attorney for ROYAL BANK OF
CANADA under power of attorney
in the presence of:
/s/Xxxxx Xxxxxx
Signature of witness
XXXXX XXXXXX
Name of witness (block letters)
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/s/ Rod Ireland
By executing this agreement the attorney
states that the attorney has received no
notice of revocation of the power of
attorney
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SIGNED by XXXXXXX XX
as attorney for THE TORONTO-DOMINION
BANK under power of attorney in the
presence of:
/s/Xxxx Xxxxx
Signature of witness
XXXX XXXXX
Name of witness (block letters)
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/s/ Xxxxxxx Xx
By executing this agreement the attorney
states that the attorney has received no
notice of revocation of the power of
attorney
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