EXHIBIT 4(c)(3)
CONFORMED COPY
Dated June 28, 2002
BEAR XXXXXXX GLOBAL ASSET HOLDINGS, LTD.
as Issuer
- and -
THE BEAR XXXXXXX COMPANIES INC.
as Guarantor
- and -
JPMORGAN CHASE BANK
as Agent
- and -
JPMORGAN CHASE BANK
as Registrar
BEAR, XXXXXXX INTERNATIONAL LIMITED
- and -
BEAR, XXXXXXX & CO. INC.
as Dealers
- and -
the other parties named herein as Paying Agents,
Transfer Agents and Exchange Agent
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SECOND AMENDED AND RESTATED
NOTE ISSUANCE AGREEMENT
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XXXXX & XXXXX
New York
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TABLE OF CONTENTS
Clause Page
1. Definitions and Interpretation.........................................2
2. Agreements to Issue and Purchase Notes................................11
3. Conditions of Issue, Updating of Legal Opinions.......................13
4. Representations and Warranties........................................15
5. Dealers' Undertakings.................................................19
6. Undertakings of the Issuer and the Guarantor..........................19
7. Dealers' Indemnity....................................................22
8. Agents' Indemnity.....................................................23
9. Fees, Expenses and Stamp Duties.......................................23
10. Termination of Appointment of Programme Dealers.......................24
11. Appointment of Dealers................................................25
12. Increase in the Aggregate Nominal Amount of the Notes to be Issued
Under the Agreement ..................................................25
13. Currency Indemnity....................................................26
14. Stabilisation.........................................................26
15. Appointment of Agent, Other Paying Agents, Registrar, Transfer
Agents and Exchange Agent.............................................26
16. Issue of Bearer Global Notes and Registered Global Notes..............29
17. Determination of Exchange Date, Issue of Permanent Bearer Global
Notes, Issue of Definitive Bearer Global Notes, Determination of
Distribution Compliance Period and Elimination of Chill Order.........30
18. Issue of Definitive Notes.............................................31
19. Terms of Issue........................................................32
20. Exchange and Transfer of Notes........................................33
21. Payments and Deliveries...............................................34
22. Determinations and Notifications in Respect of Notes and Interest
Xxxxxxxxxxxxx 00
00. Notice of any Withholding or Deduction................................39
24. Other Duties of the Registrar.........................................39
25. Duties of the Transfer Agents.........................................41
26. Regulations for Transfers and Exchanges of Registered Notes and
Exchange of Bearer Notes..............................................42
27. Duties in Connection with Early Redemption............................42
28. Receipt and Publication of Notices....................................43
29. Cancellation of Definitive Notes, Receipts, Coupons and Talons........43
30. Issue of Replacement Notes, Receipts, Coupons and Talons..............45
31. Copies of Documents Available for Inspection..........................46
32. Meetings of Noteholders...............................................47
33. Commissions and Expenses..............................................47
34. Authority to Distribute Documents.....................................48
35. Repayment by the Agent and the Registrar..............................48
36. Conditions of Appointment.............................................48
37. Communication Between the Parties.....................................49
38. Changes in Agent, Paying Agents, Transfer Agents, Exchange
Agent, Registrar and Settlement Agent.................................50
39. Merger and Consolidation..............................................52
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40. Notification of Changes to Agents.....................................52
41. Change of Specified Office............................................53
42. Calculation Agency Agreement..........................................53
43. Communications........................................................53
44. Taxes and Stamp Duties................................................53
45. Benefit of Agreement..................................................54
46. Amendments............................................................54
47. Governing Law and Jurisdiction........................................54
48. Contracts (Rights of Third Parties) Xxx 0000 Disapplication...........55
49. Counterparts..........................................................55
50. Effective Date........................................................55
Schedules
1. Terms and Conditions of the Notes.....................................56
2. Part I-Form of Temporary Bearer Global Note...........................93
Part II-Form of Permanent Bearer Global Note.........................102
Part III-Forms of Registered Global Notes............................111
Part IVA-Form of Definitive Bearer Note..............................120
Part IVB-Form of Definitive Registered Note..........................124
Part V-Form of Receipt...............................................130
Part VI-Form of Coupon...............................................132
Part VII-Form of Talon...............................................134
Part VIII-Form of Certificate to be Presented by Euroclear or
Clearstream, Luxembourg .............................................137
3. Provisions for Meetings of Noteholders...............................141
4. Form of Put Notice...................................................149
5. Selling Restrictions.................................................151
6. Form of Procedures Memorandum........................................157
7A. Form of Transfer Notice - Euroclear and Clearstream, Luxembourg......178
7B. Form of Transfer Notice - DTC........................................181
8. Part I-Form of Exchange Request......................................183
Part II-Form of Certificate for Exchange or Transfer of Registered
Notes or Beneficial Interest in Registered Notes.....................185
9. Institutional Accredited Investor Investment Letter..................187
10. Register and Transfer of Registered Notes............................189
11. Initial Documentation List...........................................191
12. Letter Regarding Increase in the Nominal Amount of the Programme.....193
13. Part I-Form of Programme Dealer Accession Letter.....................194
Part II-Form of Confirmation Letter - Programme Dealer...............195
Part III-Form of Issue Dealer Accession Letter.......................196
Part IV-form of Confirmaiton Letter - Issue Dealer...................197
14. Draft Syndication Agreement for a Syndicated Note Issue..............198
Signatories................................................................203
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SECOND AMENDED AND RESTATED NOTE ISSUANCE AGREEMENT
in respect of a
NOTE ISSUANCE PROGRAMME
THIS AGREEMENT is made on June 28, 2002 BETWEEN:
(1) BEAR XXXXXXX GLOBAL ASSET HOLDINGS, LTD. of X.X. Xxx 000, Xxxxxx Xxxx,
Xxxxx Xxxxxx, Xxxxxx Xxxxxxx, BWI (the "Issuer");
(2) THE BEAR XXXXXXX COMPANIES INC. of 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000
(the "Guarantor");
(3) JPMORGAN CHASE BANK through its office at Xxxxxxx Xxxxx, 0 Xxxxxx Xxxx
Xxxxxx, Xxxxxx X0X 0XX (the "Agent", which expression shall include any
successor agent appointed in accordance with clause 38);
(4) JPMORGAN CHASE BANK through its office at 000 Xxxx 00xx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000 (the "Registrar", which expression shall include
any successor registrar appointed in accordance with clause 38);
(5) JPMORGAN CHASE BANK through its office at Xxxxxxx Xxxxx, 0 Xxxxxx Xxxx
Xxxxxx, Xxxxxx X0X 0XX (together with the Registrar, the "Transfer
Agents", which expression shall include any additional or successor
transfer agent appointed in accordance with clause 38 and "Transfer Agent"
shall mean any of the Transfer Agents);
(6) JPMORGAN CHASE BANK of 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX
00000 (the "Exchange Agent", which expression shall include any successor
exchange agent appointed in accordance with clause 38);
(7) KREDIETBANK S.A. LUXEMBOURGEOISE through its office at 00, Xxxxxxxxx
Xxxxx, X-0000 Xxxxxxxxxx, R.C. Luxembourg B6395 (together with the Agent,
the "Paying Agents", which expression shall include any additional or
successor paying agent appointed in accordance with clause 38 and "Paying
Agent" shall mean any of the Paying Agents);
(8) BEAR, XXXXXXX INTERNATIONAL LIMITED of Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX
in its capacity as a dealer ("BSIL"); and
(9) BEAR, XXXXXXX & CO. INC. of 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 in its
capacity as a dealer ("Bear Xxxxxxx & Co." and, together with BSIL, the
"Programme Dealers", which expression shall include any additional or
successor dealers acceding from time to time to this Agreement in such
form as the Issuer and the Guarantor may require).
WHEREAS:
(A) The parties hereto entered into an Amended and Restated Note Issuance
Agreement dated 30th June, 2000 between the Issuer, the Guarantor,
JPMorgan Chase Bank (as Agent, Registrar, Transfer Agent and Exchange
Agent), Kredietbank S.A. Luxembourgeoise (as a paying Agent), BSIL and
Bear Xxxxxxx & Co. Inc. (the "Amended and Restated Agreement") in respect
of a U.S.$1,500,000,000 Note Issuance Programme established by
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the Issuer (the "Programme") which amended and restated a Note Issuance
Agreement dated 24th June, 1997 (the "Original Agreement").
(B) By a resolution of the board of directors of the Issuer passed on or about
June 24, 1997, and by resolution of the executive committee of the board
of directors of the Guarantor passed on or about June 23, 1997, the Issuer
and the Guarantor resolved to enter into the Original Agreement pursuant
to which the Issuer may issue from time to time Notes (the "Notes"). By
resolution of the board of directors of the Issuer passed on June 26, 2002
and by resolution of the executive committee of the board of directors of
the Guarantor passed on June 17, 2002 the Issuer and the Guarantor
resolved to amend and restate the Amended and Restated Agreement.
(C) The Notes will be unconditionally and irrevocably guaranteed by the
Guarantor in accordance with the Guarantee.
(D) This Agreement is being entered into for the purpose of, inter alia,
making certain changes to the Amended and Restated Agreement and with the
intention that this Agreement will supersede and replace the Amended and
Restated Agreement with effect from the date of this Agreement. Any Notes
issued on or after the date hereof shall be issued pursuant to this
Agreement. This does not affect any Notes issued under the Amended and
Restated Agreement before the date of this Agreement.
IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
(1) Terms and expressions defined in the Notes or used in the applicable
Pricing Supplement shall have the same meanings in this Agreement, except
where the context requires otherwise or unless otherwise stated.
(2) Without prejudice to the foregoing:
"Agreement Date" means, in respect of any Note, the date on which
agreement is reached for the issue of such Note as contemplated in clause
2 which, in the case of Notes issued on a syndicated basis, shall be the
date of execution of the relevant syndication agreement;
"Bearer Global Note" means a Temporary Bearer Global Note and/or a
Permanent Bearer Global Note, as the context may require;
"Bearer Notes" means those of the Notes which are for the time being in
bearer form;
"Calculation Agent" means, in respect of any Series of Notes, the
calculation agent as nominated in the Pricing Supplement in relation to
such Series;
"Calculation Agency Agreement" means, in respect of any Series of Notes,
the agreement entered into in accordance with the terms of this Agreement
between the Issuer, the Guarantor and the Agent or such other person as
the Issuer and Guarantor decide pursuant to which the calculation agent in
respect of such Series is appointed;
"Clearstream, Luxembourg" means Clearstream Banking, societe anonyme;
"Conditions" means, in relation to the Notes of any Series, the terms and
conditions incorporated into, or incorporated by reference into, the Note
or Notes constituting such
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Series, such terms and conditions being either in the form or
substantially in the form set out in Schedule 1 hereto or in such other
form, having regard to the terms of issue of the relevant Series, as may
be agreed between the Issuer, the Agent and the relevant Dealer as
modified and supplemented by the Pricing Supplement applicable thereto;
"Confirmation Letter" means:
(a) in respect of the appointment of a third party as a Programme
Dealer, the Confirmation Letter substantially in the form set out in
Part II of Schedule 13; and
(b) in respect of the appointment of a third party as an Issue Dealer,
the Confirmation Letter substantially in the form set out in Part IV
of Schedule 13;
"Coupon" means an interest coupon appertaining to a Definitive Bearer Note
(other than a Zero Coupon Note), such coupon being:
(a) if appertaining to a Fixed Rate Note, in the form or substantially
in the form set out in Part VI A of Schedule 2 hereto or in such
other form, having regard to the terms of issue of the Notes of the
relevant Series, as may be agreed between the Issuer, the Agent and
the relevant Dealer; or
(b) if appertaining to a Floating Rate Note or an Indexed Interest Note,
in the form or substantially in the form set out in Part VI B of
Schedule 2 hereto or in such other form, having regard to the terms
of issue of the Notes of the relevant Series, as may be agreed
between the Issuer, the Agent and the relevant Dealer; or
(c) if appertaining to a Definitive Bearer Note which is neither a Fixed
Rate Note nor a Floating Rate Note nor an Indexed Interest Note, in
such form as may be agreed between the Issuer, the Agent and the
relevant Dealer, and includes, where applicable, the Talon(s)
appertaining thereto and any replacements for Coupons and Talons
issued pursuant to Condition 11;
"Couponholders" means the several persons who are for the time being
holders of the Coupons and shall, unless the context otherwise requires,
include the holders of the Talons;
"Dealer" means a Programme Dealer or an Issue Dealer and excludes any
entity whose appointment has been terminated pursuant to clause 10 and
notice of termination of whose appointment has been given to the Agent by
the Issuer and references in this Agreement:
(a) to the "relevant Dealer" shall, in relation to any Note, be
references to the Dealer or Dealers with whom the Issuer has agreed
the issue and purchase of such Note; and
(b) to the "Dealers" shall be references to all the Dealers or, as the
context may require, some only of them;
"Dealer Accession Letter" means:
(a) in respect of the appointment of a third party as a Programme
Dealer, the Dealer Accession Letter substantially in the form set
out in Part I of Schedule 13; and
(b) in respect of the appointment of a third party as an Issue Dealer,
the Dealer Accession Letter substantially in the form set out in
Part III of Schedule 13;
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"Deed of Covenant" means the deed poll dated June 28, 2002 executed as a
deed by the Issuer in favour of certain accountholders with Euroclear and
Clearstream, Luxembourg;
"Definitive Bearer Note" means a Bearer Note in definitive form
substantially in the form set out in Part IV A of Schedule 2 hereto (or in
such other form as may be agreed between the Issuer, the Agent and the
relevant Dealer) issued or to be issued by the Issuer pursuant to this
Agreement in exchange for a bearer global Note or part of a bearer global
Note;
"Definitive Note" means Definitive Bearer Notes and/or, as the context may
require, Definitive Registered Notes;
"Definitive Registered Note" means a Registered Note in definitive form
substantially in the form set out in Part VI B of Schedule 2 hereto for in
such other form as may be agreed between the Issuer, the Agent and the
relevant Dealer issued or to be issued by the Issuer pursuant to this
Agreement to an Accredited Investor (as defined in Rule 501(a) (1), (2),
(3) or (7) under the Securities Act) that is an institution who agrees to
purchase the Note for his own account and not with a view to the
distribution thereof or in exchange for a Restricted Global Note or a Reg.
S Global Note or part thereof;
"DTC" means The Depository Trust Company with an office at 00 Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000;
"Dual Currency Note" means a Note in respect of which payments of
principal and/or interest are made or to be made in such different
currencies, and at rates of exchange calculated upon such basis or bases,
as the Issuer and the relevant Dealer may agree (as indicated in the
applicable Pricing Supplement);
"euro" means the currency introduced at the start of the third stage of
European economic and monetary union pursuant to the Treaty establishing
the European Community, as amended by the Treaty on European Union and as
amended by the Treaty of Amsterdam;
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the Euroclear
system;
"Event of Default" has the meaning ascribed thereto in the Conditions;
"Extraordinary Resolution" has the meaning set out in paragraph 20 of
Schedule 3 hereto;
"Fixed Rate Note" means a Note on which interest is calculated at a fixed
rate payable in arrear on a fixed date or dates in each year and on
redemption or on such other dates as may be agreed between the Issuer and
the relevant Dealer (as indicated in the applicable Pricing Supplement);
"Floating Rate Note" means a Note on which interest is calculated at a
floating rate, payable on an Interest Payment Date or Dates, as may be
agreed between the Issuer and the relevant Dealer (as indicated in the
applicable Pricing Supplement);
"Form of Transfer" means the form of transfer endorsed on a Definitive
Registered Note in the form or substantially in the form set out in Part
IV B of Schedule 2 hereto;
"FSMA" means the Financial Services and Markets Xxx 0000;
"Global Note" means a Temporary Bearer Global Note and/or a Permanent
Bearer Global Note and/or a Reg. S Global Note and/or a Restricted Global
Note, as the context may require;
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"Group" means the Guarantor and its consolidated subsidiaries;
"Guarantee" means the deed of guarantee dated June 29, 2001 executed as a
deed poll by the Guarantor in respect of any Note and in respect of the
obligations of the Issuer under the Deed of Covenant;
"Indemnified Person" means each person expressed to be indemnified
pursuant to Clause 7;
"Indexed Interest Note" means a Note in respect of which the amount
payable in respect of interest is calculated by reference to such index
and/or a formula as the Issuer and the relevant Dealer may agree (as
indicated in the applicable Pricing Supplement);
"Indexed Note" means an Indexed Interest Note and/or an Indexed Redemption
Amount Note, as applicable;
"Indexed Redemption Amount Note" means a Note in respect of which the
amount payable in respect of principal is calculated by reference to such
index and/or a formula as the Issuer and the relevant Dealer may agree (as
indicated in the applicable Pricing Supplement);
"Initial Documentation List" means the list of documents set out in
Schedule 11;
"Interest Commencement Date" means, in the case of interest-bearing Notes,
the date specified in the applicable Pricing Supplement from (and
including) which such Notes bear interest, which may or may not be the
Issue Date (but if no date is specified shall be the Issue Date);
"Interest Payment Date" means, in relation to any Floating Rate Note, the
date which falls the number of months or other period specified as the
"Interest Period" in the applicable Pricing Supplement after the preceding
Interest Payment Date or, in the case of the first Interest Period, the
Interest Commencement Date;
"Issue" means an issue of Notes with the same Issue Date consisting of one
or more Tranches of Notes, details of the terms and conditions of which
are set out in a single Pricing Supplement;
"Issue Date" means, in respect of any Note, the date of issue and purchase
of such Note, in each case pursuant to and in accordance with this
Agreement, being in the case of any Definitive Note represented initially
by a Temporary Bearer Global Note or a Registered Global Note, the same
date as the date of issue of the Temporary Bearer Global Note or the
Registered Global Note which initially represented such Note;
"Issue Dealer" means an entity appointed as a Dealer for the purposes of a
particular Issue or Tranche of Notes (whether pursuant to clause 11 or to
a Syndication Agreement);
"Issue Price" means the price, generally expressed as a percentage of the
nominal amount of the Notes, at which the Notes will be issued;
"Lead Manager" means, in relation to any Issue or Tranche of Notes offered
on a syndicated basis, the person defined as the Lead Manager in the
applicable Syndication Agreement;
"Linked Notes" means a Note in respect of which either the principal
and/or interest is payable or a Securities Amount is payable and/or
deliverable, in each case by reference to
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one or more Underlying Securities as the Issuer and the relevant Dealer
may agree (as indicated in the applicable Pricing Supplement);
"Listing Agent" means, in relation to Notes which are, or are to be,
listed on a Stock Exchange, such listing agent as the Issuer and the
Guarantor may from time to time appoint for the purposes of liasing with
such Stock Exchange;
"Listing Particulars" means any listing particulars or listing documents
(including any supplementary listing particulars or listing documents
published in accordance with the provisions of this Agreement or
otherwise) with regard to the issue of Notes to be listed on a Stock
Exchange approved under the Listing Rules by the relevant Stock Exchange;
"Listing Rules" means in the case of Notes which are, or are to be, listed
on a Stock Exchange, the listing rules and regulations for the time being
in force for such Stock Exchange;
"Maturity Date" means, in respect of any Note other than a Floating Rate
Note, the date on which it is expressed to be redeemable;
"Note" means a note issued or to be issued by the Issuer pursuant to this
Agreement, which may be represented by a Bearer Global Note or a
Registered Global Note or be in definitive form;
"Noteholders" means the several persons who are for the time being holders
of the Notes (being, in the case of Bearer Notes, the bearers thereof and,
in the case of Registered Notes, the several persons whose names are
entered in the register of holders of the Registered Notes as the holders
thereof) save that, in respect of the Notes of any Series, for so long as
such Notes or any part thereof are represented by a Bearer Global Note
deposited with a common depository for Euroclear and/or Clearstream,
Luxembourg or so long as DTC or its nominee is the registered holder of a
Registered Global Note, each person who is for the time being shown in the
records of Euroclear or of Clearstream, Luxembourg (other than
Clearstream, Luxembourg, if Clearstream, Luxembourg shall be an account
holder of Euroclear and Euroclear, if Euroclear shall be an account holder
of Clearstream, Luxembourg) or, as the case may be, DTC as the holder of a
particular nominal amount of the Notes of such Series shall be deemed to
be the holder of such nominal amount of such Notes (and the holder of the
relevant Global Note shall be deemed not to be the holder) for all
purposes other than with respect to the payment of principal or interest
on such Notes, the right to which shall be vested, as against the Issuer
and the Guarantor, solely in such common depositary or, as the case may
be, DTC or its nominee and for which purpose such common depositary or, as
the case may be, DTC or its nominee shall be deemed to be the holder of
such nominal amount of such Notes in accordance with and subject to its
terms and the provisions of the relevant Global Note and these presents
and the expressions "Noteholder", "holder of Notes" and related
expressions shall be construed accordingly;
"Offering Circular" means the Offering Circular relating to the Notes
prepared in connection with this Agreement and constituting (in the case
of Notes other than Notes not to be listed on a Stock Exchange) to the
extent specified herein, the Listing Particulars, as revised,
supplemented, amended or updated from time to time by the Issuer in
accordance with clause 6(2) including, in relation to each issue of Notes,
the Pricing Supplement relating to such Issue and such other documents as
are from time to time incorporated therein by reference;
"outstanding" means, in relation to the Notes of all or any Series, all
the Notes issued other than:
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(a) those Notes which have been redeemed pursuant to the Conditions;
(b) those Notes in respect of which the date for redemption in
accordance with the Conditions has occurred and the redemption
moneys and/or Securities Amount (and all interest payable thereon)
have been duly paid and/or delivered to or to the order of the Agent
in the manner provided in this Agreement (and where appropriate
notice to that effect has been given to the relative Noteholders in
accordance with Condition 15) and remain available for payment
and/or delivery against presentation of the relevant Notes and/or
Receipts and/or Coupons;
(c) those Notes which have been purchased and cancelled in accordance
with Condition 7;
(d) those Notes in respect of which claims have become prescribed under
Condition 9;
(e) those mutilated or defaced Notes which have been surrendered and
cancelled and in respect of which replacements have been issued
pursuant to Condition 11;
(f) (for the purpose only of ascertaining the nominal 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 11;
(g) any Temporary Bearer Global Note to the extent that it shall have
been exchanged for Definitive Bearer Notes or a Permanent Bearer
Global Note and any Permanent Bearer Global Note to the extent that
it shall have been exchanged for Definitive Bearer Notes in each
case pursuant to its provisions;
(h) those Definitive Bearer Notes which have been exchanged for
Definitive Registered Notes and which have been cancelled or, if
permitted by the Conditions, are for the time being retained by or
on behalf of the Issuer, in each case pursuant to the provisions of
these presents; and
(i) those Restricted Notes which have been exchanged for Unrestricted
Notes and those Unrestricted Notes which have been exchanged for
Restricted Notes, in each case pursuant to the provisions of these
presents;
PROVIDED THAT for each of the following purposes, namely:
(i) the right to attend and vote at any meeting of the Noteholders
of any Series; and
(ii) the determination of how many and which Notes of any Series
are for the time being outstanding for the purposes of
Conditions 10 and 16 and paragraphs 2, 5, 6 and 9 of Schedule
3,
those Notes of the relevant Series (if any) which are for the time being
held by, for the benefit of, or on behalf of, the Issuer or the Guarantor,
or any holding company of the Issuer or the Guarantor or any other
Subsidiary of the Issuer or the Guarantor or any such holding company
shall (unless and until ceasing to be so held) be deemed not to remain
outstanding;
"Partly Paid Notes" means Notes which are to be issued on a partly paid
basis;
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"Permanent Bearer Global Note" means a permanent bearer global note
substantially in the form set out in Part II of Schedule 2 hereto (or in
such other form as may be agreed between the Issuer, the Agent and the
relevant Dealer) issued or to be issued (if indicated in the applicable
Pricing Supplement) by the Issuer pursuant to this Agreement in exchange
for the whole or part of any Temporary Bearer Global Note issued in
respect of Notes of the same Series;
"Pricing Supplement" means the pricing supplement issued in relation to
each Tranche of Notes (substantially in the form of Annex D of Schedule 6
hereto) as a supplement to the Offering Circular and giving details of
that Tranche;
"Procedures Memorandum" means the Operating and Administrative Procedures
Memorandum set out in Schedule 6 hereto as amended or varied from time to
time (in respect of any Tranche) by agreement between the Issuer and the
relevant Dealer with the approval in writing of the Agent;
"Programme Dealer" means each of BSIL and Bear, Xxxxxxx & Co. and any
other Programme Dealer appointed pursuant to clause 11;
"Programme" means the note issuance programme established by this
Agreement;
"Put Notice" means a notice in the form set out in Schedule 4 hereto;
"Qualified Institutional Buyer" has the meaning set out in Rule 144A under
the Securities Act;
"Receipts" means, in respect of Notes repayable in instalments, the
receipts for the payment of such instalments which are or will be attached
to the relevant Definitive Bearer Notes on issue;
"Receiptholders" means the several persons who are for the time being
holders of the Receipts;
"Reference Banks" means, in the case of sub-clause 22(2)(a)(i) below,
those banks whose offered rates were used to determine such quotation when
such quotation last appeared on the Relevant Screen Page and, in the case
of sub-clause 22(2)(a)(ii) below, those banks whose offered quotations
last appeared on the Relevant Screen Page when no fewer than three such
offered quotations appeared;
"Registered Notes" means those of the Notes which are for the time being
in registered form;
"Reg. S Global Note" means a global Registered Note in the form set out in
Part III of Schedule 2 hereto issued by the Issuer pursuant to this
Agreement in respect of Registered Notes of a Series sold in accordance
with Regulation S under the Securities Act;
"Relevant Date" has the meaning set out in Condition 9;
"Restricted Global Note" means a global Registered Note in the form set
out in Part III of Schedule 2 hereto issued by the Issuer pursuant to this
Agreement in respect of Registered Notes of a Series sold within the
United States or to, or for the account or benefit of U.S. persons
pursuant to an exemption from the registration requirements of the
Securities Act;
"Restricted Notes" means Registered Notes represented by the Restricted
Global Note and Definitive Registered Notes issued in exchange for the
Restricted Global Note;
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"Restricted Subsidiary" has the meaning ascribed thereto in Condition 3;
"Securities Act" means the Securities Act of 1933 of the United States, as
amended;
"Securities Amount" has the meaning ascribed thereto in Condition
6(a)(iii);
"Series" means a Tranche of the Notes together with any further Tranche or
Tranches of Notes which are:
(a) expressed to be consolidated and form a single series; and
(b) identical in all respects (including as to listing) except for their
respective Issue Dates, Interest Commencement Dates and/or Issue
Prices and the expressions "Notes of the relevant Series" and
"holders of Notes of the relevant Series" and related expressions
shall be construed accordingly;
"Settlement Disruption Event" has the meaning ascribed thereto in
Condition 20(a)(i);
"specified office" means, in relation to any Paying Agent or Transfer
Agent or the Registrar, either the office identified with its name at the
end of the Conditions or any other office notified to the Noteholders in
accordance with Condition 15;
"Sterling" and "(pound)" means pounds sterling;
"Stock Exchange" means the Luxembourg Stock Exchange or any other or
further stock exchange(s) on which any Notes may from time to time be
listed, and references in this Agreement to the "relevant Stock
Exchange(s)" shall, in relation to any Notes, be references to the Stock
Exchange(s) on which such Notes are from time to time, or are intended to
be, listed;
"Subsidiary" has the meaning ascribed thereto in Condition 3;
"Swiss francs" means the lawful currency for the time being of
Switzerland;
"Syndication Agreement" means an agreement (by whatever name called) in or
substantially in the form set out in Schedule 14 or such other form as may
be agreed between the Issuer, the Guarantor and the Lead Manager;
"Talonholders" means the several persons who are for the time being
holders of the Talons;
"Talons" means the talons (if any) appertaining to, and exchangeable in
accordance with the provisions therein contained for further Coupons
appertaining to, a Definitive Bearer Note (other than a Zero Coupon Note),
such talons being in the form or substantially in the form set out in Part
VII of Schedule 2 hereto or in such other form as may be agreed between
the Issuer, the Agent and the relevant Dealer and includes any
replacements for Talons issued pursuant to Condition 11;
"Temporary Bearer Global Note" means a temporary bearer global note
substantially in the form set out in Part I of Schedule 2 hereto (or in
such other form as may be agreed between the Issuer, the Agent and the
relevant Dealer) initially representing Notes issued or to be issued by
the Issuer pursuant to this Agreement and issued in respect of Bearer
Notes of the same Tranche;
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"Tranche" means Notes (whether in global or definitive form or both)
issued hereunder which are identical in all respects (including as to
listing);
"Transfer Certificate" means a certificate in the form set out in Schedule
8;
"Transfer Notice" means a notice in the form set out in Schedule 7;
"Unrestricted Notes" means those of the Registered Notes which are not
Restricted Notes;
"U.S.$" and "U.S. dollars" means United States dollars;
"yen" and "(Y)" mean the lawful currency for the time being of Japan; and
"Zero Coupon Note" means a Note on which no interest is payable.
(3) (a) Words denoting the singular number only shall include the plural
number also and vice versa; words denoting one gender only shall
include the other gender; and words denoting persons only shall
include firms and corporations and vice versa.
(b) Unless the context otherwise requires, words or expressions used in
this Agreement, the Notes and the Conditions shall bear the same
meanings as in the Companies Xxx 0000 of Great Britain.
(4) Any references to Notes shall, unless the context otherwise requires,
include any Temporary Bearer Global Note, any Permanent Bearer Global
Note, any Reg. S Global Note and any Restricted Global Note representing
such Notes.
(5) All references in this Agreement to costs or charges or expenses shall
include any value added tax or similar tax charged or chargeable in
respect thereof.
(6) For the purposes of this Agreement, the Notes of each Series shall form a
separate series of Notes and the provisions of this Agreement shall apply
mutatis mutandis separately and independently to the Notes of each Series
and in this Agreement the expressions "Notes", "Noteholders", "Receipts",
"Receiptholders", "Coupons", "Couponholders", "Talons" and "Talonholders"
shall be construed accordingly.
(7) All references in this Agreement to principal and/or interest or both in
respect of the Notes or to any moneys payable by the Issuer and/or the
Guarantor under this Agreement shall have the meaning set out in Condition
6. In addition, all references in this Agreement to payment or repayment
(as the case may be) of principal and/or interest or both in respect of
the Notes or other similar expressions will, where the context so admits,
be deemed also to refer to delivery of any Securities Amount(s).
(8) All references in this Agreement to the "relevant currency" shall be
construed as references to the currency in which the relevant Notes and/or
Coupons are denominated (or payable in the case of Dual Currency Notes)
or, in the case of Notes denominated (or payable in the case of Dual
Currency Notes) in euro (as defined in Condition 4(b)), the chosen
currency in which payments in respect of such Note are to be made, as the
case may be.
(9) In this Agreement, clause headings are inserted for convenience and ease
of reference only and shall not affect the interpretation of this
Agreement.
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(10) All references in this Agreement to the provisions of any statute shall be
deemed to be references to that statute as from time to time modified,
extended, amended or re-enacted or to any statutory instrument, order or
regulation made thereunder or under such re-enactment.
(11) All references in this Agreement to an agreement, instrument or other
document (including, without limitation, this Agreement, the Deed of
Covenant, the Guarantee, the Procedures Memorandum, the Notes and any
Conditions appertaining thereto) shall be construed as a reference to that
agreement, instrument or document as the same may be amended, modified,
varied or supplemented from time to time.
(12) Any references herein to Euroclear and/or Clearstream, Luxembourg and/or
DTC shall, whenever the context so permits, be deemed to include a
reference to any additional or alternative clearance system approved by
the Issuer, the Guarantor and the Agent.
2. AGREEMENTS TO ISSUE AND PURCHASE NOTES
(1) Subject to the terms and conditions of this Agreement, the Issuer may from
time to time agree with any Dealer to issue, and such Dealer may agree to
purchase, Notes.
(2) On each occasion upon which the Issuer and any Dealer agree on the terms
of the issue and purchase of one or more Notes by such Dealer:
(a) the Issuer shall, in accordance with the provisions of the
Procedures Memorandum, cause such Notes (which may be initially
represented by a Temporary Bearer Global Note or by a Reg. S Global
Note or by a Restricted Global Note or by a Definitive Registered
Note, as the case may be) to be issued and delivered:
(i) in the case of a Temporary Bearer Global Note to a common
depositary for Euroclear and Clearstream, Luxembourg;
(ii) in the case of a Reg. S Global Note or Restricted Global Note,
to a custodian for DTC; and
(iii) in the case of a Definitive Registered Note to or to the order
of the holders thereof.
In the case of (i) and (ii) above, the securities account(s) of such
Dealer with Euroclear and/or Clearstream, Luxembourg or with DTC (as
specified by such Dealer) will be credited with such Notes on the
agreed Issue Date, as described in the Procedures Memorandum; and
(b) the relevant Dealer shall, subject (where applicable) to such Notes
being so credited, cause the net purchase moneys for such Notes to
be paid in the relevant currency by transfer of funds to the
relevant account of the Agent, or (in the case of syndicated issues)
the Issuer, with Euroclear and/or Clearstream, Luxembourg and/or DTC
so that such payment is credited to such account for value on such
Issue Date, as described in the Procedures Memorandum.
(3) Unless otherwise agreed between the Issuer and the relevant Dealer: (i)
where more than one Dealer has agreed with the Issuer to purchase a
particular Tranche of Notes pursuant to this clause, the obligations of
such Dealers to purchase such Notes shall be joint and several; and (ii)
the relevant Dealer(s) will be assumed to be purchasing the Notes as
principal for its own account, and not as agent.
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(4) Where the Issuer agrees with two or more Dealers to issue, and such
Dealers agree to purchase, Notes on a syndicated basis, the Issuer and the
Guarantor shall enter into a Syndication Agreement with such Dealers which
the Programme Dealers agree shall be supplemental to this Agreement
(notwithstanding that some or all of the Programme Dealers may not be a
party thereto). For the avoidance of doubt, the Agreement Date in respect
of such an issue shall be the date upon which the Syndication Agreement is
signed by or on behalf of all parties thereto.
(5) The procedures which the parties intend should apply for the purposes of
non-syndicated issues are set out in Part 1 of the Procedures Memorandum,
as varied from time to time by agreement between the Issuer, the relevant
Dealer and the Agent. The procedures which the parties intend should apply
for the purposes of syndicated issues are set out in Part 2 of the
Procedures Memorandum, as varied from time to time by agreement between
the Issuer, the relevant Lead Manager and the Agent.
(6) The Issuer agrees that each issue of Notes denominated in a currency in
respect of which particular laws, guidelines, regulations, restrictions or
reporting requirements apply (including on the date hereof, without
limitation, Swiss francs, yen, Sterling and U.S. dollars) will only be
issued in circumstances which comply with such laws, guidelines,
regulations, restrictions or reporting requirements from time to time.
Without prejudice to the generality of the foregoing (and on the basis
that the provisions of paragraphs (a) to (d) below shall only apply to the
extent necessary to comply with applicable laws, guidelines, regulations,
restrictions or reporting requirements from time to time):
(a) each public issue of Notes denominated in Swiss francs or carrying a
Swiss franc related element with a maturity of more than one year
(other than Notes privately placed with a single investor with no
publicity) will be effected in compliance with the relevant
regulations of the Swiss National Bank based on article 7 of the
Federal Law on Banks and Savings Banks of 1934 (as amended) and
article 15 of the Federal Law on Stock Exchanges and Securities
Trading of March 24, 1995 in connection with article 2, paragraph 2
of the Ordinance of the Federal Banking Commission on Stock
Exchanges and Securities Trading of June 25, 1997. Under the said
regulations, the relevant Dealer or, in the case of a syndicated
issue, the lead manager (the "Swiss Dealer") must be a bank
domiciled in Switzerland (which includes branches or subsidiaries of
a foreign bank located in Switzerland) or a securities dealer duly
licensed by the Swiss Federal Banking Commission pursuant to the
Federal Law on Stock Exchanges and Securities Trading of March 24,
1995. The Swiss Dealer must report certain details of the relevant
transaction to the Swiss National Bank no later than the relevant
issue date for such a transaction;
(b) the Issuer will ensure that Notes denominated in yen or in respect
of which amounts are payable in yen will only be issued in
compliance with applicable Japanese laws, regulations, guidelines
and policies. The Issuer or its designated agent shall submit such
reports or information as may be required from time to time by
applicable laws, regulations and guidelines promulgated by Japanese
authorities in the case of the issue and purchase of such Notes;
(c) each issue of Notes denominated in Sterling will be made in
accordance with all applicable laws and regulations including,
without limitation, any applicable requirements from time to time of
the Bank of England. The Issuer will, in relation to Notes
denominated in Sterling, comply with all applicable laws,
regulations and guidelines (as amended from time to time) of United
Kingdom authorities, including without limitation Article 9 of the
Financial Services and Markets Xxx 0000
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(Regulated Activities) Order 2001 (Sums received in consideration
for the issue of debt securities), which are relevant in the context
of the issue of such Notes, and shall submit (or procure the
submission on its behalf of) such reports or information as may from
time to time be required for compliance with such laws, regulations
and guidelines. The Issuer shall ensure that, where applicable, such
Notes shall have the maturities and denominations which satisfy the
requirements of such laws, regulations and guidelines from time to
time. Issues of Notes having a maturity of less than one year from
the date of issue will, if the proceeds of the issue are accepted in
the United Kingdom, constitute deposits for the purposes of the
prohibition on accepting deposits contained in Section 19 of the
Financial Services and Markets Act 2000 (the "FSMA") unless they are
issued to a limited class of professional investors and have a
denomination of at least (pound)100,000 or its equivalent (see
"Subscription and Sale and Transfer Restrictions" below); and
(d) the minimum denomination of each Bearer Note with a maturity of not
more than 183 days from the date of issue will be U.S.$500,000 or
its equivalent in other Specified Currencies at thedate of issue.
3. CONDITIONS OF ISSUE, UPDATING OF LEGAL OPINIONS
(1) First issue
Before the Issuer reaches its first agreement with any Dealer for the
issue and purchase of Notes, each Programme Dealer must have received all
of the documents and confirmations described in the Initial Documentation
List and found such documents to be satisfactory, in its reasonable
opinion. If any Programme Dealer considers that, in its reasonable
opinion, any document or confirmation described in the Initial
Documentation List which it has received is unsatisfactory it must notify
the Issuer of such fact within seven business days of receipt thereof,
specifying the respect or respects of such document or confirmation which
it considers to be unsatisfactory.
(2) Each issue
The obligations of a Dealer under any agreement for the issue and purchase
of Notes made pursuant to clause 2 are conditional upon:
(a) there having been, as at the proposed Issue Date, no adverse change
in the condition (financial or otherwise) of the Issuer, the
Guarantor or the Group taken as a whole which, in any case, is
material in the context of the issue and offering of the Notes from
that set forth in the Offering Circular on the relevant Agreement
Date, nor the occurrence of any event making untrue or incorrect to
an extent which is material as aforesaid any of the representations
and warranties contained in clause 4;
(b) there being no outstanding breach by the Issuer or the Guarantor of
any of its obligations under this Agreement or the Notes which has
not been expressly waived by the relevant Dealer on or prior to the
proposed Issue Date;
(c) subject to clause 12, the aggregate nominal amount of the Notes to
be issued, when added to the aggregate nominal amount of all Notes
outstanding (as defined clause 1) on the proposed Issue Date
(excluding for this purpose Notes due to be redeemed on such Issue
Date) not exceeding U.S.$1,500,000,000 or its equivalent in other
currencies, as determined pursuant to sub-clause (5);
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(d) in the case of Notes which are intended to be listed, the relevant
Stock Exchange having agreed to list such Notes;
(e) no meeting of the holders of Notes (or any of them) to consider
matters which might in the reasonable opinion of the relevant Dealer
be considered to be material in the context of the issue of the
Notes having been duly convened but not yet held or, if held but
adjourned, the adjourned meeting having not been held, and neither
the Issuer nor the Guarantor being aware of any circumstances which
are likely to lead to the convening of such a meeting;
(f) there having been, between the Agreement Date and the Issue Date for
such Notes, in the opinion of the relevant Dealer, no change in
national or international financial, political or economic
conditions or currency exchange rates or exchange controls which
would, in the opinion of the relevant Dealer (after consultation, if
practicable, with the Issuer), be likely to either: (i) prejudice
materially the sale by such Dealer of the Notes proposed to be
issued; or (ii) materially change the circumstances prevailing at
the Agreement Date;
(g) the forms of Pricing Supplement, Temporary Bearer Global Note,
Permanent Bearer Global Note, Reg. S Global Note, Restricted Global
Note, Definitive Note, Receipt, Coupon, Talon (each as applicable)
and the Conditions in relation to the relevant Tranche and the
relevant settlement procedures having been agreed by the Issuer, the
relevant Dealer and the Agent;
(h) in respect of the currency in which such Notes are to be
denominated, such currency being accepted for settlement by
Euroclear and Clearstream, Luxembourg; and
(i) any calculations or determinations which are required by the
relevant Conditions to have been made prior to the Issue Date having
been duly made.
In the event that any of the foregoing conditions is not satisfied, the
relevant Dealer shall be entitled (but not bound) by notice to the Issuer
to be released and discharged from its obligations under the agreement
reached under clause 2.
(3) Waiver
Any Dealer, on behalf of itself only, may by notice in writing to the
Issuer and the Guarantor waive any of the conditions precedent contained
in sub-clauses (1) and (2) (save for the condition precedent contained in
sub-clause (2)(c)) in so far as they relate to an issue of Notes to that
Dealer.
(4) Updating of legal opinions
Before the first issue of Notes occurring after each anniversary of the
date of this Agreement and on such other occasions as a Dealer so requests
(on the basis of reasonable grounds), the Issuer will procure that a
further legal opinion or further legal opinions, as the case may be, in
such form and with such content as the Programme Dealers or, as the case
may be, the relevant Dealer may reasonably require is or are delivered, at
the expense of the Issuer, to the Programme Dealers or, as the case may
be, the relevant Dealer from legal advisers in the relevant jurisdictions
approved by the Programme Dealers, or, as the case may be, the Programme
Dealer. If at, or prior to, the time of any agreement to issue and
purchase Notes under clause 2 such a request is made with respect to the
Notes to be issued, the receipt of the relevant opinion or opinions in a
form satisfactory to the relevant Dealer shall be a further condition
precedent to the issue of those Notes.
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(5) Determination of amounts outstanding
For the purposes of sub-clause (2)(c):
(a) the U.S. dollar equivalent of Notes denominated in a currency other
than U.S. dollars shall be determined, at the discretion of the
Issuer, either as of the Agreement Date for such Notes or on the
preceding day on which commercial banks and foreign exchange markets
are open for business in London, in each case on the basis of the
spot rate for the sale of the U.S. dollar against the purchase of
the relevant currency in the London foreign exchange market quoted
by any leading bank selected by the Issuer on the day of
calculation;
(b) the U.S. dollar equivalent of Dual Currency Notes, Indexed Notes and
Partly Paid Notes shall be calculated in the manner specified above
by reference to the original nominal amount of such Notes (in the
case of Partly Paid Notes regardless of the subscription price
paid); and
(c) the U.S. dollar equivalent of Zero Coupon Notes and other Notes
issued at a discount or a premium shall be calculated in the manner
specified above by reference to the net proceeds received by the
Issuer for the relevant issue.
4. REPRESENTATIONS AND WARRANTIES
(1) As at the date of this Agreement the Issuer and the Guarantor hereby
jointly and severally represent and warrant to and agree with the Dealers
(for the benefit of themselves and as agents for purchasers of Notes from
them), the other parties hereto and each of them as follows:
(a) that the Offering Circular complies with the listing rules of the
Luxembourg Stock Exchange and that it does not contain an untrue
statement of a material fact with respect to the Issuer or omit to
state a material fact with respect to the Issuer in order to make
the statements made in the Offering Circular, in the light of the
circumstances under which they were made, not misleading, that the
opinions and intentions expressed therein with respect to the Issuer
and the Notes issued by the Issuer are honestly held, that there are
no other facts with respect to the Issuer or the Notes issued by the
Issuer the omission of which would make the expression of any such
opinions or intentions misleading in any material respect and that
the Issuer has made all reasonable enquiries to ascertain all facts
material for the purposes aforesaid;
(b) that the Issuer is duly incorporated as a limited liability company
under the laws of the Cayman Islands;
(c) that the issue of Notes, the execution and delivery of this
Agreement and the Deed of Covenant by the Issuer have been duly
authorised by the Issuer and that the Notes will constitute, upon
due execution, issue and delivery in accordance with this Agreement
and that each of this Agreement and the Deed of Covenant constitute
legal, valid and binding obligations of the Issuer enforceable in
accordance with their respective terms subject to the laws of
bankruptcy and other laws affecting the rights of creditors
generally;
(d) that the execution and delivery of this Agreement and the Deed of
Covenant, the issue, offering and distribution of Notes and the
performance of the terms of such Notes, this Agreement and the Deed
of Covenant will not infringe any law or
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regulation and are not contrary to the provisions of the Memorandum
and Articles of Association of the Issuer and will not result in any
breach of the terms of, or constitute a default under, any
instrument or agreement to which the Issuer is a party or by which
the Issuer or its property is bound and which is material in the
context of the Issuer taken as a whole;
(e) that no Event of Default in relation to the Issuer is subsisting in
relation to any outstanding Note and no event has occurred which
would constitute (after an issue of Notes) an Event of Default in
relation to the Issuer thereunder;
(f) that, except as disclosed in the Offering Circular, the Issuer is
not party to any litigation or arbitration proceedings that, in the
reasonable judgement of management, is expected to have a material
adverse effect on the financial condition, results of operations or
business of the Issuer taken as a whole nor, so far as the Issuer is
aware, is any such litigation or arbitration pending or threatened;
(g) that all consents, approvals, authorisations, orders and clearances
of any court, government department or other regulatory authority
required by the Issuer for or in connection with the creation and
offering of Notes by it under this Agreement, the execution and
issue of, and compliance by the Issuer with the terms of, Notes
(including Global Notes), Receipts and Coupons issued by it under
this Agreement and the execution and delivery of, and compliance
with the terms of this Agreement and the Deed of Covenant have been
obtained and are in full force and effect;
(h) that the Issuer, its affiliates and any person acting on its or
their behalf (which, for the avoidance of doubt, shall exclude any
Dealer) have complied with and will comply with the requirements of
Regulation S under the Securities Act;
(i) that none of the Issuer or its affiliates nor any persons acting on
its or their behalf (which, for the avoidance of doubt, shall
exclude any Dealer) have engaged or will engage in the offer, sale,
resale or other transfer of the Notes in the United States or to, or
for the account or benefit of, U.S. persons except in transactions
exempt from the registration requirements of the Securities Act in
accordance with the selling restrictions set out in Schedule 5;
(j) that no general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act will be made by the
Issuer, its affiliates and any person acting on its or their behalf
(which, for the avoidance of doubt, shall exclude any Dealer) in the
United States in connection with the offer, sale, resale or other
transfer of the Notes in the United States;
(k) that the Issuer is not an "investment company" as defined in the
U.S. Investment Company Act of 1940;
(l) that Notes offered, sold or resold by the Issuer in the United
States pursuant to private transactions:
(i) to qualified institutional buyers within the meaning of Rule
144A under the Securities Act will meet the eligibility
requirements under such Rule 144A; or
(ii) are to institutional investors that are accredited investors
of the type described in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act;
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(m) that Notes will not be of the same class within the meaning of Rule
144A under the Securities Act as other securities of the Issuer that
are listed on a national securities exchange registered under
section 6 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") or quoted in a U.S. automated interdealer quotation
system of a registered national securities association; and
(n) that the Issuer has not offered or sold within the six months
preceding any issuance of the Notes issued by it to an Institutional
Accredited Investor, and will not offer or sell within six months
following such issuance, any security of the same or a similar class
as the Notes issued by it to such Institutional Accredited Investor
other than pursuant to this Agreement.
(2) As at the date of this Agreement the Guarantor hereby represents and
warrants to and agrees with the Dealers (for the benefit of themselves and
as agents for purchasers of Notes from them), the other parties hereto and
each of them as follows:
(a) that the most recently available audited consolidated annual
financial statements of the Group were prepared in accordance with
accounting principles generally accepted in the United States of
America applied on a consistent basis and in conformity with
applicable requirements of the U.S. Securities and Exchange
Commission and that they present fairly the consolidated financial
position of the Group as at the date to which they were prepared
(for the purposes of this clause 4(2), the "relevant date") and of
the results of the operations of the Group for the period specified
in the relevant profit and loss accounts contained therein and that
there has been no material adverse change in the consolidated
condition (financial or otherwise) of the Group since the relevant
date, except as disclosed in the Offering Circular;
(b) that the Offering Circular complies with the requirements and the
listing rules of the Luxembourg Stock Exchange and that it does not
contain an untrue statement of a material fact with respect to the
Group taken as a whole or omit to state a material fact with respect
to the Group taken as a whole that is necessary to make the
statements made in the Offering Circular not misleading, that the
opinions and intentions expressed therein with respect to the
Guarantor and the Notes issued by the Guarantor are honestly held,
that there are no other facts with respect to the Guarantor or the
Notes issued by the Guarantor the omission of which would make the
expression of any such opinions or intentions misleading in any
material respect and that the Guarantor has made all reasonable
enquiries to ascertain all facts material for the purposes
aforesaid;
(c) that the Guarantor is a company duly incorporated under the laws of
the State of Delaware, United States of America;
(d) that the execution and delivery of this Agreement and the Guarantee
by the Guarantor have been duly authorised by the Guarantor and that
each of this Agreement and the Guarantee constitutes legal, valid
and binding obligations of the Guarantor enforceable in accordance
with their respective terms subject to the laws of bankruptcy and
other laws affecting the rights of creditors generally;
(e) that the execution and delivery of this Agreement and the Guarantee
and the performance of the terms of this Agreement and the Guarantee
by the Guarantor will not infringe any law or regulation and are not
contrary to the provisions of the Certificate of Incorporation and
By-laws of the Guarantor and will not result in any breach of the
terms of, or constitute a default under, any instrument or agreement
to which any member of the Group is a party or by which any member
of the Group or
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its property is bound and which is material in the context of the
Group taken as a whole;
(f) that no Event of Default in relation to the Guarantor is subsisting
in relation to any outstanding Note and no event has occurred which
would constitute (after an issue of Notes) an Event of Default in
relation to the Guarantor thereunder;
(g) that, except as disclosed in the Offering Circular, no member of the
Group is a party to any litigation or arbitration proceedings that,
in the reasonable judgement of management, is expected to have a
material adverse effect on the financial condition, results of
operations or business of the Group taken as a whole nor, so far as
the Guarantor is aware, is any such litigation or arbitration
pending or threatened;
(h) that all consents, approvals, authorisations, orders and clearances
of any court, government department or other regulatory authority
required by the Guarantor for or in connection with the execution
and delivery of, and compliance by the Guarantor with the terms of,
this Agreement and the Guarantee have been obtained and are in full
force and effect;
(i) that the Guarantor, its affiliates and any person acting on its or
their behalf (which, for the avoidance of doubt, shall exclude any
Dealer) have complied with and will comply with the requirements of
Regulation S under the Securities Act;
(j) that none of the Guarantor or its affiliates nor any persons acting
on its or their behalf (which, for the avoidance of doubt, shall
exclude any Dealer) have engaged or will engage in the offer, sale,
resale or other transfer of the Notes in the United States or to, or
for the account or benefit of, U.S. persons except in transactions
exempt from the registration requirements of the Securities Act in
accordance with the selling restrictions set out in Schedule 5;
(k) that no general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act will be made by the
Guarantor, its affiliates and any person acting on its or their
behalf (which, for the avoidance of doubt, shall exclude any Dealer)
in the United States in connection with the offer, sale, resale or
other transfer of the Notes in the United States; and
(l) that the Guarantor is not an "investment company" as defined in the
U.S. Investment Company Act of 1940.
(3) With regard to each issue of Notes under this Agreement, each of the
Issuer and the Guarantor shall be deemed, for the benefit of the relevant
Dealer (for itself and as agent for each purchaser of the relevant Notes
from it) to repeat the representations and warranties and agreements
contained in sub-clause (1) and (2) above as at the Agreement Date for
such Notes (any agreement on such Agreement Date being deemed to have been
made on the basis of, and in reliance on, such representations, warranties
and agreements) and as at the Issue Date of such Notes.
(4) The representations, warranties and agreements contained in this clause 4
shall continue in full force and effect notwithstanding any investigation
by or on behalf of any Dealer or other party or completion of the issue
and purchase of any Notes.
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5. DEALERS' UNDERTAKINGS
Each Dealer agrees to comply with the restrictions and agreements set out
in Schedule 5 and, in the case of paragraph 4 thereof, the Issuer also so
agrees.
6. UNDERTAKINGS OF THE ISSUER AND THE GUARANTOR
(1) Notification of material developments
Each of the Issuer and the Guarantor shall promptly after becoming aware
of the occurrence thereof notify each Programme Dealer and each Issue
Dealer (in respect of any proposed issue of Notes, the Agreement Date for
which has passed but which have not been issued) of:
(a) any Event of Default or any condition, event or act which, with the
giving of notice and/or the lapse of time (after an issue of Notes)
would constitute an Event of Default or any material breach of the
representations and warranties or undertakings contained in this
Agreement, any Notes or either of them; and
(b) any development affecting any member of the Group which is material
in the context of this Agreement or any issue of Notes thereunder.
If, following the Agreement Date and before the issue of the relevant
Notes, the Issuer and/or the Guarantor becomes aware that the conditions
specified in clause 3(2) will not be satisfied in relation to that issue,
the Issuer and/or the Guarantor, as the case may be, shall forthwith
notify the relevant Dealer to this effect giving full details thereof. In
such circumstances, the relevant Dealer shall be entitled (but not bound)
by notice to the Issuer to be released and discharged from its obligations
under the agreement reached under clause 2.
(2) Updating of Offering Circular
On or before each anniversary of the date of this Agreement, the Issuer
shall publish a new updated Offering Circular in a form approved by the
Programme Dealers. In the event of a change in the condition of the Issuer
or the Guarantor which is material in the context of the Agreement or the
issue of Notes thereunder, the Issuer shall update or amend the Offering
Circular (following consultation with the Programme Dealers) by the
publication of a supplement thereto, in a form approved by the Programme
Dealers. The Offering Circular shall, as specified therein, be deemed to
incorporate by reference therein, with respect to the Guarantor, the
publicly available audited consolidated financial statements of the
Guarantor and its subsidiaries contained in the Guarantor's Annual Report
on Form 10-K and the published quarterly reports of the Guarantor on Form
10-Q for the most recent financial period and any reports of the Guarantor
on Form 8-K which contain consolidated financial statements of the Group.
Upon any new financial statements being incorporated in the Offering
Circular as aforesaid or upon the publication of a revised Offering
Circular or a supplement to the Offering Circular, the Issuer shall
promptly supply to each Programme Dealer and the Agent such number of
copies of such financial statements, revised Offering Circular or
supplement as each Programme Dealer or the Agent (as the case may be) may
reasonably request. Until a Programme Dealer receives such financial
statements, revised Offering Circular or supplement, the definition of
"Offering Circular" in clause 1(1) shall, in relation to such Programme
Dealer, mean the Offering Circular prior to the receipt by such Programme
Dealer of such financial statements or the publication of such revised
Offering Circular or supplement.
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(3) Listing
Each of the Issuer and the Guarantor confirms that it: (a) has caused an
application to be made on behalf of and at the expense of the Issuer for
Notes under this Agreement to be listed on the Luxembourg Stock Exchange;
(b) will make or cause to be made an application on behalf of and at the
expense of the Issuer for Notes issued or to be issued under this
Agreement to be listed on such other Stock Exchange as the Issuer may
decide; and (c) will use best endeavours to obtain and maintain such
listings. Upon agreement to issue Notes which are to be listed being
reached under clause 2 above the Issuer will use its best endeavours to
obtain and, whilst any such Notes are outstanding, maintain such listing.
The Issuer and the Guarantor shall comply with any undertakings given by
it from time to time to the relevant Stock Exchange in connection with any
Notes listed on such Stock Exchange or the listing thereof and, without
prejudice to the generality of the foregoing, shall furnish or procure to
be furnished to the relevant Stock Exchange all such information as the
relevant Stock Exchange may require from time to time in connection with
the listing on such Stock Exchange of any Notes.
If any Notes cease to be listed on a relevant Stock Exchange, the Issuer
shall endeavour promptly to list such Notes on a stock exchange to be
agreed between the Issuer and the relevant Dealer.
(4) Lawful compliance
(a) Each of the Issuer and the Guarantor will at all times ensure that
all necessary action is taken and all necessary conditions are
fulfilled (including, without limitation, the obtaining of all
necessary consents) so that it may lawfully comply with its
obligations under the Notes and this Agreement and, further, so that
it may comply with any applicable laws, regulations and guidance
from time to time promulgated by any governmental and regulatory
authorities relevant in the context of the issue of Notes under this
Agreement.
(b) In connection with the offer, sale, resale or other transfer of the
Notes made in the United States, the Issuer and the Guarantor will
jointly and severally endeavour, in co-operation with any relevant
Dealer, to qualify the Notes for the private placement of such
equivalent exemptions as may be available for the offer, sale,
resale or other transfer to institutional accredited investors and
qualified institutional buyers under the applicable securities laws
of such states and the District of Columbia as any relevant Dealer
may designate, except where such qualification would require the
Issuer to qualify to do business in such jurisdiction or consent to
the service of process.
(c) So long as any of the Notes are "restricted securities" within the
meaning of Rule 144(a)(3) under the Securities Act, the Guarantor
will, if it ceases to be subject to or comply with the reporting
requirements of Section 13 or 15(d) of the U.S. Securities Exchange
Act of 1934, provide to any holder of such restricted securities, or
to any prospective purchaser designated by a holder, upon the
request of such holder or prospective purchaser, any information
required to be provided by Rule 144A(d)(4) under the Securities Act.
This covenant is intended to be for the benefit of the holders, and
prospective purchasers designated by such holders, from time to time
of such restricted securities. The Contracts (Rights of Third
Parties) Xxx 0000 applies to this subclause 6(4)(c).
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(5) Authorised representative
Each of the Guarantor and the Issuer will notify the Programme Dealers
immediately in writing if any of the persons named in the list referred to
in paragraph 3 of the Initial Documentation List ceases to be authorised
to take action on behalf of the Guarantor or the Issuer or if any
additional person becomes so authorised together, in the case of an
additional authorised person, with evidence satisfactory to the Programme
Dealers that such person has been so authorised.
(6) Auditors' comfort letters
Each of the Issuer and the Guarantor will at its own expense at the time
of the preparation of the initial Offering Circular and thereafter upon
each occasion when the same may be amended or updated, whether by means of
information incorporated by reference or otherwise, (insofar as such
amendment or updating concerns or contains financial information about the
Guarantor or the Group and/or the Issuer) and at other times whenever so
requested by the Dealers or any of them (on the basis of reasonable
grounds) deliver to the Programme Dealers, or as the case may be, the
Dealers requesting the same, a comfort letter from independent auditors of
the Guarantor in such form and with such content as the Programme Dealers,
or as the case may be, the Dealers requesting the same may reasonably
request provided that no such letter need be delivered in connection with
the publication or issue of the audited consolidated financial statements
of the Group. If at or prior to the time of any agreement to issue and
purchase Notes under clause 2 such a request is made with respect to the
Notes to be issued, the receipt of the relevant comfort letter in a form
satisfactory to the relevant Dealer shall be a further condition precedent
to the issue of those Notes.
(7) No other issues
During the period commencing on an Agreement Date in respect of any listed
Notes and ending on the Issue Date with respect to those Notes, the Issuer
will not, without the prior consent of the relevant Dealer, issue or agree
to issue any other listed notes, bonds or other securities of whatsoever
nature (other than Notes to be issued under this Agreement to the same
Dealer) where such notes, bonds or other securities would have the same
maturity and currency as the Notes to be issued on the relevant Issue
Date.
(8) Information on Noteholders' meetings
Each of the Issuer and the Guarantor will, at the same time as it is
despatched, furnish the Programme Dealers with a copy of every notice of a
meeting of the holders of the Notes (or any of them) which is despatched
at the instigation of either the Guarantor and/or the Issuer and will
notify the Programme Dealers immediately it becomes aware that a meeting
of the holders of the Notes (or any of them), has been convened by holders
of Notes.
(9) Rating
The Guarantor undertakes promptly to notify the Programme Dealers (and
each Issue Dealer in respect of a proposed issue of Notes the Agreement
Date for which has passed but which have not been issued) of any change in
the rating given by Xxxxx'x Investors Service Limited, Standard and Poor's
Ratings Services, Fitch Ratings Ltd. or such other rating agency as
notified to the Programme Dealers or the relevant Dealer for any of the
Notes to be issued under this Agreement or upon it becoming aware that any
such rating is listed on "Creditwatch" or has been announced to be under
formal review by the relevant rating agency.
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7. DEALERS' INDEMNITY
(1) Without prejudice to the other rights or remedies of the Dealers, the
Issuer and the Guarantor, jointly and severally, undertake with the
Dealers and each of them (for the benefit of themselves and the purchasers
of Notes from any Dealer, as agents for such purchasers) that it will
indemnify such Dealer and each of its directors, officers, employers and
agents and each person who controls such Dealer (within the meaning of
Section 15 of the Securities Act) and each purchaser of Notes against any
losses, liabilities, costs, claims, charges, expenses, actions or demands
which that Indemnified Person or purchaser may incur or which may be made
against it as a result of or in relation to:
(a) any failure by the Issuer to issue on the agreed Issue Date any
Notes which a Dealer has agreed to purchase (unless such failure is
as a result of the failure by the relevant Dealer to pay the agreed
purchase price for such Notes); or
(b) any actual or alleged breach of the representations and warranties
and undertakings contained in, or made or deemed to be made or
repeated pursuant to, this Agreement; or
(c) any untrue or misleading (or allegedly untrue or misleading)
statement, which is material (or allegedly material) in the context
of this Agreement and the issue and offering of Notes thereunder in,
or material omission (or alleged omission) from, the Offering
Circular or any part thereof.
(2) Each Dealer undertakes to indemnify each of the Issuer and the Guarantor
and their respective directors, officers, employees and controlling
persons against any losses, liabilities, costs, claims, actions, damages,
demands or expenses which the Issuer or the Guarantor may incur or which
may be made against the Issuer or the Guarantor arising out of or in
relation to or in connection with any unauthorised action by that Dealer,
failure by that Dealer to observe any of the above restrictions or
requirements or the making by that Dealer of any unauthorised
representation or the giving or use by that Dealer of any information
which has not been authorised by the Issuer or any of the other Dealers
provided that no Dealer shall be liable for any loss, liability, cost,
claim, action, damage, expense or demand arising from the sale of Notes to
any person believed in good faith by such Dealer, on reasonable grounds
after due inquiry, to be a person to whom Notes could lawfully be offered
or sold in compliance with this clause.
(3) If any action, suit, proceeding (including any government or regulatory
investigation), claim or demand ("Action") shall be brought or asserted
against any Indemnified Person in respect of which indemnity may be sought
pursuant to this clause, the Indemnified Person shall promptly notify the
person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain legal advisers reasonably satisfactory to
the Indemnified Person to represent the Indemnified Person and any others
the Indemnifying Person may designate in such Action and shall pay the
fees and expenses of such legal advisers related to such Action. In any
such Action, any Indemnified Person shall have the right to retain its own
legal advisers, but the fees and expenses of such legal advisers shall be
the liability of such Indemnified Person unless any of the following
circumstances occur in which case they shall be the liability of the
Indemnifying Person: (i) the Indemnifying Person has failed within a
reasonable time to retain legal advisers reasonably satisfactory to the
Indemnified Person or (ii) the parties in any such Action include both the
Indemnifying Person and the Indemnified Person and, in the reasonable
judgment of the Indemnified Person based upon legal advice, representation
of both parties by the same legal advisers would be inappropriate due to
actual or potential
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differing interests between them. The Indemnifying Person shall not, in
connection with any Action or related Action in the same jurisdiction, be
liable (except as mentioned above) for the fees and expenses of more than
one separate firm of legal advisers (in addition to any local legal
advisers) for all Indemnified Persons, and all such fees and expenses
shall be reimbursed as they are incurred.
(4) The Indemnifying Person shall not be liable for any settlement of any
Action effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify any Indemnified Person from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested an Indemnifying Person to reimburse the
Indemnified Person for fees and expenses of legal advisers as contemplated
by paragraph (a) above, the Indemnifying Person agrees that it shall be
liable for any settlement of any Action effected without its written
consent if (i) such settlement is entered into more than 30 days after
receipt by such Indemnifying Person of such request and (ii) such
Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
Indemnifying Person shall without the prior written consent of the
Indemnified Person, effect any settlement of any pending or threatened
Action in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified
Person, unless such settlement includes an unconditional release of such
Indemnified Person from all liability in respect of the subject matter of
such Action.
8. AGENTS' INDEMNITY
(1) The Issuer will indemnify (and if the Issuer fails to indemnify, the
Guarantor agrees so to indemnify) the Agent, each of the Paying Agents and
Transfer Agents, the Exchange Agent, the Registrar and any Settlement
Agent against any losses, liabilities, costs, claims, actions, demands or
expenses (including, but not limited to, all reasonable costs, legal fees,
charges and expenses paid or incurred in disputing or defending any of the
foregoing) which it may incur or which may be made against the Agent, any
Paying Agent or Transfer Agent, the Exchange Agent, the Registrar or any
Settlement Agent as a result of or in connection with its appointment or
the exercise of its powers and duties hereunder except such as may result
from its own default, negligence or bad faith or that of its officers,
directors or employees or the breach by it of the terms of this Agreement.
(2) Each of the Agent, the Paying Agents, the Transfer Agents, the Exchange
Agent, the Registrar and any Settlement Agent will severally indemnify the
Issuer and the Guarantor against any loss, liability, cost, claim, action,
demand or expenses (including, but not limited to, all reasonable costs,
legal fees, charges and expenses paid or incurred in disputing or
defending any of the foregoing) which the Issuer or the Guarantor may
incur or which may be made against the Issuer or the Guarantor as the
direct reasonably foreseeable result of the breach by the Agent, the
Paying Agents or Transfer Agents, the Exchange Agent, the Registrar or any
Settlement Agent of the terms of this Agreement or its default, negligence
or bad faith or that of its officers, directors or employees.
9. FEES, EXPENSES AND STAMP DUTIES
(1) The Issuer and the Guarantor jointly and severally undertake that they
will:
(a) except in the case of an issue of Notes on a syndicated basis (the
commissions for which will be agreed at the time of agreement for
such issue) pay to each Dealer all
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commissions from time to time agreed in connection with the sale of
any Notes to that Dealer (and any value added or other tax thereon);
and
(b) pay (together with any value added tax or other tax thereon):
(i) the fees and expenses of its legal advisers and auditors; and
(ii) the cost of listing and maintaining the listing of any Notes
issued pursuant to this Agreement which are to be listed on a
Stock Exchange.
(2) The Issuer and the Guarantor also jointly and severally undertake that
they will:
(a) pay (together with any value added tax or other tax thereon):
(i) the fees and expenses of the Registrar, the Agent, any Paying
Agents, the Transfer Agents and the Exchange Agent;
(ii) all expenses in connection with the issue, authentication,
packaging and initial delivery of Notes and the preparation of
bearer global Notes and registered global Notes, this
Agreement, the Guarantee, the Deed of Covenant and the
preparation and printing of any and all Notes, the Offering
Circular and any amendments or supplements thereto (including
the updating of any legal opinions issued pursuant to clause
3(4) and of any auditors' comfort letters issued pursuant to
clause 6(6)); and
(iii) the cost of any publicity agreed by the Issuer in connection
with the issue of Notes;
(b) pay to BSIL the fees and disbursements of legal advisers appointed
to represent the Programme Dealers (including any value added tax or
other tax thereon) in connection with the negotiation, preparation,
execution and delivery of this Agreement, the Guarantee, the Deed of
Covenant and any documents referred to in any of them and any other
documents required in connection with this Agreement or the issue of
any Notes under this Agreement;
(c) pay promptly, and in any event before any penalty becomes payable,
any stamp, documentary, registration or similar duty or tax
(including any stamp duty reserve tax) payable in connection with
the entry into, performance, enforcement or admissibility in
evidence of this Agreement, any communication pursuant hereto, the
Deed of Covenant, the Guarantee or any Note and indemnify each
Dealer against any liability with respect to or resulting from any
delay in paying or omission to pay any such duty or tax; and
(d) reimburse each Dealer for its costs and expenses reasonably and
properly incurred in protecting or enforcing any of its rights under
this Agreement.
10. TERMINATION OF APPOINTMENT OF PROGRAMME DEALERS
The Issuer or (as to itself) a Programme Dealer may terminate the
arrangements described in this Agreement by giving not less than 30 days'
written notice to the other parties hereto. The Issuer may terminate the
appointment of a Programme Dealer by giving not less than 30 days' written
notice to such Programme Dealer (with a copy promptly thereafter to all
the other Programme Dealers and the Agent). Termination (including
assignment or transfer in
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accordance with clause 45(2)) shall not affect any rights or obligations
(including but not limited to those arising under clauses 5, 7, and/or 9)
which have accrued at the time of termination (including assignment or
transfer in accordance with clause 45(2)) or which accrue thereafter in
relation to any act or omission or alleged act or omission which occurred
prior to such time.
11. APPOINTMENT OF DEALERS
(1) Nothing in this Agreement shall prevent the Issuer and the Guarantor from
appointing one or more further Programme Dealers for the duration of the
Programme or, with regard to an issue of a particular Tranche of Notes,
the Issuer and the Guarantor appointing one or more Issue Dealers for the
purposes of that Tranche, in either case upon the terms of this Agreement
provided that, unless such appointment is effected pursuant to a
Syndication Agreement:
(a) any such entity shall have first delivered to the Issuer and the
Guarantor a Dealer Accession Letter substantially in the appropriate
form set out in Part I or III of Schedule 13; and
(b) the Issuer and the Guarantor shall have delivered to such Dealer a
Confirmation Letter substantially in the appropriate form set out in
Part II or IV of Schedule 13,
whereupon such entity shall, subject to the terms of the relevant Dealer
Accession Letter and the relevant Confirmation Letter, become a party to
this Agreement, vested with all authority, rights, powers, duties and
obligations of a Programme Dealer or, as the case may be, an Issue Dealer
as if originally named as a Programme Dealer or, as the case may be, an
Issue Dealer hereunder.
(2) The Issuer shall promptly notify the other parties to this Agreement of
any appointment of a Programme Dealer by supplying to such parties a copy
of the relevant Dealer Accession Letter and Confirmation Letter. No notice
shall be required to be given in the case of an appointment of an Issue
Dealer.
12. INCREASE IN THE AGGREGATE NOMINAL AMOUNT OF THE NOTES TO BE ISSUED UNDER
THE AGREEMENT
(1) From time to time the Issuer and the Guarantor may wish to increase the
aggregate nominal amount of the Notes that may be issued under this
Agreement. In such circumstances, the Issuer and the Guarantor may give
notification of such an increase (subject as set out in sub-clause (2)) by
delivering to the Listing Agent and the Programme Dealers a letter in
substantially the form set out in Schedule 12. Upon such notice being
given to the Programme Dealers and the Listing Agent, all references in
this Agreement or any other agreement or deed in relation to this
Agreement and the Notes issued under this Agreement to the aggregate
nominal amount of the Notes that may be issued under this Agreement, shall
be and shall be deemed to be references to the increased aggregate nominal
amount of the Notes that may be issued under this Agreement.
(2) Notwithstanding sub-clause (1), the right of the Issuer and the Guarantor
to increase the aggregate nominal amount of the Notes that may be issued
under this Agreement shall be subject to each Programme Dealer having
received and found satisfactory all the documents and confirmations
described in the Initial Documentation List (with such changes as may be
relevant, by reference to the circumstances at the time of the proposed
increase as are agreed
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between the Issuer, the Guarantor and the Programme Dealers) and the
delivery of any further conditions precedent that any Programme Dealer may
reasonably require, including, without limitation, the production of a
supplementary Offering Circular and any further or other documents
required by the relevant Stock Exchange(s) for the purpose of listing the
Notes to be issued under the Programme on the relevant Stock Exchange(s).
The Guarantor shall circulate to the Programme Dealers all the documents
and confirmations described in the Initial Documentation List and any
further conditions precedent so required. Any Programme Dealer must notify
the Guarantor and the Issuer within seven business days of receipt if it
considers, in its reasonable opinion, such documents, confirmations and,
if applicable, such further conditions precedent to be unsatisfactory.
13. CURRENCY INDEMNITY
If, under any applicable law and whether pursuant to a judgment being made
or registered against the Issuer or the Guarantor or in the liquidation,
insolvency or analogous process of the Issuer or the Guarantor or for any
other reason, any payment under or in connection with this Agreement is
made or falls to be satisfied in a currency (the "other currency" other
than that in which the relevant payment is expressed to be due (the
"required currency") under this Agreement, then, to the extent that the
payment (when converted into the required currency at the rate of exchange
on the date of payment or, if it is not practicable for the relevant
Dealer to purchase the required currency with the other currency on the
date of payment, at the rate of exchange as soon thereafter as it is
practicable for it to do so or, in the case of a liquidation, insolvency
or analogous process, at the rate of exchange on the latest date permitted
by applicable law for the determination of liabilities in such
liquidation, insolvency or analogous process) actually received by the
relevant Dealer falls short of the amount due under the terms of this
Agreement, then each of the Issuer and the Guarantor, undertakes that it
shall, as a separate and independent obligation, indemnify and hold
harmless the relevant Dealer against the amount of such shortfall. For the
purpose of this clause "rate of exchange" means the rate at which the
relevant Dealer is able on the London foreign exchange market on the
relevant date to purchase the required currency with the other currency
and shall take into account any premium and other reasonable costs of
exchange.
14. STABILISATION
In connection with the distribution of any Notes, the Dealer (if any)
designated as stabilising manager in the applicable Pricing Supplement or
any person acting for such Dealer may over-allot or effect transactions
with a view to supporting the market price of such Notes (or Notes of the
same Series) at a level higher than that which might otherwise prevail,
for a limited period after the Issue Date. However, there may be no
obligation on the stabilising manager or any agent of its to do this. Such
stabilising, if commenced, may be discontinued at any time and must be
brought to an end after a limited period.
15. APPOINTMENT OF AGENT, OTHER PAYING AGENTS, REGISTRAR, TRANSFER AGENTS AND
EXCHANGE AGENT
(1) The Agent is hereby appointed, and the Agent hereby agrees to act, as
agent of the Issuer and the Guarantor upon the terms and subject to the
conditions set out below, for the purposes of, amongst other things:
(a) completing, authenticating and delivering Temporary Bearer Global
Notes, Permanent Bearer Global Notes and (if required) completing,
authenticating and
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delivering Definitive Bearer Notes;
(b) exchanging Temporary Bearer Global Notes for Permanent Bearer Global
Notes or Definitive Bearer Notes, as the case may be, in accordance
with the terms of such Temporary Bearer Global Notes and as
specified in the applicable Pricing Supplement and making all
notations on such Temporary Bearer Global Notes required in
accordance with their terms;
(c) exchanging Permanent Bearer Global Notes for Definitive Bearer Notes
in accordance with the terms of such Permanent Bearer Global Notes
and making all notations on such Permanent Bearer Global Notes
required in accordance with their terms;
(d) paying sums due on Bearer Global Notes and Definitive Bearer Notes,
Receipts and Coupons;
(e) exchanging Talons for Coupons in accordance with the Conditions;
(f) determining the end of the distribution compliance period (in the
case of Bearer Notes) applicable to each Tranche in accordance with
clause 17(3);
(g) unless otherwise specified in the applicable Pricing Supplement,
determining the interest and/or other amounts payable in respect of
the Notes in accordance with the Conditions;
(h) arranging on behalf of the Issuer and/or the Guarantor for notices
to be communicated to the Noteholders in accordance with the
Conditions;
(i) (to the extent required by applicable law or regulation for the time
being) ensuring that, as directed by the Issuer, all necessary
action is taken to comply with any reporting requirements of any
competent authority of any relevant currency as may be in force from
time to time with respect to the Notes to be issued under this
Agreement;
(j) subject to the Procedures Memorandum, submitting to the relevant
Stock Exchange such number of copies of each Pricing Supplement
relating to Bearer Notes which are to be listed as the relevant
Stock Exchange may reasonably require;
(k) unless the Agent has delegated this role (as authorised below) to a
settlement agent (such person being the "Settlement Agent", in which
case all references in this sub-clause (j) to the Agent shall,
unless the context requires otherwise, be deemed to refer to the
Settlement Agent) then in respect of each valid Transfer Notice (any
determination as to whether a Transfer Notice has been properly and
completely delivered as provided in the Conditions shall be made by
(in the case of Bearer Notes) Euroclear or Clearstream, Luxembourg,
or (in the case of Registered Notes) the Registrar, as the case may
be, (in consultation with the Settlement Agent, if applicable) and
shall be conclusive and binding on the Issuer, the Guarantor and the
relevant Accountholder or Noteholder (as the case may be)), promptly
upon receipt thereof providing a copy to the Issuer and:
(i) confirming with (in the case of Bearer Notes) Euroclear or
Clearstream, Luxembourg, or (in the case of Registered Notes)
the Registrar, as the case may be, the number of Notes to
which such Transfer Notice relates;
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(ii) promptly notifying the Issuer of details of the amount of any
Transfer Expenses in respect thereof;
(iii) as instructed by the Issuer, or as may be specified in the
applicable Pricing Supplement, as attorney or agent on behalf
of the Issuer, executing the instrument(s) of transfer (if
any) of the relevant number of Underlying Securities held by
the Issuer (or its nominee) in accordance with the
instructions contained in the relevant Transfer Notice and
procuring that the relevant Securities Amounts are delivered
in the manner specified in the Conditions and in the
applicable Pricing Supplement, provided that if on the
Maturity Date or the Early Redemption Date (as the case may
be) or on any date thereafter prior to the delivery, in
accordance with the Conditions, of the relevant Underlying
Securities any Settlement Disruption Event is subsisting,
delivery of the relevant Underlying Securities shall be
postponed until the date on which no Settlement Disruption
Event is subsisting, subject to Condition 6(a)(v); and
(l) performing all other obligations and duties imposed upon it by the
Conditions and this Agreement.
The Agent may from time to time, subject to the prior written consent of
the Issuer and the Guarantor, delegate certain of its functions and duties
set out in this Agreement, insofar as may relate to (i) Registered Notes,
to the Registrar, and (ii) Linked Notes, to a Settlement Agent.
(2) Each Paying Agent is hereby appointed, and each Paying Agent hereby agrees
to act, as paying agent of the Issuer and the Guarantor, upon the terms
and subject to the conditions set out below, for the purposes of paying
sums due on Notes, Receipts and Coupons and performing all other
obligations and duties imposed upon it by the Conditions and this
Agreement, including keeping a stock of Transfer Notices (in the form set
out in Schedule 7 hereto) to be made available upon request by holders of
Linked Notes.
(3) Each Transfer Agent is hereby appointed, and each Transfer Agent hereby
agrees to act, as transfer agent of the Issuer and the Guarantor, upon the
terms and subject to the conditions set out below.
(4) The Exchange Agent is hereby appointed, and the Exchange Agent hereby
agrees to act, as exchange agent of the Issuer and the Guarantor, upon and
subject to the terms and conditions set out below.
(5) Any Settlement Agent appointed hereunder shall agree to act as settlement
agent of the Issuer and the Guarantor, upon the terms and conditions set
out herein.
(6) The Registrar is hereby appointed, and the Registrar hereby agrees to act,
as registrar and transfer agent of the Issuer and the Guarantor, upon the
terms and subject to the conditions set out below, for the purposes of,
amongst other things:
(a) completing, authenticating and delivering Reg. S Global Notes,
Restricted Global Notes and authenticating and delivering Definitive
Registered Notes;
(b) paying sums due on Registered Global Notes and Registered Definitive
Notes;
(c) determining the end of the Distribution Compliance Period (in the
case of Registered Notes) applicable to each Tranche in accordance
with clause 17(3);
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(d) subject to the Procedures Memorandum, submitting to the relevant
Stock Exchange such number of copies of each Pricing Supplement
relating to Registered Notes which are to be listed as the relevant
Stock Exchange may require; and
(e) performing all other obligations and duties imposed upon it by the
Conditions and this Agreement, including, without limitation, those
set out in clause 24.
The Registrar may from time to time, subject to the prior written consent
of the Issuer and the Guarantor, delegate certain of its functions and
duties set out in this Agreement to the Agent.
16. ISSUE OF BEARER GLOBAL NOTES AND REGISTERED GLOBAL NOTES
(1) Subject to sub-clause (2) below, upon being instructed to do so, in the
case of an issue of Notes on a non-syndicated basis, by receipt of a
confirmation (a "Confirmation") from the Issuer substantially in the form
of Annex C to the Procedures Memorandum or, in the case of an issue of
Notes on a syndicated basis, upon receipt of an executed Syndication
Agreement, the Agent and the Registrar will each take the steps required
of them in the Procedures Memorandum. For this purpose, each of the Agent
and the Registrar is hereby authorised on behalf of the Issuer and the
Guarantor:
(a) to prepare a Temporary Bearer Global Note (in the case of the Agent)
and/or Reg. S Global Note and/or Restricted Global Note (in the case
of the Registrar) by attaching a copy of the applicable Pricing
Supplement and a copy of the Terms and Conditions of the Notes to an
executed master Temporary Bearer Global Note, Reg. S Global Note or
Restricted Global Note, as the case may be;
(b) to authenticate such Temporary Bearer Global Note (in the case of
the Agent) or Reg. S Global Note or Restricted Global Note (in the
case of the Registrar) in accordance with the provisions of this
Agreement;
(c) in the case of the Agent, to deliver, in the case of a Temporary
Bearer Global Note only, such Temporary Bearer Global Note to a
common depositary of Euroclear and/or Clearstream, Luxembourg
against receipt from the common depositary of confirmation that such
common depositary is holding the Temporary Bearer Global Note in
safe custody for the account of Euroclear and/or Clearstream,
Luxembourg and to instruct Euroclear or Clearstream, Luxembourg or
both of them (as the case may be) unless otherwise agreed in writing
between the Agent and the Issuer: (i) in the case of an issue of
Notes on a non-syndicated basis, to credit the Notes represented by
such Temporary Bearer Global Note to the Agent's distribution
account; and (ii) in the case of Notes issued on a syndicated basis,
to hold the Notes represented by such Temporary Bearer Global Note
to the Issuer's order;
(d) in the case of the Registrar, to deliver, in the case of a
Registered Global Note, such Registered Global Note to a custodian
for DTC against receipt from DTC of confirmation that: (i) in the
case of an issue of Registered Notes on a non-syndicated basis, that
Registered Notes represented by such Registered Global Note have
been credited to the relevant Dealer's participant account (or the
participant account of the DTC participant through which the
relevant Dealer is acting); and (ii) in the case of an issue of
Registered Notes on a syndicated basis, that Registered Notes
represented by such Registered Global Note are held to the Issuer's
order; and
(e) to ensure that the Notes of each Tranche are assigned, as
applicable, a CUSIP
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number, CINS number, common code and ISIN which are different from
the CUSIP number, CINS number, common code and ISIN assigned to
Notes of any other Tranche of the same Series until at least expiry
of the applicable Distribution Compliance Period (as defined below).
(2) Each of the Agent and the Registrar shall only be required to perform its
obligations under sub-clause (1) above, in circumstances in which the
relevant master global Notes are required for the performance of its
obligations, if it holds (as applicable):
(a) a master Temporary Bearer Global Note duly executed manually or by
facsimile by a person or persons authorised to execute the same on
behalf of the Issuer, which may be used by the Agent for the purpose
of preparing a Temporary Bearer Global Note in accordance with
paragraph (a) of sub-clause (1);
(b) a master Permanent Bearer Global Note duly executed manually or by
facsimile by a person or persons duly authorised to execute the same
on behalf of the Issuer, which may be used by the Agent for the
purpose of preparing a Permanent Bearer Global Note in accordance
with clause 17;
(c) a master Reg. S Global Note duly executed manually or by facsimile
by a person or persons duly authorised to execute the same on behalf
of the Issuer, which may be used by the Agent for the purpose of
preparing Reg. S Global Notes in accordance with paragraph (a) of
sub-clause (1); and
(d) a master Restricted Global Note duly executed manually or by
facsimile by a person or persons duly authorised to execute the same
on behalf of the Issuer, which may be used by the Agent for the
purpose of preparing Restricted Global Notes in accordance with
paragraph (a) of sub-clause (1).
17. DETERMINATION OF EXCHANGE DATE, ISSUE OF PERMANENT BEARER GLOBAL NOTES,
ISSUE OF DEFINITIVE BEARER GLOBAL NOTES, DETERMINATION OF DISTRIBUTION
COMPLIANCE PERIOD AND ELIMINATION OF CHILL ORDER
(1) The Agent shall determine the Exchange Date for each Temporary Bearer
Global Note in accordance with the terms thereof. Forthwith upon
determining the Exchange Date in respect of any Tranche, the Agent shall
notify such determination to the Issuer, the relevant Dealer, Euroclear
and Clearstream, Luxembourg.
(2) The Agent shall deliver a Permanent Bearer Global Note or Definitive
Bearer Notes, as the case may be, in accordance with the terms of the
Temporary Bearer Global Note and as specified in the applicable Pricing
Supplement. Where a Temporary Bearer Global Note is to be exchanged for a
Permanent Bearer Global Note, the Agent is hereby authorised to, and it
shall, on behalf of the Issuer:
(a) in the case of the first Tranche of any Series of Bearer Notes,
prepare and complete a Permanent Bearer Global Note in accordance
with the terms of the Temporary Bearer Global Note applicable to
such Tranche by attaching a copy of the applicable Pricing
Supplement and a copy of the Terms and Conditions of the Notes to an
executed master Permanent Bearer Global Note;
(b) in the case of the first Tranche of any Series of Bearer Notes,
authenticate such Permanent Bearer Global Note in accordance with
the provisions of this Agreement;
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(c) in the case of the first Tranche of any Series of Bearer Notes,
deliver such Permanent Bearer Global Note to the common depositary
which is holding the Temporary Bearer Global Note applicable to such
Tranche for the time being on behalf of Euroclear and/or
Clearstream, Luxembourg either in exchange for such Temporary Bearer
Global Note or, in the case of a partial exchange, on entering
details of such partial exchange of the Temporary Bearer Global Note
in the relevant spaces in Schedule 2 of both the Temporary Bearer
Global Note and the Permanent Bearer Global Note; and
(d) in any other case, attach a copy of the applicable Pricing
Supplement and the Terms and Conditions of the Notes to the
Permanent Bearer Global Note applicable to the relevant Series and
enter details of any exchange in whole or part as aforesaid.
(3) (a) In the case of a Tranche of Notes in respect of which there is only
one Dealer, the Agent will determine the end of the distribution
compliance period in respect of such Tranche (the "Distribution
Compliance Period") as being the 40th day following the date
certified by the relevant Dealer to the Agent as being the date as
of which distribution of the Notes of that Tranche was completed.
(b) In the case of a Tranche of Notes in respect of which there is more
than one Dealer but which has not been issued on a syndicated basis,
the Agent will determine the end of the Distribution Compliance
Period in respect of such Tranche as being the 40th day following
the latest of the dates certified by all the relevant Dealers to the
Agent as being the respective dates as of which distribution of the
Notes of that Tranche purchased by each such Dealer was completed.
(c) In the case of a Tranche of Notes issued on a syndicated basis, the
Agent will determine the end of the Distribution Compliance Period
in respect of such Tranche as being the 40th day following the date
certified by the Lead Manager to the Agent as being the date on
which distribution of the Notes of that Tranche was completed.
(d) Forthwith upon determining the end of the Distribution Compliance
Period in respect of any Tranche of Notes, the Agent shall notify
such determination to the Issuer, the Guarantor, Euroclear and
Clearstream, Luxembourg and the relevant Dealer (in the case of a
non-syndicated issue) or the Lead Manager (in the case of a
syndicated issue).
(4) The Agent shall request DTC to eliminate any "Deliver Order Chill"
applicable to a Reg. S Global Note, such request to be effective after
expiry of the Distribution Compliance Period applicable to the Tranche of
Notes in question.
18. ISSUE OF DEFINITIVE NOTES
(1) In accordance with the terms of the relevant Pricing Supplement and
pursuant to the terms of the relevant Bearer Global Note (in the case of
Bearer Notes only) or upon the Issuer becoming obliged pursuant to
Condition 12 (in the case of Registered Notes only) to issue Definitive
Notes, the Agent (in the case of Bearer Notes) and the Registrar (in the
case of Registered Notes) are each hereby authorised to:
(a) authenticate such Definitive Note(s) in accordance with the
provisions of this Agreement; and
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(b) deliver such Definitive Note(s), in the case of Definitive Bearer
Notes to or to the order of Euroclear and/or Clearstream, Luxembourg
or, in the case of Definitive Registered Notes, as the Registrar may
be directed by the holder of such Definitive Registered Note(s).
The Agent shall notify the Issuer forthwith upon receipt of a request for
issue of Definitive Bearer Notes in accordance with the provisions of a
Permanent Bearer Global Note (and the aggregate nominal amount of such
Permanent Bearer Global Note to be exchanged in connection therewith). The
Registrar shall notify the Issuer forthwith upon receipt of a request for
the issue of Definitive Registered Notes (including upon the exchange of
Reg. S Notes for Legended Notes or vice versa) and the aggregate nominal
amount of the relevant Registered Global Note or, as the case may be,
Definitive Registered Notes, to be exchanged in connection therewith.
(2) The Issuer (failing which, the Guarantor) undertakes to deliver to the
Agent or the Registrar, as the case may be, sufficient numbers of executed
Definitive Notes with, in the case of Definitive Bearer Notes (if
applicable), Receipts, Coupons and Talons attached, to enable the Agent or
the Registrar, as the case may be, to comply with its obligations under
this clause.
19. TERMS OF ISSUE
(1) The Issuer undertakes to ensure that at all times a sufficient quantity of
master Temporary Bearer Global Notes and master Permanent Bearer Global
Notes is held by the Agent and a sufficient quantity of Registered Global
Notes is held by the Registrar, all duly executed as aforesaid. The Issuer
(failing which, the Guarantor) further undertakes to deliver to the Agent,
or the Registrar, as the case may be, upon reasonable notice sufficient
numbers of executed Definitive Notes (together with, in the case of
Definitive Bearer Notes (if applicable), Receipts, Coupons and Talons
attached) which are required by the Agent or the Registrar, as the case
may be, pursuant to a request for the issue of Definitive Bearer Notes
under the terms of a Permanent Bearer Global Note or in accordance with
the terms of the applicable Pricing Supplement and under the terms of a
Temporary Bearer Global Note or, as the case may be, pursuant to the
Issuer's obligation to issue Definitive Registered Notes in accordance
with Condition 12 and that it will, on demand, supply to the Agent or the
Registrar, as the case may be, such further duly executed Definitive Notes
as the Agent or the Registrar, as the case may be, may from time to time
require for the performance of their duties hereunder.
(2) Each of the Agent and the Registrar shall cause all Notes delivered to and
held by it or them hereunder to be maintained in safe custody and shall
ensure that such Notes are issued only under the Conditions and in
accordance with the provisions of this Agreement.
(3) Subject to the procedures set out in the Procedures Memorandum, for the
purposes of clause 16 each of the Agent and the Registrar, as the case may
be, is entitled to treat a telephone, telex or facsimile communication
from a person purporting to be and who the Agent or the Registrar, as the
case may be, believes in good faith to be, the authorised representative
of the Issuer named in the list referred to in, or notified pursuant to,
clause 16(7) , or any other list duly provided for such purpose by the
Issuer to the Agent or the Registrar, as the case may be, as sufficient
instruction and authority of the Issuer for the Agent or the Registrar to
act in accordance with clause 16 .
(4) In the event that a person who has signed, on behalf of the Issuer, a
master Temporary Bearer Global Note, master Permanent Bearer Global Note,
master Registered Global Note or Definitive Note held by the Agent or the
Registrar, as the case may be, in accordance with
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sub-clause (2) above ceases to be authorised as described in clause 36(7),
the Agent and the Registrar, shall (unless the Issuer gives notice to the
Agent or the Registrar, as the case may be, that Notes signed by that
person do not constitute valid and binding obligations of the Issuer or
otherwise until replacements have been provided to the Agent or the
Registrar, as the case may be) continue to have authority to issue Notes
signed by that person, and the Issuer hereby warrants to the Agent and the
Registrar that such Notes shall be valid and binding obligations of the
Issuer. Promptly upon such person ceasing to be authorised, the Issuer
shall provide the Agent with replacement master Temporary Bearer Global
Notes, replacement master Permanent Global Bearer Notes and replacement
Definitive Bearer Notes and shall provide the Registrar with replacement
master Registered Global Notes and replacement Definitive Registered Notes
and the Agent and the Registrar, as the case may be, shall, upon receipt
of such replacements, cancel and destroy the master Temporary Permanent
Global Note(s), master Permanent Bearer Global Note(s), master Registered
Global Note(s) and unissued Definitive Notes, as applicable, held by them
which are signed by such person and shall provide the Issuer with a
certificate of destruction in respect thereof, specifying the Notes so
cancelled and destroyed.
(5) The Agent will provide Euroclear and/or Clearstream, Luxembourg with the
notifications, instructions or information to be given by the Agent to
Euroclear and/or Clearstream, Luxembourg.
(6) If the Agent or the Registrar, as the case may be, pays an amount (the
"Advance") to the Issuer on the basis that a payment (the "Payment") has
been or will be received from a Dealer and if the Payment is not received
by the Agent or the Registrar on the date the Agent or the Registrar, as
the case may be, pays the Issuer, the Issuer (failing which, the
Guarantor) shall repay to the Agent or the Registrar, as the case may be,
the Advance and shall pay interest on the Advance (or the unreimbursed
portion thereof) from (and including) the date such Advance is made to
(but excluding) the earlier of repayment of the Advance or receipt by the
Agent or the Registrar of the Payment (at a rate quoted at that time by
the Agent or the Registrar as its cost of funding the Advance provided
that evidence of the basis of such rate is given to the Issuer and the
Guarantor). For the avoidance of doubt, neither the Agent nor the
Registrar shall be obliged to pay any amount to the Issuer if it has not
received satisfactory confirmation that it is to receive such amount from
a Dealer.
(7) Except in the case of issues where the Agent or the Registrar, as the case
may be, does not act as receiving bank for the Issuer in respect of the
purchase price of the Notes being issued, if on the relevant Issue Date a
Dealer does not pay the full purchase price due from it in respect of any
Note (the "Defaulted Note") and, as a result, the Defaulted Note remains
in the Agent's distribution account with Euroclear and/or Clearstream,
Luxembourg and/or the Registrar's participant account with DTC after such
Issue Date, the Agent or the Registrar, as the case may be, will continue
to hold the Defaulted Note to the order of the Issuer. The Agent or the
Registrar, as the case may be, shall notify the Issuer forthwith of the
failure of the Dealer to pay the full purchase price due from it in
respect of any Defaulted Note and, subsequently, shall notify the Issuer
forthwith upon receipt from the Dealer of the full purchase price in
respect of such Defaulted Note.
20. EXCHANGE AND TRANSFER OF NOTES
(1) Upon any exchange of all or a portion of an interest in a Temporary Bearer
Global Note for an interest in a Permanent Bearer Global Note or upon any
exchange of all or a portion of an interest in a Temporary Bearer Global
Note or a Permanent Bearer Global Note for Definitive Bearer Notes or
Definitive Registered Notes, the relevant Global Note shall be endorsed by
the Agent to reflect the reduction of its nominal amount by the aggregate
nominal amount so
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exchanged and the Permanent Bearer Global Note shall be endorsed by the
Agent or on its behalf to reflect the increase in its nominal amount as a
result of such exchange. Until exchanged in full, the holder of an
interest in any Bearer Global Note shall in all respects be entitled to
the same benefits under this Agreement as the holder of Definitive Bearer
Notes, Receipts and Coupons authenticated and delivered hereunder, subject
as set out in the Conditions. The Agent is hereby authorised on behalf of
the Issuer: (a) to endorse or to arrange for the endorsement of the
relevant Bearer Global Note to reflect the reduction in the nominal amount
represented thereby by the amount so exchanged and, if appropriate, to
endorse the Permanent Bearer Global Note to reflect any increase in the
nominal amount represented thereby, and in either case, to sign in the
relevant space on the relevant Bearer Global Note recording such exchange
and reduction or increase; and (b) in the case of a total exchange, to
cancel or arrange for the cancellation of the relevant Bearer Global Note.
(2) Upon any exchange of all or a portion of an interest in a Restricted
Global Note for an interest in a Reg. S Global Note or vice versa or upon
exchange of an interest in a Registered Global Note for Definitive
Registered Notes or vice versa or upon any exchange of Definitive Bearer
Notes for an interest in Registered Global Notes or Registered Definitive
Notes, the relevant Registered Global Note(s) shall be surrendered to the
Registrar by or to the order of DTC or its nominee and endorsed to reflect
the reduction or increase (as the case may be) in its/their nominal amount
by the Registrar or on its behalf. The Registrar is hereby authorised on
behalf of the Issuer: (a) to endorse or to arrange for the endorsement of
the relevant Registered Global Note(s) to reflect the reduction or
increase (as the case may be) in the nominal amount represented thereby,
and in either case to sign in the relevant space on the relevant
Registered Global Note recording such exchange and reduction or increase;
and (b) in the case of total exchange, to cancel or arrange for the
cancellation of the relevant Registered Global Note.
21. PAYMENTS AND DELIVERIES
(1) (a) The Issuer (failing which, the Guarantor) will, before 10.00 a.m.
(local time in the relevant financial centre of the payment), on
each date on which any payment in respect of any of the Notes
becomes due, transfer to an account specified by the Agent, in the
case of Bearer Notes, or the Registrar, in the case of Registered
Notes, such amount in the relevant currency as shall be sufficient
for the purposes of such payment in funds settled through such
payment system as the Issuer and the Agent or the Registrar, as the
case may be, may agree.
(b) In the case of Linked Notes where the amount due is deliverable to
the Noteholder, the Issuer (failing which, the Guarantor) will,
before 10.00 a.m. (local time in the relevant financial centre of
delivery), on each date on which any delivery in respect of any of
the Notes is due, transfer to an account specified by the Agent (or
the Settlement Agent, as the case may be), in the case of Bearer
Notes, or the Registrar (or the Settlement Agent, as the case may
be), in the case of Registered Notes, the relevant number of
Underlying Securities required for the purposes of that delivery as
the Issuer and the Agent (or the Settlement Agent) or Registrar (or
the Settlement Agent), as the case may be, may agree.
(2) The Issuer (failing which, the Guarantor) will ensure that no later than
10.00 a.m. (London time) on the second Business Day (as defined below)
immediately preceding the date on which any payment is to be made to the
Agent or the Registrar, as the case may be, pursuant to sub-clause (1)
above, the Agent or the Registrar, as the case may be, shall receive from
the paying bank of the Issuer a payment confirmation in the form of a
SWIFT message or tested telex. For the purposes of this clause "Business
Day" means a day which is both:
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(a) a day on which commercial banks and foreign exchange markets settle
payments and are open for general business (including dealings in
foreign exchange and foreign currency deposits) in London; and
(b) either: (i) in relation to a payment to be made in a Specified
Currency other than euro, a day on which commercial banks and
foreign exchange markets settle payments and are open for general
business (including dealings in foreign exchange and foreign
currency deposits) in the principal financial centre of the country
of the relevant Specified Currency (if other than London and which,
if the Specified Currency is Australian dollars or New Zealand
dollars, shall be Sydney and Auckland respectively) or (ii) in
relation to a payment to be made in euro, a day on which the TARGET
System is open.
(3) The Agent shall ensure that payments of both principal and interest in
respect of Temporary Bearer Global Notes will be made only to the extent
that certification of non-U.S. beneficial ownership as required by U.S.
securities laws and U.S. Treasury regulations (in the form set out in the
Temporary Bearer Global Notes) has been received from Euroclear and/or
Clearstream, Luxembourg in accordance with the terms thereof.
(4) Subject to the receipt by the Agent or the Registrar, as the case may be,
of the payment confirmation as provided in sub-clause (2) above, the
Agent, the Registrar or the relevant Paying Agent, as the case may be,
shall pay or deliver or cause to be paid or delivered all amounts due in
respect of the Notes on behalf of the Issuer and the Guarantor in the
manner provided in the Conditions. If any payment or delivery provided for
in sub-clause (1) is made late but otherwise in accordance with the
provisions of this Agreement, the Agent, the Registrar and each Paying
Agent shall nevertheless make payments in respect of the Notes as
aforesaid following receipt by it of such payment.
(5) If for any reason the Agent or the Registrar, as the case may be,
considers in its sole discretion that the amounts to be received by the
Agent or the Registrar, as the case may be, pursuant to sub-clause (1)
will be, or the amounts actually received by it pursuant thereto are,
insufficient to satisfy all claims in respect of all payments then falling
due in respect of the Notes, none of the Agent, the Registrar or the
Paying Agents shall be obliged to pay any such claims until the Agent or
the Registrar, as the case may be, has received the full amount of all
such payments.
(6) Without prejudice to sub-clauses (9) and (10), and other than in respect
of payments and/or delivery of amounts due under sub-clause (1)(b) above,
if the Agent or the Registrar pays and/or delivers any amounts to the
holders of Notes, Receipts or Coupons or to any Paying Agent at a time
when it has not received payment in full in respect of the relevant Notes
in accordance with sub-clause (1) (the excess of the amounts so paid over
the amounts so received being the "Shortfall"), the Issuer (failing which,
the Guarantor) will, in addition to paying amounts due under sub-clause
(1), pay to the Agent or the Registrar, as the case may be, on demand,
interest (at a rate which represents the Agent's or the Registrar's cost
of funding the Shortfall) on the Shortfall (or the unreimbursed portion
thereof) until the receipt in full by the Agent or the Registrar, as the
case may be, of the Shortfall.
(7) The Agent shall on demand promptly reimburse each Paying Agent for
payments in respect of Notes properly made by such Paying Agent in
accordance with this Agreement and the Conditions unless the Agent has
notified the Paying Agent, prior to the opening of business in the
location of the office of the Paying Agent through which payment in
respect of the Notes can be made on the due date of a payment in respect
of the Notes, that it does not expect to receive sufficient funds to make
payment of all amounts falling due in respect of such Notes.
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(8) Whilst any Notes are represented by Global Notes, all payments due in
respect of such Notes shall be made to, or to the order of, the holder of
the Global Notes, subject to and in accordance with the provisions of the
Global Notes. On the occasion of any such payment the Agent or the
Registrar to which the Global Note was presented for the purpose of making
such payment shall cause the appropriate Schedule to the relevant Global
Note to be annotated so as to evidence the amounts and dates of such
payments of principal and/or interest as applicable.
(9) The Registrar shall pay to the Exchange Agent, and the Exchange Agent
shall receive, all payments made under any Registered Global Note
registered in the name of DTC or its nominee (a "DTC Note") which is
denominated in a specified currency other than U.S. dollars.
The Exchange Agent shall be advised in writing, on or before the relevant
Record Date, by DTC or its nominee:
(a) if any beneficial holder (a "Beneficial Holder") of the DTC Note in
respect of which payment is due has elected to receive such payment
in U.S. dollars and, if so, the amount of such payment (expressed in
the Specified Currency in which the relevant DTC Note is
denominated) which such Beneficial Holder wishes to receive in U.S.
dollars; and
(b) of the payment details for each such Beneficial Holder.
The Exchange Agent shall enter into a contract on behalf of the Issuer at
or prior to 11:00 a.m. (New York City time) on the second New York
Business Day (as defined below) preceding the applicable payment date and
will solicit bid quotations from three recognised foreign exchange dealers
(which may include the Exchange Agent) for the purchase of U.S. dollars
with an amount of the relevant Specified Currency equal to the aggregate
amount which DTC has notified the Exchange Agent that Beneficial Holders
wish to receive in U.S. dollars. In the event that no such notification is
received from DTC prior to the Record Date, the Exchange Agent shall enter
into a contract for the purchase of U.S. dollars, as aforesaid, in respect
of the full amount of the payment due in respect of the relevant DTC Note.
The settlement date for each such purchase shall be the applicable payment
date and the Exchange Agent shall enter into a contract for such purchase
on the basis of the most favourable bid submitted. The Exchange Agent
shall, on the relevant payment day:
(i) pay all amounts converted into U.S. dollars in accordance with
the above to DTC or its nominee for distribution to the
relevant Beneficial Holders; and
(ii) pay all the other amounts due which are denominated otherwise
than in U.S. dollars direct to the relevant Beneficial Holders
in accordance with the payment instructions received from DTC
or its nominee.
In the event that the Exchange Agent is unable to convert the relevant
Specified Currency into U.S. dollars, the entire payment will be made in
the relevant Specified Currency in accordance with the payment
instructions received from DTC following notification by the Exchange
Agent to DTC of such fact.
For the purposes of this clause "New York Business Day" means a day (other
than a Saturday or a Sunday) on which foreign exchange markets are open
for business in New York City that is neither a legal holiday nor a day on
which banking institutions are authorised or required by law or regulation
to close in the city of New York and (i) with respect to Notes denominated
in a Specified Currency other than euro, in the principal financial centre
of the
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relevant Specified Currency (if other than New York City and which, if the
Specified Currency is Australian dollars, shall be Sydney) and (ii) with
respect to Notes denominated in euro a day on which the TARGET System is
open.
(10) If the Issuer has notified the Agent, Euroclear and Clearstream,
Luxembourg that it has elected to redenominate the Notes in euro in
accordance with Condition 4:
(a) the Agent shall promptly determine and notify the Noteholders of the
denominations in euro of any definitive Notes which are required to
be issued; and
(b) the Agent shall promptly perform the duties required of it under
Condition 4.
(11) If the amount of principal and/or interest then due for payment is not
paid in full (otherwise than by reason of a deduction required by law to
be made therefrom or a certification required by the terms of a Note not
being received), the Paying Agent or the Registrar, as the case may be, to
which a Note, Coupon or Receipt (as the case may be) is presented for the
purpose of making such payment shall make a record of such shortfall on
the Note and such record shall, in the absence of manifest error, be prima
facie evidence that the payment in question has not to that extent been
made.
(12) The Paying Agent and the Registrar shall each ensure that payments in
respect of Registered Notes will be made only to the extent that each
holder and beneficial owner of such Registered Notes provides relevant
documentation in accordance with Condition 6(a).
22. DETERMINATIONS AND NOTIFICATIONS IN RESPECT OF NOTES AND INTEREST
DETERMINATION
(1) Determinations and Notifications
(a) The Agent shall, unless otherwise specified in the applicable
Pricing Supplement, make all such determinations and calculations
(howsoever described) as it is required to do under the Conditions,
all subject to and in accordance with the Conditions.
(b) The Agent shall not be responsible to the Issuer, the Guarantor or
to any third party (except in the event of negligence, default or
bad faith of the Agent, as the case may be) as a result of the Agent
having acted on any quotation given by any Reference Bank or (in the
case of Linked Notes) a reputable broker-dealer or securities house
which subsequently may be found to be incorrect.
(c) The Agent shall promptly notify (and confirm in writing to) the
Issuer, the other Paying Agents, the Registrar (in the case of
Registered Notes), and (in respect of a Series of Notes listed on a
stock exchange) the relevant Stock Exchange of, amongst other
things, each Rate of Interest, Interest Amount and Interest Payment
Date and all other amounts, rates and dates which it is obliged to
determine or calculate under the Conditions as soon as practicable
after the determination thereof and of any subsequent amendment
thereto pursuant to the Conditions.
(d) The Agent shall use its best endeavours to cause each Rate of
Interest, Interest Amount and Interest Payment Date and all other
amounts, rates and dates which it is obliged to determine or
calculate under the Conditions to be published as required in
accordance with the Conditions as soon as possible after their
determination or calculation.
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(e) If the Agent does not at any material time for any reason determine
and/or calculate and/or publish the Rate of Interest, Interest
Amount and/or Interest Payment Date in respect of any Interest
Period or any other amount, rate or date as provided in this clause,
it shall forthwith notify the Issuer, the Registrar (in the case of
Registered Notes) and the other Paying Agents of such fact.
(f) Determinations with regard to Notes (including, without limitation,
Indexed Notes, Linked Notes and Dual Currency Notes) shall be made
by the Calculation Agent specified in the applicable Pricing
Supplement in the manner specified in the applicable Pricing
Supplement and unless otherwise agreed between the Issuer and the
relevant Dealer, such determinations shall be made on the basis of
the Calculation Agency Agreement. Notes of any Series may specify
additional duties and obligations of the Agent, any Paying Agent,
any Transfer Agent, the Exchange Agent or the Registrar as set out
in the Conditions, the performance of which will be agreed between
the Issuer and the Agent prior to the relevant Issue Date.
(2) Interest Determination, Screen Rate Determination including Fallback
Provisions
(a) Where Screen Rate Determination is specified in the applicable
Pricing Supplement as the manner in which the Rate of Interest is to
be determined, the Rate of Interest for each Interest Period will,
subject as provided below, be:
(i) the offered quotation (if there is only one quotation on the
Relevant Screen Page); or
(ii) the arithmetic mean (rounded if necessary to the fifth decimal
place, with 0.000005 being rounded upwards) of the offered
quotations,
(expressed as a percentage rate per annum), for deposits in the
Specified Currency for the relevant Interest Period which appears or
appear, as the case may be, on the Relevant Screen Page as at 11.00
a.m. (London time, in the case of LIBOR, or Brussels time, in the
case of EURIBOR) on the Interest Determination Date in question plus
or minus (as indicated in the applicable Pricing Supplement) the
Margin (if any), all as determined by the Agent. If five or more
such offered quotations are available on the Relevant Screen Page,
the highest (or, if there is more than one such highest quotation,
one only of such quotations) and the lowest (or, if there is more
than one such lowest quotation, one only of such quotations) shall
be disregarded by the Agent for the purpose of determining the
arithmetic mean (rounded as provided above) of such offered
quotations.
(b) If the Relevant Screen Page is not available or, if in the case of
(a)(i) above, no such offered quotation appears or, in the case of
(a)(ii) above, fewer than three such offered quotations appear, in
each case as at the time specified in sub-clause (a), the Agent
shall request the principal London office of each of the Reference
Banks (as defined below) to provide the Agent with its offered
quotation (expressed as a percentage rate per annum) for deposits in
the Specified Currency for the relevant Interest Period at
approximately 11.00 a.m. (London time) on the Interest Determination
Date in question. If two or more of the Reference Banks provide the
Agent with such offered quotations, the Rate of Interest for such
Interest Period shall be the arithmetic mean (rounded if necessary
to the fifth decimal place with 0.000005 being rounded upwards) of
such offered quotations plus or minus (as appropriate) the Margin
(if any), all as determined by the Agent.
(c) If on any Interest Determination Date one only or none of the
Reference Banks
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provides the Agent with such offered quotations as provided in the
preceding paragraph, the Rate of Interest for the relevant Interest
Period shall be the rate per annum which the Agent determines as
being the arithmetic mean (rounded if necessary to the fifth decimal
place, with 0.000005 being rounded upwards) of the rates, as
communicated to (and at the request of) the Agent by the Reference
Banks or any two or more of them, at which such banks were offered,
at approximately 11.00 a.m. (London time) on the relevant Interest
Determination Date, deposits in the Specified Currency for the
relevant Interest Period by leading banks in the London inter-bank
market plus or minus (as appropriate) the Margin (if any) or, if
fewer than two of the Reference Banks provide the Agent with such
offered rates, the offered rate for deposits in the Specified
Currency for the relevant Interest Period, or the arithmetic mean
(rounded as provided above) of the offered rates for deposits in the
Specified Currency for the relevant Interest Period, at which, at
approximately 11.00 a.m. (London time) on the relevant Interest
Determination Date, any one or more banks (which bank or banks is or
are in the opinion of the Issuer suitable for such purpose) informs
the Agent it is quoting to leading banks in the London inter-bank
market plus or minus (as appropriate) the Margin (if any), provided
that, if the Rate of Interest cannot be determined in accordance
with the foregoing provisions of this paragraph, the Rate of
Interest shall be determined as at the last preceding Interest
Determination Date (though substituting, where a different Margin is
to be applied to the relevant Interest Period from that which
applied to the last preceding Interest Period, the Margin relating
to the relevant Interest Period, in place of the Margin relating to
that last preceding Interest Period).
(d) If the Reference Rate from time to time in respect of Floating Rate
Notes is specified in the applicable Pricing Supplement as being
other than the London inter-bank offered rate or the European
inter-bank offered rate, the Rate of Interest in respect of such
Notes will be determined as provided in the applicable Pricing
Supplement.
23. NOTICE OF ANY WITHHOLDING OR DEDUCTION
(1) If the Issuer and/or the Guarantor is/are, in respect of any payment,
compelled to withhold or deduct any amount for or on account of taxes,
duties, assessments or governmental charges as specifically contemplated
under the Conditions, the Issuer and/or the Guarantor shall give notice
thereof to the Agent (in the case of Bearer Notes) or the Registrar (in
the case of Registered Notes) as soon as it becomes aware of the
requirement to make such withholding or deduction and shall give to the
Agent, in the case of Bearer Notes, or the Registrar, in the case of
Registered Notes, such information as it shall require to enable it to
comply with such requirement.
(2) If any Paying Agent, the Registrar or the Exchange Agent is, in respect of
any payment of principal or interest in respect of the Notes, compelled to
withhold or deduct any amount for or on account of any tax, duty or charge
as specifically contemplated under the Conditions, other than arising by
virtue of the relevant holder failing to perform any certification or
other requirement in respect of its Notes, it shall give notice thereof to
the Issuer, the Guarantor and the Agent as soon as it becomes aware of
such compulsion to withhold or deduct.
24. OTHER DUTIES OF THE REGISTRAR
(1) The Registrar shall perform such duties as are set out herein and the
Conditions and, in performing those duties, shall act in accordance with
the Conditions and the provisions of this Agreement.
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(2) The Registrar shall, subject to sub-clause (4), so long as any Note is
outstanding:
(a) maintain at its specified office a register (the "Register") of the
holders of the Registered Notes which shall show: (i) the nominal
amounts and the serial numbers of the Registered Notes; (ii) the
dates of issue of all Registered Notes; (iii) all subsequent
transfers and changes of ownership of Registered Notes; (iv) the
names and addresses of the holders of the Registered Notes; (v) all
cancellations of Registered Notes, whether because of their purchase
by the Issuer, the Guarantor or any of their respective Subsidiaries
or holding companies, their replacement or otherwise, and (vi) all
replacements of Registered Notes (subject, where appropriate, in the
case of (v), to the Registrar having been notified as provided in
this Agreement);
(b) effect exchanges of Definitive Bearer Notes for Registered Notes in
global and definitive form, interests in Registered Global Notes for
interests in a Registered Global Note of a different type of the
same Series, interests in Registered Global Notes for Definitive
Registered Notes and interests in Definitive Registered Notes for
Registered Global Notes, in accordance with the Conditions and this
Agreement, keep a record of all exchanges and ensure that the Agent
is notified forthwith after any exchange;
(c) register all transfers of Registered Notes;
(d) make any necessary notations on Registered Global Notes following
transfer or exchange of Notes;
(e) receive any document in relation to or affecting the title to any of
the Registered Notes including all forms of transfer, forms of
exchange, probates, letters of administration and powers of
attorney;
(f) forthwith, and in any event within three Business Days (being days
when banks are open for business in the city in which the specified
office of the Registrar is located) of the relevant request (or such
longer period as may be required to comply with any applicable
fiscal or other regulations), upon receipt by it, or receipt by it
of notification from any other Transfer Agent of delivery to it of
Definitive Registered Notes for transfer (together with, as
applicable, any Transfer Certificate and/or IAI Investment Letter)
or Definitive Bearer Notes for exchange into Registered Notes
(together with a duly completed Exchange Request) or subsequent to
the endorsement of a reduction in nominal amount of a Registered
Global Note for exchange into Definitive Registered Notes,
authenticate and issue duly dated and completed Definitive
Registered Notes at its specified office or (at the risk of the
relevant registered holders) send the Definitive Registered Notes to
such address as the registered holders may request.
(g) maintain proper records of the details of all documents received by
itself or any other Transfer Agent (subject to receipt of such
information from the other Transfer Agents);
(h) prepare all such lists of holders of the Registered Notes as may be
required by the Issuer or the Agent or any person authorised by
either of them;
(i) subject to applicable laws and regulations at all reasonable times
during office hours make the Register available to the Issuer or any
person authorised by it or the holder
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of any Registered Note for inspection and for the taking of copies
or extracts;
(j) comply with the reasonable requests of the Issuer with respect to
the maintenance of the Register and give to the Agents and the
Transfer Agents such information as may be reasonably required by it
for the proper performance of their duties; and
(k) comply with the terms of any Transfer Notices.
(3) Notwithstanding anything to the contrary in this Agreement, in the event
of a partial redemption of Notes under Condition 7, the Registrar shall
not be required, unless so directed by the Issuer: (a) to register the
transfer of Registered Notes (or parts of Registered Notes) or to effect
exchanges of interests in Definitive Bearer Notes for Registered Notes in
global and definitive form, interests in Registered Global Notes for
interests in Registered Global Notes of a different type of the same
Series, interests in Registered Global Notes for Definitive Registered
Notes and interests in Definitive Registered Notes for Registered Global
Notes during the period beginning on the sixty-fifth day before the date
of the partial redemption and ending on the date on which notice is given
specifying the serial numbers of Notes called (in whole or in part) for
redemption (both inclusive); or (b) to register the transfer of any
Registered Note (or part of a Registered Note) called for partial
redemption.
(4) Registered Notes shall be dated:
(a) in the case of a Definitive Registered Note issued on the Issue
Date, the Issue Date; or
(b) in the case of a Definitive Registered Note issued in exchange for
an interest in a Registered Global Note or a Bearer Global Note, or
upon transfer, with the date of registration in the Register of the
exchange or transfer; or
(c) in the case of a Definitive Registered Note issued to the transferor
upon transfer in part of a Registered Note, with the same date as
the date of the Registered Note transferred; or
(d) in the case of a Definitive Registered Note issued pursuant to
clause 30, with the same date as the date of the lost, stolen,
mutilated, defaced or destroyed Registered Note in replacement of
which it is issued.
25. DUTIES OF THE TRANSFER AGENTS
(1) The Transfer Agents shall perform such duties as are set out herein and in
the Conditions and, in performing those duties, shall act in accordance
with the Conditions and the provisions of this Agreement.
(2) Each Transfer Agent shall:
(a) accept (i) Bearer Notes delivered to it with a duly completed
request for exchange for Registered Notes substantially in the form
set out in Schedule 7A hereto (an "Exchange Request") (provided
that, except as specified in the Conditions, all unmatured Coupons,
Receipts and Talons appertaining to the Bearer Notes are attached to
or delivered with the Bearer Notes) and (ii) Registered Notes
delivered to it, with the form of transfer thereon duly executed,
together with, as applicable, any Transfer Certificate and/or IAI
Investment Letter for transfer or exchange of all or part of the
Registered Note in accordance with the Conditions, and shall, in
each case, give to the Registrar all relevant details to enable it
to issue Registered Notes in
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accordance with each request;
(b) keep a stock of Exchange Requests, Transfer Certificates and IAI
Investment Letters and make such Exchange Requests available on
demand to holders of the Notes;
(c) keep a stock of Transfer Notices (in the form set out in Schedule 7B
hereto) to be made available upon request by holders of the Notes;
and
(d) if appropriate, charge to the holder of a Bearer Note or Registered
Note presented for exchange or transfer (i) the costs or expenses
(if any) of the Registrar in delivering Registered Notes issued on
such exchange or transfer other than by regular mail and (ii) a sum
sufficient to cover any stamp duty, tax or other governmental charge
that may be imposed in relation to the exchange or transfer and, in
each case, account to the Registrar for those charges.
26. REGULATIONS FOR TRANSFERS AND EXCHANGES OF REGISTERED NOTES AND EXCHANGE
OF BEARER NOTES
(1) At the option of the holder and subject to Condition 12 and the terms of
this Agreement and to all applicable laws and regulations, Bearer Notes
(provided that, except as specified in the Conditions, all unmatured
Coupons, Receipts and Talons appertaining to the Bearer Notes are attached
to or delivered with the Bearer Notes) will be exchangeable for an equal
aggregate nominal amount of Registered Notes.
(2) Subject as provided below, the Issuer may from time to time agree with the
Agent and the Registrar reasonable regulations to govern the transfer and
registration of Registered Notes and the exchange of Registered Notes. The
initial regulations, which shall apply until amended under this clause,
are set out in Schedule 8 hereto. The Transfer Agents agree to comply with
the regulations as amended from time to time.
27. DUTIES IN CONNECTION WITH EARLY REDEMPTION
(1) If the Issuer decides to redeem any Notes for the time being outstanding
prior to their Maturity Date in accordance with the Conditions, the Issuer
shall give notice of such decision to the Agent stating the date on which
such Notes are to be redeemed and the nominal amount of Notes to be
redeemed not less than 15 days before the latest date for the publication
of the notice of redemption required to be given to the Noteholders.
(2) If some only of the Notes are to be redeemed on such date, the Agent shall
make the required drawing in accordance with the Conditions but shall give
the Issuer reasonable notice of the time and place proposed for such
drawing and the Issuer shall be entitled to send representatives to attend
such drawing.
(3) The Agent shall publish the notice required in connection with any such
redemption and shall at the same time also publish a separate list of the
serial numbers of any Notes previously drawn and not presented for
redemption. Such notice shall specify the date fixed for redemption, the
redemption amount, the manner in which redemption will be effected and, in
the case of a partial redemption, the serial numbers of the Notes to be
redeemed. Such notice will be published in accordance with the Conditions.
The Agent will also notify the other Paying Agents, in the case of Bearer
Notes, and the Exchange Agent and Transfer Agents, in the case of
Registered Notes, of any date fixed for redemption of any Notes.
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(4) Each Paying Agent, Transfer Agent and the Registrar will keep a stock of
Put Notices in the form set out in Schedule 4 and will make such notices
available on demand to holders of Notes, the Conditions of which provide
for redemption at the option of Noteholders. Upon receipt of any Note
deposited in the exercise of such option in accordance with the
Conditions, the Paying Agent, the Transfer Agent or the Registrar, as the
case may be, with which such Note is deposited shall hold such Note
(together with any unmatured Receipts, Coupons and Talons relating to it
deposited with it) on behalf of the depositing Noteholder (but shall not,
save as provided below, release it) until the due date for redemption of
the relevant Note consequent upon the exercise of such option, when,
subject as provided below, it shall present such Note (and any such
unmatured Receipts, Coupons and Talons) to itself for payment of the
amount due thereon together with any interest due on such date in
accordance with the Conditions and shall pay, or, in the case of a
Transfer Agent, will notify a Paying Agent to pay, such moneys in
accordance with the directions of the Noteholder contained in the relevant
Put Notice. If, prior to such due date for its redemption, such Note
becomes immediately due and repayable or if, upon due presentation,
payment of such redemption moneys is improperly withheld or refused, the
Paying Agent or Transfer Agent concerned or the Registrar, as the case may
be, shall post such Note (together with any such Receipts, Coupons and
Talons) by uninsured post to such address as may have been given by the
Noteholder in the Put Notice and at the risk of the relevant Noteholder,
unless the Noteholder has otherwise requested and paid the costs of such
insurance to the relevant Paying Agent, Transfer Agent or the Registrar,
as the case may be, at the time of depositing the Notes. At the end of
each period for the exercise of such option, each Paying Agent (if such
Paying Agent is not the Agent), Transfer Agent or the Registrar, as the
case may be, shall promptly notify the Agent of the nominal amount of the
Notes in respect of which such option has been exercised with it together
with their serial numbers and the Agent shall promptly notify such details
to the Issuer.
(5) The Agent on behalf of the Issuer will cause notice to be published in
accordance with the Conditions not less than seven days nor more than 21
days before each due date for payment of a second or subsequent instalment
of the subscription price for any Partly Paid Notes, reminding holders of
the Partly Paid Notes of the due date for payment of the relevant
instalment, the procedure for payment and that failure to pay such
instalment, together with accrued interest for late payment, if
appropriate, on any Partly Paid Note will entitle the Issuer to forfeit
the same and retain for its own use and benefit the first or previous
instalments thereon.
28. RECEIPT AND PUBLICATION OF NOTICES
(1) Forthwith upon the receipt by the Agent of a demand or notice from any
Noteholder in accordance with the Conditions, the Agent shall forward a
copy thereof to the Issuer.
(2) On behalf of and at the request and expense of the Issuer (failing which,
the Guarantor), the Agent shall cause to be published all notices required
to be given by the Issuer or the Guarantor to the Noteholders in
accordance with the Conditions.
29. CANCELLATION OF DEFINITIVE NOTES, RECEIPTS, COUPONS AND TALONS
(1) All Definitive Notes which are redeemed or transferred, all Receipts or
Coupons which are paid and all Talons which are exchanged shall be
cancelled by the Agent, Paying Agent or Registrar by which they are
redeemed, transferred, paid or exchanged. In addition, all Notes which are
purchased by or on behalf of the Issuer, the Guarantor or any of their
respective Subsidiaries or holding companies and are surrendered to a
Paying Agent or the Registrar for
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cancellation, together (in the case of Notes in definitive bearer form)
with all unmatured Receipts, Coupons or Talons (if any) attached thereto
or surrendered therewith, shall be cancelled by the Paying Agent to which
they are surrendered or the Registrar, as the case may be. Each of the
Paying Agents and the Registrar shall give to the Agent details of all
payments made by it and shall deliver all cancelled Notes, Receipts,
Coupons and Talons to the Agent or as the Agent may specify.
(2) The Agent shall deliver a certificate stating to the Issuer as soon as
practicable and in any event within three months after the date of any
redemption or, as the case may be, payment, purchase, transfer,
cancellation, exchange or replacement of any Note:
(a) the aggregate principal amount of Notes or Receipts which have been
redeemed and the aggregate amounts in respect of Coupons which have
been paid and the Securities Amount(s) (if any) which has/have been
paid and/or delivered in accordance with the Conditions;
(b) the serial numbers of such Definitive Notes, Receipts, Coupons and
Talons distinguishing between Bearer Notes and Registered Notes;
(c) the total numbers (where applicable, of each denomination) by
maturity date of such Coupons;
(d) the aggregate amount of interest paid (and the due dates of such
payments) on Global Notes and/or on Registered Notes;
(e) the aggregate principal amounts of Notes (if any) which have been
purchased by or on behalf of the Issuer, the Guarantor, any holding
company of such person or any Subsidiary of such person or any such
holding company and cancelled and the serial numbers of such
Definitive Notes, Receipts and Talons and the total number (where
applicable, of each denomination) by maturity date of the Coupons
attached thereto or surrendered therewith;
(f) the aggregate principal amounts of Notes or Receipts, the number of
Talons and the aggregate amounts in respect of Coupons which have
been so exchanged or surrendered and replaced and the serial numbers
of such Definitive Notes and the total number (where applicable, of
each denomination) by maturity date of such Coupons;
(g) the total number (where applicable, of each denomination) by
maturity date of unmatured Coupons missing from Definitive Notes
bearing interest at a fixed rate which have been redeemed or
exchanged or surrendered and replaced and the serial numbers of the
Definitive Notes to which such missing unmatured Coupons
appertained; and
(h) the total number (where applicable, of each denomination) by
maturity date of Talons which have been exchanged for further
Coupons.
(3) The Agent shall destroy all cancelled Notes, Receipts, Coupons and Talons
and, forthwith upon destruction, furnish the Issuer with a certificate of
the serial numbers of the Notes (in the case of Notes in definitive form)
and the number by maturity date of Receipts, Coupons and Talons so
destroyed.
(4) Without prejudice to the obligations of the Agent pursuant to sub-clause
(2), the Agent shall keep a full and complete record of all Notes,
Receipts, Coupons and Talons (other than serial
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numbers of Coupons except those which have been replaced pursuant to
Condition 11) and of their redemption, purchase by or on behalf of the
Issuer or the Guarantor or any of their respective Subsidiaries or holding
companies and cancellation, payment or exchange (as the case may be) and
of all replacement Notes, Receipts, Coupons or Talons issued in
substitution for mutilated, defaced, destroyed, lost or stolen Notes,
Receipts, Coupons or Talons and of all Securities Amount(s) (if any) paid
or delivered in respect of the Notes. The Agent shall at all reasonable
times make such record available to the Issuer, the Guarantor and any
persons authorised by either of them for inspection and for the taking of
copies thereof or extracts therefrom.
(5) All records and certificates made or given pursuant to this clause and
clause 30 shall make a distinction between Notes, Receipts, Coupons and
Talons of each Series and between Bearer Notes and Registered Notes.
30. ISSUE OF REPLACEMENT NOTES, RECEIPTS, COUPONS AND TALONS
(1) The Issuer will cause a sufficient quantity of additional forms of: (a)
Bearer Notes, Receipts, Coupons and Talons to be available, upon request,
to the Agent at its specified office for the purpose of issuing
replacement Bearer Notes, Receipts, Coupons and Talons as provided below;
and (b) Registered Notes to be available, upon request, to the Registrar
at its specified office for the purpose of issuing replacement Registered
Noes as provided below.
(2) The Agent and the Registrar will, subject to and in accordance with the
Conditions and the following provisions of this clause, cause to be
authenticated and delivered any replacement Notes, Receipts, Coupons and
Talons which the Issuer may determine to issue in place of Notes,
Receipts, Coupons and Talons which have been lost, stolen, mutilated,
defaced or destroyed.
(3) In the case of a mutilated or defaced Note, the Agent shall ensure that
(unless otherwise covered by such indemnity as the Issuer and the
Guarantor may reasonably require) any replacement Note will only have
attached to it Receipts, Coupons and Talons corresponding to those (if
any) attached to the mutilated or defaced Note which is presented for
replacement.
(4) The Agent, or as the case may be, the Registrar, shall obtain verification
in the case of an allegedly lost, stolen or destroyed Note, Talon, Receipt
or Coupon in respect of which the serial number is known, that the Note,
Talon, Receipt or Coupon has not previously been redeemed, paid or
exchanged, as the case may be. Neither the Agent nor, as the case may be,
the Registrar, shall issue any replacement Note, Receipt, Coupon or Talon
unless and until the applicant therefor shall have:
(a) paid such reasonable costs and expenses as may be incurred in
connection therewith;
(b) furnished it with such evidence and indemnity as the Issuer and the
Guarantor may reasonably require; and
(c) in the case of any mutilated or defaced Note, Receipt, Coupon or
Talon, surrendered it to the Agent or, as the case may be, the
Registrar.
(5) The Agent or, as the case may be, the Registrar shall cancel any mutilated
or defaced Notes, Receipts, Coupons and Talons in respect of which
replacement Notes, Receipts, Coupons and Talons have been issued pursuant
to this clause and shall furnish the Issuer with a certificate stating the
serial numbers of the Notes, Receipts, Coupons and Talons so cancelled
and, unless otherwise instructed by the Issuer in writing, shall destroy
such cancelled Notes,
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Receipts, Coupons and Talons and furnish the Issuer with a destruction
certificate containing the information specified in sub-clause 29(3).
(6) The Agent or, as the case may be, the Registrar shall, on issuing any
replacement Note, Receipt, Coupon or Talon, forthwith inform the Issuer,
the Guarantor and, as the case may be, the Registrar and the other Paying
Agents, the Transfer Agents and (to the extent applicable) the Agent or
the Registrar of the serial number of such replacement Note, Receipt,
Coupon or Talon issued and (if known) of the serial number of the Note,
Receipt, Coupon or Talon in place of which such replacement Note, Receipt,
Coupon or Talon has been issued. Whenever replacement Receipts, Coupons or
Talons are issued pursuant to the provisions of this clause, the Agent
shall also notify the other Paying Agents and the Transfer Agents of the
maturity dates of the lost, stolen, mutilated, defaced or destroyed
Receipts, Coupons or Talons and of the replacement Receipts, Coupons or
Talons issued.
(7) The Agent and the Registrar shall keep a full and complete record of all
replacement Notes, Receipts, Coupons and Talons issued by them and shall
make such record available at all reasonable times to the Issuer, the
Guarantor and any persons authorised by either of them for inspection and
for the taking of copies thereof or extracts therefrom.
(8) Whenever any Bearer Note, Receipt, Coupon or Talon for which a replacement
Bearer Note, Receipt, Coupon or Talon has been issued and in respect of
which the Series and serial number is known is presented to the Agent or
any of the Paying Agents for payment or to any of the Transfer Agents for
exchange or a Definitive Registered Note for which a replacement
Definitive Registered Note has been issued is presented to the Registrar
for payment or to any of the Transfer Agents for transfer, the party to
whom such Note, Receipt, Coupon or Talon has been presented shall
immediately send notice thereof to the Issuer, the Guarantor and the Agent
or the Registrar, as the case may be.
(9) The Paying Agents shall issue further Coupon sheets against surrender of
Talons. A Talon so surrendered shall be cancelled by the relevant Paying
Agent who (except where such Paying Agent is the Agent) shall inform the
Agent of its serial number. Further Coupon sheets issued on surrender of
Talons shall carry the same serial number as the surrendered Talon.
31. COPIES OF DOCUMENTS AVAILABLE FOR INSPECTION
(1) The executed Guarantee shall be deposited with the Agent and shall be held
in safe custody by it on behalf of the Noteholders, the Receiptholders and
the Couponholders at its specified office for the time being.
(2) The Agent, the Paying Agents, the Registrar and the Transfer Agents shall
hold available at its specified office during normal business hours for
inspection copies of:
(a) the Certificate of Incorporation and By-laws of the Guarantor and
the Memorandum and Articles of Association of the Issuer;
(b) the published audited consolidated audited financial statements of
the Group contained in the Guarantor's Annual Report on Form 10-K in
respect of the financial years ended November 30, 2001 and November
30, 2000, the five months ended November 26, 1999 and the fiscal
year ended June 30, 1999;
(c) the most recently available audited consolidated financial
statements of the Group and audited non-consolidated financial
statements of the Guarantor contained in the Guarantor's Annual
Report on Form 10-K, the most recently available published
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quarterly reports of the Guarantor on Form 10-Q and any filings of
the Guarantor on Form 8-K which contain consolidated financial
statements of the Group and/or non-consolidated financial statements
of the Guarantor;
(d) this Agreement;
(e) the Deed of Covenant;
(f) the Guarantee;
(g) the Offering Circular;
(h) any future offering circulars, information memoranda and supplements
to the Offering Circular and any other documents incorporated
therein by reference (save that a Pricing Supplement relating to an
unlisted Note will only be available for inspection by a holder of
such Note and such holder must produce evidence satisfactory to the
Paying Agent or Registrar as to the identity of such holder); and
(i) in the case of a syndicated issue of listed Notes, the syndication
agreement (or equivalent document).
For this purpose, the Issuer (failing which, the Guarantor) shall furnish
the Agent, the Paying Agents, the Registrar and the Transfer Agents with
sufficient copies of each of such documents.
32. MEETINGS OF NOTEHOLDERS
(1) The provisions of Schedule 3 shall apply to meetings of the Noteholders.
(2) Each of the Agent and the Paying Agents on the request of any holder of
Bearer Notes shall issue voting certificates and block voting instructions
in accordance with Schedule 3 hereto and shall forthwith give notice to
the Issuer in writing of any revocation or amendment of a block voting
instruction. Each of the Agent and the Paying Agents will keep a full and
complete record of all voting certificates and block voting instructions
issued by it and will, not less than 24 hours before the time appointed
for holding a meeting or adjourned meeting, deposit at such place as the
Agent shall designate or approve, full particulars of all voting
certificates and block voting instructions issued by it in respect of such
meeting or adjourned meeting. Forms for this purpose shall be made
available to the Agent at the expense of the Issuer (failing which, the
Guarantor) for distribution to the other Paying Agents.
33. COMMISSIONS AND EXPENSES
(1) The Issuer (failing which, the Guarantor) agrees to pay to the Registrar
for distribution among the agents party to this Agreement such fees and
commissions as the Issuer, the Guarantor and the Registrar have agreed in
respect of the respective services of the Agent, the Registrar, the Paying
Agents, the Transfer Agents and the Exchange Agent together with any
reasonable expenses (including legal, printing, postage, fax, cable and
advertising expenses) incurred by such entities in connection with their
said services.
(2) In addition, the Issuer (failing which, the Guarantor) agrees to reimburse
the reasonable out-of-pocket expenses (including advertising costs and
legal fees) incurred by each of the Agent,
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the Registrar, the Paying Agents, the Transfer Agents and the Exchange
Agent, as the case may be, in connection with the preparation, execution
and delivery of this Agreement.
(3) The Registrar will make payment of the fees and commissions due hereunder
to itself, the Agent, the Paying Agents, the Transfer Agents and the
Exchange Agent and will reimburse their expenses promptly after the
receipt of the relevant moneys from the Issuer or the Guarantor (as the
case may be). Neither the Issuer or the Guarantor (as the case may be)
shall be responsible for any such payment or reimbursement by the
Registrar.
34. AUTHORITY TO DISTRIBUTE DOCUMENTS
Subject to clause 5, each of the Issuer and the Guarantor hereby
authorises each Dealer on behalf of the Issuer and the Guarantor, to
provide copies of and make oral statements consistent with the Offering
Circular and such additional written information as the Issuer and/or the
Guarantor shall provide to any Dealer or approve for any Dealer to use or
such other information as is in the public domain as a result of action
taken by the Issuer and/or the Guarantor to actual and potential
purchasers of Notes.
35. REPAYMENT BY THE AGENT AND THE REGISTRAR
Upon the Issuer or the Guarantor, as the case may be, being discharged
from its obligation to make payments in respect of any Notes pursuant to
the relevant Conditions, and provided that there is no outstanding, bona
fide and proper claim in respect of any such payments, the Agent or the
Registrar, as the case may be, shall forthwith on demand pay to the Issuer
or the Guarantor, as the case may be, sums equivalent to any amounts paid
to it by the Issuer or the Guarantor, as the case may be, for the purposes
of such payments.
36. CONDITIONS OF APPOINTMENT
(1) The Agent, the Registrar, the Exchange Agent, any Settlement Agent and
each Paying Agent or Transfer Agent shall be entitled to deal with money
paid to it by the Issuer or the Guarantor for the purpose of this
Agreement in the same manner as other money paid to a banker by its
customers except:
(a) that it shall not exercise any right of set-off, lien or similar
claim in respect thereof;
(b) as provided in sub-clause (2) ; and
(c) that it shall not be liable to account to the Issuer or the
Guarantor, as the case may be, for any interest thereon.
(2) In acting hereunder and in connection with the Notes, the Agent, the
Paying Agents, the Transfer Agents, the Exchange Agent, the Registrar and
any Settlement Agent shall act solely as agents of the Issuer and the
Guarantor and will not thereby assume any obligations towards or
relationship of agency or trust for or with any of the owners or holders
of the Notes, Receipts, Coupons or Talons, except that all amounts held by
the Agent, the Paying Agents, the Exchange Agent, the Registrar or any
Settlement Agent for payment or delivery to the Noteholders, Couponholders
and Receiptholders shall be held in trust, to be applied as set forth
herein, but need not be segregated from other amounts except as required
by law.
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(3) Each of the Agent, the Paying Agents, the Transfer Agents, the Exchange
Agent, the Registrar and any Settlement Agent hereby undertake to the
Issuer and the Guarantor to perform such obligations and duties, and shall
be obliged to perform such duties and only such duties, as are herein and
in the Conditions and in the Procedures Memorandum specifically set forth,
and no implied duties or obligations shall be read into this Agreement or
the Notes against the Agent, the Paying Agents, the Transfer Agents, the
Exchange Agent, the Registrar or any Settlement Agent other than the duty
to act honestly and in good faith and to exercise the diligence of a
reasonably prudent agent in comparable circumstances.
(4) The Agent and the Registrar may consult with legal and other professional
advisers and the opinion of such advisers shall be full and complete
protection in respect of any action taken, omitted or suffered hereunder
in good faith and in accordance with the opinion of such advisers.
(5) Each of the Agent, the Paying Agents, the Transfer Agents, the Exchange
Agent and the Registrar shall be protected and shall incur no liability
for or in respect of any action taken, omitted or suffered in reliance
upon any instruction, request or order from the Issuer or the Guarantor or
any notice, resolution, direction, consent, certificate, affidavit,
statement, cable, telex, facsimile transmission 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 or the Guarantor.
(6) Any Settlement Agent shall be protected and shall incur no liability for
or in respect of any action taken, omitted or suffered in reliance upon
any instruction, request or order from the Issuer or the Guarantor or any
Transfer Notice or other notice, resolution, direction, consent,
certificate, affidavit, statement, cable, telex, facsimile transmission 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 or the Guarantor.
(7) Any of the Agent, the Paying Agents, the Transfer Agents, the Exchange
Agent, the Registrar or any Settlement Agent and their respective
officers, directors and employees may become the owner of, or acquire any
interest in, any Notes, Receipts, Coupons or Talons with the same rights
that it or he would have if the Agent, the relevant Paying Agent or
Transfer Agent concerned, the Exchange Agent, the Registrar or any
Settlement Agent, as the case may be, were not appointed hereunder, and
may engage or be interested in any financial or other transaction with the
Issuer or the Guarantor and may act on, or as depositary, trustee or agent
for, any committee or body of holders of Notes or Coupons or in connection
with any other obligations of the Issuer or the Guarantor as freely as if
the Agent, the relevant Paying Agent or Transfer Agent, the Exchange
Agent, the Registrar or the Settlement Agent, as the case may be, were not
appointed hereunder.
(8) The Issuer and the Guarantor shall provide the Agent and the Registrar
with a certified copy of the list of persons authorised to execute
documents and take action on its behalf in connection with this Agreement
and shall notify the Agent and the Registrar immediately in writing if any
of such persons ceases to be so authorised or if any additional person
becomes so authorised together, in the case of an additional authorised
person, with evidence satisfactory to the Agent and the Registrar that
such person has been so authorised.
37. COMMUNICATION BETWEEN THE PARTIES
A copy of all communications relating to the subject matter of this
Agreement between the Issuer or the Guarantor and the Noteholders,
Receiptholders or Couponholders and any of the
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Paying Agents (other than the Agent), the Transfer Agents the Exchange
Agent, the Registrar or any Settlement Agent shall be sent to the Agent.
38. CHANGES IN AGENT, PAYING AGENTS, TRANSFER AGENTS, EXCHANGE AGENT,
REGISTRAR AND SETTLEMENT AGENT
(1) The Issuer and the Guarantor agree that, for so long as any Note is
outstanding, or until moneys or securities (or other assets) for the
payment or delivery, as the case may be, of all amounts in respect of all
outstanding Notes have been made available to the Agent or the Registrar
(where applicable):
(a) so long as any Notes are listed on any stock exchange, there will at
all times be a Paying Agent (which may be the Agent), in the case of
Bearer Notes, and a Transfer Agent (which may be the Registrar), in
the case of Registered Notes, with a specified office in such place
as may be required by the rules and regulations of the relevant
stock exchange;
(b) there will at all times be a Paying Agent with a specified office in
a principal financial centre in continental Europe;
(c) there will at all times be a Registrar with a specified office in
New York City;
(d) there will at all times be a Transfer Agent;
(e) so long as any of the Registered Global Notes payable in a specified
currency other than U.S. dollars are held through DTC or its
nominee, there will at all times be an Exchange Agent with a
specified office in New York City; and
(f) there will at all times be an Agent.
In addition, the Issuer and the Guarantor shall forthwith appoint a Paying
Agent having a specified office in New York City in the circumstances
described in the final paragraph of Condition 6(b).
(2) Any variation, termination, appointment or change shall only take effect
(other than in the case of insolvency (as provided in sub-clause (5)),
when it shall be of immediate effect) after not less than 30 nor more than
45 days' prior notice thereof shall have been given to the Noteholders in
accordance with the Conditions provided that no such variation,
termination, appointment or change shall take effect (except in the case
of insolvency) with 45 days before or after any Fixed Interest Date or
Interest Payment Date, as the case may be.
(3) The Agent may (subject as provided in sub-clause (5)) at any time resign
as Agent by giving at least 90 days' written notice to the Issuer of such
intention on its part, specifying the date on which its desired
resignation shall become effective.
(4) The Agent may (subject as provided in sub-clause (2), (5) and (7)) be
removed at any time by the Issuer and the Guarantor on at least 45 days'
notice by the filing with it of an instrument in writing signed on behalf
of the Issuer and the Guarantor specifying such removal and the date when
it shall become effective.
(5) Any resignation under sub-clause (3) or removal under sub-clause (4) shall
only take effect upon the appointment by the Issuer and the Guarantor as
hereinafter provided, of a successor Agent and (other than in cases of
insolvency of the Agent) on the expiry of the notice to be
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given under clause 40. The Issuer and the Guarantor agree with the Agent
that if, by the day falling ten days before the expiry of any notice under
sub-clause (2), the Issuer and the Guarantor have not appointed a
successor Agent, then the Agent shall be entitled, on behalf of the Issuer
and the Guarantor, to appoint as a successor Agent in its place a
reputable financial institution of good standing which the Issuer and the
Guarantor shall approve.
(6) In case at any time the Agent, any Paying Agent or Transfer Agent, the
Exchange Agent, the Registrar or the Settlement Agent (if any) resigns, or
is removed, or 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 a substantial part of its property, or admits in writing its inability
to pay or meet its debts as they mature or suspends payment thereof, or if
any 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 receiver of it or of all or a substantial part of its property
is appointed or if any officer takes charge or control of it or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, or, in the case of the Agent, it fails in respect of the
Floating Rate Notes duly to determine the Rate of Interest, Interest
Amount and/or Interest Payment Date in respect of any Interest Period as
provided in the Conditions and this Agreement or fails to fulfil any other
obligation under the Conditions or this Agreement, the Issuer or the
Guarantor may forthwith without notice terminate the appointment of such
Paying Agent or Transfer Agent or the Agent, Exchange Agent, Registrar or
Settlement Agent, as the case may be, in which event notice thereof shall
be given to the Noteholders in accordance with the Conditions as soon as
practicable thereafter. A successor Agent, Paying Agent, Transfer Agent,
Exchange Agent, Registrar or Settlement Agent, as the case may be, which
shall be a reputable financial institution of good standing may be
appointed by the Issuer and the Guarantor by an instrument in writing
filed with the relevant successor. Upon the appointment as aforesaid of a
successor Agent, Paying Agent, Transfer Agent, Exchange Agent, Registrar
or Settlement Agent, as the case may be, and acceptance by the latter of
such appointment and (other than in case of insolvency of the Agent,
Paying Agent, Transfer Agent, Exchange Agent, Registrar or Settlement
Agent, as the case may be, when it shall be of immediate effect) upon
expiry of the notice to be given under clause 40 the Agent, Paying Agent,
Transfer Agent, Exchange Agent, Registrar or Settlement Agent, as the case
may be, so superseded shall cease to be the Agent, Paying Agent, Transfer
Agent, Exchange Agent, Registrar or Settlement Agent, as the case may be,
hereunder.
(7) Subject to sub-clauses (1) and (2), the Issuer and the Guarantor may,
after prior consultation with the Agent, terminate the appointment of any
of the Paying Agents, the Transfer Agents, the Exchange Agent, the
Registrar or any Settlement Agent at any time and/or appoint one or more
further Paying Agents, Transfer Agents, Exchange Agent, Registrar or
Settlement Agent by giving to the Agent, and to the relevant Paying Agent,
Transfer Agent, Exchange Agent, Registrar or Settlement Agent, at least 45
days' notice in writing to that effect (other than in the case of
insolvency of the Paying Agent, Transfer Agent, Exchange Agent, Registrar
or Settlement Agent, as the case may be).
(8) Subject to sub-clause (1) and (2), all or any of the Paying Agents, the
Transfer Agents, the Exchange Agent, the Registrar or any Settlement Agent
may resign their respective appointments hereunder at any time by giving
the Issuer, the Guarantor and the Agent at least 45 days' written notice
to that effect.
(9) Upon its resignation or removal becoming effective, the Agent or the
relevant Paying Agent, Transfer Agent, Exchange Agent, Registrar or
Settlement Agent shall:
(a) in the case of the Agent and the Registrar, forthwith transfer all
moneys held by it
51
hereunder and, if applicable, the records referred to in clauses
29(4) and 30(7) to the successor Agent or Registrar, as the case may
be, hereunder; and
(b) be entitled to the payment by the Issuer (failing which, the
Guarantor) of its commissions, fees and expenses for the services
theretofore rendered hereunder in accordance with the terms of
clause 33.
(10) Upon its appointment becoming effective, a successor Agent, Registrar,
Exchange Agent or Settlement Agent and any new Paying Agent or Transfer
Agent shall, without further act, deed or conveyance, become vested with
all the authority, rights, powers, trusts, immunities, duties and
obligations of its predecessor or, as the case may be, a Paying Agent or
Transfer Agent with like effect as if originally named as Agent,
Registrar, Exchange Agent or Settlement Agent or a Paying Agent or a
Transfer Agent hereunder (as the case may be).
39. MERGER AND CONSOLIDATION
Any corporation into which the Agent, the Registrar, the Exchange Agent,
any Paying Agent, Transfer Agent or Settlement Agent may be merged or
converted, or any corporation with which the Agent, the Registrar, the
Exchange Agent, or any of the Paying Agents or Transfer Agents or any
Settlement Agent may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Agent, the Registrar,
the Exchange Agent or any of the Paying Agents or Transfer Agents or any
Settlement Agent shall be a party, or any corporation to which the Agent,
the Registrar, the Exchange Agent, or any of the Paying Agents or Transfer
Agent or any Settlement Agent shall sell or otherwise transfer all or
substantially all the assets of the Agent, the Registrar, the Exchange
Agent, or any Paying Agent, Transfer Agent or Settlement Agent shall, on
the date when such merger, conversion, consolidation, sale or transfer
becomes effective and to the extent permitted by any applicable laws,
become the successor Agent, Registrar, Exchange Agent, or as the case may
be, Paying Agent, Transfer Agent or Settlement Agent under this Agreement
without the execution or filing of any paper or any further act on the
part of the parties hereto, unless otherwise required by the Issuer or the
Guarantor, and after the said effective date all references in this
Agreement to the Agent, the Registrar or the Exchange Agent, or, as the
case may be, such Paying Agent, Transfer Agent or Settlement Agent shall
be deemed to be references to such corporation. Written notice of any such
merger, conversion, consolidation, sale or transfer shall forthwith be
given to the Issuer and the Guarantor by the Agent or Registrar, the
Exchange Agent or the relevant Paying Agent, Transfer Agent or Settlement
Agent, as the case may be.
40. NOTIFICATION OF CHANGES TO AGENTS
Following receipt of notice of resignation from the Agent, the Registrar,
the Exchange Agent or any Paying Agent, Transfer Agent or Settlement Agent
and forthwith upon appointing a successor Agent, Registrar, Exchange Agent
or, as the case may be, further or other Paying Agents or Transfer Agents
or a successor Settlement Agent or on giving notice to terminate the
appointment of the Agent, the Registrar, the Exchange Agent or, as the
case may be, Paying Agent, Transfer Agent or Settlement Agent, the Agent
(on behalf of and at the expense of the Issuer, failing which, the
Guarantor) shall give or cause to be given not more than 45 days' nor less
than 30 days' notice thereof to the Noteholders in accordance with the
Conditions.
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41. CHANGE OF SPECIFIED OFFICE
If the Agent, the Registrar, the Exchange Agent or any Paying Agent,
Transfer Agent or Settlement Agent determines to change its specified
office it shall (after having, in any such case other than a change of
specified office within the same city, obtained the prior written approval
of the Issuer thereto) give to the Issuer, the Guarantor and (if
applicable) the Agent written notice of such determination giving the
address of the new specified office which shall be in the same city and
stating the date on which such change is to take effect, which shall not
be less than 45 days thereafter. The Agent (on behalf and at the expense
of the Issuer (failing which, the Guarantor)) shall within 15 days of
receipt of such notice (unless the appointment of the Agent, the
Registrar, the Exchange Agent or the relevant Paying Agent, Transfer Agent
or Settlement Agent as the case may be, is to terminate pursuant to clause
38 on or prior to the date of such change) give or cause to be given not
more than 45 days' nor less than 30 days' notice thereof to the
Noteholders in accordance with the Conditions.
42. CALCULATION AGENCY AGREEMENT
Where the Conditions require functions to be carried out by a calculation
agent, those functions shall be carried out by the Agent unless the Issuer
and the Guarantor otherwise agree. In such a case, the Issuer and the
Guarantor may execute a calculation agency agreement with such
modifications as they shall determine to be required by the Conditions of
the Notes to be issued in respect of which the calculation agency
agreement is to be executed with a calculation agent selected between them
and the relevant Dealer for the relevant Series of Notes.
43. COMMUNICATIONS
(1) All communications shall be by telex, fax or letter delivered by hand or
(but only where specifically provided in the Procedures Memorandum) by
telephone. Each communication shall be made to the relevant party at the
telex number, fax number or address or telephone number and, in the case
of a communication by telex, fax or letter, marked for the attention of,
or (in the case of a communication by telephone) made to, the person(s)
from time to time specified in writing by that party to the other for the
purpose. The initial telephone number, telex number, fax number and
address of, and person(s) so specified by each party are set out on the
signature pages hereof.
(2) A communication shall be deemed received (if by telex) when a confirmed
answerback is received at the end of the transmission, (if by fax) when an
acknowledgement of receipt is received, (if by telephone) when made or (if
by letter) when delivered, in each case in the manner required by this
clause. Every communication shall be irrevocable save in respect of any
manifest error therein.
44. TAXES AND STAMP DUTIES
The Issuer (failing which, the Guarantor) agrees to pay any and all stamp
and other documentary taxes or duties which may be payable in connection
with the execution, delivery, performance and enforcement of this
Agreement.
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45. BENEFIT OF AGREEMENT
(1) This Agreement shall be binding upon and shall inure for the benefit of
the Issuer, the Guarantor, each Dealer, the Agent, each of the Paying
Agents and the Transfer Agents, the Exchange Agent, the Registrar, any
Settlement Agent and their respective successors and permitted assigns (if
referred individually, the "Assignor" and, if referred collectively, the
"Assignors").
(2) Any of the Assignors may only assign or transfer its rights or obligations
under this Agreement with the prior written consent of the Issuer. If an
Assignor assigns its rights or transfers its obligations as provided in
this clause, the relevant assignee or transferee shall be treated as if it
were a party to this Agreement with effect from the date on which such
assignment or transfer takes effect; provided that any transfer shall only
become effective when the Issuer and the Guarantor have received an
undertaking from the transferee to be bound by this Agreement and to
perform the obligations transferred to it. Such assignment or transfer
shall not affect any rights or obligations (including, but not limited to,
those arising under clauses 5, 7 and 9) which have accrued at the time of
assignment or transfer or which accrue thereafter in relation to any act
or omission or alleged act or omission which occurred prior to such
assignment or transfer.
46. AMENDMENTS
This Agreement may be amended in writing by agreement between the parties
hereto, but without the consent of any Noteholder, Receiptholder,
Couponholder or Talonholder, for the purpose of curing any ambiguity or of
curing, correcting or supplementing any defective provision contained
herein or in any manner which the parties may mutually deem necessary or
desirable and which shall not be materially prejudicial to the interests
of the Noteholders, Receiptholders or Couponholders. The Issuer, the
Guarantor and the Agent may also agree any modification pursuant to
Condition 16.
47. GOVERNING LAW AND JURISDICTION
(1) This Agreement and every agreement for the issue and purchase of Notes as
referred to in clause 2 shall be governed by, and construed in accordance
with, the laws of England.
(2) The Issuer and the Guarantor each irrevocably agrees, for the exclusive
benefit of the Dealers, the Agent, the Paying Agents, the Transfer Agents,
the Exchange Agent, the Registrar and any Settlement Agent that the courts
of England are to have jurisdiction to settle any disputes which may arise
out of or in connection with this Agreement and that accordingly any suit,
action or proceedings (together referred to as "Proceedings") arising out
of or in connection with this Agreement may be brought in such courts.
Each of the Issuer and the Guarantor hereby irrevocably waives any
objection which it may have to the laying of the venue of any such
Proceedings in any such courts and any claim that any such Proceedings
have been brought in an inconvenient forum and hereby further irrevocably
agrees that a judgment in any Proceedings brought in the English courts
shall be conclusive and binding upon it and may be enforced in the courts
of any other jurisdiction. Nothing contained herein shall limit any right
to take Proceedings against the Issuer or the Guarantor 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. The Issuer and the Guarantor
each hereby appoints Bear Xxxxxxx International Trading Limited at its
registered office at Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX as its agent for
service of process, and agrees that, in the event of Bear Xxxxxxx
International Trading Limited ceasing so
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to act or ceasing to be registered in England, it will appoint another
person as its agent for service of process in England in respect of any
Proceedings.
48. CONTRACTS (RIGHTS OF THIRD PARTIES) XXX 0000 DISAPPLICATION
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of this
Agreement, except and to the extent (if any) that this Agreement expressly
provides for such Act to apply to any of its terms.
49. COUNTERPARTS
This Agreement may be executed by any one or more of the parties hereto in
any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the
same instrument.
50. EFFECTIVE DATE
This Agreement shall apply to issues of Notes made on and after June 28,
2002 but without prejudice to the rights and obligations of: (i) the
parties to the Amended and Restated Agreement in relation to issues of
Notes before June 28, 2002; and (ii) holders of such Notes.
IN WITNESS OF WHICH the parties to this Agreement have executed this Agreement
on the date first above written.
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SCHEDULE 1.
TERMS AND CONDITIONS OF THE NOTES
The following are the terms and conditions of the Notes (the "Terms and
Conditions") which will be incorporated by reference into each global Note and
which will be endorsed on or attached to (or, if agreed between the Issuer and
the relevant Dealer, incorporated by reference into) each definitive Note. The
applicable Pricing Supplement in relation to any Notes supplements the following
Terms and Conditions and may specify other terms and conditions which shall, to
the extent so specified or to the extent inconsistent with the following Terms
and Conditions, replace or modify the following Terms and Conditions for the
purpose of such Notes. The applicable Pricing Supplement will be incorporated
into, or attached to, each Temporary Bearer Global Note, Permanent Bearer Global
Note, Registered Global Note and definitive Note. Reference should be made to
"Form of the Notes" above for a description of the content of Pricing
Supplements which will include the definitions of certain terms used in the
following Terms and Conditions.
This Note is one of a series of Notes issued by Bear, Xxxxxxx Global Asset
Holdings, Ltd. (the "Issuer") pursuant to, and with the benefit of, an amended
and restated Note Issuance Agreement (the "Note Issuance Agreement") dated June
28, 2002 made between, inter alios, the Issuer, The Bear Xxxxxxx Companies Inc.
(the "Guarantor"), JPMorgan Chase Bank as issuing and principal paying agent and
agent bank (the "Agent", which expression shall include any successor agent
specified in the pricing supplement relating to the Notes (the "Pricing
Supplement") or otherwise appointed pursuant to the Note Issuance Agreement),
the other paying agents named therein (together with the Agent, the "Paying
Agents", which expression shall include any additional or successor paying
agents), JPMorgan Chase Bank as registrar (the "Registrar", which expression
shall include any successor registrar), the transfer agents named therein (the
"Transfer Agents", which expression shall include any additional or successor
transfer agents) and JPMorgan Chase Bank as exchange agent (the "Exchange
Agent", which expression shall include any successor exchange agent), as may be
further amended and/or supplemented from time to time. References herein to the
"Notes" shall be references to the Notes of this Series (as defined below) and
shall mean: (i) in relation to any Notes represented by a global Note, units of
the lowest Specified Denomination in the Specified Currency; (ii) definitive
Bearer Notes issued in exchange (or part exchange) for a global Note; (iii)
definitive Registered Notes; and (iv) any global Note.
Interest bearing definitive Bearer Notes (unless otherwise indicated in
the applicable Pricing Supplement) have interest coupons ("Coupons") and, if
indicated in the applicable Pricing Supplement, talons for further Coupons
("Talons") attached on issue. Any reference herein to Coupons or coupons shall,
unless the context otherwise requires, be deemed to include a reference to
Talons or talons. Definitive Bearer Notes repayable in instalments have receipts
("Receipts") for the payment of the instalments of principal (other than the
final instalment) attached on issue. Registered Notes and global Notes do not
have Receipts or Coupons attached on issue.
The Pricing Supplement for this Note is attached hereto or (to the extent
relevant) incorporated herein and supplements these Terms and Conditions and may
specify other terms and conditions which shall, to the extent so specified or to
the extent inconsistent with these Terms and Conditions, replace or modify these
Terms and Conditions for the purposes of this Note. References herein to the
"applicable Pricing Supplement" are to the Pricing Supplement attached hereto or
incorporated herein.
As used herein, "Noteholders" means holders of the Notes (save that, in
relation to any Notes represented by a global Note, such expression shall be
construed as provided below), "Receiptholders" means holders of the Receipts,
"Couponholders" means holders of the Coupons, "Tranche" means all Notes with the
same Issue Date and which are the subject of the same Pricing Supplement and
"Series" means a Tranche of Notes together with any further Tranche or Tranches
of Notes which are: (i) expressed to be consolidated and form a single series;
and (ii) are identical in all
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respects (including as to listing) except for their respective Issue Dates,
Interest Commencement Dates and/or Issue Prices.
The holders of Bearer Notes, the Receiptholders and the Couponholders are
entitled to the benefit of a deed of covenant (the "Deed of Covenant") dated
June 28, 2002 and made by the Issuer and the Noteholders, the Receiptholders and
the Couponholders are entitled to the benefit of a deed of guarantee (the
"Guarantee") dated June 29, 2001 and executed by the Guarantor. The original of
the Deed of Covenant is held by a common depositary on behalf of Euroclear (as
defined below) and Clearstream, Luxembourg (as defined below) and the original
of the Guarantee is held by the Agent at its specified office for the time
being.
Copies of the Note Issuance Agreement, the Deed of Covenant, the Guarantee
and the Pricing Supplement applicable to the Notes are available at the
specified office of each of the Paying Agents, the Registrar and the Transfer
Agents save that a Pricing Supplement relating to a Note not listed on any stock
exchange will only be available for inspection by the relevant Dealer specified
in the applicable Pricing Supplement, the Registrar, any Paying Agent or any
Transfer Agent and, upon proof satisfactory to the Registrar or the relevant
Paying Agent or Transfer Agent, as the case may be, as to identity, by the
holder of any Note to which such Pricing Supplement relates. The Noteholders,
the Receiptholders and the Couponholders are deemed to have notice of, and are
entitled to the benefit of, all the provisions of the Note Issuance Agreement
and the applicable Pricing Supplement which are binding on them.
Words and expressions defined in the Note Issuance Agreement or used in
the applicable Pricing Supplement shall have the same meanings where used in
these Terms and Conditions unless the context otherwise requires or unless
otherwise stated and provided that, in the event of inconsistency between the
Note Issuance Agreement and the applicable Pricing Supplement, the applicable
Pricing Supplement will prevail.
1. FORM, DENOMINATION AND TITLE
The Notes may be in bearer form ("Bearer Notes") and/or in registered form
("Registered Notes") and, in the case of definitive Notes, will be serially
numbered, in the Specified Currency and the Specified Denomination(s). Save as
provided below in Conditions 4 and 12, Notes of one Specified Denomination may
not be exchanged for Notes of another Specified Denomination.
This Note is a Fixed Rate Note, a Floating Rate Note, a Zero Coupon Note,
an Indexed Interest Note (where payment in respect of interest is linked to an
index and/or a formula), an Indexed Redemption Amount Note (where payment in
respect of principal is linked to an index and/or a formula), a Linked Note
(where payment in respect of principal and/or interest is linked to an
underlying equity, bond, other security or such other asset as may be specified
in the applicable Pricing Supplement (the "Underlying Securities")), a Dual
Currency Note or a Partly Paid Note or any appropriate combination of any of the
foregoing, depending upon the Interest/Payment Basis shown in the applicable
Pricing Supplement. It is also a Linked Note, a Dual Currency Note, a Partly
Paid Note, an Indexed Interest Note and an Indexed Redemption Amount Note if, in
each case, the applicable Pricing Supplement so indicates and, in such case, the
appropriate provisions of these Terms and Conditions will apply accordingly.
Bearer Notes in definitive form are issued with Coupons and (if
applicable) Receipts and Talons attached, unless they are Zero Coupon Notes in
which case references to interest and Coupons and Couponholders in these Terms
and Conditions are not applicable.
Subject as set out below, title to Bearer Notes, Receipts and Coupons will
pass by delivery. Title to Registered Notes will pass upon registration of
transfers in the books of the Registrar in New York City.
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Subject as set out below, the Issuer, the Guarantor, the Agent, any Paying
Agent, the Registrar, the Exchange Agent and any Transfer Agent may deem and
treat the bearer of any Bearer Note, Receipt or Coupon and any person in whose
name a Registered Note is registered as the absolute owner thereof (whether or
not overdue and notwithstanding any notice of ownership or writing thereon or
notice of any previous loss or theft thereof) for all purposes but, in the case
of any global Note, without prejudice to the provisions set out in the next
paragraph.
For so long as any of the Notes is represented by a bearer global Note
held by a common depositary on behalf of Euroclear Bank S.A./N.V., as operator
of the Euroclear System ("Euroclear") and/or Clearstream Banking, societe
anonyme ("Clearstream, Luxembourg") or for so long as The Depository Trust
Company ("DTC") or its nominee is the registered holder of a Registered Global
Note, each person who is for the time being shown in the records of Euroclear or
Clearstream, Luxembourg or, as the case may be, DTC as entitled to a particular
nominal amount of Notes (in which regard any certificate or other document
issued by Euroclear, Clearstream, Luxembourg or DTC as to the nominal amount of
Notes standing to the account of any person shall be conclusive and binding for
all purposes save in the case of manifest error) shall be deemed to be the
holder of such nominal amount of Notes for all purposes other than with respect
to the payment of principal or interest on such Notes, for which purpose such
common depositary or, as the case may be, DTC or its nominee shall be deemed to
be the holder of such nominal amount of Notes in accordance with and subject to
the terms of the relevant global Note (and the expressions "Noteholder" and
"holder of Notes" and related expressions shall be construed accordingly). Notes
which are represented by a global Note will be transferable only in accordance
with the rules and procedures for the time being of Euroclear, Clearstream,
Luxembourg and DTC, as the case may be.
References herein to DTC, Euroclear and/or Clearstream, Luxembourg shall,
whenever the context so permits, be deemed to include a reference to any
additional or alternative clearing system approved by the Issuer, the Guarantor
and the Agent and specified in the applicable Pricing Supplement.
2. STATUS OF THE NOTES AND GUARANTEE
(a) The Notes and the relative Receipts and Coupons are direct,
unconditional, unsubordinated and (subject to the provisions of Condition 3)
unsecured obligations of the Issuer and rank and will rank pari passu among
themselves and (subject as aforesaid and to certain statutory exceptions)
equally with all other unsecured obligations (other than subordinated
obligations, if any) of the Issuer from time to time outstanding.
(b) The payment of principal of, and interest on, and the payment and/or
delivery of any Securities Amount in respect of, the Notes and all other moneys
payable by the Issuer in respect of the Notes have been unconditionally and
irrevocably guaranteed by the Guarantor pursuant to the Guarantee. The
obligations of the Guarantor under the Guarantee are direct, unconditional,
unsubordinated and (subject to the provisions of Condition 3) unsecured
obligations of the Guarantor and rank and will rank pari passu among themselves
and (subject as aforesaid and to certain statutory exceptions) equally with all
other unsecured obligations (other than subordinated obligations, if any) of the
Guarantor from time to time outstanding.
3. NEGATIVE PLEDGE
(a) So long as any of the Notes remains outstanding (as defined in the
Note Issuance Agreement), neither the Issuer nor any of the Restricted
Subsidiaries (as defined below) shall create or have outstanding any
indebtedness for borrowed money secured by a mortgage, charge, pledge, lien or
other security interest upon any shares of Voting Stock (as defined below) of
any Restricted Subsidiary without effectively providing that the Notes will be
secured equally and rateably with such secured indebtedness or such other
security, guarantee or support is provided for the Notes as shall be
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approved by an Extraordinary Resolution (as defined in the Note Issuance
Agreement) of the Noteholders.
(b) So long as any of the Notes remains outstanding, the Guarantor shall
not create or have outstanding any indebtedness for borrowed money secured by a
mortgage, charge, pledge, lien or other security interest upon any shares of
Voting Stock of any Restricted Subsidiary without effectively providing that all
amounts payable or deliverable under the Guarantee will be secured equally and
rateably with such secured indebtedness or such other security, guarantee or
support is provided for all amounts payable or deliverable under the Guarantee
as shall be approved by an Extraordinary Resolution of the Noteholders.
For the purposes of these Terms and Conditions:
"Restricted Subsidiary" means: (a) Bear, Xxxxxxx & Co. Inc.; (b) Custodial
Trust Company; (c) Bear, Xxxxxxx Securities Corp.; (d) Bear, Xxxxxxx
International Limited; (e) Bear Xxxxxxx Bank plc; (f) any other Subsidiary of
the Guarantor which owns, directly or indirectly, any of the common stock of a
Restricted Subsidiary; and (g) any other Subsidiary with which a Restricted
Subsidiary is merged or consolidated or which acquires or succeeds to a
significant portion of the business, properties or assets of a Restricted
Subsidiary;
"Subsidiary" means any company of which at the time of determination the
Guarantor and/or one or more Subsidiaries owns or controls, directly or
indirectly, more than 50 per cent. of the shares of Voting Stock; and
"Voting Stock" means stock of the class or classes having general voting
power under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of such company provided that, for the purposes
of these Terms and Conditions, stock which carries only the right to vote
conditionally on the happening of an event shall not be considered voting stock
whether or not such event shall have happened.
4. REDENOMINATION
(a) Redenomination
Where Redenomination is specified in the applicable Pricing Supplement as
being applicable, the Issuer may, without the consent of the Noteholders, the
Receiptholders and the Couponholders, on giving prior notice to the Agent,
Euroclear and Clearstream, Luxembourg and at least 30 days' prior notice to the
Noteholders in accordance with Condition 15, elect that, with effect from the
Redenomination Date specified in the notice, the Notes shall be redenominated in
euro.
The election will have effect as follows:
(i) the Notes and the Receipts shall be deemed to be redenominated in
euro in the denomination of euro 0.01 with a nominal amount for each
Note and Receipt equal to the nominal amount of that Note or Receipt
in the Specified Currency, converted into euro at the Established
Rate, provided that, if the Issuer determines, after consultation
with the Agent, that the then market practice in respect of the
redenomination in euro of internationally offered securities is
different from the provisions specified above, such provisions shall
be deemed to be amended so as to comply with such market practice
and the Issuer shall promptly notify the Noteholders, the stock
exchange (if any) on which the Notes may be listed and the Agent of
such deemed amendments;
(ii) save to the extent that an Exchange Notice has been given in
accordance with paragraph (iv) below, the amount of interest due in
respect of the Notes will be calculated by reference to the
aggregate principal amount of Notes presented (or, as the case may
be, in respect of which Coupons are presented) for payment by the
relevant holder and the amount of such payment shall be rounded down
to the nearest euro 0.01;
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(iii) if definitive Notes are required to be issued after the
Redenomination Date, they shall be issued at the expense of the
Issuer in the denominations of euro 1,000, euro 10,000, euro 100,000
and (but only to the extent of any remaining amounts less than euro
1,000 or such smaller denominations as the Agent may approve) euro
0.01 and such other denominations as the Agent shall determine and
notify to the Noteholders;
(iv) if issued prior to the Redenomination Date, all unmatured Coupons
denominated in the Specified Currency (whether or not attached to
the Notes) will become void with effect from the date on which the
Issuer gives notice (the "Exchange Notice") that replacement
euro-denominated Notes, Receipts and Coupons are available for
exchange (provided that such securities are so available) and no
payments will be made in respect of them. The payment obligations
contained in any Notes and Receipts so issued will also become void
on that date although those Notes and Receipts will continue to
constitute valid exchange obligations of the Issuer. New
euro-denominated Notes, Receipts and Coupons will be issued in
exchange for Notes, Receipts and Coupons denominated in the
Specified Currency in such manner as the Agent may specify and as
shall be notified to the Noteholders in the Exchange Notice. No
Exchange Notice may be given less than 15 days prior to any date for
payment of principal or interest on the Notes;
(v) after the Redenomination Date, all payments in respect of the Notes,
the Receipts and the Coupons, other than payments of interest in
respect of periods commencing before the Redenomination Date, will
be made solely in euro as though references in the Notes to the
Specified Currency were to euro. Payments will be made in euro by
credit or transfer to a euro account (or any other account to which
euro may be credited or transferred) specified by the payee or, at
the option of the payee, by a euro cheque, provided that in relation
to Bearer Notes, no payments shall be made by cheque and all
payments shall be made by transfer to a euro account maintained by
the payee with a bank outside the United States and outside of U.S.
Possessions;
(vi) if the Notes are Floating Rate Notes, the applicable Pricing
Supplement specifies any relevant changes to the provisions relating
to interest; and
(vii) such other changes shall be made to these Terms and Conditions
and/or the Note Issuance Agreement as the Issuer may decide, after
consultation with the Agent and as may be specified in the notice,
to conform them to conventions then applicable to instruments
denominated in euro. Any such other changes will not take effect
until after they have been notified to the Noteholders in accordance
with Condition 15.
(b) Definitions
In these Terms and Conditions, the following expressions have the
following meanings:
"Established Rate" means the rate for the conversion of the Specified
Currency (including compliance with rules relating to roundings in accordance
with applicable European Union regulations) into euro established by the Council
of the European Union pursuant to Article 123 of the Treaty;
"euro" means the currency introduced at the start of the third stage of
European economic and monetary union pursuant to the Treaty;
"Redenomination Date" means the date (being, in the case of interest
bearing Notes, a date for payment of interest) specified as such by the Issuer
in the notice given to the Noteholders pursuant to paragraph (a) above and which
falls on or after the date on which the country of the Specified Currency first
participates in the third stage of European economic and monetary union or first
participates in European and economic monetary union in a manner with similar
effect to such third stage;
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"TARGET system" means the Trans-European Automated Real-Time Gross
Settlement Express Transfer (TARGET) System;
"Treaty" means the Treaty establishing the European Community, as amended;
and
"U.S. Possessions" means Puerto Rico, the U.S. Virgin Islands, Guam,
American Samoa, Wake Island and Northern Mariana Islands.
5. INTEREST
(a) Interest on Fixed Rate Notes
Each Fixed Rate Note bears interest on its nominal amount (or, if it is a
Partly Paid Note, the amount paid up) from (and including) the Interest
Commencement Date at the rate(s) per annum equal to the Fixed Rate(s) of
Interest so specified, payable in arrear on the Fixed Interest Date(s) in each
year and on the Maturity Date so specified if that does not fall on a Fixed
Interest Date. The first payment of interest will be made on the Fixed Interest
Date next following the Interest Commencement Date and, if the first anniversary
of the Interest Commencement Date is not a Fixed Interest Date, will amount to
the Initial Broken Amount. If the Maturity Date is not a Fixed Interest Date,
interest from (and including) the preceding Fixed Interest Date (or the Interest
Commencement Date, as the case may be) to (but excluding) the Maturity Date will
amount to the Final Broken Amount.
If interest is required to be calculated for a period ending other than on
a Fixed Interest Date, such interest shall be calculated by applying the Fixed
Rate of Interest to each Specified Denomination, multiplying such sum by the
applicable Day Count Fraction, and rounding the resultant figure to the nearest
sub-unit of the relevant Specified Currency, half of any such sub-unit being
rounded upwards or otherwise in accordance with applicable market convention.
"Day Count Fraction" means, in respect of the calculation of an amount of
interest in accordance with this Condition 5(a):
(i) if "Actual/Actual (ISMA)" is specified in the applicable Pricing
Supplement:
(a) in the case of Notes where the number of days in the relevant
period from (and including) the most recent Determination Date
(or, if none, the Interest Commencement Date) to (but
excluding) the relevant payment date (the "Accrual Period") is
equal to or shorter than the Determination Period during which
the Accrual Period ends, the number of days in such Accrual
Period divided by the product of (1) the number of days in
such Determination Period and (2) the number of Determination
Dates that would occur in one calendar year; or
(b) in the case of Notes where the Accrual Period is longer than
the Determination Period during which the Accrual Period ends,
the sum of:
(1) the number of days in such Accrual Period falling in the
Determination Period in which the Accrual Period begins
divided by the product of (x) the number of days in such
Determination Period and (y) the number of Determination
Dates that would occur in one calendar year; and
(2) the number of days in such Accrual Period falling in the
next Determination Period divided by the product of (x)
the number of days in such Determination Period and (y)
the number of Determination Dates that would occur in
one calendar year; and
(ii) if "30/360" is specified in the applicable Pricing Supplement, the
number of days in the period from (and including) the most recent
Fixed Interest Date (or, if none, the Interest Commencement Date) to
(but excluding) the relevant payment date (such number of days
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being calculated on the basis of 12 30-day months) divided by 360.
In these Terms and Conditions:
"Determination Period" means each period from (and including) a
Determination Date to (but excluding) the next Determination Date (including,
where either the Interest Commencement Date or the final Fixed Interest Date is
not a Determination Date, the period commencing on the first Determination Date
prior to, and ending on the first Determination Date falling after, such date);
and
"sub-unit" means, with respect to any currency other than euro, the lowest
amount of such currency that is available as legal tender in the country of such
currency and, with respect to euro, one cent.
(b) Interest on Floating Rate Notes, Indexed Interest Notes and Linked Notes
(i) Interest Payment Dates
Each Floating Rate Note, Indexed Interest Note and, where applicable,
Linked Note bears interest on its outstanding nominal amount (or, if it is a
Partly Paid Note, the amount paid up) from (and including) the Interest
Commencement Date and such interest will be payable in arrear on either:
(A) the Interest Payment Date(s) specified in the applicable Pricing
Supplement (each an "Interest Payment Date") in each year (the
period from and including the Interest Commencement Date to but
excluding the first Interest Payment Date and each successive period
from and including an Interest Payment Date to but excluding the
next Interest Payment Date each being an "Interest Period"); or
(B) if no Interest Payment Date(s) is/are specified in the applicable
Pricing Supplement, each date which falls the number of months or
other period specified as the Interest Period in the applicable
Pricing Supplement after the preceding Interest Payment Date or, in
the case of the first Interest Payment Date, after the Interest
Commencement Date.
If a business day convention is specified in the applicable
Pricing Supplement and if any Interest Payment Date (or
any other date) would otherwise fall on a day which is
not a Business Day, then, if the business day convention
specified is:
(1) the Floating Rate Convention and no express Interest Payment Date(s)
is/are specified in the applicable Pricing Supplement, such Interest
Payment Date shall be postponed to the next day which is a Business
Day unless it would thereby fall into the next calendar month, in
which event (I) such Interest Payment Date (or other date) shall be
brought forward to the immediately preceding Business Day and (II)
each subsequent Interest Payment Date (or other date) shall be the
last Business Day in the month which falls the number of months or
other period specified as the Interest Period in the applicable
Pricing Supplement after the preceding applicable Interest Payment
Date occurred;
(2) the Following Business Day Convention, such Interest Payment Date
(or other date) shall be postponed to the next day which is a
Business Day;
(3) the Modified Following Business Day Convention, such Interest
Payment Date (or other date) shall be postponed to the next day
which is a Business Day unless it would thereby fall into the next
calendar month, in which event such Interest Payment Date (or other
date) shall be brought forward to the immediately preceding Business
Day; or
(4) the Preceding Business Day Convention, such Interest Payment Date
(or other date) shall be brought forward to the immediately
preceding Business Day.
In this Condition, "Business Day" means a day which is both:
(I) a day on which commercial banks and foreign exchange markets settle
payments and are
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open for general business (including dealings in foreign exchange
and foreign currency deposits) in London; and
(II) either (1) in relation to interest payable in a Specified Currency
other than euro, a day on which commercial banks and foreign
exchange markets settle payments and are open for general business
(including dealings in foreign exchange and foreign currency
deposits) in the principal financial centre of the country of the
relevant Specified Currency (if other than London and which, if the
Specified Currency is Australian dollars or New Zealand dollars,
shall be Sydney and Auckland respectively) or (2) in relation to any
interest payable in euro, a day on which the TARGET System is open.
(ii) Rate of Interest
The Rate of Interest payable from time to time in respect of Floating Rate
Notes, Indexed Interest Notes and, where applicable, Linked Notes will be
determined in the manner specified in the applicable Pricing Supplement.
(iii) ISDA Determination
Where ISDA Determination is specified in the applicable Pricing Supplement
as the manner in which the Rate of Interest is to be determined, the Rate of
Interest for each Interest Period will be the relevant ISDA Rate plus or minus
(as indicated in the applicable Pricing Supplement) the Margin (if any). For the
purposes of this sub-paragraph (iii), "ISDA Rate" for an Interest Period means a
rate equal to the Floating Rate that would be determined by the Agent or other
person specified in the applicable Pricing Supplement under an interest rate
swap transaction if the Agent or that other person were acting as Calculation
Agent for that swap transaction under the terms of an agreement incorporating
the 2000 ISDA Definitions as published by the International Swaps and
Derivatives Association, Inc. as amended and updated as at the Issue Date of the
first Tranche of the Notes (the "ISDA Definitions") and under which:
(A) the Floating Rate Option is as specified in the applicable Pricing
Supplement;
(B) the Designated Maturity is a period specified in the applicable
Pricing Supplement; and
(C) the relevant Reset Date is either: (i) if the applicable Floating
Rate Option is based on the London inter-bank offered rate (LIBOR)
or Euro-Zone inter-bank offered rate (EURIBOR) for a currency, the
first day of that Interest Period or (ii) in any other case, as
specified in the applicable Pricing Supplement.
For the purposes of this Condition 5(b)(iii), "Floating Rate",
"Calculation Agent", "Floating Rate Option", "Designated Maturity" and "Reset
Date" have the meanings given to those terms in the ISDA Definitions.
When this Condition 5(b)(iii) applies, in respect of each relevant
Interest Period:
(A) the Rate of Interest for such Interest Period will be the ISDA Rate
plus or minus the Margin (if any) determined by the Agent in
accordance with this sub-paragraph (iii); and
(B) the Agent will be deemed to have discharged its obligations under
Condition 5(b)(vii) in respect of the determination of the Rate of
Interest, if it has determined the Rate of Interest in respect of
such Interest Period in the manner provided in this sub-paragraph
(iii).
(iv) Screen Rate Determination
Where Screen Rate Determination is specified in the applicable Pricing
Supplement as the manner in which the Rate of Interest is to be determined, the
Rate of Interest for each Interest Period will, subject as provided below, be
either:
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(A) the offered quotation (if there is only one quotation on the
Relevant Screen Page); or
(B) the arithmetic mean (rounded if necessary to the fifth decimal
place, with 0.000005 being rounded upwards) of the offered
quotations,
(expressed as a percentage rate per annum) for deposits in the Specified
Currency for the relevant Interest Period which appears or appear, as the case
may be, on the Relevant Screen Page as at 11.00 a.m. (London time, in the case
of LIBOR, or Brussels time, in the case of EURIBOR) on the Interest
Determination Date in question plus or minus (as indicated in the applicable
Pricing Supplement) the Margin (if any), all as determined by the Agent. If five
or more such offered quotations are available on the Relevant Screen Page, the
highest (or, if there is more than one such highest quotation, one only of such
quotations) and the lowest (or, if there is more than one such lowest quotation,
one only of such quotations) shall be disregarded by the Agent for the purpose
of determining the arithmetic mean (rounded as provided above) of such offered
quotations.
The Note Issuance Agreement contains provisions for determining the Rate
of Interest in the event that the Relevant Screen Page is not available or if,
in the case of (A) above, no such quotation appears or, in the case of (B)
above, fewer than three such offered quotations appear, in each case as at the
time specified in the preceding paragraph. Alternatively, provisions dealing
with this may be included in the applicable Pricing Supplement.
If the Reference Rate from time to time in respect of Floating Rate Notes
is specified in the applicable Pricing Supplement as being other than LIBOR or
EURIBOR, the Rate of Interest in respect of such Notes will be determined as
provided in the applicable Pricing Supplement.
(v) Other determination
Interest may also be payable from time to time in respect of Floating Rate
Notes, Indexed Interest Notes and, where applicable, Linked Notes in accordance
with such other manner of determination as may be specified in the applicable
Pricing Supplement.
(vi) Minimum and/or maximum Rate of Interest
If the applicable Pricing Supplement specifies a minimum Rate of Interest
for any Interest Period, then, in the event that the Rate of Interest in respect
of such Interest Period determined in accordance with the above provisions is
less than such minimum Rate of Interest, the Rate of Interest for such Interest
Period shall be such minimum Rate of Interest. If the applicable Pricing
Supplement specifies a maximum Rate of Interest for any Interest Period, then,
in the event that the Rate of Interest in respect of such Interest Period
determined in accordance with the above provisions is greater than such maximum
Rate of Interest, the Rate of Interest for such Interest Period shall be such
maximum Rate of Interest.
(vii) Determination of Rate of Interest and calculation of Interest Amounts
The Agent or, where the Pricing Supplement specifies another person to act
as calculation agent, such person (the "Calculation Agent"), in the case of
Floating Rate Notes, Indexed Interest Notes and, where applicable, Linked Notes
will, at or as soon as practicable after each time at which the Rate of Interest
is to be determined, determine the Rate of Interest and calculate the amount of
interest (the "Interest Amount") payable on the Floating Rate Notes, Indexed
Interest Notes or, as the case may be, Linked Notes in respect of each Specified
Denomination for the relevant Interest Period. In the case of Indexed Interest
Notes and, where applicable, Linked Notes, the Calculation Agent will notify the
Agent of the Rate of Interest and the Interest Amount for the relevant Interest
Period, as soon as practicable after determining and calculating the same. Each
Interest Amount shall be calculated by applying the Rate of Interest to the
Specified Denomination, multiplying such sum by the actual number of days in the
Interest Period concerned divided by 360, or such other denominator determined
by the Agent to be customary for such calculation (which in the case of Notes
denominated in euro, Sterling or Hong Kong dollars shall be 365/366), and
rounding the resultant
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figure to the nearest sub-unit of the relevant Specified Currency, half of any
such sub-unit being rounded upwards or otherwise in accordance with applicable
market convention.
(viii) Notification of Rate of Interest and Interest Amount
The Agent will cause the Rate of Interest and each Interest Amount for
each Interest Period and the relevant Interest Payment Date to be notified to
the Issuer, the Guarantor and any stock exchange on which the relevant Floating
Rate Notes, Indexed Interest Notes or, where applicable, Linked Notes are for
the time being listed or other relevant authority and notice thereof to be
published in accordance with Condition 15 as soon as possible after their
determination but in no event later than the fourth London Business Day
thereafter. Each Interest Amount and Interest Payment Date so notified may
subsequently be amended (or appropriate alternative arrangements made by way of
adjustment) in the event of an extension or shortening of the Interest Period.
Any such amendment will be promptly notified to each stock exchange on which the
relevant Floating Rate Notes, Indexed Interest Notes or, where applicable,
Linked Notes are for the time being listed or other relevant authority and to
the Noteholders in accordance with Condition 15. For the purposes of this
paragraph "London Business Day" means a day (other than a Saturday or a Sunday)
on which commercial banks and foreign exchange markets settle payments in
London.
(ix) Certificates to be final
All certificates, communications, opinions, determinations, calculations,
quotations and decisions given, expressed, made or obtained for the purposes of
the provisions of this Condition 5(b), whether by the Agent or the Calculation
Agent, shall (in the absence of willful default, bad faith or manifest error) be
binding on the Issuer, the Guarantor, the Agent, the Calculation Agent, the
other Paying Agents, the Transfer Agents, the Exchange Agent, the Registrar and
all Noteholders, Receiptholders and Couponholders and (in the absence as
aforesaid) no liability to the Issuer, the Guarantor, the Noteholders, the
Receiptholders or the Couponholders shall attach to either the Agent or the
Calculation Agent in connection with the exercise or non-exercise by it of its
powers, duties and discretions pursuant to such provisions.
(c) Dual Currency Notes
The rate or amount of interest payable in respect of a Dual Currency Note
shall be determined in the manner specified in the applicable Pricing
Supplement.
(d) Partly Paid Notes
In the case of Partly Paid Notes (other than Partly Paid Notes which are
Zero Coupon Notes), interest will accrue as aforesaid on the paid-up nominal
amount of such Notes and otherwise as specified in the applicable Pricing
Supplement.
(e) Accrual of Interest
Each Note (or, in the case of the redemption of part only of a Note, that
part only of such Note) will cease to bear interest (if any) from the due date
for its redemption unless, upon due presentation thereof, payment of principal
or the payment and/or delivery of the Securities Amount (where applicable) is
improperly withheld or refused. In such event, interest will continue to accrue
as provided in the applicable Pricing Supplement or otherwise until whichever is
the earlier of:
(A) the date on which all amounts due in respect of such Note have been
paid or (if applicable) the Securities Amount has been paid and/or
delivered; and
(B) five days after the date on which the full amount of the moneys
payable or (if applicable) the Securities Amount payable and/or
deliverable has been received by the Agent and/or the Settlement
Agent (as defined in Condition 13) (if applicable) and notice to
that effect has been given to the Noteholders in accordance with
Condition 15.
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6. PAYMENTS AND DELIVERIES
For the purposes of this Condition 6, references to payment or repayment
(as the case may be) of principal and/or interest and other similar expressions
will, where the context so admits, be deemed also to refer to delivery and
payment of any Securities Amount(s).
(a) Method of Payment and Delivery
Subject as provided below and, in the case of Linked Notes, subject also
as provided in Condition 20:
(i) payments in a Specified Currency other than euro will be made by
transfer to an account in the relevant Specified Currency (which, in
the case of a payment in Japanese yen to a non-resident of Japan,
shall be a non-resident account) maintained by the payee with, or by
a cheque in such Specified Currency drawn on, a bank in the
principal financial centre of the country of such Specified Currency
(which, if the Specified Currency is Australian dollars or New
Zealand dollars, shall be Sydney and Auckland respectively),
provided that in relation to Bearer Notes, no payments shall be made
by cheque and all payments shall be made by transfer to an account
maintained by the payee with a bank outside the United States and
outside of U.S. Possessions;
(ii) payments in euro will be made by credit or transfer to a euro
account (or any other account to which euro may be credited or
transferred) specified by the payee or, at the option of the payee,
by a euro cheque, provided that in relation to Bearer Notes, no
payments shall be made by cheque and all payments shall be made by
transfer to an account maintained by the payee with a bank outside
the United States and outside of U.S. Possessions;
(iii) in the case of Linked Notes which provide for settlement by way of
delivery, on the due date for redemption, the Issuer shall deliver,
or procure the delivery of, the documents evidencing the number of,
or constituting the, Underlying Securities plus/minus any amount due
to/from the Noteholder deliverable in respect of each Note (the
"Securities Amount") to or to the order of the Noteholder in
accordance with the instructions of the Noteholder contained in the
Transfer Notice (as defined below). The Securities Amount shall be
evidenced in the manner described in the applicable Pricing
Supplement;
(iv) in the case of Linked Notes which provide the Issuer with an option
to vary settlement, details of how this will operate and of any
relevant notice periods will be set out in the applicable Pricing
Supplement;
(v) in the event that the holder of a Linked Note (which may settle by
delivery of the Underlying Securities) is not (in the opinion of the
Agent or the Settlement Agent, as the case may be) able, for any
reason, to take delivery of, or become the holder of, the Underlying
Securities, or if a Settlement Disruption Event (as defined in
Condition 20(a)) has occurred and is continuing for five consecutive
business days (or as may be otherwise specified in the applicable
Pricing Supplement), the Issuer shall, provided that it would not in
its opinion be prejudiced thereby, agree to vary the method of
settlement in the manner specified in the applicable Pricing
Supplement or (in the absence thereof) as the Settlement Agent may
in its sole and absolute discretion determine; and
(vi) in respect of payments on Registered Notes, each holder and
beneficial owner of such a Registered Note must provide a properly
completed and executed IRS Form W-8BEN or IRS Form W-9, as
applicable (or such successor form as may be required) prior to
payment and from time to time thereafter as required or as requested
or must otherwise establish an exemption from U.S. backup
withholding and information reporting.
Payments will be subject in all cases to any fiscal or other laws and
regulations applicable thereto in the place of payment, but without prejudice to
the provisions of Condition 8.
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(b) Presentation of Notes, Receipts and Coupons
Payments of principal in respect of definitive Bearer Notes will (subject
as provided below) be made in the manner provided in paragraph (a) only against
presentation and surrender (or, in the case of part payment only of any sum due,
endorsement) of definitive Bearer Notes, and payments of interest in respect of
definitive Bearer Notes will (subject as provided below) be made as aforesaid
only against presentation and surrender (or, in the case of part payment only of
any sum due, endorsement) of Coupons, in each case at the specified office of
any Paying Agent outside the United States (which expression, as used in this
Condition 6 and in Conditions 4, 7, 8 and 11, means the United States of America
(including the States and the District of Columbia, its territories, its
possessions and other areas subject to its jurisdiction)).
In respect of Bearer Notes in definitive form, payments of instalments of
principal (if any), other than the final instalment, will (subject as provided
below) be made in the manner provided in paragraph (a) against presentation and
surrender (or, in the case of part payment only of any sum due, endorsement) of
the relevant Receipt. Payment of the final instalment will be made in the manner
provided in paragraph (a) against presentation and surrender (or, in the case of
part payment only of any sum due, endorsement) of the relevant Note. Each
Receipt must be presented for payment of the relevant instalment together with
the definitive Bearer Note to which it appertains. Receipts presented without
the definitive Bearer Notes to which they appertain do not constitute valid
obligations of the Issuer. Upon the date on which any definitive Bearer Note
becomes due and repayable, unmatured Receipts (if any) relating thereto (whether
or not attached) shall become void and no payment shall be made in respect
thereof.
Fixed Rate Notes in definitive bearer form (other than Dual Currency Notes
or Indexed Redemption Amount Notes) should be presented for payment together
with all unmatured Coupons appertaining thereto (which expression shall for this
purpose include Coupons falling to be issued on exchange of matured Talons),
failing which the amount of any missing unmatured Coupon (or, in the case of
payment not being made in full, the same proportion of the amount of such
missing unmatured Coupon as the sum so paid bears to the sum due) will be
deducted from the sum due for payment. Each amount of principal so deducted will
be paid in the manner mentioned above against surrender of the relative missing
Coupon at any time before the expiry of ten years after the Relevant Date (as
defined in Condition 9) in respect of such principal (whether or not such Coupon
would otherwise have become void under Condition 9) or, if later, five years
from the date on which such Coupon would otherwise have become due. Upon any
Fixed Rate Note in definitive bearer form becoming due and repayable prior to
its Maturity Date, all unmatured Talons (if any) appertaining thereto will
become void and no further Coupons will be issued in respect thereof.
Upon the date on which any Floating Rate Note, Dual Currency Note or
Indexed Note in definitive bearer form becomes due and repayable, unmatured
Coupons and Talons (if any) relating thereto (whether or not attached) shall
become void and no payment or, as the case may be, exchange for further Coupons
shall be made in respect thereof.
If the due date for redemption of any definitive Bearer Note is not a
Fixed Interest Date or an Interest Payment Date, interest (if any) accrued in
respect of such Note from (and including) the preceding Fixed Interest Date or
Interest Payment Date or, as the case may be, the Interest Commencement Date
shall be payable only against surrender of the relevant definitive Bearer Note.
Payments of principal and interest (if any) in respect of Notes
represented by any bearer global Note will (subject as provided below) be made
in the manner specified in paragraph (a) and otherwise in the manner specified
in the relevant global Note against presentation or surrender, as the case may
be, of such bearer global Note at the specified office of any Paying Agent
outside the United States. A record of each payment made against presentation or
surrender of such global Note, distinguishing between any payment of principal
and any payment of interest, will be made on such bearer global Note by such
Paying Agent and such record shall be prima facie evidence that the payment in
question has been made.
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Payments of principal (other than instalments of principal (if any) prior
to the final instalment) in respect of Registered Notes (whether in definitive
or global form) will be made in the manner specified in paragraph (a) to the
persons in whose name such Notes are registered at the close of business on the
business day (being for this purpose a day on which banks are open for business
in the city where the Registrar is located) immediately prior to the relevant
payment date against presentation and surrender (or, in the case of part payment
only of any sum due, endorsement) of such Notes at the specified office of the
Registrar or any of the Paying Agents.
Payments of interest due on a Registered Note (whether in definitive or
global form) and payments of instalments of principal (if any) due on a
Registered Note (other than the final instalment) will be made in the manner
specified in paragraph (a) to the person in whose name such Note is registered
at the close of business on the fifteenth day (whether or not such fifteenth day
is a business day (being for this purpose a day on which banks are open for
business in the city where the Registrar is located) (the "Record Date")) prior
to such due date. In the case of payments by cheque, cheques will be mailed to
the holder (or the first named of joint holders) at such holder's registered
address on the business day (as described above) immediately preceding the due
date.
If payment in respect of any Registered Note is required by credit or
transfer as referred to in paragraph (a) above application for such payment must
be made by the holder to the Registrar not later than the relevant Record Date.
Unless otherwise specified, the holder of a global Note shall be the only
person entitled to receive payments in respect of Notes represented by such
global Note and the Issuer and the Guarantor will be discharged by payment to,
or to the order of, the holder of such global Note in respect of each amount so
paid. Each of the persons shown in the records of DTC, Euroclear or Clearstream,
Luxembourg as the beneficial holder of a particular nominal amount of Notes
represented by such global Note must, unless the applicable Pricing Supplement
states otherwise, look solely to DTC, Euroclear or Clearstream, Luxembourg, as
the case may be, for his share of each payment so made by the Issuer or the
Guarantor to, or to the order of, the holder of such global Note. Unless
otherwise specified, no person other than the holder of such global Note shall
have any claim against the Issuer or the Guarantor in respect of any payments
due on that global Note.
All amounts payable to DTC or its nominee as registered holder of a
Registered Global Note in respect of Notes denominated in a Specified Currency
other than U.S. dollars shall be paid by transfer by the Registrar to an account
in the relevant Specified Currency of the Exchange Agent on behalf of DTC or its
nominee for payment in such Specified Currency or conversion into U.S. dollars
in accordance with the provisions of the Note Issuance Agreement.
Notwithstanding the foregoing, U.S. dollar payments of principal and
interest in respect of Bearer Notes will be made at the specified office of a
Paying Agent in the United States:
(i) if:
(A) the Issuer and the Guarantor have appointed Paying Agents with
specified offices outside the United States with the
reasonable expectation that such Paying Agents would be able
to make payment in U.S. dollars at such specified offices
outside the United States of the full amount of principal and
interest on the Bearer Notes in the manner provided above when
due;
(B) payment of the full amount of such principal and interest at
all such specified offices outside the United States is
illegal or effectively precluded by exchange controls or other
similar restrictions; and
(C) such payment is then permitted under United States law; and
(ii) at the option of the relevant holder if payment is then permitted
without involving, in the opinion of the Issuer or the Guarantor,
adverse tax consequences to the Issuer or the Guarantor.
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(c) Payment Business Day
If the date for payment of any amount in respect of any Note, Receipt or
Coupon is not a Payment Business Day, the holder thereof shall not be entitled
to payment until the next following Payment Business Day in the relevant place
and shall not be entitled to further interest or other payment in respect of
such delay. For these purposes, unless otherwise specified in the applicable
Pricing Supplement, "Payment Business Day" means any day which is:
(i) a day on which commercial banks and foreign exchange markets settle
payments and are open for general business (including dealings in
foreign exchange and foreign currency deposits) in the relevant
place of presentation;
(ii) either (a) in relation to any sum payable in a Specified Currency
other than euro, a Business Day (as defined in Condition 5(b)(i)) or
(b) in relation to any sum payable in euro a day on which the TARGET
System is open; and
(iii) in the case of any payment in respect of a Registered Global Note
denominated in a Specified Currency other than U.S. dollars and
registered in the name of DTC or its nominee and, in respect of
which an accountholder of DTC (with an interest in such Registered
Global Note) has elected to receive any part of such payment in U.S.
dollars, not a day on which banking institutions are authorised or
required by law or regulation to be closed in New York City.
(d) Linked Notes
In the case of Linked Notes which provide for settlement by way of
delivery of a Securities Amount, the Securities Amount shall be paid and/or
delivered to the Noteholder pursuant to these Terms and Conditions, the terms of
the applicable Pricing Supplement and a transfer notice ("Transfer Notice", the
form of which is annexed to the Note Issuance Agreement and copies of which may
be obtained from the Paying Agents and the Transfer Agents). No Securities
Amount shall be paid and/or delivered until and unless a duly completed Transfer
Notice is received in the manner specified in the applicable Pricing Supplement.
Upon receipt of such Transfer Notice by Euroclear, Clearstream, Luxembourg
or the Registrar, as the case may be, the Transfer Notice shall be irrevocable
and may not be withdrawn. After delivery of a Transfer Notice, the relevant
holder may not transfer the Notes specified therein.
Upon receipt of a Transfer Notice, Euroclear, Clearstream, Luxembourg or
the Registrar, as the case may be, shall verify that the person specified
therein as the accountholder is the holder of the Notes referred to therein
according to its books. Subject thereto, Euroclear, Clearstream, Luxembourg or
the Registrar, as the case may be, will notify the Agent of the number of Notes
to which the Transfer Notice relates.
Notwithstanding anything to the contrary in these Conditions, if a
Securities Amount comprises less than a whole number of the Underlying
Securities at the relevant time, then: (a) the Issuer shall not deliver and the
relevant Noteholder shall not be entitled to receive in respect of its Notes
that fraction of an Underlying Security (the "Fractional Entitlement"); and (b)
the Issuer shall pay to the relevant Noteholder a cash amount (to be paid at the
same time as the Underlying Securities comprising the Securities Amount are
delivered) equal to the value (as determined by the Calculation Agent) of such
fraction of the relevant Underlying Security, and such cash amount shall be
deemed a part of the Securities Amount for the purposes of these Terms and
Conditions.
The costs and expenses of effecting any delivery of a Securities Amount
(the "Transfer Expenses") pursuant to the foregoing provisions (except for the
expenses of delivery by regular mail (if any), which shall be borne by the
Issuer, but including the payment of a sum sufficient to cover any transfer or
other tax or other governmental charge or insurance charges that may be imposed
in relation thereto) shall, in the absence of provision to the contrary in the
applicable Pricing
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Supplement, be borne by the Noteholder and shall be deducted by the Issuer from
the amount (including, without limitation, the Securities Amount) due to such
holder.
The Underlying Securities will be delivered at the risk of the relevant
Noteholder in such manner as may be specified in the Transfer Notice and,
notwithstanding Condition 5(e) above, no additional payment or delivery will be
due to a Noteholder where any Underlying Securities are delivered after their
due date in circumstances beyond the control of the Issuer, the Guarantor or the
Settlement Agent.
(e) Interpretation of Principal and Interest
Any reference in these Terms and Conditions to principal in respect of the
Notes shall be deemed to include, as applicable:
(i) any additional amounts which may be payable with respect to
principal under Condition 8;
(ii) the Final Redemption Amount of the Notes;
(iii) the Early Redemption Amount of the Notes;
(iv) the Optional Redemption Amount(s) (if any) of the Notes;
(v) in relation to Notes redeemable in instalments, the Instalment
Amounts;
(vi) in relation to Zero Coupon Notes, the Amortised Face Amount; and
(vii) any premium and any other amounts (other than interest) which may be
payable by the Issuer or the Guarantor under or in respect of the
Notes.
Any reference in these Terms and Conditions to interest in respect of the
Notes shall be deemed to include, as applicable, any additional amounts which
may be payable with respect to interest under Condition 8.
In the case of Linked Notes, references in these Terms and Conditions to
principal and/or interest and Securities Amount(s) shall mean such amount less
any expenses, fees, stamp duty, levies or other amounts payable on or in respect
of the relevant Securities Amount(s).
7. REDEMPTION AND PURCHASE
(a) Redemption at Maturity
Unless previously redeemed or purchased and cancelled as specified below,
each Note will be redeemed by the Issuer at its Final Redemption Amount or, in
the case only of Linked Notes where the applicable Pricing Supplement specifies
that such Notes will be redeemed by payment and/or delivery of a Securities
Amount, by the payment and/or delivery of the Securities Amount specified in, or
determined in the manner specified in, the applicable Pricing Supplement in the
relevant Specified Currency (where applicable) on the relative Maturity Date.
(b) Redemption for Tax Reasons
The Notes may be redeemed at the option of the Issuer or the
Guarantor in whole, but not in part, at any time (in the case
of Notes other than Floating Rate Notes and Indexed Interest
Notes) or on any Interest Payment Date (in the case of
Floating Rate Notes and Indexed Interest Notes) on giving not
less than 30 nor more than 60 days' notice in accordance with
Condition 15 to the Noteholders (which notice shall be
irrevocable and shall specify the date for redemption), if:
(i) on the occasion of the next payment or delivery due under the Notes,
the Issuer (or, where
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payment or delivery is required to be made by the Guarantor pursuant
to the Guarantee, the Guarantor) has or will become obliged to pay
Additional Amounts as described in Condition 8 as a result of any
change in or amendment to the laws (or any regulations or rulings
promulgated thereunder) of the country in which the Issuer or, as
the case may be, the Guarantor is organised or any political
subdivision or any taxing authority thereof or therein affecting
taxation, or any change in an official application or interpretation
of such laws, regulations or rulings whether or not such change or
amendment is made with respect to the Issuer, the Guarantor or any
affiliate thereof, which change or amendment becomes effective or
generally known on or after the Issue Date of the first Tranche of
the Notes; and
(ii) such obligation cannot be avoided by the Issuer or, as the case may
be, the Guarantor taking reasonable measures available to it,
provided that (A) no such notice of redemption shall be given earlier than 90
days prior to the earliest date on which the Issuer or, as the case may be, the
Guarantor would be obliged but for such redemption to pay such Additional
Amounts were a payment or delivery in respect of the Notes then due and (B) at
the time such notice is given, the obligation to pay such Additional Amounts
remains in effect. Prior to the publication of any notice of redemption pursuant
to this Condition, the Issuer or, as the case may be, the Guarantor shall
deliver to the Agent (x) a certificate signed by a duly authorised officer of
the Issuer or, as the case may be, the Guarantor stating that the Issuer or, as
the case may be, the Guarantor is entitled to effect such redemption and setting
forth a statement of facts showing that the conditions precedent to the right of
the Issuer or, as the case may be, the Guarantor so to redeem have occurred, and
(y) a written opinion of independent legal counsel of recognised standing to the
effect that the Issuer or, as the case may be, the Guarantor has or will become
obliged to pay such Additional Amounts as a result of such change or amendment.
In addition, if the Guarantor determines, based upon a written opinion of
independent legal counsel of recognised standing, that any payment made outside
the United States by the Guarantor pursuant to the Guarantee, or by any Paying
Agent, of the full amount of principal or interest due with respect to any
Bearer Note, Receipt or Coupon pursuant to the Guarantee would, under any
present or future laws or regulations of the United States or any political
subdivision or any taxing authority thereof or therein, be subject to any
certification, identification or other information reporting requirement of any
kind, the effect of which is the disclosure to the Guarantor, any Paying Agent
or any governmental authority of the nationality, residence or identity (as
distinct from status as a United States Alien, as defined in Condition 8) of a
beneficial owner of such Note, Receipt or Coupon who is a United States Alien
(other than such a requirement which (a) would not be applicable to a payment
made by the Guarantor or any one of its Paying Agents pursuant to the Guarantee
(i) directly to the beneficial owner or (ii) to any custodian, nominee or other
agent of the beneficial owner, (b) is applicable only to a payment by a
custodian, nominee or other agent of the beneficial owner to such beneficial
owner, or (c) can be satisfied by the custodian, nominee or other agent
certifying that the beneficial owner is a United States Alien; provided that, in
each case referred to in (a)(ii), (b) and (c) above, payment to the beneficial
owner by such custodian, nominee or other agent of such beneficial owner is not
otherwise subject to any such requirement), the Guarantor at its election will
either (A) redeem (on an Interest Payment Date in the case of Floating Rate
Notes and Indexed Interest Notes) all the Notes, upon not less than 30 nor more
than 60 days' prior notice in accordance with Condition 15 or (B) if and so long
as the conditions of the second to last paragraph in Condition 8 are satisfied,
pay the Additional Amounts specified in that Condition. The Guarantor will make
such determination and election and notify the Agent thereof as soon as
practicable and the Guarantor will promptly give notice of such determination in
accordance with Condition 15 (the "Determination Notice"), stating the effective
date of such certification, identification or information reporting requirement,
whether the Guarantor will redeem the Notes or will pay the Additional Amounts
specified in such paragraph and (if applicable) the last date by which the
redemption of the Notes must take place. If the Guarantor elects to redeem the
Notes, such redemption shall take place at any time (in the case of Notes other
than Floating Rate Notes and Indexed Interest Notes) or on any Interest Payment
Date (in the case of Floating Rate Notes and Indexed Interest Notes) not later
than one year after publication of
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the Determination Notice, as the Guarantor elects by notice in writing to the
Agent at least 60 days before such date, unless shorter notice is acceptable to
the Agent. Notwithstanding the foregoing, the Guarantor will not so redeem the
Notes if the Guarantor, based upon a written opinion of independent legal
counsel of recognised standing, subsequently determines, not less than 30 days
prior to the redemption date, that subsequent payments would not be subject to
any such requirement, in which case the Guarantor will notify the Agent in
writing and the Guarantor will promptly give notice to the holders of the Notes
of that determination and any earlier redemption notice will thereupon be
revoked and of no further effect. If the Guarantor elects as provided in (B)
above to pay Additional Amounts, the Guarantor may, as long as the Guarantor is
obliged to pay such Additional Amounts, redeem all of the Notes as aforesaid,
upon not less than 30 nor more than 60 days' prior notice in accordance with
Condition 15.
The Guarantor will make the determination described above as soon as
practicable after it becomes aware of an event that might give rise to such a
determination. The effective date of a determination will be the later of the
date on which such determination is made and the date of enactment of the law or
adoption of the regulation or interpretation that is the basis for such
determination.
Notes redeemed pursuant to this Condition 7(b) or the second to last
paragraph in Condition 8 will be redeemed at their Early Redemption Amount
referred to in paragraph (e) below together (if appropriate) with interest
accrued to (but excluding) the date of redemption.
(c) Redemption at the Option of the Issuer
If the Issuer is specified in the applicable Pricing Supplement as having
an option to redeem, the Issuer may, having given:
(i) not less than 30 nor more than 60 days' notice to the Noteholders in
accordance with Condition 15; and
(ii) not less than 30 days before the giving of the notice referred to in
(i), notice to the Agent and (in the case of a redemption of
Registered Notes), the Registrar,
(which notices shall be irrevocable and shall specify the date fixed for
redemption), redeem all or some only of the Notes then outstanding on the
Optional Redemption Date(s) and at the Optional Redemption Amount(s) specified
in, or determined in the manner specified in, the applicable Pricing Supplement
together, if appropriate, with interest accrued to (but excluding) the Optional
Redemption Date(s). Any such redemption must be of a nominal amount not less
than the Minimum Redemption Amount and not more than the Maximum Redemption
Amount, in each case as may be specified in the applicable Pricing Supplement.
In the case of a partial redemption of Notes (or, as the case may be, parts of
Registered Notes), the Notes to be redeemed ("Redeemed Notes") will be selected
individually by lot without involving any part only of a Bearer Note, in the
case of Redeemed Notes represented by definitive Notes, and in accordance with
the rules of Euroclear and/or Clearstream, Luxembourg or, as the case may be,
DTC, in the case of Redeemed Notes represented by a global Note, not more than
30 days prior to the date fixed for redemption (such date of selection being
hereinafter called the "Selection Date"). In the case of Redeemed Notes
represented by definitive Notes, a list of the serial numbers of such Redeemed
Notes will be published in accordance with Condition 15 not less than 15 days
prior to the date fixed for redemption. The aggregate nominal amount of Redeemed
Notes represented by definitive Notes shall bear the same proportion to the
aggregate nominal amount of all Redeemed Notes as the aggregate nominal amount
of definitive Notes outstanding bears to the aggregate nominal amount of the
Notes outstanding, in each case on the Selection Date, provided that such first
mentioned nominal amount shall, if necessary, be rounded downwards to the
nearest integral multiple of the Specified Denomination, and the aggregate
nominal amount of Redeemed Notes represented by a global Note shall be equal to
the balance of the Redeemed Notes. No exchange of the relevant global Note will
be permitted during the period from and including the Selection Date to and
including the date fixed for redemption pursuant to this
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paragraph (c) and notice to that effect shall be given by the Issuer to the
Noteholders in accordance with Condition 15 at least five days prior to the
Selection Date.
(d) Redemption at the Option of the Noteholders
If the Noteholders are specified in the applicable Pricing Supplement as
having an option to redeem, upon the holder of any Note giving to the Issuer in
accordance with Condition 15 not less than 30 nor more than 60 days' notice or
such other period of notice as is specified in the applicable Pricing Supplement
(which notice shall be irrevocable), the Issuer will, upon the expiry of such
notice, redeem, subject to, and in accordance with, the terms specified in the
applicable Pricing Supplement, in whole (but not in part), such Note on the
Optional Redemption Date and at the Optional Redemption Amount specified in, or
determined in the manner specified in, the applicable Pricing Supplement
together, if appropriate, with interest accrued to (but excluding) the Optional
Redemption Date.
To exercise the right to require redemption of this Note the holder of
this Note must deliver a duly signed and completed notice of exercise in the
form (for the time being current) obtainable from any specified office of any
Paying Agent or Transfer Agent or the Registrar (a "Put Notice") accompanied by,
if the Note is in definitive form, the Note itself (or evidence satisfactory to
the Paying Agent concerned that the Note will, following delivery of the Put
Notice, be held to its order or under its control), to the specified office of
any Paying Agent, in the case of Bearer Notes, or of any Transfer Agent or the
Registrar, in the case of Registered Notes, at any time within the notice period
during normal business hours of such Paying Agent, Transfer Agent or the
Registrar. In the Put Notice the holder must specify a bank account (or, in the
case of Registered Notes, if payment is by cheque, an address) to which payment
is to be made under this Condition.
(e) Early Redemption Amounts
For the purpose of Condition 7(b) above and Condition 10, the Notes will
be redeemed at the Early Redemption Amount calculated as follows:
(i) in the case of Notes with a Final Redemption Amount equal to the
Issue Price, at the Final Redemption Amount thereof; or
(ii) in the case of Notes (other than Zero Coupon Notes but including
Instalment Notes and Partly Paid Notes) with a Final Redemption
Amount which is or may be less or greater than the Issue Price or
which is payable in a Specified Currency other than that in which
the Notes are denominated, at the amount specified in, or determined
in the manner specified in, the applicable Pricing Supplement or, if
no such amount or manner is so specified in the Pricing Supplement,
at their nominal amount; or
(iii) in the case of Linked Notes, as determined in the manner specified
in the applicable Pricing Supplement; or
(iv) in the case of Zero Coupon Notes, at an amount (the "Amortised Face
Amount") equal to the sum of:
(A) the Reference Price; and
(B) the product of the Accrual Yield (compounded annually) being
applied to the Reference Price from (and including) the Issue
Date to (but excluding) the date fixed for redemption or (as
the case may be) the date upon which such Note becomes due and
repayable,
or such other amount as is provided in the applicable Pricing Supplement.
Where such calculation is to be made for a period which is not a whole
number of years, it shall be made (I) in the case of a Zero Coupon Note other
than a Zero Coupon Note payable in euro, on the
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basis of a 360-day year consisting of 12 months of 30 days each or (II) in the
case of a Zero Coupon Note payable in euro, on the basis of the actual number of
days elapsed divided by 365 (or, if any of the days elapsed falls in a leap
year, the sum of (x) the number of those days falling in a leap year divided by
366 and (y) the number of those days falling in a non-leap year divided by 365)
or (in either case) on such other calculation basis as may be specified in the
applicable Pricing Supplement.
(f) Instalments
If the Notes are repayable in instalments, they will be redeemed in the
Instalment Amounts and on the Instalment Dates specified in the applicable
Pricing Supplement.
(g) Partly Paid Notes
If the Notes are Partly Paid Notes, they will be redeemed, whether at
maturity, upon early redemption or otherwise, in accordance with the provisions
of this Condition as amended by the applicable Pricing Supplement.
(h) Purchases
The Issuer, the Guarantor, any holding company of either the Issuer or the
Guarantor or any other Subsidiary of either the Issuer or the Guarantor or any
such holding company may at any time purchase Notes (provided that, in the case
of definitive Bearer Notes, all unmatured Receipts, Coupons and Talons
appertaining thereto are purchased therewith) at any price in the open market or
otherwise. Such Notes may be held, reissued, resold or, at the option of the
Issuer, the Guarantor or the relevant holding company or Subsidiary, surrendered
to any Paying Agent and/or the Registrar for cancellation.
(i) Cancellation
All Notes which are redeemed will forthwith be cancelled (together, in the
case of definitive Bearer Notes, with all unmatured Receipts and Coupons
attached thereto or surrendered therewith at the time of redemption). All Notes
so cancelled and any Notes purchased and cancelled pursuant to paragraph (h)
above (together, in the case of definitive Bearer Notes, with all unmatured
Receipts and Coupons cancelled therewith) shall be forwarded to the Agent and
shall not be capable of being reissued or resold.
(j) Late Payment on Zero Coupon Notes
If the amount payable in respect of any Zero Coupon Note upon redemption
of such Zero Coupon Note pursuant to paragraph (a), (b), (c) or (d) above or
upon its becoming due and repayable as provided in Condition 10 is improperly
withheld or refused, the amount due and repayable in respect of such Zero Coupon
Note shall be the amount calculated as provided in paragraph (e)(iv) above as
though the references therein to the date fixed for the redemption or the date
upon which such Zero Coupon Note becomes due and repayable were replaced by
references to the date which is the earlier of:
(i) the date on which all amounts due in respect of such Zero Coupon
Note have been paid; and
(ii) five days after the date on which the full amount of the moneys
payable has been received by the Agent and notice to that effect has
been given to the relevant Noteholders either in accordance with
Condition 15 or individually.
8. TAXATION
The Issuer or the Guarantor (where payment and/or delivery is required to
be made pursuant to the Guarantee) will pay to the holder of any Note, Receipt
or Coupon who is not resident in the Cayman Islands or is a United States Alien
(as defined below) (as the case may be) such additional amounts ("Additional
Amounts") as may be necessary in order that every net payment of the principal
of and
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interest on such Note, after deduction or withholding for or on account of any
present or future tax, assessment or governmental charge imposed upon or as a
result of such payment by the country in which the Issuer or the Guarantor (as
the case may be) is organised, or any political subdivision or taxing authority
thereof or therein, will not be less than the amount provided for in such Note,
Receipt or Coupon then due and payable before any such tax, assessment or other
governmental charge; provided that the foregoing obligation to pay Additional
Amounts will not apply to:
(a) any tax, assessment or other governmental charge which would not
have been so imposed but for:
(i) the existence of any present or former connection between such
holder (or between a fiduciary, settlor, beneficiary, member,
partner or shareholder of, or possessor of a power over, such
holder, if such holder is an estate, trust, partnership or
corporation) and the country in which the Issuer or Guarantor
(as the case may be) is organised, including, without
limitation, such holder (or such fiduciary, settlor,
beneficiary, member, shareholder or possessor) being or having
been a citizen or resident of the country in which the Issuer
or the Guarantor (as the case may be) is organised or treated
as a resident thereof, or being or having been engaged in
trade or business or present therein, or having or having had
a permanent establishment therein or making or having made an
election the effect of which is to subject such holder or
beneficial owner (or such fiduciary, settlor, beneficiary,
member, shareholder or possessor) to such tax, assessment or
other governmental charge;
(ii) the failure of such holder or beneficial owner of a Note,
Receipt or Coupon to comply with any requirement under income
tax treaties, statutes and regulations or administrative
practice of the country in which the Issuer or the Guarantor
(as the case may be) is organised, to establish entitlement to
exemption from or reduction of such tax, assessment or other
governmental charge;
(iii) (in the case only of the Guarantor) such holder's present or
former status as 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 which
accumulates earnings to avoid United States federal income
tax; or
(iv) payment being made in the Cayman Islands or the United States
(as the case may be) or otherwise than to an account with a
bank outside the United States on a Bearer Note, Receipt or
Coupon;
(b) any tax, assessment or other governmental charge which would not
have been so imposed but for the presentation by the holder of such
Note or any Receipt or Coupon appertaining thereto for payment on a
date more than 10 days after the date on which such payment becomes
due and payable or the date on which payment thereof is duly
provided for and notice is given to holders, whichever occurs later;
(c) any estate, inheritance, gift, sales, transfer, personal property or
similar tax, assessment or governmental charge;
(d) any tax, assessment or other governmental charge which is payable
otherwise than by deduction or withholding from payments of
principal of or interest on such Note, Receipt or Coupon;
(e) (in the case only of the Guarantor) any tax, assessment or other
governmental charge imposed on interest received as a result of: (i)
a person's past or present actual or constructive ownership of 10
per cent. or more of the total combined voting power of all classes
of stock of the Guarantor entitled to vote; (ii) such holder being a
bank receiving interest described in section 881(c)(3)(A) of the
United States Internal Revenue Code of 1986, as amended (the
"Internal Revenue Code"); or (iii) such holder being a controlled
foreign corporation with
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respect to the United States that is related to the Guarantor by
stock ownership;
(f) any tax, assessment or other governmental charge which is payable by
a holder that is not the beneficial owner of the Note, Receipt 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 an Additional Amount had
the beneficial owner or member received directly its beneficial or
distributive share of the payment;
(g) 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, Receipt or Coupon, if such payment can be made
without such withholding by any other Paying Agent;
(h) any Note, Receipt or Coupon where any withholding or deduction is
imposed on a payment to an individual and is required to be made
pursuant to any European Union Directive on the taxation of savings
implementing the conclusions of the ECOFIN Council meeting of
November 26-27, 2000 or any law implementing or complying with, or
introduced in order to conform to, such Directive;
(i) any Note, Receipt or Coupon presented for payment by or on behalf of
a holder who would be able to avoid such withholding or deduction by
presenting the relevant Note, Receipt or Coupon to another Paying
Agent in a European Union member state;
(j) any tax, assessment or other governmental charge which would not
have been so imposed but for the Note being treated as anything
other than a debt instrument for U.S. federal income tax purposes;
or
(k) any combination of items (a), (b), (c), (d), (e), (f), (g), (h), (i)
and (j).
For the purposes of the foregoing, the holding of or the receipt of any
payment with respect to a Note will not constitute a connection between the
holder (or between a fiduciary, settlor, beneficiary, member or shareholder of,
or a person having a power over, such holder if such holder is an estate, a
trust, a partnership or a corporation) and the Cayman Islands or the United
States of America as the case may be.
For the purposes of these Conditions, "United States Alien" means any
person who, for United States federal income tax purposes, is a foreign
corporation, a non-resident alien individual, a foreign estate or trust subject
to withholding under Sections 1441 or 1442 of the Internal Revenue Code, or a
foreign partnership one or more of the members of which is, for United States
federal income tax purposes, a foreign corporation, a non-resident alien
individual or a foreign estate or trust subject to withholding under Sections
1441 or 1442 of the Internal Revenue Code.
Notwithstanding the foregoing, if and for so long as a certification,
identification or other information reporting requirement referred to in the
second paragraph of Condition 7(b) would be fully satisfied by payment of a
backup withholding tax or similar charge, the Issuer or the Guarantor (where
payment and/or delivery is required to be made pursuant to the Guarantee) may
elect, by so stating in the Determination Notice, to have the provisions of this
paragraph apply in lieu of the provisions of that paragraph. In such event, the
Issuer or the Guarantor will pay as Additional Amounts such amounts as may be
necessary so that every net payment made, following the effective date of such
requirement, outside the United States by the Issuer or the Guarantor or any of
its Paying Agents of principal or interest due in respect of any Bearer Note,
Receipt or Coupon of which the beneficial owner is a United States Alien (but
without any requirement that the nationality, residence or identity of such
beneficial owner be disclosed to the Issuer, the Guarantor, any Paying Agent or
any United States governmental authority), after deduction or withholding for or
on account of such backup withholding tax or similar charge (other than a backup
withholding tax or similar charge which (i) is the result of a certification,
identification or other information reporting requirement described in
parenthesis in the first sentence of the second paragraph of Condition 7(b),
(ii) is imposed
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as a result of the fact that the Issuer or Guarantor (as the case may be) or any
of the Paying Agents has actual knowledge that the beneficial owner of such
Bearer Note, Receipt or Coupon is within the category of persons described in
items (a) or (e) of the first paragraph of this Condition 8 or (iii) is imposed
as a result of presentation of such Bearer Note, Receipt or Coupon for payment
more than 10 days after the date on which such payment becomes due and payable
or the date on which payment thereof is duly provided for and notice thereof is
given to holders, whichever occurs later) but before deduction or withholding on
account of any tax, assessment or other governmental charge described in items
(a), (b), (c), (d), (e), (f), (g), (h), (i), (j), or (k) of the first paragraph
of this Condition, will not be less than the amount provided for in such Bearer
Note, Receipt or Coupon to be then due and payable. If the Issuer or Guarantor
(as the case may be) elects to pay such Additional Amounts and so long as it is
obliged to pay such Additional Amounts, the Issuer or Guarantor (as the case may
be) may subsequently redeem the Bearer Notes at any time (in the case of Notes
other than Floating Rate Notes and Indexed Interest Notes) or (in the case of
Floating Rate Notes and Indexed Interest Notes) on any Interest Payment Date, in
whole but not in part, upon not less than 30 but not more than 60 days' notice.
Except as specifically provided herein, the Issuer or Guarantor (as the
case may be) will not be required to make any payment with respect to any tax,
assessment or other governmental charge imposed by any government or any
political subdivision or taxing authority thereof or therein. References herein
to principal and/or interest shall be deemed also to refer to any Additional
Amounts which may be payable under this Condition 8.
9. PRESCRIPTION
The Notes, Receipts and Coupons will become void unless presented for
payment within a period of ten years (in the case of principal) and five years
(in the case of interest) after the Relevant Date (as defined in this Condition
9) therefor.
There shall not be included in any Coupon sheet issued on exchange of a
Talon any Coupon the claim for payment in respect of which would be void
pursuant to this Condition or Condition 6(b) or any Talon which would be void
pursuant to Condition 6(b).
For the purposes of these Terms and Conditions, the "Relevant Date" in
respect of any payment or delivery means (in the case of Notes or Receipts) the
due date for payment or delivery and (in the case of Coupons) the date for
payment shown on the Coupons or, if the full amount of moneys payable or
Underlying Securities deliverable is not paid or delivered to or to the order of
the Agent, the Settlement Agent or the Registrar, as the case may be, on or
before the due date for payment or delivery, the date on which the Agent, the
Settlement Agent or the Registrar, as the case may be, having received the
amount of all moneys payable or Underlying Securities deliverable in respect of
the Notes, Receipts or Coupons then due for payment, gives or procures the
giving of notice to that effect to the Noteholders in accordance with Condition
15.
10. EVENTS OF DEFAULT
Any Noteholder may give written notice (a "Default Notice") to the Issuer
and the Guarantor upon the happening of any of the following events (each an
"Event of Default"), provided that, in the case of the happening of any of the
Events of Default referred to in paragraphs (b) to (e) of this Condition, only
if such event is materially prejudicial to the interests of the Noteholders:
(a) default in the payment of any amount, or delivery of any amount
payable on Underlying Securities deliverable, in respect of any of
the Notes when due, which default, in the case of payments of
interest, has continued for 30 days; or
(b) default in the performance of any other covenant of the Issuer or
the Guarantor contained in, or any of its other obligations under,
the Note Issuance Agreement, the Notes or the Guarantee, which
default has continued for 60 days after written notice to the Issuer
or the
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Guarantor from any Noteholder requiring such default to be remedied;
or
(c) default in respect of any other indebtedness for borrowed money of
the Issuer, the Guarantor or any Restricted Subsidiary in excess of
U.S.$25,000,000 that has become or has been declared due and payable
prior to maturity, which default has continued for ten days after
written notice to the Issuer or the Guarantor from any Noteholder
requiring such default to be remedied; or
(d) a court having jurisdiction entering a decree or order for relief in
respect of the Issuer or the Guarantor in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Issuer
or the Guarantor or of all or substantially all of its property, or
ordering the winding-up or liquidation of its affairs, and such
decree or order having remained unstayed and in effect for a period
of 60 consecutive days; or
(e) the Issuer or the Guarantor commencing a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consenting to the entry of an order for
relief in an involuntary case under any such law, or consenting to
the appointment of or taking of possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or similar
official) of the Issuer or the Guarantor or of all or substantially
all of its property, or making any general assignment for the
benefit of creditors, or failing generally to pay its debts as they
become due.
Upon any such Default Notice(s) being given in accordance with this
Condition by a holder or holders of Notes together representing not less than 25
per cent. in nominal amount of the Notes then outstanding, the Notes shall
become immediately due and repayable at their Early Redemption Amount (as
described in Condition 7(e)) on the date of the Default Notice first permitting
such early redemption hereunder, together with accrued interest as provided in
Condition 5.
11. REPLACEMENT OF NOTES, RECEIPTS, COUPONS AND TALONS
If any Note, Receipt, Coupon or Talon shall become mutilated or defaced or
destroyed, lost or stolen, it may be replaced at the specified office of the
Agent outside the United States and its possessions in the case of Bearer Notes,
Receipts, Coupons or Talons, or the Registrar in New York City, in the case of
Registered Notes, upon payment by the claimant of the expenses incurred in
connection with the replacement and on such terms as to evidence and indemnity
and/or security as the Issuer and the Guarantor may reasonably require.
Mutilated or defaced Notes, Receipts, Coupons or Talons must be surrendered
before replacements will be issued.
12. EXCHANGE OF NOTES AND TRANSFER OF REGISTERED NOTES
(a) Exchange of Bearer Notes for Registered Notes
A Bearer Note in definitive form may be exchanged for Registered Notes of
like aggregate nominal amount (in global or definitive form) by submission of a
duly completed request for exchange substantially in the form provided in the
Note Issuance Agreement (an "Exchange Request"), copies of which are available
from the specified office of the Registrar or any Transfer Agent, together with
the Bearer Note and (subject as provided below) all unmatured Coupons, Talons
and Receipts appertaining thereto, to a Transfer Agent at its specified office.
Within three business days of the request, if the Registered Notes for which the
Bearer Note is to be exchanged are in definitive form, the relevant Transfer
Agent will authenticate and deliver, or procure the authentication and delivery
of, at its specified office to the holder or (at the risk of the holder) send by
mail to such address as may be specified by the holder in the Exchange Request,
a definitive Registered Note of a like aggregate nominal amount to the Bearer
Note exchanged and will enter the exchange of the Bearer Note in the Register
maintained by the Registrar as of the Exchange Date. If
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the Registered Note(s) for which such Bearer Note is to be exchanged are in
global form, the amount of the applicable Registered Global Note(s) will be
increased accordingly.
A Bearer Note surrendered in exchange for a Registered Note after a Record
Date (as defined in Condition 6(b)) and on or before the next following Fixed
Interest Date or Interest Payment Date (each as defined in Condition 5) is not
required to be surrendered with the Coupon maturing on that payment date.
Interest on a Registered Note issued on exchange will accrue as from the
immediately preceding Fixed Interest Date or Interest Payment Date, as the case
may be, except where issued in respect of a Bearer Note surrendered after a
Record Date and on or before the next following Fixed Interest Date or Interest
Payment Date, in which event interest shall accrue as from that date.
No exchanges of Bearer Notes for Registered Notes or interests in
Registered Global Notes will be permitted for so long as the Bearer Notes are
represented by a Temporary Bearer Global Note.
(b) Form of Registered Notes
Registered Notes of each Tranche sold outside the United States in
reliance on Regulation S under the United States Securities Act of 1933, as
amended (the "Securities Act"), will initially be represented by a permanent
global Note in registered form, without interest coupons, (the "Reg. S Global
Note"), deposited with a custodian for, and registered in the name of a nominee
of, DTC for the accounts of Euroclear and Clearstream, Luxembourg. Notes in
definitive form issued in exchange for Reg. S Global Notes or otherwise sold or
transferred in reliance on Regulation S under the Securities Act, together with
the Reg. S Global Notes, are referred to herein as "Reg. S Notes". Prior to
expiry of the period that ends 40 days after completion of the distribution of
each Tranche of Notes, as certified by the relevant Dealer, in the case of a
non-syndicated issue, or by the Lead Manager, in the case of a syndicated issue
(the "Distribution Compliance Period"), beneficial interests in a Reg. S Global
Note may be held only through Euroclear or Clearstream, Luxembourg. After expiry
of such Distribution Compliance Period, beneficial interests in a Reg. S Note
may be held through DTC directly, by a participant in DTC, or indirectly,
through a participant in DTC.
Registered Notes of each Tranche sold in private transactions to qualified
institutional buyers within the meaning of Rule 144A under the Securities Act
("QIBs") will initially be represented by a permanent global Note in registered
form, without interest coupons (the "Restricted Global Note" and, together with
the Reg. S Global Note, the "Registered Global Notes") deposited with a
custodian for, and registered in the name of a nominee of, DTC. Notes in
definitive form issued in exchange for Restricted Global Notes or otherwise sold
or transferred in accordance with the requirements of Rule 144A under the
Securities Act, together with the Restricted Global Notes, are referred to
herein as "Restricted Notes".
Registered Notes of each Tranche sold to accredited investors (as defined
in Rule 501(a) (1), (2), (3) or (7) under the Securities Act) that are
institutions ("Institutional Accredited Investors") who agree to purchase the
Notes for their own account and not with a view to the distribution thereof will
be in definitive form, registered in the name of the holder thereof.
Registered Notes in definitive form issued to Institutional Accredited
Investors and Restricted Notes shall bear the legend set forth in the Restricted
Global Note (the "Legend"), such Notes also being referred to herein as
"Legended Notes". Upon the transfer, exchange or replacement of Legended Notes,
or upon specific request for removal of the Legend, the Registrar shall (save as
provided in Condition 12(f)) deliver only Legended Notes or refuse to remove
such Legend, as the case may be, unless there is delivered to the Issuer such
satisfactory evidence as may reasonably be required by the Issuer, which may
include an opinion of U.S. counsel, that neither the Legend nor the restrictions
on transfer set forth therein are required to ensure compliance with the
provisions of the Securities Act.
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Subject as otherwise provided in this Condition 12, Registered Notes in
definitive form may be exchanged or transferred in whole or in part in the
authorised denominations for one or more definitive Registered Notes of like
aggregate nominal amount.
(c) Exchange of interests in Registered Global Notes for Registered Notes in
definitive form
Interests in the Reg. S Global Note and the Restricted Global Note will be
exchangeable for Registered Notes in definitive form, if (i) Euroclear and/or
Clearstream, Luxembourg or DTC, as the case may be, notifies the Issuer that it
is unwilling or unable to continue as depositary for such Registered Global
Note, (ii) if applicable, DTC ceases to be a "Clearing Agency" registered under
the United States Securities Exchange Act of 1934, as amended, or either
Euroclear or Clearstream, Luxembourg is closed for business for a continuous
period of 14 days (other than by reason of holiday, statutory or otherwise) or
announces its intention permanently to cease business, and a successor
depositary or alternative clearance system satisfactory to the Issuer and the
Agent is not available, (iii) an Event of Default has occurred and is continuing
with respect to such Notes, (iv) the holder of a beneficial interest in the
Restricted Global Note notifies the Registrar in writing that it is transferring
such beneficial interest to an Institutional Accredited Investor who is required
to hold its beneficial interest in the Registered Notes in definitive form, or
(v) unless otherwise provided in the applicable Pricing Supplement, a written
request for one or more Registered Notes in definitive form is made by a holder
of a beneficial interest in a Registered Global Note; provided that in the case
of (v) such written notice or request, as the case may be, is submitted to the
Registrar by the beneficial owner not less than 60 days (or such other period as
may be indicated in the applicable Pricing Supplement) prior to the requested
date of such exchange. Upon the occurrence of any of the events described in the
preceding sentence, the Issuer will cause the appropriate Registered Notes in
definitive form to be delivered, provided that, notwithstanding the above, no
Registered Notes in definitive form will be issued until expiry of the
applicable Distribution Compliance Period.
(d) Transfers of Registered Global Notes
Transfers of a Registered Global Note shall be limited to transfers of
such Registered Global Note, in whole but not in part, to a nominee of DTC or to
a successor of DTC or such successor's nominee.
(e) Transfers of interests in Reg. S Notes
Prior to expiry of the applicable Distribution Compliance Period,
transfers by the holder of, or of a beneficial interest in, a Reg. S Note to a
transferee in the United States or who is a U.S. person will only be made:
(i) upon receipt by the Registrar of a written certification
substantially in the form set out in the Note Issuance Agreement,
amended as appropriate (a "Transfer Certificate"), copies of which
are available from the specified office of the Registrar or any
Transfer Agent, from the transferor of the Note or beneficial
interest therein to the effect that such transfer is being made:
(A) to a person whom the transferor reasonably believes is a QIB
in a transaction meeting the requirements of Rule 144A; or
(B) to a person who is an Institutional Accredited Investor,
together with, in the case of (B), a duly executed investment letter from the
relevant transferee substantially in the form set out in the Note Issuance
Agreement (an "IAI Investment Letter"); or
(ii) otherwise pursuant to the Securities Act or an exemption therefrom,
subject to receipt by the Issuer of such satisfactory evidence as
the Issuer may reasonably require, which may include an opinion of
U.S. counsel, that such transfer is in compliance with any
applicable securities laws of the federal government and of any
state of the United States,
and, in each case, in accordance with any applicable securities laws of the
federal government and of any state of the United States or any other
jurisdiction.
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In the case of (A) above, such transferee may take delivery through a
Legended Note in global or definitive form and, in the case of (B) above, such
transferee may take delivery only through a Legended Note in definitive form.
After expiry of the applicable Distribution Compliance Period (i) beneficial
interests in Reg. S Notes may be held through DTC directly, by a participant in
DTC, or indirectly through a participant in DTC and (ii) such certification
requirements will no longer apply to such transfers.
(f) Transfers of interests in Legended Notes
Transfers of Legended Notes or beneficial interests therein may be made:
(i) to a transferee who takes delivery of such interest through a Reg. S
Note, upon receipt by the Registrar of a duly completed Transfer
Certificate from the transferor to the effect that such transfer is
being made in accordance with Regulation S and that, if such
transfer is being made prior to expiry of the applicable
Distribution Compliance Period, the interests in the Notes being
transferred will be held immediately thereafter through Euroclear
and/or Clearstream, Luxembourg; or
(ii) to a transferee who takes delivery of such interest through a
Legended Note:
(A) where the transferee is a person whom the transferor
reasonably believes is a QIB in a transaction meeting the
requirements of Rule 144A, without certification; or
(B) where the transferee is an Institutional Accredited Investor,
subject to delivery to the Registrar of a Transfer Certificate
from the transferor to the effect that such transfer is being
made to an Institutional Accredited Investor, together with a
duly executed IAI Investment Letter from the relevant
transferee; or
(iii) otherwise pursuant to the Securities Act or an exemption therefrom,
subject to receipt by the Issuer of such satisfactory evidence as
the Issuer may reasonably require, which may include an opinion of
U.S. counsel, that such transfer is in compliance with any
applicable securities laws of the federal government and of any
state of the United States,
and in each case, in accordance with any applicable securities laws of the
federal government and of any state of the United States or any other
jurisdiction.
Notes transferred by Institutional Accredited Investors to QIBs pursuant
to Rule 144A or outside the United States pursuant to Regulation S will be
eligible to be held by such QIBs or non-U.S. investors through DTC and the
Registrar will arrange for any Notes which are the subject of such a transfer to
be represented by the appropriate Registered Global Note, where applicable.
(g) Exchanges and transfers of Registered Notes generally
Registered Notes may not be exchanged for Bearer Notes.
Holders of Registered Notes in definitive form, other than Institutional
Accredited Investors, may exchange such Notes for interests in a Registered
Global Note of the same type at any time.
Transfers of beneficial interests in Registered Global Notes will be
effected by DTC, Euroclear or Clearstream, Luxembourg, as the case may be, and,
in turn, by participants and, if appropriate, indirect participants in such
clearing systems acting on behalf of beneficial transferors and transferees of
such interests. A beneficial interest in a Registered Global Note will be
transferable and exchangeable for Notes in definitive form or for a beneficial
interest in another Registered Global Note only in accordance with the rules and
operating procedures for the time being of DTC, Euroclear or Clearstream,
Luxembourg, as the case may be (the "Applicable Procedures").
Upon the terms and subject to the conditions set forth in the Note
Issuance Agreement, a Registered Note in definitive form may be transferred in
whole or in part (in the authorised
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denominations set out in the applicable Pricing Supplement) by the holder or
holders surrendering the Registered Note for registration of the transfer of the
Registered Note (or the relevant part of the Registered Note) at the specified
office of the Registrar or any Transfer Agent, with the form of transfer thereon
duly executed by the holder or holders thereof or his or their attorney or
attorneys duly authorised in writing and upon the Registrar or, as the case may
be, the relevant Transfer Agent, after due and careful enquiry, being satisfied
with the documents of title and the identity of the person making the request
and subject to such reasonable regulations as the Issuer and the Registrar, or
as the case may be, the relevant Transfer Agent may prescribe, including any
restrictions imposed by the Issuer on transfers of Registered Notes originally
sold to a U.S. person. Subject as provided above, the Registrar or, as the case
may be, the relevant Transfer Agent will, within three business days (being for
this purpose a day on which banks are open for business in the city where the
specified office of the Registrar or, as the case may be, the relevant Transfer
Agent is located) of the request (or such longer period as may be required to
comply with any applicable fiscal or other laws or regulations) authenticate and
deliver, or procure the authentication and delivery of, at its specified office
to the transferee or (at the risk of the transferee) send by mail to such
address as the transferee may request, a new Registered Note in definitive form
of a like aggregate nominal amount to the Registered Note (or the relevant part
of the Registered Note) transferred. In the case of the transfer of part only of
a Registered Note in definitive form, a new Registered Note in definitive form
in respect of the balance of the Registered Note not transferred will be so
authenticated and delivered or (at the risk of the transferor) sent to the
transferor.
Exchanges or transfers by a holder of a Registered Note in definitive form
for an interest in, or to a person who takes delivery of such Note through, a
Registered Global Note will be made no later than 60 days after the receipt by
the Registrar or, as the case may be, relevant Transfer Agent of the Registered
Note in definitive form to be so exchanged or transferred and, if applicable,
upon receipt by the Registrar of a written certification from the transferor.
(h) Registration of transfer upon partial redemption
In the event of a partial redemption of Notes under Condition 7(c), the
Issuer shall not be required:
(i) to register the transfer of Registered Notes (or parts of Registered
Notes) during the period beginning on the sixty-fifth day before the
date of the partial redemption and ending on the date on which
notice is given specifying the serial numbers of Notes called (in
whole or in part) for redemption (both inclusive); or
(ii) to register the transfer of any Registered Note, or part of a
Registered Note, called for partial redemption.
(i) Closed periods
No Noteholder may require the transfer of a Registered Note to be
registered or a Bearer Note to be exchanged for a Registered Note during the
period of 30 days ending on the due date for any payment of principal or
interest or payment and/or delivery of any Securities Amount on that Note.
(j) Costs of exchange or registration
The costs and expenses of effecting any exchange or registration of
transfer pursuant to the foregoing provisions (except for the expenses of
delivery by other than regular mail (if any) and, if the Issuer shall so
require, for the payment of a sum sufficient to cover any tax or other
governmental charge or insurance charges that may be imposed in relation thereto
which will be borne by the Noteholder) will be borne by the Issuer or the
Guarantor, as the case may be.
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13. AGENT, PAYING AGENTS, TRANSFER AGENTS, EXCHANGE AGENT, REGISTRAR AND
SETTLEMENT AGENT
The names of the initial Agent, the initial Registrar, the other initial
Paying Agents, the initial Exchange Agent and the initial Transfer Agents and
their initial specified offices are set out below. In addition, the Agent may
(with the prior written consent of the Issuer and the Guarantor) delegate
certain of its functions and duties in relation to Linked Notes to a settlement
agent (such person being the "Settlement Agent").
The Issuer and the Guarantor are entitled to vary or terminate the
appointment of any Paying Agent or the Registrar or the Exchange Agent or any
Transfer Agent or Settlement Agent and/or appoint additional or other Paying
Agents or additional or other Registrars, Exchange Agents, Transfer Agents or
Settlement Agents and/or approve any change in the specified office through
which any Paying Agent, Registrar, Exchange Agent, Transfer Agent or Settlement
Agent acts, provided that:
(i) so long as the Notes are listed on any stock exchange or admitted to
listing by any other relevant authority, there will at all times be
a Paying Agent (which may be the Agent), in the case of Bearer
Notes, and a Transfer Agent (which may be the Registrar), in the
case of Registered Notes, with a specified office in such place as
may be required by the rules and regulations of the relevant stock
exchange (or any other relevant authority);
(ii) there will at all times be a Paying Agent with a specified office in
a principal financial centre in continental Europe;
(iii) there will at all times be a Registrar with a specified office in
New York City;
(iv) there will at all times be a Transfer Agent;
(v) so long as any of the Registered Global Notes payable in a Specified
Currency other than U.S. dollars are held through DTC or its
nominee, there will at all times be an Exchange Agent with a
specified office in New York City;
(vi) there will at all times be an Agent; and
(vii) if any European Union Directive on the taxation of savings
implementing the conclusions of the ECOFIN Council meeting of
November 26-27, 2000 or any law implementing or complying with, or
introduced in order to conform to such Directive is introduced,
there will at all times, to the extent possible, be a Paying Agent
in a European Union member state that will not be obliged to
withhold or deduct tax pursuant to any such Directive or law.
In addition, the Issuer and the Guarantor shall forthwith appoint a Paying
Agent having a specified office in New York City in the circumstances described
in the final paragraph of Condition 6(b). Any variation, termination,
appointment or change shall only take effect (other than in the case of
insolvency, when it shall be of immediate effect) after not less than 30 nor
more than 45 days' prior notice thereof shall have been given to the Noteholders
in accordance with Condition 15 provided that no such variation, termination,
appointment or change shall take effect (except in the case of insolvency)
within 45 days before or after any Fixed Interest Date or Interest Payment Date,
as the case may be.
In acting under the Note Issuance Agreement, the Exchange Agent, the
Registrar, the Agent, the Paying Agents, the Transfer Agents and any Settlement
Agent act solely as agents of the Issuer and the Guarantor and do not assume any
obligation or relationship of agency or trust to or with the Noteholders,
Receiptholders or Couponholders, except that (without affecting the obligations
of the Issuer and the Guarantor to the Noteholders, Receiptholders and
Couponholders to repay Notes and pay interest thereon or pay and/or deliver any
Securities Amount in respect thereof) any funds or Underlying Securities
received by the Agent for the payment of the principal of or interest on the
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Notes or payment and/or delivery of any Securities Amounts shall be held by it
on trust for the Noteholders and/or Receiptholders and/or Couponholders until
the expiry of the period of prescription specified in Condition 9. The Note
Issuance Agreement contains provisions for the indemnification of the Paying
Agents, the Registrar, the Exchange Agent, the Transfer Agents and any
Settlement Agent and for their relief from responsibility in certain
circumstances and entitles any of them to enter into business transactions with
the Issuer, the Guarantor and any of their respective Subsidiaries without being
liable to account to the Noteholders, Receiptholders or Couponholders for any
resulting profit.
14. EXCHANGE OF TALONS
On and after the Fixed Interest Date or the Interest Payment Date, as
appropriate, on which the final Coupon comprised in any Coupon sheet matures,
the Talon (if any) forming part of such Coupon sheet may be surrendered at the
specified office of the Agent or any other Paying Agent in exchange for a
further Coupon sheet including (if such further Coupon sheet does not include
Coupons to (and including) the final date for the payment of interest due in
respect of the Note to which it appertains) a further Talon, subject to the
provisions of Condition 9. Each Talon shall, for the purposes of these Terms and
Conditions, be deemed to mature on the Fixed Interest Date or the Interest
Payment Date (as the case may be) on which the final Coupon comprised in the
relative Coupon sheet matures.
15. NOTICES
All notices regarding the Bearer Notes shall be valid if published: (i) in
a leading English language daily newspaper of general circulation in London; and
(ii) if and for so long as the Notes are listed on the Luxembourg Stock
Exchange, a daily newspaper of general circulation in Luxembourg. It is expected
that publication will be made in the Financial Times in London and the
Luxemburger Wort in Luxembourg. The Issuer shall also ensure that notices are
duly published in a manner which complies with the rules and regulations of any
other stock exchange or other relevant authority on which the Notes are for the
time being listed or by which they have been admitted to listing. Any such
notice will be deemed to have been given on the date of the first publication
or, where required to be published in more than one newspaper, on the date of
the first publication in all the required newspapers.
All notices regarding the Registered Notes will be deemed to be validly
given if sent by first class mail or (if posted to an address overseas) by
airmail to the holders (or the first named of joint holders) at their respective
addresses recorded in the register and will be deemed to have been given on the
fourth day after mailing and, in addition, for so long as any Registered Notes
are listed on a stock exchange or admitted to listing by any other relevant
authority and the rules of that stock exchange or other relevant authority so
require, such notice will be published in a daily newspaper of general
circulation in the place or places required by that stock exchange or other
relevant authority.
Until such time as any definitive Notes are issued, there may, so long as
the global Note(s) is or are held in its or their entirety on behalf of
Euroclear and/or Clearstream, Luxembourg or DTC, be substituted for such
publication in such newspaper(s) the delivery of the relevant notice to
Euroclear and/or Clearstream, Luxembourg or DTC for communication by them to the
holders of the Notes. Any such notice shall be deemed to have been given to the
holders of the Notes on the same day as delivery is made to Euroclear and/or
Clearstream, Luxembourg or DTC, unless otherwise specified in the applicable
Pricing Supplement.
Notices to be given by any Noteholder shall be in writing and given by
lodging the same, together with the relative Note or Notes, with the Agent.
Whilst any of the Notes are represented by a global Note, such notice may be
given by any Noteholder to the Agent via Euroclear and/or Clearstream,
Luxembourg or DTC, as the case may be, in such manner as the Agent and Euroclear
and/or Clearstream, Luxembourg or DTC, as the case may be, may approve for this
purpose and any such notice shall be deemed to have been given to the Issuer and
the Agent on the same day as delivery is made to such clearing system(s).
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16. MEETINGS OF NOTEHOLDERS, MODIFICATION AND WAIVER
The Note Issuance Agreement contains provisions for convening meetings of
the Noteholders to consider any matter affecting their interests, including the
sanctioning by Extraordinary Resolution of a modification of the Notes, the
Receipts, the Coupons or certain provisions of the Note Issuance Agreement. Such
a meeting may be convened by the Issuer, the Guarantor or Noteholders holding
not less than five per cent. in nominal amount of the Notes for the time being
remaining outstanding. The quorum at any such meeting for passing an
Extraordinary Resolution is one or more persons holding or representing not less
than 50 per cent. in nominal amount of the Notes for the time being outstanding,
or at any adjourned meeting one or more persons being or representing
Noteholders whatever the nominal amount of the Notes so held or represented,
except that at any meeting the business of which includes the modification of
certain provisions of the Notes, Receipts or Coupons (including, amongst other
things, modifying the date of maturity of the Notes or any date for payment of
interest thereon, reducing or cancelling the amount of principal or the rate of
interest payable in respect of the Notes or altering the currency of payment of
the Notes, Receipts or Coupons), the necessary quorum for passing an
Extraordinary Resolution will be one or more persons holding or representing not
less than 75 per cent., or at any adjourned such meeting not less than a clear
majority, in nominal amount of the Notes for the time being outstanding. An
Extraordinary Resolution passed at any meeting of the Noteholders shall be
binding on all the Noteholders, whether or not they are present at the meeting,
and on all Receiptholders and Couponholders.
The Agent, the Issuer and the Guarantor may, without the consent of the
Noteholders, Receiptholders or Couponholders, agree to:
(i) any modification (subject as provided above) of the Note Issuance (
Agreement which is not materially prejudicial to the interests of
the Noteholders, Receiptholders or Couponholders; or
(ii) any modification of the Notes, the Receipts, the Coupons or the Note
Issuance Agreement which is of a formal, minor or technical nature
or which is made to correct a manifest error or to comply with
mandatory provisions of the laws of the jurisdiction in which the
Issuer or the Guarantor is organised.
Any such modification shall be binding on the Noteholders, Receiptholders
and Couponholders and any such modification shall be notified to the Noteholders
as soon as practicable thereafter in accordance with Condition 15.
Notwithstanding the provisions of this Condition 16, the Issuer may change
any of the terms of a Series of Notes as set out in the applicable Pricing
Supplement provided that it has the prior written agreement of all the holders
of such Notes then outstanding. Any such change shall become effective once
notice confirming such change (together with an amended version of the
applicable Pricing Supplement) has been delivered to all such holders.
17. FURTHER ISSUES
The Issuer shall be at liberty from time to time without the consent of
the Noteholders, the Receiptholders or the Couponholders to create and issue
further notes having terms and conditions the same as the Notes or the same in
all respects save for the amount and date of the first payment of interest
thereon and/or the issue price and so that the same shall be consolidated and
form a single Series with the outstanding Notes.
18. CONSOLIDATION AND MERGER
The Issuer and/or the Guarantor may, without the consent of the
Noteholders, the Receiptholders or the Couponholders, consolidate or merge with
or into any other company, and the Issuer and/or the Guarantor may sell, lease
or convey all or substantially all of its assets to any company organised and
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existing under the laws of the Cayman Islands (in the case of the Issuer) or the
United States of America or any state thereof (in the case of the Guarantor)
provided that (a) the company (if other than the Issuer or the Guarantor) formed
by or resulting from any such consolidation or merger or that shall have
received such assets shall expressly assume (in place of the Issuer) payment and
delivery of all amounts payable (including Additional Amounts) and deliverable
in respect of the Notes and/or, as the case may be, (in place of the Guarantor)
the obligations of the Guarantor under the Guarantee and in either case the
performance and observance of these Terms and Conditions and all of the
covenants and conditions of the Note Issuance Agreement to be performed or
observed by the Issuer or the Guarantor and (b) neither the Issuer nor the
Guarantor nor such successor company shall immediately thereafter be in default
under these Terms and Conditions, the Note Issuance Agreement, the Deed of
Guarantee and the Deed of Covenant.
19. SUBSTITUTION
(a) The Issuer and the Guarantor may, without the consent of the
Noteholders, the Receiptholders or Couponholders, effect the substitution (I) in
place of the Issuer or the Guarantor (or of any previous substitute under this
Condition) of any successor company of the Issuer or the Guarantor as the
principal debtor under the Notes, the Receipts, the Coupons and the Note
Issuance Agreement or, as the case may be, as guarantor of payments and
deliveries by the Issuer under the Notes, the Receipts, the Coupons and the Note
Issuance Agreement or (II) in place of the Issuer (or of any previous substitute
under this Condition) of any wholly-owned Subsidiary of the Issuer or any
successor company as the principal debtor under the Notes, the Receipts, the
Coupons and the Note Issuance Agreement, subject to: (i) (in the case of
substitution of such a Subsidiary or of any successor company of the Issuer) the
Notes being unconditionally and irrevocably guaranteed by the Guarantor or any
successor company; (ii) the substitute by deed poll agreeing to be bound by the
provisions of the Note Issuance Agreement and assuming liability for the due and
punctual payment and/or delivery of all amounts due in respect of the Notes,
Receipts or Coupons or the Guarantee (as the case may be); (iii) (without
prejudice to the generality of (ii) above) where the substitute is incorporated,
domiciled or resident in, or subject generally to the taxing jurisdiction of, a
territory other than or in addition to (in the case of a substitution in place
of the Issuer) the Cayman Islands or (in the case of a substitution in place of
the Guarantor) the United States of America or any political sub-division
thereof or any authority or agency thereof or therein having power to tax,
undertakings or covenants being given in the above-mentioned deed poll by the
substitute in terms corresponding to the provisions of Condition 8 with the
substitution for (or, as the case may be, the addition to) the references to the
Cayman Islands or the United States of America of references to that other or
additional territory in which the substitute is incorporated, domiciled or
resident or to whose taxing jurisdiction it is subject and (where applicable)
Condition 7(b) shall be modified accordingly; and (iv) no amount due in respect
of any Notes being at the relevant time overdue. In the case of a consolidation,
merger, sale, lease or conveyance permitted by Condition 18 the substitution in
place of the Issuer and/or the Guarantor, as the case may be, (or any previous
substitute under this Condition) of the company referred to in Condition 18
shall be permitted notwithstanding conditions (i) to (iv) (inclusive) of this
paragraph (a).
(b) Any substitution pursuant to paragraph (a) of this Condition shall be
binding on the Noteholders, Receiptholders and Couponholders and shall be
notified to the Noteholders as soon as practicable in accordance with Condition
15.
20. ADJUSTMENTS AND DISRUPTION
(a) Linked Notes
(i) If on or after the date on which a Transfer Notice is delivered in
respect of any Note and prior to the payment and/or delivery of the Securities
Amount(s) to which such Transfer Notice relates, any Settlement Disruption Event
is subsisting, payment and/or delivery of the relevant Securities Amount(s) (if
any) shall be postponed until the first business day (as may be defined in the
applicable
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Pricing Supplement) thereafter on which no Settlement Disruption Event is
subsisting, subject to Condition 6(a)(v) above or as otherwise stated in the
applicable Pricing Supplement. No Noteholder shall be entitled to any payment
whether on account of interest or otherwise on the Notes in the event of any
delay in the delivery of such Underlying Securities pursuant to this paragraph
and no liability in respect thereof shall attach to the Issuer or the Guarantor.
For the purposes of this Condition, "Settlement Disruption Event" means an
event beyond the control of the Issuer or the Guarantor as a result of which
such person cannot make payment and/or delivery of the Securities Amount(s) in
the manner specified in the applicable Pricing Supplement.
As soon as reasonably practicable following the occurrence of any
Potential Adjustment Event or any Extraordinary Event (each as defined below),
the Calculation Agent shall, in its sole and absolute discretion, determine (as
soon as practicable thereafter) the appropriate adjustment, if any, to be made
to any of these Conditions in relation to the Notes to account for the diluting
or concentrative effect of such event or otherwise necessary to preserve the
economic equivalent of the rights of the Noteholders under the Notes immediately
prior to such event, such adjustment to be effective as of the date determined
by the Calculation Agent.
For the purposes of this Condition:
"Potential Adjustment Event" means the declaration by, or on behalf of,
the issuer of the Underlying Securities of the terms of any of the following:
(1) a subdivision, consolidation or reclassification of any Underlying
Securities (unless such event is an Extraordinary Event (as defined
below)) or a free distribution of or in respect of any Underlying
Securities to existing holders by way of bonus, capitalisation or
similar issue;
(2) a distribution to existing holders of any Underlying Securities of
(a) additional Underlying Securities; (b) other share capital or
securities granting the right to payment of dividends and/or the
proceeds of liquidation of the issuer of the Underlying Securities
equally or proportionately with such payments to holders of the
Underlying Securities; or (c) any other type of securities, rights
or warrants or other assets, in any case for payment (in cash or
otherwise) at less than the prevailing market price as determined by
the Calculation Agent;
(3) a call in respect of any Underlying Securities that is not fully
paid;
(4) a repurchase by the issuer of any Underlying Securities, whether out
of profits or capital and whether the consideration for such
repurchase is in cash, new shares, securities or otherwise; or
(5) any event in respect of the Underlying Securities analogous to any
of the foregoing events or otherwise having, in the opinion of the
Calculation Agent, a diluting or concentrative effect on the market
value of the Underlying Securities, and
"Extraordinary Event" means the occurrence on or prior to any Valuation
Date (as defined below) of any of the following:
(1) the Underlying Securities are reclassified or changed (other than a
change in par value, if any, as a result of a subdivision or
combination);
(2) the issuer of the Underlying Securities consolidates, amalgamates or
merges with or into another entity (other than a consolidation,
amalgamation or merger following which the issuer is the surviving
entity);
(3) the Underlying Securities are the subject of a Takeover (as defined
below);
(4) by reason of the adoption of or any change in any applicable law,
the assets of the issuer of the Underlying Securities, or all of the
outstanding Underlying Securities, are (whether permanently,
temporarily or otherwise) nationalised, expropriated or otherwise
required to be
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transferred to any government, governmental agency or authority;
(5) by reason of the bankruptcy or insolvency (or other analogous event)
of the issuer of the Underlying Securities (A) all such Underlying
Securities are required to be transferred to any trustee, liquidator
or similar official; or (B) holders of such Underlying Securities
become legally prohibited from transferring them;
(6) the Underlying Securities are exchanged in whole for replacement
assets, unless the Calculation Agent shall, in its sole and absolute
discretion, conclude that the consequence of such replacement is not
to alter materially the economic equivalent of the rights of the
Noteholders under the Notes immediately prior to such event; or
(7) the Underlying Securities are redeemed in whole prior to their
scheduled maturity date (if applicable) or otherwise cease to exist
for any reason prior to any such date, unless the Calculation Agent
shall, in its sole and absolute discretion, conclude that there is
outstanding at such time, an alternative debt security or obligation
of the issuer of the Underlying Securities ("Alternative
Securities") which, if substituted for the Underlying Securities,
would materially preserve the economic equivalent of the rights of
the Noteholders under the Notes immediately prior to such event, in
which event references in these Conditions to the Underlying
Securities shall be deemed to refer instead to the Alternative
Securities.
In determining whether an adjustment should be made as a result of the
occurrence of a Potential Adjustment Event or an Extraordinary Event, the
Calculation Agent may take into account market conventions and practices for
those products and/or securities which it deems analogous or similar to the
Notes, and if options contracts or futures contracts on the Underlying
Securities are traded on any stock exchange, the Calculation Agent may have
regard to, but shall not be bound by, any adjustment to the terms of the
relevant options contract or futures contract made and announced by such stock
exchange.
For the purposes of this Condition, "Takeover" in relation to any
Underlying Securities means any acquisition or offer as a result of which a
person acquires or offers to acquire, whether by a series of transactions over a
period of time or not, shares or interests, of any size, in shares which (either
alone or taken together with shares or interests in shares held or acquired by
persons acting in concert with such person) amount to 50 per cent. or more of
the nominal value of the outstanding share capital of the relevant issuer of the
relevant Underlying Securities.
(ii) If the date specified in the applicable Pricing Supplement as being
the date of valuation or determination in respect of a Linked Note (the
"Valuation Date") is not a Valuation Business Day or there is a Market
Disruption Event on that day (each as defined below), the Valuation Date shall
be postponed until the next day which is a Valuation Business Day unless, in the
opinion of the Calculation Agent, there is a Market Disruption Event (as defined
below) on that day. If there is a Market Disruption Event on that day, then the
Valuation Date shall be the first succeeding Valuation Business Day on which
there is no Market Disruption Event, unless there is a Market Disruption Event
on each of the five Valuation Business Days immediately following the original
date that, but for the Market Disruption Event, would have been the Valuation
Date. In that case (i) the fifth Valuation Business Day shall be deemed to be
the Valuation Date, notwithstanding the Market Disruption Event, and (ii) the
Calculation Agent shall determine the official closing price (or such other
price as may be specified in the applicable Pricing Supplement) of the
Underlying Securities on that fifth Valuation Business Day in accordance with
its good faith estimate of the price of the Underlying Securities that would
have prevailed, but for the Market Disruption Event, on that fifth Valuation
Business Day.
For purposes of this Condition 20(a):
"Valuation Business Day" means a day that is (or, but for the occurrence
of a Market Disruption Event, would have been) a trading day on each of the
relevant stock exchange(s) specified in the applicable Pricing Supplement (for
the purposes of this Condition 20(a), the "Stock Exchange(s)")
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and any Related Exchanges (as defined below) other than a day on which trading
on any such exchange is scheduled to close prior to its regular weekday closing
time;
"Related Exchange" means another exchange or quotation system (as
specified in the applicable Pricing Supplement or notified from time to time to
Noteholders in accordance with Condition 15), if any, on which the Underlying
Securities or options contracts or futures contracts on the Underlying
Securities are traded or quoted, and as may be selected from time to time by the
Calculation Agent; and
"Market Disruption Event" means the occurrence or existence on the
Valuation Date during the two hour period prior to the close of trading (or such
other time as may be specified in the applicable Pricing Supplement) of a
suspension of or limitation imposed on trading (by reason of movements in price
exceeding limits permitted by such Stock Exchange(s) or otherwise) on:
(1) the Stock Exchange(s) of the Underlying Securities or securities
generally; or
(2) the Stock Exchange(s) or on any Related Exchange of options
contracts or futures contracts on the Underlying Securities or
options or futures on securities generally,
if, in the determination of the Calculation Agent, such suspension or limitation
is material. For the purposes of this definition, a limitation on the hours and
number of days of trading will not constitute a Market Disruption Event if it
results from an announced change in the regular business hours of any Stock
Exchange(s) or any Related Exchange.
(b) Indexed Notes
(i) If the Index (as defined in the applicable Pricing Supplement) is (I)
not calculated and announced by the sponsor specified in the applicable Pricing
Supplement (the "Sponsor") but is calculated and published by a successor to the
Sponsor (the "Successor Sponsor") acceptable to the Calculation Agent, or (II)
replaced by a successor index using, in the determination of the Calculation
Agent, the same or a substantially similar formula for and method of calculation
as used in the calculation of the Index or (III) not in existence on or prior to
the Valuation Date, but the Calculation Agent considers there to be in existence
at such time an alternative index which, if substituted for the Index, would
materially preserve the economic equivalent of the rights of the Noteholders
under the Notes immediately prior to such substitution, then the Index will be
deemed to be the index so calculated and published by the Successor Sponsor or
that successor or alternative index, as the case may be.
If (A) on or prior to the Maturity Date in respect of any Series of
Indexed Notes the Sponsor or (if applicable) the Successor Sponsor makes a
material change in the formula for or the method of calculating the Index or in
any other way materially modifies the Index (other than a modification
prescribed in that formula or method to maintain the Index in the event of
changes in constituent stock, contracts or commodities and other routine
events), or (B) on or prior to any such Maturity Date the Sponsor or (if
applicable) the Successor Sponsor fails to calculate and publish the Index, then
the Calculation Agent shall determine the Rate of Interest or the Final
Redemption Amount (as the case may be) using, in lieu of a published level of
the Index, the level for the Index as determined by the Calculation Agent in
accordance with the formula for and method of calculating the Index last in
effect prior to that change or failure, but using only those
securities/commodities that comprised the Index immediately prior to that change
or failure (other than those securities that have since ceased to be listed on
the relevant stock exchange).
If any value of the Index published on a given day and used or to be used
by the Calculation Agent to determine the Rate of Interest or the Final
Redemption Amount (as the case may be) is subsequently corrected and the
correction is published by the Sponsor within 30 days of the original
publication, the Calculation Agent shall notify the Issuer and the Agent of (a)
that correction and (b) the amount of principal and/or interest that is payable
as a result of that correction and as soon as
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reasonably practicable thereafter, the Issuer shall make payment of such amount
in accordance with Condition 6.
The Calculation Agent will notify the level of the Index as of a
particular date upon application by telephone or facsimile by an interested
person during normal business hours.
(ii) If the date specified in the applicable Pricing Supplement as being
the date of valuation or determination in respect of an Indexed Note (the
"Valuation Date") is not an Index Business Day or there is a Market Disruption
Event on that day (each as defined below), the Valuation Date shall be postponed
until the next day which is an Index Business Day unless, in the opinion of the
Calculation Agent, there is a Market Disruption Event (as defined below) on that
day. If there is a Market Disruption Event on that day, then the Valuation Date
shall be the first succeeding Index Business Day on which there is no Market
Disruption Event, unless there is a Market Disruption Event on each of the five
Index Business Days immediately following the original date that, but for the
Market Disruption Event, would have been the Valuation Date. In that case (I)
the fifth Index Business Day shall be deemed to be the Valuation Date,
notwithstanding the Market Disruption Event, and (II) the Calculation Agent
shall determine the level of the Index on that fifth Index Business Day in
accordance with its good faith estimate of the level of the Index that would
have prevailed, but for the Market Disruption Event, on that fifth Index
Business Day.
For purposes of this Condition 20(b):
"Index Business Day" means a day that is (or, but for the occurrence of a
Market Disruption Event, would have been) a trading day on each of the relevant
stock exchange(s) specified in the applicable Pricing Supplement (for the
purposes of this Condition 20(b), the "Stock Exchange(s)") and any Related
Exchanges (as defined below) other than a day on which trading on any such
exchange is scheduled to close prior to its regular weekday closing time;
"Related Exchange" means another exchange or quotation system, if any, on
which options contracts or futures contracts on the Index are traded or quoted,
and as may be selected from time to time by the Calculation Agent; and
"Market Disruption Event" means the occurrence or existence on any Index
Business Day during the two hour period prior to the close of trading (or such
other time as may be specified in the applicable Pricing Supplement) of a
suspension of or limitation imposed on trading (by reason of movements in price
exceeding limits permitted by the Stock Exchange(s) or otherwise) on:
(1) the Stock Exchange(s) of securities/commodities that comprise 20 per
cent. or more of the level of the Index; or
(2) any Related Exchange of options contracts or futures contracts on
the Index,
if, in the determination of the Calculation Agent, such suspension or limitation
is material. For the purposes of this definition, a limitation on the hours and
number of days of trading will not constitute a Market Disruption Event if it
results from a published change in the regular business hours of the Stock
Exchange(s) or any Related Exchange. For the purpose of determining whether a
Market Disruption Event exists at any time, if trading in a security/commodity
included in the Index is materially suspended or materially limited at that
time, then the relevant percentage contribution of that security/commodity to
the level of the Index shall be based on a comparison of (i) the portion of the
level of the Index attributable to that security/commodity relative to (ii) the
overall level of the Index, in each case immediately before that suspension or
limitation.
21. CONTRACTS (RIGHTS OF THIRD PARTIES) XXX 0000 DISAPPLICATION
No rights are conferred on any person under the Contracts (Rights of Third
Parties) Xxx 0000 to enforce any term of this Note, but this does not affect any
right or remedy of any person which exists or is available apart from that Act.
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22. GOVERNING LAW AND SUBMISSION TO JURISDICTION
The Note Issuance Agreement, the Notes, the Receipts and the Coupons are
governed by, and shall be construed in accordance with, English law.
Each of the Issuer and the Guarantor hereby irrevocably agrees to submit
for the exclusive benefit of the Issuer, the Noteholders, the Receiptholders and
the Couponholders, to the jurisdiction of the courts of England for all purposes
in connection with the Notes, the Receipts and the Coupons and the Guarantee (as
applicable) and in relation thereto each of the Issuer and the Guarantor hereby
appoints Bear Xxxxxxx International Trading Limited at its registered office at
Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX as its agent in England for service of process
on its behalf and agrees that in the event of Bear Xxxxxxx International Trading
Limited ceasing so to act or ceasing to be registered in England it will appoint
another person as its agent for service of process. Without prejudice to the
foregoing, each of the Issuer and the Guarantor further irrevocably agrees that
any suit, action or proceedings arising out of or in connection with the Notes,
the Receipts and the Coupons and the Guarantee (as applicable) may be brought in
any other court of competent jurisdiction
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AGENT
JPMorgan Chase Bank
Trinity Tower
9 Xxxxxx Xxxx Street
London E1W 1YT
PAYING AGENTS
JPMorgan Chase Bank Kredietbank S.A. Luxembourgeoise
Trinity Tower 43 Boulevard Royal
9 Xxxxxx Xxxx Street X-0000 Xxxxxxxxxx
Xxxxxx X0X 0XX R.C. Luxembourg B6395
TRANSFER AGENTS
JPMorgan Chase Bank JPMorgan Chase Bank
Trinity Tower 000 Xxxx 00xx Xxxxxx
9 Xxxxxx Xxxx Xxxxxx 00xx Xxxxx
Xxxxxx X0X 0XX Xxx Xxxx, XX 00000
EXCHANGE AGENT
JPMorgan Chase Bank
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
REGISTRAR
JPMorgan Chase Bank
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
and/or such other or further Agent and other or further Paying Agents, Transfer
Agents, Exchange Agent and Registrar and/or specified offices as may from time
to time be duly appointed by the Issuer and notice of which has been given to
the Noteholders.
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SCHEDULE 2
PART I
FORM OF TEMPORARY BEARER GLOBAL NOTE
ANY UNITED STATES PERSON (AS DEFINED IN THE INTERNAL REVENUE CODE OF THE UNITED
STATES) 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.
[THIS NOTE RELATES TO NOTES WITH A MATURITY OF NOT MORE THAN 183 DAYS FROM THE
DATE OF ISSUE. BY ACCEPTING THIS OBLIGATION THE HOLDER REPRESENTS AND WARRANTS
THAT IT IS NOT A UNITED STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED
IN SECTION 6049(b)(4) OF THE INTERNAL REVENUE CODE AND REGULATIONS THEREUNDER)
AND THAT IT IS NOT ACTING FOR OR ON BEHALF OF A UNITED STATES PERSON (OTHER THAN
AN EXEMPT RECIPIENT DESCRIBED IN SECTION 6049(b)(4) OF THE INTERNAL REVENUE CODE
AND REGULATIONS THEREUNDER).](1)
BEAR XXXXXXX GLOBAL ASSET HOLDINGS, LTD.
(Incorporated under the laws of
the Cayman Islands)
Unconditionally and irrevocably
guaranteed by
THE BEAR XXXXXXX COMPANIES INC.
(Incorporated under the laws of the
State of Delaware,
United States of America)
TEMPORARY BEARER GLOBAL NOTE
This Note is a Temporary Bearer Global Note in respect of a duly authorised
issue of Notes (the "Notes") of the Nominal Amount, Specified Currency(ies) and
Specified Denomination(s) specified in the Pricing Supplement applicable to the
Notes (the "Pricing Supplement"), a copy of which is attached hereto, of Bear
Xxxxxxx Global Asset Holdings, Ltd. (the "Issuer"). The Notes are
unconditionally and irrevocably guaranteed by The Bear Xxxxxxx Companies Inc.
(the "Guarantor"). References herein to the Conditions shall be to the Terms and
Conditions of the Notes as set out in Schedule 1 to the Note Issuance Agreement
(as defined below) as modified and supplemented by the Pricing Supplement but,
in the event of any conflict between the provisions of the said Conditions and
the information in the Pricing Supplement, the Pricing Supplement will prevail.
Words and expressions defined in the Conditions shall bear the same meanings
when used in this Global Note. This Global Note is issued subject to, and with
the benefit of, the Conditions and an Amended and Restated Note Issuance
Agreement dated June 28, 2002 (as amended and/or restated and/or
-------------
(1) To be included only on Notes with a maturity of not more than 183 days
from their date of issue.
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supplemented from time to time, the "Note Issuance Agreement") and made between
(inter alios) the Issuer, the Guarantor and JPMorgan Chase Bank as Agent.
The Issuer, subject to and in accordance with the Conditions, promises: (i) to
pay to the bearer hereof on each Instalment Date (if the Notes are repayable in
instalments) and on the Maturity Date and/or on the Interest Payment Date
falling in the month in which the Notes are to be redeemed and/or on such
earlier date(s) as all or any of the Notes represented by this Global Note may
become due and repayable in accordance with the Conditions, the amount payable
under the Conditions in respect of such Notes on each such date and to pay
interest (if any) on the nominal amount of the Notes from time to time
represented by this Global Note calculated and payable as provided in the
Conditions together with any other sums payable under the Conditions, upon
presentation and, at maturity, surrender of this Global Note at the specified
office of the Agent at Xxxxxxx Xxxxx, 0 Xxxxxx Xxxx Xxxxxx, X0X 0XX or such
other office outside the United States, its territories and possessions as may
be specified by the Issuer; and (ii) in the event that any Securities Amounts
fall to be delivered under the Conditions, to pay and deliver such Securities
Amounts in accordance with the Conditions, but in each case subject to the
requirements as to certification provided herein. On any redemption or payment
of an instalment or interest being made in respect of, or purchase and
cancellation of or payment or delivery of any Securities Amount in respect of,
any of the Notes represented by this Global Note details of such redemption,
payment or purchase and cancellation or delivery (as the case may be) shall be
entered by or on behalf of the Issuer in Schedule One hereto and the relevant
space in Schedule One hereto recording any such redemption, payment or purchase
and cancellation or delivery (as the case may be) shall be signed by or on
behalf of the Issuer. Upon any such redemption, payment of an instalment or
purchase and cancellation or delivery, the nominal amount of this Global Note
and the Notes represented by this Global Note shall be reduced by the nominal
amount of such Notes so redeemed or purchased and cancelled or the amount of
such instalment or the amount of Notes in respect of which such delivery has
been made. The nominal amount of this Global Note and of the Notes represented
by this Global Note following any such redemption, payment of an instalment or
purchase and cancellation or delivery as aforesaid or any exchange as referred
to below shall be the nominal amount most recently entered in the relevant
column in Part II, III or IV of Schedule One hereto or in Schedule Two hereto.
Payments of principal and interest (if any) due prior to the Exchange Date (as
defined below) will only be made to the bearer hereof and payment and delivery
of any Securities Amounts will only be made in accordance with the Conditions to
the extent that there is presented to the Agent by Clearstream Banking, societe
anonyme ("Clearstream, Luxembourg") or Euroclear Bank S.A./N.V., as operator of
the Euroclear system ("Euroclear") a certificate, substantially in the form set
out in Part VIII of Schedule 2 to the Note Issuance Agreement, to the effect
that it has received from or in respect of a person entitled to a particular
nominal amount of the Notes represented by this Global Note (as shown by its
records) a certificate from such person in or substantially in the form of
Certificate "A" as set out in Part VIII of Schedule 2 to the Note Issuance
Agreement. The bearer of this Global Note will not (unless upon due presentation
of this Global Note for exchange, delivery of the appropriate number of
Definitive Bearer Notes (together with the Coupons appertaining thereto) or, as
the case may be, issue and delivery (or, as the case may be, endorsement) of the
Permanent Bearer Global Note is improperly withheld or refused and such
withholding or refusal is continuing at the relevant payment date) be entitled
to receive any payment hereon or payment or delivery of any Cash Amounts in
respect hereof due on or after the Exchange Date.
On or after the date (the "Exchange Date") which is the later of: (i) 40 days
after the Issue Date; and (ii) expiry of the period that ends 40 days after
completion of the distribution of this Tranche of Notes as certified by the
relevant Dealer or Dealers, in the case of a non-syndicated issue, or by the
relevant lead manager in the case of a syndicated issue, this Global Note may be
exchanged (free of charge) in whole or in part for, as specified in the Pricing
Supplement, either Definitive Bearer Notes and (if applicable) Receipts, Coupons
and/or Talons in or substantially in the forms set out in Parts IVA, V, VI and
VII of Schedule 2 to the Note Issuance Agreement (on the basis that all the
appropriate details
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have been included on the face of such Definitive Bearer Notes and (if
applicable) Receipts, Coupons and/or Talons and the Pricing Supplement (or the
relevant provisions thereof) has been incorporated in or attached to such
Definitive Bearer Notes) or a Permanent Bearer Global Note in or substantially
in the form set out in Part II of Schedule 2 to the Note Issuance Agreement
(together with the Pricing Supplement attached thereto). If Definitive Bearer
Notes and (if applicable) Receipts, Coupons and/or Talons have already been
issued in exchange for all the Notes represented for the time being by the
Permanent Bearer Global Note then this Global Note may only thereafter be
exchanged for Definitive Bearer Notes and (if applicable) Receipts, Coupons
and/or Talons pursuant to the terms hereof. Presentation of this Global Note for
exchange shall be made by the bearer hereof on any day (other than a Saturday or
Sunday) on which banks are open for business in London at the office of the
Agent specified above. The Issuer shall procure that Definitive Bearer Notes or
(as the case may be) the Permanent Bearer Global Note shall be so issued and
delivered in exchange for only that portion of this Global Note in respect of
which there shall have been presented to the Agent by Euroclear or Clearstream,
Luxembourg a certificate, substantially in the form set out in Part VIII of
Schedule 2 to the Note Issuance Agreement, to the effect that it has received
from or in respect of a person entitled to a particular nominal amount of the
Notes represented by this Global Note (as shown by its records) a certificate
from such person in or substantially in the form of Certificate "A" as set out
in Part VII of Schedule 2 to the Note Issuance Agreement. On an exchange of the
whole of this Global Note, this Global Note shall be surrendered to the Agent.
On an exchange of part only of this Global Note, details of such exchange shall
be entered by or on behalf of the Issuer in Schedule Two hereto and the relevant
space in Schedule Two hereto recording such exchange shall be signed by or on
behalf of the Issuer, whereupon the nominal amount of this Global Note and the
Notes represented by this Global Note shall be reduced by the nominal amount of
this Global Note so exchanged. On any exchange of this Global Note for a
Permanent Bearer Global Note, details of such exchange shall be entered by or on
behalf of the Issuer in Schedule Two to the Permanent Bearer Global Note and the
relevant space in Schedule Two thereto recording such exchange shall be signed
by or on behalf of the Issuer.
Until the exchange of the whole of this Global Note as aforesaid, the bearer
hereof shall in all respects (except as otherwise provided herein) be entitled
to the same benefits as if he were the bearer of Definitive Bearer Notes and the
relative Receipts, Coupons and/or Talons (if any) in the form(s) set out in
Parts IV, V, VI and VII (as applicable) of Schedule 2 to the Note Issuance
Agreement.
Each person who is for the time being shown in the records of Euroclear and/or
Clearstream, Luxembourg as the holder of a particular nominal amount of the
Notes represented by this Global Note (in which regard any certificate or other
document issued by Euroclear or Clearstream, Luxembourg as to the nominal amount
of such Notes standing to the account of any person shall be conclusive and
binding for all purposes save in the case of manifest error) shall be deemed to
be the holder of such nominal amount of such Notes for all purposes other than
with respect to payments of principal and interest on the Notes for which
purpose the bearer of this Global Note shall be deemed to be the holder of such
nominal amount of the Notes in accordance with and subject to the terms of this
Global Note and the Note Issuance Agreement. The Contracts (Rights of Third
Parties) Xxx 0000 applies to this paragraph of this Global Note.
In the event that this Global Note (or any part hereof) has become due and
repayable in accordance with the Conditions or that the Maturity Date or
Interest Payment Date falling in the month in which the Notes are to be redeemed
has occurred and, in either case, payment or delivery in full of the amount due
has not been made to the bearer in accordance with the foregoing then, unless
within the period of seven days commencing on the relevant due date payment or
delivery in full of the amount due in respect of this Global Note is received by
the bearer in accordance with the foregoing, this Global Note will become void
at 8.00 p.m. (London time) on such seventh day and the bearer will have no
further rights under this Global Note (but without prejudice to the rights which
the bearer or any other person may have under the Deed of Covenant executed by
the Issuer on June 28, 2002 in respect of the Notes issued under the Note
Issuance Agreement pursuant to which this Global Note is issued).
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Except as expressly stated above, no rights are conferred on any person under
the Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of this
Note, but this does not affect any right or remedy of any person which exists or
is available apart from that Act.
This Global Note is governed by, and shall be construed in accordance with,
English law and the Issuer submits to the jurisdiction of the courts of England
for all purposes in connection with this Global Note.
This Global Note shall not be valid unless authenticated by JPMorgan Chase Bank
as Agent.
IN WITNESS whereof the Issuer has caused this Global Note to be signed on its
behalf.
BEAR XXXXXXX GLOBAL ASSET HOLDINGS, LTD.
By: .....................
Duly Authorised
Authenticated by
JPMorgan Chase Bank
By: .......................
Duly Authorised
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Schedule One
Part I
INTEREST PAYMENTS
Total Confirmation of
amount of Amount of payment by or
Date interest interest on behalf of
made payable paid the Issuer
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Part II
PAYMENT OF INSTALMENT AMOUNTS
Remaining nominal
amount of this Confirmation
Total amount of Amount of Global Note of payment
Date Instalment Instalment following such by or on behalf
made Amounts payable Amounts paid payment(1) of the Issuer
-------- -------------- ------------ --------------- ----------
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(1) See most recent entry in Part II, III or IV or Schedule Two in order to
determine this amount.
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Part III
REDEMPTIONS AND DELIVERY OF CASH OR SECURITIES AMOUNTS
Remaining
nominal
amount of
this Global
Note Confirmation
Total amount following of redemption
payable or number Amount paid such by or on
Date of securities or number of Redemption behalf of the
made deliverable securities delivered and/or delivery(1) Issuer
-------- ------------ ------------ ------------ ------------
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(1) See most recent entry in Part II, III or IV or Schedule Two in order to
determine this amount.
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Part IV
PURCHASES AND CANCELLATIONS
Remaining nominal
Part of nominal amount of this Confirmation of
amount of this Global Note purchase and
Global Note following such cancellation by or
Date purchase and purchase and on behalf of the
made cancelled cancellation(1) Issuer
--------- ------------ ---------------- ----------------
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(1) See most recent entry in Part II, III or IV or Schedule Two in order to
determine this amount.
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Schedule Two
EXCHANGES
FOR DEFINITIVE BEARER NOTES OR PERMANENT BEARER GLOBAL NOTE
The following exchanges of a part of this Global Note for Definitive Bearer
Notes or a Permanent Bearer Global Note have been made:
Nominal amount
of this Global
Note exchanged Remaining nominal Notation
for Definitive Bearer amount of this made by or
Notes or a Global Note on behalf
Date Permanent Bearer following such of the
made Global Note exchange(1) Issuer
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(1) See most recent entry in Part II, III or IV or Schedule Two in order to
determine this amount.
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PART II
FORM OF PERMANENT BEARER GLOBAL NOTE
ANY UNITED STATES PERSON (AS DEFINED IN THE INTERNAL REVENUE CODE OF THE UNITED
STATES) 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.
[THIS NOTE RELATES TO NOTES WITH A MATURITY OF NOT MORE THAN 183 DAYS FROM THE
DATE OF ISSUE. BY ACCEPTING THIS OBLIGATION THE HOLDER REPRESENTS AND WARRANTS
THAT IT IS NOT A UNITED STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED
IN SECTION 6049(b)(4) OF THE INTERNAL REVENUE CODE AND REGULATIONS THEREUNDER)
AND THAT IT IS NOT ACTING FOR OR ON BEHALF OF A UNITED STATES PERSON (OTHER THAN
AN EXEMPT RECIPIENT DESCRIBED IN SECTION 6049(b)(4) OF THE INTERNAL REVENUE CODE
AND REGULATIONS THEREUNDER).](1)
BEAR XXXXXXX GLOBAL ASSET HOLDINGS, LTD.
(Incorporated under the laws
of the Cayman Islands)
Unconditionally and irrevocably
guaranteed by
THE BEAR XXXXXXX COMPANIES INC.
(Incorporated under the laws of
the State of Delaware,
United States of America)
-------------
(1) To be included only on Notes with a maturity of not more than 183 days
from their date of issue.
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PERMANENT BEARER GLOBAL NOTE
This Note is a Permanent Bearer Global Note in respect of a duly authorised
issue of Notes (the "Notes") of the Nominal Amount, Specified Currency(ies) and
Specified Denomination(s) as are specified in the Pricing Supplement applicable
to the Notes (the "Pricing Supplement"), a copy of which is attached hereto, of
Bear Xxxxxxx Global Asset Holdings, Ltd. (the "Issuer"). The Notes are
unconditionally and irrevocably guaranteed by The Bear Xxxxxxx Companies Inc.
(the "Guarantor"). References herein to the Conditions shall be to the
Conditions of the Notes as set out in Schedule 1 to the Note Issuance Agreement
(as defined below) as modified and supplemented by the Pricing Supplement but,
in the event of any conflict between the provisions of the said Conditions and
the information in the Pricing Supplement, the Pricing Supplement will prevail.
Words and expressions defined in the Conditions shall bear the same meanings
when used in this Global Note. This Global Note is issued subject to, and with
the benefit of, the Conditions and an Amended and Restated Note Issuance
Agreement dated June 28, 2002 (as amended and/or restated and/or supplemented
from time to time, the "Note Issuance Agreement") and made between (inter alios)
the Issuer, the Guarantor and JPMorgan Chase Bank as Agent.
The Issuer, subject to and in accordance with the Conditions, promises: (i) to
pay to the bearer hereof on each Instalment Date (if the Notes are repayable in
instalments) and on the Maturity Date and/or on the Interest Payment Date
falling in the month in which the Notes are to be redeemed and/or on such
earlier date(s) as all or any of the Notes represented by this Global Note may
become due and repayable in accordance with the Conditions, the amount payable
under the Conditions in respect of such Notes on each such date and to pay
interest (if any) on the nominal amount of the Notes from time to time
represented by this Global Note calculated and payable as provided in the
Conditions together with any other sums payable under the Conditions, upon
presentation and, at maturity, surrender of this Global Note at the specified
office of the Agent at Xxxxxxx Xxxxx, 0 Xxxxxx Xxxx Xxxxxx, X0X 0XX or such
other office outside the United States, its territories and possessions as may
be specified by the Issuer; and (ii) in the event that any Securities Amounts
fall to be delivered under the Conditions, to pay and deliver such Securities
Amounts in accordance with the Conditions. On any redemption or payment of an
instalment or interest being made in respect of, or purchase and cancellation of
or payment or delivery of any Securities Amount in respect of, any of the Notes
represented by this Global Note details of such redemption, payment or purchase
and cancellation or delivery (as the case may be) shall be entered by or on
behalf of the Issuer in Schedule One hereto and the relevant space in Schedule
One hereto recording any such redemption, payment or purchase and cancellation
or delivery (as the case may be) shall be signed by or on behalf of the Issuer.
Upon any such redemption, payment of an instalment or purchase and cancellation
or delivery the nominal amount of this Global Note and the Notes represented by
this Global Note shall be reduced by the nominal amount of such Notes so
redeemed or purchased and cancelled or the amount of such instalment or the
amount of Notes in respect of which such delivery has been made. The nominal
amount of this Global Note and of the Notes represented by this Global Note
following any such redemption, payment of an instalment or purchase and
cancellation or delivery as aforesaid or any exchange as referred to below shall
be the nominal amount most recently entered in the relevant column in Part II,
III or IV of Schedule One hereto or in Schedule Two hereto.
On any exchange of the Temporary Bearer Global Note (the "Temporary Bearer
Global Note") issued in respect of the Notes for this Global Note or any part
hereof, details of such exchange shall be entered by or on behalf of the Issuer
in Schedule Two hereto and the relevant space in Schedule Two hereto recording
such exchange shall be signed by or on behalf of the Issuer, whereupon the
nominal amount of this Global Note and the Notes represented by this Global Note
shall be increased by the nominal amount of the Temporary Bearer Global Note so
exchanged.
This Global Note may be exchanged (free of charge) in whole but not in part for
Definitive Bearer Notes and (if applicable) Receipts, Coupons and/or Talons in
or substantially in the forms set out in
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Parts IV, V, VI and VII of Schedule 2 to the Note Issuance Agreement (on the
basis that all the appropriate details have been included on the face of such
Definitive Notes and (if applicable) Receipts, Coupons and/or Talons and the
Pricing Supplement (or the relevant provisions thereof) has been incorporated in
or attached to such Definitive Bearer Notes) only upon the occurrence of an
Exchange Event. For these purposes, "Exchange Event" means that (i) an Event of
Default (as defined in Condition 10) has occurred and is continuing, (ii) the
Issuer has been notified that both Euroclear and Clearstream, Luxembourg have
been closed for business for a continuous period of 14 days (other than by
reason of holiday, statutory or otherwise) or have announced an intention
permanently to cease business or have in fact done so and no successor clearing
system is available or (iii) the Issuer has elected to exchange the Notes
represented by the Permanent Bearer Global Note for Definitive Bearer Notes.
Subject as aforesaid, the first notice referred to below given to the Agent by
Euroclear Bank S.A./N.V., as operator of the Euroclear system ("Euroclear")
and/or Clearstream Banking, societe anonyme ("Clearstream, Luxembourg") shall
give rise to the issue of Definitive Bearer Notes for the total amount of Notes
represented by this Global Note. Subject as aforesaid and to at least 45 days'
written notice (expiring at least 30 days after the Exchange Date (as defined in
the said Temporary Bearer Global Note)) being given to the Agent by Euroclear or
Clearstream, Luxembourg, such exchange will be made upon presentation of this
Global Note by the bearer hereof on any day (other than a Saturday or Sunday) on
which banks are open for business in London at the office of the Agent specified
above.
The aggregate nominal amount of Definitive Bearer Notes issued upon an exchange
of this Global Note will be equal to the aggregate nominal amount of this Global
Note submitted by the bearer hereof for exchange (to the extent that such
nominal amount does not exceed the nominal amount of this Global Note most
recently entered in the relevant column in Part II, III or IV of Schedule One
hereto or in Schedule Two hereto). On an exchange of the whole of this Global
Note, this Global Note shall be surrendered to the Agent. On an exchange of part
only of this Global Note, details of such exchange shall be entered by or on
behalf of the Issuer in Schedule Two hereto and the relevant space in Schedule
Two hereto recording such exchange shall be signed by or on behalf of the
Issuer, whereupon the nominal amount of this Global Note and the Notes
represented by this Global Note shall be reduced by the nominal amount of this
Global Note so exchanged.
Until the exchange of the whole of this Global Note as aforesaid, the bearer
hereof shall in all respects be entitled to the same benefits as if he were the
bearer of Definitive Bearer Notes and the relative Receipts, Coupons and/or
Talons (if any) in the form(s) set out in Parts IV, V, VI and VII (as
applicable) of Schedule 2 to the Note Issuance Agreement.
Each person who is for the time being shown in the records of Euroclear and/or
Clearstream, Luxembourg as the holder of a particular nominal amount of the
Notes represented by this Global Note (in which regard any certificate or other
document issued by Euroclear or Clearstream, Luxembourg as to the nominal amount
of such Notes standing to the account of any person shall be conclusive and
binding for all purposes save in the case of manifest error) shall be deemed to
be the holder of such nominal amount of such Notes for all purposes other than
with respect to payments of principal and interest on the Notes for which
purpose the bearer of this Global Note shall be deemed to be the holder of such
nominal amount of the Notes in accordance with and subject to the terms of this
Global Note and the Note Issuance Agreement. The Contracts (Rights of Third
Parties) Xxx 0000 applies to this paragraph of this Global Note.
In the event that this Global Note (or any part hereof) has become due and
repayable in accordance with the Conditions or that the Maturity Date or
Interest Payment Date falling in the month in which the Notes are to be redeemed
has occurred and, in either case, payment or delivery in full of the amount due
has not been made to the bearer in accordance with the foregoing then, unless
within the period of seven days commencing on the relevant due date payment or
delivery in full of the amount due in respect of this Global Note is received by
the bearer in accordance with the foregoing, this Global Note will become void
at 8.00 p.m. (London time) on such seventh day and the bearer will
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have no further rights under this Global Note (but without prejudice to the
rights which the bearer or any other person may have under the Deed of Covenant
executed by the Issuer on June 28, 2002 in respect of the Notes issued under the
Note Issuance Agreement pursuant to which this Global Note is issued).
This Global Note is governed by, and shall be construed in accordance with,
English law and the Issuer submits to the jurisdiction of the courts of England
for all purposes in connection with this Global Note.
This Global Note shall not be valid unless authenticated by JPMorgan Chase Bank
as Agent.
Except as expressly stated above, no rights are conferred on any person under
the Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of this
Global Note, but this does not affect any right or remedy of any person which
exists or is available apart from that Act.
IN WITNESS whereof the Issuer has caused this Global Note to be signed on its
behalf.
BEAR XXXXXXX GLOBAL ASSET HOLDINGS, LTD.
By:............................
Duly Authorised
Authenticated by
JPMorgan Chase Bank
By:.......................
Duly Authorised
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Schedule One
Part I
INTEREST PAYMENTS
Confirmation of
Total amount Amount of payment by or
Date of interest interest on behalf of
made payable paid the Issuer
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Part II
PAYMENT OF INSTALMENT AMOUNTS
Remaining nominal Confirmation
amount of this of payment by
Total amount of Amount of Global Note or on behalf
Date Instalment Instalment following such of the
made Amounts payable Amounts paid payment(1) Issuer
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(1) See most recent entry in Part II, III or IV or Schedule Two in order to
determine this amount.
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107
Part III
REDEMPTIONS AND DELIVERY OF CASH OR SECURITIES AMOUNTS
Remaining
nominal
amount of
this Global Confirmation
Total amount Amount paid Note of redemption
payable or number or number following by or on
Date of securities of securities such redemption behalf of the
made Deliverable delivered and/or delivery(1) Issuer
-------- --------------- ------------ ----------------- -----------------
-------- --------------- ------------ ----------------- -----------------
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-------- --------------- ------------ ----------------- -----------------
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(1) See most recent entry in Part II, III or IV or Schedule Two in order to
determine this amount.
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Part IV
PURCHASES AND CANCELLATIONS
Remaining nominal
Part of nominal amount of this Confirmation of
amount of this Global Note purchase and
Global Note following such cancellation by or
Date purchase and purchase and on behalf of the
made cancelled cancellation(1) Issuer
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(1) See most recent entry in Part II, III or IV or Schedule Two in order to
determine this amount.
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109
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Schedule Two
SCHEDULE OF EXCHANGES
The following exchanges affecting the nominal amount of this Global Note have
been made:
Nominal amount
of Temporary Nominal amount Notation
Bearer Global of this Global made by or
Date Note exchanged Note following on behalf
made for this Global Note such exchange(1) of the Issuer
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(1) See most recent entry in Part II, III or IV or Schedule Two in order to
determine this amount.
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110
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PART III
FORMS OF REGISTERED GLOBAL NOTES
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF, ON ITS OWN BEHALF AND ON
BEHALF OF ANY ACCOUNT FOR WHICH IT IS PURCHASING THIS NOTE OR ANY INTEREST OR
PARTICIPATION HEREIN, AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH NOTE OR
ANY INTEREST OR PARTICIPATION HEREIN ONLY TO, OR FOR THE ACCOUNT OR BENEFIT OF,
(A) THE ISSUER OR A DEALER (AS DEFINED IN THE OFFERING CIRCULAR FOR THE NOTE),
(B) A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (C) AN "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT) THAT IS AN INSTITUTION AND THAT, PRIOR
TO SUCH TRANSFER, SHALL HAVE FURNISHED TO SUCH HOLDER AND TO THE ISSUER OF THIS
NOTE A WRITTEN CERTIFICATION CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER
CAN BE OBTAINED FROM THE REGISTRAR AND THE TRANSFER AGENTS), (D) OUTSIDE THE
UNITED STATES IN A TRANSACTION WHICH MEETS THE REQUIREMENTS OF RULE 904 UNDER
THE SECURITIES ACT, (E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. UPON ANY TRANSFER OF THIS NOTE
OR ANY INTEREST OR PARTICIPATION HEREIN PURSUANT TO CLAUSE [(B),](1) (C)[,
(D)](2) OR (F) ABOVE, THE HOLDER WILL BE REQUIRED TO FURNISH TO THE ISSUER, THE
REGISTRAR AND THE TRANSFER AGENTS SUCH CERTIFICATIONS (WHICH IN THE CASE OF
TRANSFERS PURSUANT TO CLAUSES [(B),](1) (C)[,(D)](2) OR (F) ABOVE, CAN BE
OBTAINED FROM THE REGISTRAR AND THE TRANSFER AGENTS), LEGAL OPINIONS OR OTHER
INFORMATION AS ANY OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER
IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER WILL ALSO BE
REQUIRED TO DELIVER TO THE TRANSFEREE OF THIS NOTE OR ANY INTEREST OR
PARTICIPATION THEREIN A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. ANY
RESALE OR OTHER TRANSFER OR ATTEMPTED RESALE OR OTHER TRANSFER OF THIS NOTE MADE
OTHER THAN IN COMPLIANCE WITH THE FOREGOING RESTRICTION SHALL NOT BE RECOGNISED
BY THE ISSUER, THE REGISTRAR, THE TRANSFER AGENTS OR ANY OTHER AGENT OF THE
ISSUER.
[THE RESTRICTIONS IN THE PRECEDING PARAGRAPH SHALL ONLY APPLY DURING THE PERIOD
WHICH ENDS 40 DAYS AFTER COMPLETION OF DISTRIBUTION OF THE NOTES AS CERTIFIED BY
THE RELEVANT DEALER OR
-------------
(1) To be included in the Reg. S Global Note only.
(2) To be included in the Restricted Global Note only.
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DEALERS, IN THE CASE OF A NON-SYNDICATED ISSUE, OR AS CERTIFIED BY THE RELEVANT
LEAD MANAGER, IN THE CASE OF A SYNDICATED ISSUE.](1)
[UNLESS THIS GLOBAL NOTE IS PRESENTED BY AN AUTHORISED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY REGISTERED NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUIRED BY AN AUTHORISED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN AUTHORISED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.](2)
BEAR XXXXXXX GLOBAL ASSET HOLDINGS, LTD.
(Incorporated under the laws of the
Cayman Islands)
Unconditionally and irrevocably
guaranteed by
THE BEAR XXXXXXX COMPANIES INC.
(Incorporated under the laws of the
State of Delaware,
United States of America)
GLOBAL NOTE
Bear Xxxxxxx Global Asset Holdings, Ltd. (the "Issuer") hereby certifies that
is, at the date hereof, entered in the Register as the holder of the
aggregate Nominal Amount of of a duly authorised
issue of Notes (the "Notes") of the Nominal Amount, Specified Currency(ies) and
Specified Denomination(s) specified in the Pricing Supplement applicable to the
Notes (the "Pricing Supplement"), a copy of which is attached hereto, of the
Issuer. The Notes are unconditionally and irrevocably guaranteed by The Bear
Xxxxxxx Companies Inc. (the "Guarantor"). References herein to the Conditions
shall be to the Conditions of the Notes as set out in Schedule 1 to the Note
Issuance Agreement (as defined below) but, in the event of any conflict between
the provisions of the said Terms and Conditions and the information in the
Pricing Supplement, the information in the Pricing Supplement shall prevail.
Words and expressions defined in the Conditions shall bear the same meanings
when used in this Global Note. This Global Note is issued subject to, and with
the benefit of, the Conditions and an Amended and Restated Note Issuance
Agreement dated June 28, 2002 (as amended and/or restated and/or supplemented
from time to time, the "Note Issuance Agreement") and made between (inter alios)
the Issuer, the Guarantor and JPMorgan Chase Bank as Agent.
-------------
(1) Reg. S Global Note Only.
(2) To be included in a Registered Global Note registered in the name of Cede
& Co. as nominee (or another nominee) of The Depository Trust Company.
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112
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The Issuer, subject to and in accordance with the Conditions and the Note
Issuance Agreement, promises: (i) to pay to such registered holder on each
Instalment Date (if the Notes are repayable in instalments) and on the Maturity
Date and/or the Interest Payment Date falling in the month in which the Notes
are to be redeemed and/or on such earlier date(s) as all or any of the Notes
represented by this Global Note may become due and repayable in accordance with
the Conditions and the Note Issuance Agreement, the amount payable under the
Conditions in respect of such Notes on each such date and to pay interest (if
any) on the nominal amount of the Notes from time to time represented by this
Global Note calculated and payable as provided in the Conditions and the Note
Issuance Agreement together with any other sums payable under the Conditions and
the Note Issuance Agreement, upon presentation and, at maturity, surrender of
this Global Note at the specified office of the Registrar at 450 West 33rd
Street, 15th Floor, New York, N.Y. 10001, United States of America or such other
office as may be specified by the Issuer and approved by the Agent; and (ii) in
the event that any Securities Amounts fall to be delivered under the Conditions,
to pay and deliver such Securities Amounts in accordance with the Conditions. On
any redemption or payment of an instalment or interest being made in respect of,
or purchase and cancellation of or payment or delivery of any Securities Amount
in respect of, any of the Notes represented by this Global Note details of such
redemption, payment or purchase and cancellation or delivery (as the case may
be) shall be entered by or on behalf of the Issuer in Schedule One hereto and
the relevant space in Schedule One hereto recording any such redemption, payment
or purchase and cancellation or delivery (as the case may be) shall be signed by
or on behalf of the Issuer. Upon any such redemption, payment of an instalment
or purchase and cancellation or delivery the nominal amount of this Global Note
and the Notes held by the registered holder hereof shall be reduced by the
nominal amount of such Notes so redeemed or purchased and cancelled or the
amount of such instalment or the amount of Notes in respect of which such
delivery has been made. The nominal amount of this Global Note and of the Notes
held by the registered holder hereof following any such redemption, payment or
delivery of an instalment or purchase and cancellation as aforesaid or any
transfer or exchange as referred to below shall be the nominal amount most
recently entered in the relevant column in Part II, III or IV of Schedule One
hereto or in Schedule Two hereto.
Notes represented by this Global Note are exchangeable and transferable only in
accordance with, and subject to, the provisions hereof and of Condition 12 and
the rules and operating procedures of Euroclear Bank S.A./N.V., as operator of
the Euroclear system ("Euroclear"), Clearstream Banking, societe anonyme
("Clearstream, Luxembourg") and The Depository Trust Company ("DTC").
On any exchange or transfer as aforesaid pursuant to which either: (i) Notes
represented by this Global Note are no longer to be so represented; or (ii)
Notes not so represented are to be so represented details of such transfer shall
be entered by or on behalf of the Issuer in Schedule Two hereto and the relevant
space in Schedule Two hereto recording such transfer shall be signed by or on
behalf of the Issuer, whereupon the nominal amount of this Global Note and the
Notes held by the registered holder hereof shall be increased or reduced (as the
case may be) by the nominal amount so transferred.
Subject as provided in the following paragraph, until the exchange of the whole
of this Global Note as aforesaid, the registered holder hereof shall in all
respects be entitled to the same benefits as if he were the registered holder of
Definitive Registered Notes in the form set out in Part IV B of Schedule 2 to
the Note Issuance Agreement.
Subject as provided in the Note Issuance Agreement, each person who is for the
time being shown in the records of Euroclear and/or Clearstream, Luxembourg
and/or DTC as entitled to particular nominal amount of the Notes represented by
this Global Note (in which regard any certificate or other document issued by
Euroclear, Clearstream, Luxembourg or DTC as to the nominal amount of such Notes
standing to the account of any person shall be conclusive and binding for all
purposes save in the case of manifest error) shall be deemed to be the holder of
such nominal amount of such Notes for all purposes other than with respect to
payments of principal and interest on the Notes for which
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113
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purpose the registered holder of this Global Note shall be deemed to be the
holder of such nominal amount of the Notes in accordance with and subject to the
terms of this Global Note and the Note Issuance Agreement.
This Global Note is governed by, and shall be construed in accordance with,
English law and the Issuer submits to the jurisdiction of the courts of England
for all purposes in connection with this Global Note.
This Global Note shall not be valid unless authenticated by JPMorgan Chase Bank
as Registrar.
Except as expressly stated above, no rights are conferred on any person under
the Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of this
Global Note, but this does not affect any right or remedy of any person which
exists or is available apart from that Act.
IN WITNESS whereof the Issuer has caused this Global Note to be signed on its
behalf.
BEAR XXXXXXX GLOBAL ASSET
HOLDINGS, LTD.
By:......................
Duly Authorised
Authenticated by
JPMorgan Chase Bank
By:................................
Duly Authorised
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114
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Schedule One
Part I
INTEREST PAYMENTS
Confirmation of
Total amount Amount of payment by or
Date of interest interest on behalf of
made payable paid the Issuer
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115
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Part II
PAYMENT OF INSTALMENT AMOUNTS
Remaining nominal Confirmation
amount of this of payment by
Total amount of Amount of Global Note or on behalf
Date Instalment Instalment following such of the
made Amounts payable Amounts paid payment(1) Issuer
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(1) See most recent entry in Part II, III or IV or Schedule Two in order to
determine this amount.
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116
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Part III
REDEMPTIONS AND DELIVERY OF CASH OR SECURITIES AMOUNTS
Remaining
nominal
amount of
this Global Confirmation
Total amount Amount paid Note of redemption
payable or number or number of following by or on
Date of securities securities such redemption behalf of the
made deliverable delivered and/or delivery(1) Issuer
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-------------
(1) See most recent entry in Part II, III or IV or Schedule Two in order to
determine this amount.
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117
Part IV
PURCHASES AND CANCELLATIONS
Remaining nominal
Part of nominal amount of this Confirmation of
amount of this Global Note purchase and
Global Note following such cancellation by or
Date purchased and Purchase and on behalf of the
made cancelled cancellation(1) Issuer
--------- ------------ ---------------- ----------------
--------- ------------ ---------------- ----------------
--------- ------------ ---------------- ----------------
--------- ------------ ---------------- ----------------
--------- ------------ ---------------- ----------------
--------- ------------ ---------------- ----------------
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--------- ------------ ---------------- ----------------
--------- ------------ ---------------- ----------------
--------- ------------ ---------------- ----------------
--------- ------------ ---------------- ----------------
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--------- ------------ ---------------- ----------------
--------- ------------ ---------------- ----------------
--------- ------------ ---------------- ----------------
--------- ------------ ---------------- ----------------
--------- ------------ ---------------- ----------------
--------- ------------ ---------------- ----------------
--------- ------------ ---------------- ----------------
--------- ------------ ---------------- ----------------
--------- ------------ ---------------- ----------------
--------- ------------ ---------------- ----------------
--------- ------------ ---------------- ----------------
--------- ------------ ---------------- ----------------
--------- ------------ ---------------- ----------------
--------- ------------ ---------------- ----------------
--------- ------------ ---------------- ----------------
-------------
(1) See most recent entry in Part II, III or IV or Schedule Two in order to
determine this amount.
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118
Schedule Two
SCHEDULE OF EXCHANGES AND TRANSFERS
The following exchanges and transfers affecting the nominal amount of this
Global Note have been made:
Nominal amount
of this Global
Note exchanged
for Definitive
Registered Notes
or another
Global
Note/Definitive
Registered Notes Remaining/increased
or nominal nominal amount
amount of other of this Global
Nominal amount Global Note Note following Notation made
Date of Notes exchanged for such transfer or by or on behalf
made transferred this Global Note exchange(1) of the Issuer
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(1) See most recent entry in Part II, III or IV or Schedule Two in order to
determine this amount.
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119
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PART IV A
FORM OF DEFINITIVE BEARER NOTE
ANY UNITED STATES PERSON (AS DEFINED IN THE INTERNAL REVENUE CODE OF THE UNITED
STATES) 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.
[THIS NOTE RELATES TO NOTES WITH A MATURITY OF NOT MORE THAN 183 DAYS FROM THE
DATE OF ISSUE. BY ACCEPTING THIS OBLIGATION THE HOLDER REPRESENTS AND WARRANTS
THAT IT IS NOT A UNITED STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED
IN SECTION 6049(b)(4) OF THE INTERNAL REVENUE CODE AND REGULATIONS THEREUNDER)
AND THAT IT IS NOT ACTING FOR OR ON BEHALF OF A UNITED STATES PERSON (OTHER THAN
AN EXEMPT RECIPIENT DESCRIBED IN SECTION 6049(b)(4) OF THE INTERNAL REVENUE CODE
AND REGULATIONS THEREUNDER).](1)
BEAR XXXXXXX GLOBAL ASSET HOLDINGS, LTD.
(Incorporated under the laws of
the Cayman Islands)
[Specified Currency and Nominal Amount
of Tranche]
NOTES DUE
[Year of Maturity]
Unconditionally and irrevocably
guaranteed by
THE BEAR XXXXXXX COMPANIES INC.
(Incorporated under the laws of the
State of Delaware,
United States of America)
Series No. [ ]
This Note is one of a Series of Notes of [Specified Currency(ies) and Specified
Denomination(s)] each ("Notes") of Bear Xxxxxxx Global Asset Holdings, Ltd. (the
"Issuer") issued as Bearer Notes in the denomination[s] of [Specified
Currency(ies) and Specified Denomination(s)] each [with Coupons] [and Receipts]
[attached]. The Notes are unconditionally and irrevocably guaranteed by The Bear
Xxxxxxx Companies Inc. (the "Guarantor"). References herein to the Conditions
shall be to the Terms and Conditions [incorporated herein]/[set out in Schedule
1 to the Note Issuance Agreement (as defined below) which shall be incorporated
by reference herein and have effect as if set out hereon] as modified and
supplemented by the Pricing Supplement (the "Pricing Supplement") (or the
relevant provisions thereof) incorporated herein but, in the event of any
conflict between the provisions of the said Terms and Conditions and the
information in the Pricing Supplement, the Pricing Supplement will prevail.
Words and expressions defined in the Conditions shall bear the
-------------
(1) To be included only on Notes with a maturity of not more than 183 days
from their date of issue.
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same meanings when used in this Note. This Note is issued subject to, and with
the benefit of, the Conditions and an Amended and Restated Note Issuance
Agreement dated June 28, 2002 (as amended and/or restated and/or supplemented
from time to time, the "Note Issuance Agreement") and made between (inter alios)
the Issuer, the Guarantor and JPMorgan Chase Bank as Agent.
The Issuer, subject to and in accordance with the Conditions and the Note
Issuance Agreement, promises: (i) to pay to the bearer hereof on [each
Instalment Date and] [the Maturity Date] [the Interest Payment Date falling in
the month in which the Notes are to be redeemed] or on such earlier date as this
Note may become due and repayable in accordance with the Conditions and the Note
Issuance Agreement, the amount payable on redemption of this Note and to pay
interest (if any) on the nominal amount of this Note calculated and payable as
provided in the Conditions and the Note Issuance Agreement together with any
other sums payable under the Conditions and the Note Issuance Agreement; and
(ii) in the event that any Securities Amount falls to be paid or delivered under
the Conditions, to pay or deliver such Securities Amount in accordance with the
Conditions.
Title to this Note and to any Receipt, Coupon or Talon appertaining hereto shall
pass by delivery. The Issuer and the Guarantor may treat the bearer hereof as
the absolute owner of this Note for all purposes (whether or not this Note shall
be overdue and notwithstanding any notice of ownership or writing hereon or
notice of any previous loss or theft or trust or other interest herein).
This Note shall not be valid unless authenticated by JPMorgan Chase Bank as
Agent.
IN WITNESS whereof the Issuer has caused this Note to be signed on its behalf.
BEAR XXXXXXX GLOBAL ASSET HOLDINGS, LTD.
By: .....................
Duly Authorised
Authenticated by
JPMorgan Chase Bank
By: ......................
Duly Authorised
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[Conditions]
[Conditions to be as set out in Schedule 1 to this Note Issuance Agreement, but
shall not be endorsed if not required by the Stock Exchange]
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Pricing Supplement
[Here to be set out text of Pricing Supplement (or the relevant provisions
thereof) relating to the Notes]
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PART IV B
FORM OF DEFINITIVE REGISTERED NOTE
[THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF, ON ITS OWN BEHALF AND ON
BEHALF OF ANY ACCOUNT FOR WHICH IT IS PURCHASING THIS NOTE OR ANY INTEREST OR
PARTICIPATION HEREIN, AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH NOTE OR
ANY INTEREST OR PARTICIPATION HEREIN ONLY TO, OR FOR THE ACCOUNT OR BENEFIT OF,
(A) THE ISSUER OR A DEALER (AS DEFINED IN THE OFFERING CIRCULAR FOR THE NOTE),
(B) A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (C) AN "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT) THAT IS AN INSTITUTION AND THAT, PRIOR
TO SUCH TRANSFER, SHALL HAVE FURNISHED TO SUCH HOLDER AND TO THE ISSUER OF THIS
NOTE A WRITTEN CERTIFICATION CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER
CAN BE OBTAINED FROM THE REGISTRAR AND THE TRANSFER AGENTS), (D) OUTSIDE THE
UNITED STATES IN A TRANSACTION WHICH MEETS THE REQUIREMENTS OF RULE 904 UNDER
THE SECURITIES ACT, (E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. UPON ANY TRANSFER OF THIS NOTE
OR ANY INTEREST OR PARTICIPATION HEREIN PURSUANT TO CLAUSE (C), (D) OR (F)
ABOVE, THE HOLDER WILL BE REQUIRED TO FURNISH TO THE ISSUER, THE REGISTRAR AND
THE TRANSFER AGENTS SUCH CERTIFICATIONS (WHICH IN THE CASE OF TRANSFERS PURSUANT
TO CLAUSES (C), (D) OR (F) ABOVE CAN BE OBTAINED FROM THE REGISTRAR AND THE
TRANSFER AGENTS), LEGAL OPINIONS OR OTHER INFORMATION AS ANY OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER WILL ALSO BE REQUIRED TO DELIVER
TO THE TRANSFEREE OF THIS NOTE OR ANY INTEREST OR PARTICIPATION THEREIN A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. ANY RESALE OR OTHER TRANSFER OR
ATTEMPTED RESALE OR OTHER TRANSFER OF THIS NOTE MADE OTHER THAN IN COMPLIANCE
WITH THE FOREGOING RESTRICTION SHALL NOT BE RECOGNISED BY THE ISSUER, THE
REGISTRAR, THE TRANSFER AGENTS OR ANY OTHER AGENT OF THE ISSUER.](1)
BEAR XXXXXXX GLOBAL ASSET HOLDINGS, LTD.
-------------
(1) To be included only on Registered Notes issued in exchange for a
Restricted Global Note or to Institutional Accredited Investors in
accordance with the Note Issuance Agreement.
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(Incorporated under the laws of
the Cayman Islands)
[Specified Currency and Nominal Amount
of Tranche]
NOTES DUE
[Year of Maturity]
Unconditionally and irrevocably
guaranteed by
THE BEAR XXXXXXX COMPANIES INC.
(Incorporated under the laws of the
State of Delaware,
United States of America)
Series No. [ ]
[Denomination]
This Note is one of a Series of Notes of [Specified Currency(ies) and Specified
Denomination(s)] each ("Notes") of Bear Xxxxxxx Global Asset Holdings, Ltd. (the
"Issuer") issued [either] [as Bearer Notes in the denomination[s] of [Specified
Currency(ies) and Specified Denomination(s)] each [with Coupons] [and Receipts]
[attached] [or] [as Registered Notes] in the denomination of [Specified
Currency(ies) and Specified Denomination(s)] in an aggregate principal amount of
[Nominal Amount of Tranche]. The Notes are unconditionally and irrevocably
guaranteed by The Bear Xxxxxxx Companies Inc. (the "Guarantor"). References
herein to the Conditions shall be to the Terms and Conditions [incorporated
herein/[set out in Schedule 1 to the Note Issuance Agreement (as defined below)]
which shall be incorporated by reference herein and have effect as if set out
hereon] as modified and supplemented by the Pricing Supplement (the "Pricing
Supplement") (or the relevant provisions thereof) incorporated herein but, in
the event of any conflict between the provisions of the said Terms and
Conditions and the information in the Pricing Supplement, the Pricing Supplement
will prevail. Words and expressions defined in the Conditions shall bear the
same meanings when used in this Note. This Note is issued subject to, and with
the benefit of, the Conditions and an Amended and Restated Note Issuance
Agreement dated June 28, 2002 (as amended and/or restated and/or supplemented
from time to time, the "Note Issuance Agreement") and made between (inter alios)
the Issuer, the Guarantor and JPMorgan Chase Bank as Agent.
THIS IS TO CERTIFY that is/are the registered holder(s)
of one of the above-mentioned Registered Notes and is/are entitled on [each
Instalment Date] [the Maturity Date] [the Interest Payment Date falling in the
month in which the Notes are to be redeemed] or on such earlier date as this
Note may become due and repayable in accordance with the Conditions and the Note
Issuance Agreement, to the amount payable and/or Securities Amount(s) (if any)
deliverable on redemption of this Note in accordance with the Conditions and
interest (if any) on the nominal amount of this Note calculated and payable as
provided in the Conditions and the Note Issuance
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Agreement together with any other sums payable or deliverable under the
Conditions and the Note Issuance Agreement.
This Note shall not be valid unless authenticated by JPMorgan Chase Bank as
Registrar.
Except as expressly stated above, no rights are conferred on any person under
the Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of this
Note, but this does not affect any right or remedy of any person which exists or
is available apart from that Act.
IN WITNESS whereof the Issuer has caused this Note to be signed in facsimile on
its behalf.
BEAR XXXXXXX GLOBAL ASSET HOLDINGS, LTD.
By: ........................
Duly Authorised
Authenticated by
JPMorgan Chase Bank
By: ......................
Duly Authorised
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- FORM OF TRANSFER OF REGISTERED NOTE -
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) to
.................................................................................
.................................................................................
.................................................................................
(Please print or type name and address (including postal code) of transferee)
[Specified Currency][ ] nominal amount of this Note and all rights
hereunder, hereby irrevocably constituting and appointing
.......................................................... as attorney to
transfer such principal amount of this Note in the register maintained by BEAR
XXXXXXX GLOBAL ASSET HOLDINGS, LTD. with full power of substitution.
Signature(s)..................
..................
Date: .................
N.B.:
1. This form of transfer must be accompanied by such documents, evidence and
information as may be required pursuant to the Conditions and must be
executed under the hand of the transferor or, if the transferor is a
corporation, either under its common seal or under the hand of two of its
officers duly authorised in writing and, in such latter case, the document
so authorising such officers must be delivered with this form of transfer.
2. In each case the signature(s) must be guaranteed by a commercial bank with
a correspondent bank in New York City, Luxembourg or London or by an
institution which is a member of The New York Stock Exchange or The
American Stock Exchange in New York City or the Luxembourg Stock Exchange
or the London Stock Exchange.
3. The signature(s) on this form of transfer must correspond with the name(s)
as it/they appear(s) on the face of this Note in every particular, without
alteration or enlargement or any change whatever.
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Pricing Supplement
[Here to be set out text of Pricing Supplement (or the relevant provisions
thereof) relating to the Notes]
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128
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[Conditions]
[Conditions to be as set out in Schedule 1 to this Note Issuance Agreement but
shall not be endorsed if not required by the Stock Exchange]
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PART V
FORM OF RECEIPT
ANY UNITED STATES PERSON (AS DEFINED IN THE INTERNAL REVENUE CODE OF THE UNITED
STATES) 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.
[THIS RECEIPT RELATES TO NOTES WITH A MATURITY OF NOT MORE THAN 183 DAYS FROM
THE DATE OF ISSUE. BY ACCEPTING THIS OBLIGATION THE HOLDER REPRESENTS AND
WARRANTS THAT IT IS NOT A UNITED STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT
DESCRIBED IN SECTION 6049(b)(4) OF THE INTERNAL REVENUE CODE AND REGULATIONS
THEREUNDER) AND THAT IT IS NOT ACTING FOR OR ON BEHALF OF A UNITED STATES PERSON
(OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN SECTION 6049(b)(4) OF THE INTERNAL
REVENUE CODE AND REGULATIONS THEREUNDER).](1)
BEAR XXXXXXX GLOBAL ASSET HOLDINGS, LTD.
(Incorporated under the laws of
the Cayman Islands)
[Specified Currency and Nominal Amount of Tranche]
NOTES DUE [Year of Maturity]
Unconditionally and irrevocably
guaranteed by
THE BEAR XXXXXXX COMPANIES INC.
(Incorporated under the laws of the
State of Delaware,
United States of America)
Series No. [ ]
Receipt for the sum of [ ] being the instalment of principal payable in
accordance with the Terms and Conditions endorsed on the Note to which this
Receipt appertains (the "Conditions") on [ ].
This Receipt is issued subject to and in accordance with the Conditions which
shall be binding upon the holder of this Receipt (whether or not it is for the
time being attached to such Note) and is payable at the specified office of any
of the Paying Agents set out on the reverse of the Note to which this Receipt
appertains (and/or any other or further Paying Agents and/or specified offices
as may from time to time be duly appointed and notified to the Noteholders).
-------------
(1) To be included only on Notes with a maturity of not more than 183 days
from their date of issue.
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This Receipt must be presented for payment together with the Note to which it
appertains. The Issuer and the Guarantor shall have no obligation in respect of
any Receipt presented without the Note to which it appertains or any unmatured
Receipts.
BEAR XXXXXXX GLOBAL ASSET HOLDINGS, LTD.
By: .......................
Duly Authorised
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PART VI
FORM OF COUPON
ANY UNITED STATES PERSON (AS DEFINED IN THE INTERNAL REVENUE CODE OF THE UNITED
STATES) 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.
[THIS COUPON RELATES TO NOTES WITH A MATURITY OF NOT MORE THAN 183 DAYS FROM THE
DATE OF ISSUE. BY ACCEPTING THIS OBLIGATION THE HOLDER REPRESENTS AND WARRANTS
THAT IT IS NOT A UNITED STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED
IN SECTION 6049(b)(4) OF THE INTERNAL REVENUE CODE AND REGULATIONS THEREUNDER)
AND THAT IT IS NOT ACTING FOR OR ON BEHALF OF A UNITED STATES PERSON (OTHER THAN
AN EXEMPT RECIPIENT DESCRIBED IN SECTION 6049(b)(4) OF THE INTERNAL REVENUE CODE
AND REGULATIONS THEREUNDER).](1)
On the front:
BEAR XXXXXXX GLOBAL ASSET HOLDINGS, LTD.
(Incorporated under the laws of
the Cayman Islands)
[Specified Currency and Nominal Amount of Tranche]
NOTES DUE
[Year of Maturity]
Unconditionally and irrevocably
guaranteed by
THE BEAR XXXXXXX COMPANIES INC.
(Incorporated under the laws of the
State of Delaware,
United States of America)
Series No. [ ]
(2) [Coupon appertaining to a Note in the denomination of [Specified Currency
and Specified Denomination]].
Part A
[For Fixed Rate Notes:
This Coupon is payable to bearer, separately Coupon for
negotiable and subject to the Terms and [ ]
Conditions of the said Notes. due on
[ ], [ ]]
-------------
(1) To be included only on Notes with a maturity of not more than 183 days
from their date of issue.
(2) Delete where the Notes are all of the same denomination.
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Part B
[For Floating Rate Notes or Indexed Interest Notes:
Coupon for the amount due in accordance with Coupon due
the Terms and Conditions endorsed on, in [ ] [ ]
attached to or incorporated by reference
into the said Notes on the Interest Payment
Date falling in [ ] [ ].
This Coupon is payable to bearer, separately
negotiable and subject to such Terms and
Conditions, under which it may become void
before its due date.]
BEAR XXXXXXX GLOBAL ASSET HOLDINGS, LTD.
By: ...........................
Duly Authorised
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PART VII
FORM OF TALON
ANY UNITED STATES PERSON (AS DEFINED IN THE INTERNAL REVENUE CODE OF THE UNITED
STATES) WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO THE LIMITATIONS UNDER THE
UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS
165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
[THIS TALON RELATES TO NOTES WITH A MATURITY OF NOT MORE THAN 183 DAYS FROM THE
DATE OF ISSUE. BY ACCEPTING THIS OBLIGATION THE HOLDER REPRESENTS AND WARRANTS
THAT IT IS NOT A UNITED STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED
IN SECTION 6049(b)(4) OF THE INTERNAL REVENUE CODE AND REGULATIONS THEREUNDER)
AND THAT IT IS NOT ACTING FOR OR ON BEHALF OF A UNITED STATES PERSON (OTHER THAN
AN EXEMPT RECIPIENT DESCRIBED IN SECTION 6049(b)(4) OF THE INTERNAL REVENUE CODE
AND REGULATIONS THEREUNDER).](1)
On the front:
BEAR XXXXXXX GLOBAL ASSET HOLDINGS, LTD.
(Incorporated under the laws of
the Cayman Islands)
[Specified Currency and Nominal Amount of Tranche]
NOTES DUE
[Year of Maturity]
Unconditionally and irrevocably
guaranteed by
THE BEAR XXXXXXX COMPANIES INC.
(Incorporated under the laws of the
State of Delaware,
United States of America)
Series No. [ ]
(2)[Talon appertaining to a Note in the denomination of [Specified Currency and
Specified Denomination]].
On and after [ ] further Coupons(3) [and a further Talon] appertaining to
the Note to which this Talon appertains will be issued at the specified office
of any of the Paying Agents set out on the reverse hereof (and/or any other or
further Paying Agents and/or specified offices as may from time to time be duly
appointed and notified to the Noteholders) upon production and surrender of this
Talon.
-------------
(1) To be included only on Notes with a maturity of not more than 183 days
from their date of issue.
(2) Delete where the Notes are all of the same denomination.
(3) Not required on last Coupon sheet.
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This Talon may, in certain circumstances, become void under the Terms and
Conditions endorsed on the Note to which this Talon appertains.
BEAR XXXXXXX GLOBAL ASSET HOLDINGS, LTD.
By: ..........................
Duly Authorised
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On the back of Receipts, Coupons and Talons:
AGENT
JPMorgan Chase Bank
Trinity Tower
9 Xxxxxx Xxxx Street
London E1W 1YT
PAYING AGENTS
JPMorgan Chase Bank Kredietbank S.A. Luxembourgeoise
Trinity Tower 43, Boulevard Royal
9 Xxxxxx Xxxx Street X-0000 Xxxxxxxxxx
Xxxxxx X0X 0XX R.C. Luxembourg B6393
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PART VIII
FORM OF CERTIFICATE TO BE PRESENTED BY
EUROCLEAR OR CLEARSTREAM, LUXEMBOURG
BEAR XXXXXXX GLOBAL ASSET HOLDINGS, LTD.
[Title of Notes]
(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 organisations
appearing in our records as persons being entitled to a portion of the nominal
amount set forth below (our "Member Organisations") substantially to the effect
set forth in the temporary global note representing the Securities, as of the
date hereof, [ ] nominal 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, any estate the income of which is
subject to United States Federal income taxation regardless of its source or any
trust if a court within the United States is able to exercise primary
supervision of the administration of the trust and one or more United States
persons have authority to control all substantial decisions of the trust
("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 Sections 1.165-12(c)(1)(iv) ("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 (unless such
Security is a Registered Note and is to be sold in accordance with the private
placement restrictions set forth in the Prospectus relating to the Securities).
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 Northern
Mariana Islands.
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 note excepted in such certifications; and (ii)
that as of the date hereof we have not received any notification from any of our
Member Organisations to the effect that the statements made by such Member
Organisations 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.
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 or official
enquiries are commenced or threatened in connection with which this
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certification is or would be relevant, we irrevocably authorise you to produce
this certification to any interested party in such proceedings or enquiries.
Dated: , (1)
Yours faithfully,
[EUROCLEAR BANK S.A./N.V.,
as operator of the Euroclear
system]
or
[CLEARSTREAM BANKING, societe
anonyme]
By: ................
-------------
(1) To be dated no earlier than the date to which this certification relates,
namely (a) the payment date or (b) the Exchange Date.
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CERTIFICATE "A"
BEAR XXXXXXX GLOBAL ASSET HOLDINGS, LTD.
[Title of Notes]
(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, any estate the
income of which is subject to United States Federal income taxation
regardless of its source or any trust if a court within the United States
is able to exercise primary supervision of the administration of the trust
and one or more United States persons have authority to control all
substantial decisions of the trust ("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)(iv)) ("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 to
further certify that such financial institution has 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.
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.
This certification excepts and does not relate to [ ] 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 right 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 or official
enquiries are commenced or threatened in connection with which this
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139
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certification is or would be relevant, we irrevocably authorise you to produce
this certification to any interested party in such proceedings or enquiries.
Dated: , (1)
Name of Person Making Certification
By: .......................
-------------
(1) To be dated no earlier than the fifteenth day prior to the date to which
this certification relates, namely (a) the payment date or (b) the
Exchange Date.
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SCHEDULE 3
PROVISIONS FOR MEETINGS OF NOTEHOLDERS
1. (A) As used in this Schedule the following expressions shall have the
following meanings unless the context otherwise requires:
(i) "voting certificate" shall mean an English language
certificate issued by a Paying Agent and dated in which it is
stated:
(a) that on the date thereof Bearer Notes (whether in
definitive form or represented by a Global Note and not
being Bearer Notes in respect of which a block voting
instruction has been issued and is outstanding in
respect of the meeting specified in such voting
certificate or any adjourned such meeting) were
deposited with such Paying Agent or (to the satisfaction
of such Paying Agent) were held to its order or under
its control and that no such Bearer Notes will cease to
be so deposited or held until the first to occur of:
(1) the conclusion of the meeting specified in such
certificate or, if later, of any adjourned such
meeting; and
(2) the surrender of the certificate to the Paying
Agent who issued the same; and
(b) that the bearer thereof is entitled to attend and vote
at such meeting and any adjourned such meeting in
respect of the Bearer Notes represented by such
certificate;
(ii) "block voting instruction" shall mean an English language
document issued by a Paying Agent and dated in which:
(a) it is certified that Bearer Notes (whether in definitive
form or represented by a Global Note and not being
Bearer Notes in respect of which a voting certificate
has been issued and is outstanding in respect of the
meeting specified in such block voting instruction and
any adjourned such meeting) have been deposited with
such Paying Agent or (to the satisfaction of such Paying
Agent) were held to its order or under its control and
that no such Bearer Notes will cease to be so deposited
or held until the first to occur of:
(1) the conclusion of the meeting specified in such
document or, if later, of any adjourned such
meeting; and
(2) the surrender to the Paying Agent not less than 48
hours before the time for which such meeting or
any adjourned such meeting is convened of the
receipt issued by such Paying Agent in respect of
each such deposited Bearer Note which is to be
released or (as the case may require) the Bearer
Note or Bearer Notes ceasing with the agreement of
the Paying Agent to be held to its order or under
its control and the giving of notice by the Paying
Agent to the Issuer in
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accordance with paragraph 17 hereof of the
necessary amendment to the block voting
instruction;
(b) it is certified that each holder of such Bearer Notes
has instructed such Paying Agent that the vote(s)
attributable to the Bearer Note or Bearer Notes so
deposited or held should be cast in a particular way in
relation to the resolution or resolutions to be put to
such meeting or any adjourned such meeting and that all
such instructions are during the period commencing 48
hours prior to the time for which such meeting or any
adjourned such meeting is convened and ending at the
conclusion or adjournment thereof neither revocable nor
capable of amendment;
(c) the aggregate nominal amount of the Bearer Notes so
deposited or held are listed distinguishing with regard
to each such resolution between those in respect of
which instructions have been given as aforesaid that the
votes attributable thereto should be cast in favour of
the resolution and those in respect of which
instructions have been so given that the votes
attributable thereto should be cast against the
resolution; and
(d) one or more persons named in such document (each
hereinafter called a "proxy") is or are authorised and
instructed by such Paying Agent to cast the votes
attributable to the Bearer Notes so listed in accordance
with the instructions referred to in (c) above as set
out in such document;
(iii) "24 hours" shall mean a period of 24 hours including all or
part of a day upon which banks are open for business in both
the place 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 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 in all of the
places as aforesaid; and
(iv) "48 hours" shall mean a period of 48 hours including all or
part of two days upon which banks are open for business both
in the place 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
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 two days upon which banks are open for business in
all of the places as aforesaid.
(B) A holder of a Bearer Note may obtain a voting certificate in respect
of such Bearer Note from a Paying Agent or require a Paying Agent to
issue a block voting instruction in respect of such Bearer Note by
depositing such Bearer Note with such Paying Agent or (to the
satisfaction of such Paying Agent) by such Bearer Note being held to
its order or under its control, in each case not less than 48 hours
before the time fixed for the relevant meeting and on the terms set
out in sub-paragraph (i)(a) or (ii)(a) above (as the case may be),
and (in the case of a block voting instruction) instructing such
Paying Agent to the effect set out in sub-paragraph (ii)(b) above.
The holder of any voting certificate or the proxies named in any
block voting
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instruction shall for all purposes in connection with the relevant
meeting or adjourned meeting of Noteholders be deemed to be the
holder of the Bearer Notes to which such voting certificate or block
voting instruction relates and the Paying Agent with which such
Bearer Notes have been deposited or the person holding the same to
the order or under the control of such Paying Agent shall be deemed
for such purposes not to be the holder of those Bearer Notes.
(C) (i) A holder of Registered Notes (whether in definitive form or
represented by a Global Note) may, by an instrument in writing
in the English language (a "form of proxy") signed by the
holder or, in the case of a corporation, executed under its
common seal or signed on its behalf by an attorney or a duly
authorised officer of the corporation and delivered to the
specified office of the Registrar not less than 48 hours
before the time fixed for the relevant meeting, appoint any
person (a "proxy") to act on his or its behalf in connection
with any meeting of the Noteholders and any adjourned such
meeting.
(ii) Any holder of Registered Notes which is a corporation may by
resolution of its directors or other governing body authorise
any person to act as its representative (a "representative")
in connection with any meeting of the Noteholders and any
adjourned such meeting.
(iii) Any proxy appointed pursuant to sub-paragraph (i) above or
representative appointed pursuant to sub-paragraph (ii) above
shall so long as such appointment remains in force be deemed,
for all purposes in connection with the relevant meeting or
adjourned meeting of the Noteholders, to be the holder of the
Registered Notes to which such appointment relates and the
holder of the Registered Notes shall be deemed for such
purposes not to be the holder.
2. The Issuer or the Guarantor may at any time and the Issuer shall upon a
requisition in writing signed by the holders of not less than one-tenth in
nominal amount of the Notes of any Series for the time being outstanding
convene a meeting of the Noteholders and if the Issuer makes default for a
period of seven days in convening such a meeting the same may be convened
by the requisitionists. Every such meeting shall be held at such time and
place as the Agent may appoint or approve.
3. At least 21 days' notice (exclusive of the day on which the notice is
given and the day on which the meeting is to be held) specifying the
place, day and hour of meeting shall be given to the Noteholders prior to
any meeting of the Noteholders in the manner provided by Condition 15.
Such notice, which shall be in the English language, shall state generally
the nature of the business to be transacted at the meeting thereby
convened but (except for an Extraordinary Resolution) it shall not be
necessary to specify in such notice the terms of any resolution to be
proposed. Such notice shall include statements, if applicable, to the
effect that (i) Bearer Notes may, not less than 48 hours before the time
fixed for the meeting, be deposited with Paying Agents or (to their
satisfaction) held to their order or under their control for the purpose
of obtaining voting certificates or appointing proxies and (ii) the
holders of Registered Notes may appoint proxies by executing and
delivering a form of proxy in the English language to the specified office
of the Registrar not less than 48 hours before the time fixed for the
meeting or, in the case of corporations, may appoint representatives by
resolution of their directors or other governing body. A copy of the
notice shall be sent by post to the Issuer (unless the meeting is convened
by the Issuer) and to the Guarantor (unless the meeting is convened by the
Guarantor).
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4. A person (who may but need not be a Noteholder) nominated in writing by
the Issuer shall be entitled to take the chair at the relevant meeting or
adjourned meeting but if no such nomination is made or if at any meeting
or adjourned meeting the person nominated shall not be present within
fifteen minutes after the time appointed for holding the meeting or
adjourned meeting the Noteholders present shall choose one of their number
to be Chairman. The Chairman of an adjourned meeting need not be the same
person as was Chairman of the meeting from which the adjournment took
place.
5. At any such meeting one or more persons present holding Definitive Notes
or voting certificates or being proxies or representatives and holding or
representing in the aggregate not less than one-twentieth of the nominal
amount of the Notes for the time being outstanding shall (except for the
purpose of passing an Extraordinary Resolution) form a quorum for the
transaction of business and no business (other than the choosing of a
Chairman) shall be transacted at any meeting unless the requisite quorum
be present at the commencement of the relevant business. The quorum at any
such meeting for passing an Extraordinary Resolution shall (subject as
provided below) be one or more persons present holding Definitive Notes or
voting certificates or being proxies or representatives and holding or
representing in the aggregate a clear majority in nominal amount of the
Notes for the time being outstanding PROVIDED THAT at any meeting the
business of which includes any of the following matters (each of which
shall only be capable of being effected after having been approved by
Extraordinary Resolution) namely:
(i) reduction or cancellation of the amount payable or, where
applicable, modification, except where such modification is bound to
result in an increase, of the method of calculating the amount
payable or modification of the date of payment or, where applicable,
of the method of calculating the date of payment in respect of any
principal or interest in respect of the Notes;
(ii) alteration of the currency in which payments under the Notes,
Receipts and Coupons are to be made;
(iii) alteration of the majority required to pass an Extraordinary
Resolution;
(iv) the sanctioning of any such scheme or proposal as is described in
paragraph 18(I) below;
(v) alteration of this proviso or the proviso to paragraph 6 below;
the quorum shall be one or more persons present holding Definitive Notes
or voting certificates or being proxies or representatives and holding or
representing in the aggregate not less than 75 per cent. of the nominal
amount of the Notes for the time being outstanding.
6. If within fifteen minutes (or such longer period not exceeding thirty
minutes as the Chairman may decide) after the time appointed for any such
meeting a quorum is not present for the transaction of any particular
business, then, subject and without prejudice to the transaction of the
business (if any) for which a quorum is present, the meeting shall if
convened upon the requisition of Noteholders be dissolved. In any other
case it shall stand adjourned to the same day in the next week (or if such
day is a public holiday the next succeeding business day) at the same time
and place (except in the case of a meeting at which an Extraordinary
Resolution is to be proposed in which case it shall stand adjourned for
such period, being not less than 14 clear days nor more than 42 clear
days, and to such place as may be appointed by the Chairman either at or
subsequent to such meeting and approved by the Agent). If within fifteen
minutes (or such longer period not exceeding thirty minutes as the
Chairman may decide) after the time appointed for any adjourned meeting a
quorum is not present for the
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transaction of any particular business, then, subject and without
prejudice to the transaction of the business (if any) for which a quorum
is present, the Chairman may either (with the approval of the Agent)
dissolve such meeting or adjourn the same for such period, being not less
than 14 clear days, and to such place as may be appointed by the Chairman
either at or subsequent to such adjourned meeting and approved by the
Agent, and the provisions of this sentence shall apply to all further
adjourned such meetings. At any adjourned meeting one or more persons
present holding Definitive Notes or voting certificates or being proxies
or representatives (whatever the nominal amount of the Notes so held or
represented by them) shall (subject as provided below) form a quorum and
shall (subject as provided below) have power to pass any Extraordinary or
other resolution and to decide upon all matters which could properly have
been dealt with at the meeting from which the adjournment took place had
the requisite quorum been present PROVIDED THAT at any adjourned meeting
the quorum for the transaction of business comprising any of the matters
specified in the proviso to paragraph 5 above shall be one or more persons
present holding Definitive Notes or voting certificates or being proxies
or representatives and holding or representing in the aggregate not less
than a clear majority of the nominal amount of the Notes for the time
being outstanding.
7. Notice of any adjourned meeting at which an Extraordinary Resolution is to
be submitted shall be given in the same manner as notice of an original
meeting but as if 10 were substituted for 21 in paragraph 3 above and such
notice shall state the relevant quorum. Subject as aforesaid it shall not
be necessary to give any notice of an adjourned meeting.
8. Every question submitted to a meeting shall be decided in the first
instance by a show of hands and in case of equality of votes the Chairman
shall both on a show of hands and on a poll have a casting vote in
addition to the vote or votes (if any) to which he may be entitled as a
Noteholder or as a holder of a voting certificate or as a proxy or as a
representative.
9. At any meeting unless a poll is (before or on the declaration of the
result of the show of hands) demanded by the Chairman, the Issuer, the
Guarantor or any person present holding a Definitive Note or a voting
certificate or being a proxy or representative (whatever the principal
amount of the Notes so held or represented by him) a declaration by the
Chairman that a resolution has been carried or carried by a particular
majority or lost or not carried by a particular majority shall be
conclusive evidence of the fact without proof of the number or proportion
of the votes recorded in favour of or against such resolution.
10. Subject to paragraph 12 below, if at any such meeting a poll is so
demanded it shall be taken in such manner and subject as hereinafter
provided either at once or after an adjournment as the Chairman directs
and the result of such poll shall be deemed to be the resolution of the
meeting at which the poll was demanded as at the date of the taking of the
poll. The demand for a poll shall not prevent the continuance of the
meeting for the transaction of any business other than the motion on which
the poll has been demanded.
11. The Chairman may with the consent of (and shall if directed by) any such
meeting adjourn the same from time to time and from place to place but no
business shall be transacted at any adjourned meeting except business
which might lawfully (but for lack of required quorum) have been
transacted at the meeting from which the adjournment took place.
12. Any poll demanded at any such meeting on the election of a Chairman or on
any question of adjournment shall be taken at the meeting without
adjournment.
13. Any director or officer of the Issuer or the Guarantor and their
respective lawyers may attend and speak at any meeting. Save as aforesaid,
but without prejudice to the proviso to the definition of "outstanding" in
clause 1, no person shall be entitled to attend and speak nor
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shall any person be entitled to vote at any meeting of the Noteholders or
join with others in requesting the convening of such a meeting or to
exercise the rights conferred on the Noteholders by Condition 12 unless he
either produces the Definitive Bearer Note or Definitive Bearer Notes of
which he is the holder or a voting certificate or is a proxy or a
representative or is the holder of a Definitive Registered Note or
Definitive Registered Notes. No person shall be entitled to vote at any
meeting in respect of Notes held by, for the benefit of, or on behalf of,
the Issuer, the Guarantor, any holding company of the Guarantor or any
other Subsidiary of the Guarantor or any such holding company. Nothing
herein shall prevent any of the proxies named in any block voting
instruction or form of proxy or any representative from being a director,
officer or representative of or otherwise connected with the Issuer or the
Guarantor.
14. Subject as provided in paragraph 13 hereof at any meeting:
(A) on a show of hands every person who is present in person and
produces a Definitive Bearer Note or voting certificate or is a
holder of Definitive Registered Notes or is a proxy or
representative shall have one vote; and
(B) on a poll every person who is so present shall have one vote in
respect of each U.S.$1.00 or such other amount as the Agent may in
its absolute discretion stipulate (or, in the case of meetings of
holders of Notes denominated in another currency, such amount in
such other currency as the Agent in its absolute discretion may
stipulate) in nominal amount of the Definitive Notes so produced or
represented by the voting certificate so produced or in respect of
which he is a proxy or representative or in respect of which he is
the holder.
Without prejudice to the obligations of the proxies named in any block
voting instruction or form of proxy any person entitled to more than one
vote need not use all his votes or cast all the votes to which he is
entitled in the same way.
15. The proxies named in any block voting instruction or form of proxy and
representatives need not be Noteholders.
16. Each block voting instruction together (if so requested by the Issuer)
with proof satisfactory to the Issuer of its due execution on behalf of
the relevant Paying Agent and each form of proxy shall be deposited by the
relevant Paying Agent or (as the case may be) by the Registrar at such
place as the Agent shall approve not less than 24 hours before the time
appointed for holding the meeting or adjourned meeting at which the
proxies named in the block voting instruction or form of proxy propose to
vote and in default the block voting instruction or form of proxy shall
not be treated as valid unless the Chairman of the meeting decides
otherwise before such meeting or adjourned meeting proceeds to business. A
notarially certified copy of each block voting instruction and form of
proxy shall be deposited with the Agent before the commencement of the
meeting or adjourned meeting but the Agent shall not thereby be obliged to
investigate or be concerned with the validity of or the authority of the
proxies named in any such block voting instruction or form of proxy.
17. Any vote given in accordance with the terms of a block voting instruction
or form of proxy shall be valid notwithstanding the previous revocation or
amendment of the block voting instruction or form of proxy or of any of
the Noteholders' instructions pursuant to which it was executed provided
that no intimation in writing of such revocation or amendment shall have
been received from the relevant Paying Agent or in the case of a
Registered Note from the holder thereof by the Issuer at its registered
office (or such other place as may have been required or approved by the
Agent for the purpose) by the time being 24 hours and 48 hours
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respectively before the time appointed for holding the meeting or
adjourned meeting at which the block voting instruction or form of proxy
is to be used.
18. A meeting of the Noteholders shall in addition to the powers hereinbefore
given have the following powers exercisable only by Extraordinary
Resolution (subject to the provisions relating to quorum contained in
paragraphs 5 and 6 above) namely:
(A) Power to sanction any compromise or arrangement proposed to be made
between the Issuer, the Guarantor and the Noteholders and
Couponholders or any of them.
(B) Power to sanction any abrogation, modification, compromise or
arrangement in respect of the rights of the Noteholders, the
Receiptholders, the Couponholders, the Issuer or the Guarantor
against any other or others of them or against any of their property
whether such rights shall arise under this Agreement, the Notes, the
Coupons or the Receipts or otherwise.
(C) Power to assent to any modification of the provisions of this
Agreement, the Notes, the Coupons or the Receipts, the Guarantee,
the Conditions or the Deed of Covenant which shall be proposed by
the Issuer, the Guarantor or any Noteholder.
(D) Power to give any authority or sanction which under the provisions
of this Agreement, the Notes, the Coupons or the Receipts, the
Guarantee, the Conditions or the Deed of Covenant is required to be
given by Extraordinary Resolution.
(E) Power to appoint any persons (whether Noteholders or not) as a
committee or committees to represent the interests of the
Noteholders and to confer upon such committee or committees any
powers or discretions which the Noteholders could themselves
exercise by Extraordinary Resolution.
(F) Power to sanction any scheme or proposal for the exchange or sale of
the Notes for or the conversion of the Notes into or the
cancellation of the Notes in consideration of shares, stock, notes,
bonds, debentures, debenture stock and/or other obligations and/or
securities of the Issuer, the Guarantor or any other company formed
or to be formed, or for or into or in consideration of cash, or
partly for or into or in consideration of such shares, stock, notes,
bonds, debentures, debenture stock and/or other obligations and/or
securities as aforesaid and partly for or into or in consideration
of cash.
19. Any resolution passed at a meeting of the Noteholders duly convened and
held in accordance with the provisions hereof shall be binding upon all
the Noteholders whether present or not present at such meeting and whether
or not voting and upon all Receiptholders and Couponholders and each of
them shall be bound to give effect thereto accordingly and the passing of
any such resolution shall be conclusive evidence that the circumstances
justify the passing thereof. Notice of the result of the voting on any
resolution duly considered by the Noteholders shall be published in
accordance with Condition 15 by the Issuer within 14 days of such result
being known PROVIDED THAT the non-publication of such notice shall not
invalidate such result.
20. The expression "Extraordinary Resolution" when used in this Agreement or
the Conditions means a resolution passed at a meeting of the Noteholders
duly convened and held in accordance herewith by a majority consisting of
not less than three-fourths of the persons voting thereat upon a show of
hands or if a poll is duly demanded by a majority consisting of not less
than three-fourths of the votes cast on such poll.
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21. Minutes of all resolutions and proceedings at every meeting of the
Noteholders shall be made and entered in books to be from time to time
provided for that purpose by the Issuer and any such Minutes as aforesaid
if purporting to be signed by the Chairman of the meeting at which such
resolutions were passed or proceedings transacted shall be conclusive
evidence of the matters therein contained and until the contrary is proved
every such meeting in respect of the proceedings of which Minutes have
been made shall be deemed to have been duly held and convened and all
resolutions passed or proceedings transacted thereat to have been duly
passed or transacted.
22. (A) If and whenever the Issuer shall have issued and have outstanding
Notes of more than one Series the foregoing provisions of this
Schedule shall have effect subject to the following modifications:
(i) a resolution which affects the Notes of only one Series shall
be deemed to have been duly passed if passed at a separate
meeting of the holders of the Notes of that Series;
(ii) a resolution which affects the Notes of more than one Series
but does not give rise to a conflict of interest between the
holders of Notes of any of the Series so affected shall be
deemed to have been duly passed if passed at a single meeting
of the holders of the Notes of all the Series so affected;
(iii) a resolution which affects the Notes of more than one Series
and gives or may give rise to a conflict of interest between
the holders of the Notes of one Series or group of Series so
affected and the holders of the Notes of another Series or
group of Series so affected shall be deemed to have been duly
passed only if passed at separate meetings of the holders of
the Notes of each Series or group of Series so affected; and
(iv) to all such meetings all the preceding provisions of this
Schedule shall mutatis mutandis apply as though references
therein to Notes, Noteholders and holders were references to
the Notes of the Series or group of Series in question or to
the holders of such Notes, as the case may be.
(B) If the Issuer shall have issued and have outstanding Notes which are
not denominated in United States dollars, in the case of any meeting
of holders of Notes of more than one currency the nominal amount of
such Notes shall: (i) for the purposes of paragraph 2 above by the
equivalent in United States dollars at the spot rate of a bank
nominated by the Agent for the conversion of the relevant currency
or currencies into United States dollars on the seventh dealing day
prior to the day on which the requisition in writing is received by
the Issuer; and (ii) for the purposes of paragraphs 5, 6 and 14
above (whether in respect of the meeting or any adjourned such
meeting or any poll resulting therefrom) be the equivalent at such
spot rate on the seventh dealing day prior to the day of such
meeting. In such circumstances, on any poll each person present
shall have one vote for each U.S.$1.00 (or such other United States
dollar amount as the Agent may in its absolute discretion stipulate)
in nominal amount of the Notes (converted as above) which he holds
or represents.
23. Subject to all other provisions contained herein the Agent may without the
consent of the Issuer, the Guarantor, the Noteholders, the Receiptholders
or the Couponholders prescribe such further regulations regarding the
requisitioning and/or the holding of meetings of Noteholders and
attendance and voting thereat as the Agent may in its sole discretion
think fit.
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SCHEDULE 4
FORM OF PUT NOTICE
BEAR XXXXXXX GLOBAL ASSET HOLDINGS, LTD.
[title of relevant Series of Notes]
By depositing this duly completed Notice with any Paying Agent, any Transfer
Agent or the Registrar for the above Series of Notes (the "Notes") the
undersigned holder of such Notes surrendered with this Notice and referred to
below irrevocably exercises its option to have such Notes redeemed in accordance
with Condition 7(d) on [redemption date].
This Notice relates to Notes in the aggregate nominal amount of ..........
bearing the following serial numbers:
......................................
......................................
......................................
If the Notes referred to above are to be returned (1) to the undersigned under
clause 27(4) of the Note Issuance Agreement, they should be returned by post to:
.......................
.......................
.......................
Payment Instructions
Please make payment in respect of the above-mentioned Notes by [cheque posted to
the above address/transfer to the following bank account] (2)(3):
Bank: ................................
Branch Address: ................................
Branch Code: ................................
Account Number: ................................
Signature of holder: ................................
Duly authorised on behalf of ...........................
[To be completed by recipient Paying Agent, Transfer Agent or the Registrar]
Details of missing unmatured Coupons ...............................(4)
Received by: ................................
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[Signature and stamp of Paying Agent, Transfer Agent or the Registrar]
At its office at: .................................
On: .................................
Notes
(1) The Note Issuance Agreement provides that Notes so returned will be sent
by post, uninsured and at the risk of the Noteholder, unless the
Noteholder otherwise requests and pays the costs of such insurance to the
relevant Paying Agent, Transfer Agent or the Registrar at the time of
depositing the Note referred to above.
(2) Payment by cheque is only available to holders of Registered Notes.
(3) Delete as applicable.
(4) Only relevant for Fixed Rate Notes in definitive form (which are not also
Indexed Redemption Amount Notes).
N.B. The Paying Agent, Transfer Agent or the Registrar with whom the
above-mentioned Notes are deposited will not in any circumstances be
liable to the depositing Noteholder or any other person for any loss or
damage arising from any act, default or omission of such Paying Agent,
Transfer Agent or the Registrar in relation to the said Notes or any of
them unless such loss or damage was caused by the fraud or gross
negligence of such Paying Agent, Transfer Agent or the Registrar or their
respective directors, officers or employees.
This Put Notice is not valid unless all of the paragraphs requiring
completion are duly completed. Once validly given this Put Notice is
irrevocable except in the circumstances set out in clause 27(4) of the
Note Issuance Agreement.
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SCHEDULE 0
XXXXXXX XXXXXXXXXXXX
0. Xxxxxx Xxxxxx
(1) The Notes have not been and will not be registered under the Securities
Act, and may not be offered or sold within the United States or to, or for
the account or benefit of, U.S. persons except in accordance with
Regulation S under the Securities Act or pursuant to an exemption from the
registration requirements of the Securities Act. Each Dealer represents
and agrees that it has not offered and sold any Notes, and will not offer
and sell any Notes: (i) as part of their distribution at any time; and
(ii) otherwise until 40 days after the completion of the distribution of
all Notes of the Tranche of which such Notes are a part, as determined and
certified as provided below, only in accordance with Rule 903 of
Regulation S under the Securities Act. Accordingly, each Dealer further
represents and agrees that it, its affiliates or any persons acting on its
or their behalf have not engaged and will not engage in any directed
selling efforts with respect to any Note, and it and they have complied
and will comply with the offering restrictions requirement of Regulation
S. Each Dealer who has purchased Notes of a Tranche hereunder (or in the
case of a sale of a Tranche of Notes issued to or through more than one
Dealer, each of such Dealers as to the Notes of such Tranche purchased by
or through it or, in the case of a syndicated issue, the relevant Lead
Manager) shall determine and certify to the Agent the completion of the
distribution of the Notes of such Tranche. On the basis of such
notification or notifications, the Agent agrees to notify such Dealer/Lead
Manager of the end of the restricted period with respect to such Tranche.
Each Dealer also agrees that, at or prior to confirmation of sale of
Notes, it will have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases Notes from it
during the restricted period a confirmation or notice to substantially the
following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), and may not be
offered or sold within the United States or to, or for the account or
benefit of, U.S. persons: (i) as part of their distribution at any time;
or (ii) otherwise until 40 days after the completion of the distribution
of the Securities as determined and certified by the relevant Dealer, in
the case of a non-syndicated issue, or the Lead Manager, in the case of a
syndicated issue, and except in either case in accordance with Regulation
S under the Securities Act. Terms used above have the meanings given to
them by Regulation S."
Terms used in this sub-clause 1(1) have the meanings given to them by
Regulation S.
(2) In addition:
(a) except to the extent permitted under U.S. Treasury Regulation
Section 1.163-5(c)(2)(i)(D) (the "D Rules"), each Dealer: (i)
represents that it has not offered or sold, and agrees that during
the restricted period it will not offer or sell, Notes in bearer
form to a person who is within the United States or its possessions
or to a United States person, and (ii) represents that it has not
delivered and agrees that it will not deliver within the United
States or its possessions definitive Notes in bearer form that are
sold during the restricted period;
(b) each Dealer represents that it has and agrees that throughout the
restricted period it will have in effect procedures reasonably
designed to ensure that its employees or agents who are directly
engaged in selling Notes in bearer form are aware that such
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Notes may not be offered or sold during the restricted period to a
person who is within the United States or its possessions or to a
United States person, except as permitted by the D Rules;
(c) if it is a United States person, each Dealer represents that it is
acquiring the Notes for purposes of resale in connection with their
original issuance and if it retains Notes in bearer form for its own
account, it will only do so in accordance with the requirements of
U.S. Treasury Regulation Section l.163-5(c)(2)(i)(D)(6); and
(d) with respect to each affiliate that acquires Notes from a Dealer for
the purpose of offering or selling such Notes during the restricted
period, such Dealer repeats and confirms the representations and
agreements contained in sub-clauses (a), (b) and (c) on such
affiliate's behalf.
Terms used in this Paragraph 1(2) have the meanings given to them by the
U.S. Internal Revenue Code and regulations thereunder, including the D
Rules.
(3) Notwithstanding anything above to the contrary, it is understood that
Registered Notes may be offered and sold pursuant to a private placement
or another exemption under the Securities Act in the United States, and in
connection therewith each Dealer represents and agrees that:
(a) offers, sales, resales and other transfers of Notes made in the
United States made or approved by a Dealer (including offers,
resales or other transfers made or approved by a Dealer in
connection with secondary trading) shall be made with respect to
Registered Notes only and shall be effected pursuant to an exemption
from the registration requirements of the Securities Act;
(b) offers, sales, resales and other transfers of Notes made in the
United States will be made only in private transactions to: (1) a
limited number of institutional investors that are accredited
investors (as defined in Rule 501(a) (1), (2), (3) or (7) under the
Securities Act each such institutional investor being hereinafter
referred to as an "Institutional Accredited Investor") that has
executed and delivered to a Dealer an IAI Investment Letter; or (2)
institutional investors that are reasonably believed to qualify as
qualified institutional buyers within the meaning of Rule 144A (each
such institutional investor being hereinafter referred to as a
"qualified institutional buyer");
(c) the Notes will be offered in the United States only by approaching
prospective purchasers on an individual basis. No general
solicitation or general advertising within the meaning of Rule
502(c) under the Securities Act will be used in connection with the
offering of the Notes in the United States;
(d) no sale of Notes in the United States to any one Institutional
Accredited Investor will be for less than U.S.$100,000 principal
amount and no Note will be issued in connection with such a sale in
a smaller principal amount. If such purchaser is a non-bank
fiduciary acting on behalf of others, each person for whom it is
acting must purchase at least U.S.$100,000 principal amount of the
Notes; and
(e) each Note sold as a part of a private placement in the United States
and each Reg. S Global Note shall contain the legend in
substantially the following form:
"This Note has not been registered under the Securities Act of 1933,
as amended (the "Securities Act"), or any state securities laws.
Neither this Note nor any interest or participation herein may be
reoffered, sold, assigned, transferred, pledged,
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encumbered or otherwise disposed of in the absence of such
registration or unless such transaction is exempt from, or not
subject to, registration.
The holder of this Note by its acceptance hereof, on its own behalf
and on behalf of any account for which it is purchasing this Note or
any interest or participation herein, agrees that it shall not
offer, sell or otherwise transfer such note or any interest or
participation herein except to, or for the account or benefit of,
(A) the Issuer or a Dealer (as defined in the offering circular for
the Note), (B) a "Qualified Institutional Buyer" (as defined in Rule
144A under the Securities Act), (C) an "Accredited Investor" (as
defined in Rule 501(a) (1), (2), (3) or (7) under the Securities
Act) that is an institution and that, prior to such transfer, shall
have furnished to such holder and to the Issuer of this Note a
written certification containing certain representations and
agreements relating to the restrictions on transfer of this Note
(the form of which letter can be obtained from the Registrar and the
Transfer Agents), (D) outside the United States in a transaction
which meets the requirements of Rule 904 under the Securities Act,
(E) pursuant to an effective registration statement under the
Securities Act, or (F) pursuant to any other available exemption
from the registration requirements of the Securities Act. Upon any
transfer of this Note or any interest or participation herein
pursuant to clause (C), (D) or (F), in the case of Legended Notes,
or clause (B), (C) or (F) in the case of Reg. S Notes, the holder
will be required to furnish to the Issuer, the Registrar and the
Transfer Agents such certifications (which in the case of transfers
pursuant to clause (C), (D) or (F) in the case of Legended Notes or
clause (B), (C) or (F) in the case of Reg. S Notes, can be obtained
from the Registrar), legal opinions or other information as any of
them may reasonably require to confirm that such transfer is being
made pursuant to an exemption from, or in a transaction not subject
to, the registration requirements of the Securities Act. The Holder
will also be required to deliver to the transferee of this Note or
any interest or participation therein a notice substantially to the
effect of this legend. Any resale or other transfer or attempted
resale or other transfer of this Note made other than in compliance
with the foregoing restriction shall not be recognised by the
Issuer, the Registrar, the Transfer Agents or any other agent of the
Issuer."
The legend endorsed on each Reg. S Global Note shall cease to apply after
expiry of the Restricted Period applicable thereto.
(4) Each Dealer has represented and agreed and each New Dealer will be
required to represent and agree that it has not entered and agrees that it
will not enter into any contractual arrangement with respect to the
distribution or delivery of Notes, so as to cause any person to become a
"distributor" within the meaning of Regulation S or U.S. Treasury
Regulation Section 1.163-5(c)(2)(i)(D) except with its affiliates or with
the prior written consent of the Issuer.
(5) The Issuer represents and agrees that any resale or other transfer, or
attempted resale or other transfer of Notes sold as part of a private
placement in the United States made other than in compliance with the
restrictions set out in sub-clause 1(3) shall not be recognised by the
Issuer or the Guarantor or any agent of the Issuer or the Guarantor and
shall be void.
(6) Each issue of Indexed Notes or Dual Currency Notes shall be subject to
such additional U.S. selling restrictions as the Issuer and the relevant
Dealer may agree as a term of the issue and purchase of such Notes, which
additional selling restrictions shall be set out in the applicable Pricing
Supplement. The relevant Dealer agrees that it shall offer, sell and
deliver such Notes only in compliance with such additional U.S. selling
restrictions.
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2. United Kingdom
Each Dealer represents and agrees and each further Dealer appointed under
this Agreement will be required to represent and agree that:
(a) in relation to Notes which have a maturity of one year or more, it
has not offered or sold and, prior to the expiry of the period of
six months from the date of issue of such Notes, will not offer or
sell any such Notes to persons in the United Kingdom except to
persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995 (as amended);
(b) in relation to any Notes having a maturity of less than one year
from the date of issue, (i) it is a person whose ordinary activities
involve it in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of its business
and (ii) it has not offered or sold and will not offer or sell any
Notes other than to persons whose ordinary activities involve them
in acquiring, holding, managing or disposing of investments (as
principal or as agent) for the purposes of their businesses or who
it is reasonable to expect will acquire, hold, manage or dispose of
investments (as principal or agent) for the purposes of their
businesses where the issue of the Notes would otherwise constitute a
contravention of section 19 of the FSMA by the Issuer;
(c) it has only communicated or caused to be communicated and will only
communicate or cause to be communicated an invitation or inducement
to engage in investment activity (within the meaning of Section 21
of the FSMA) received by it in connection with the issue or sale of
any Notes in circumstances in which Section 21(1) of the FSMA does
not apply to the Issuer or the Guarantor; and
(d) it has complied and will comply with all applicable provisions of
the FSMA with respect to anything done by it in relation to such
Notes in, from or otherwise involving the United Kingdom.
3. Hong Kong
Each Dealer represents and agrees and each further Dealer appointed under
this Agreement will be required to represent and agree that:
(a) it has not offered or sold and will not offer or sell in Hong Kong,
by means of any document, any Notes other than to persons whose
ordinary business it is to buy or sell shares or debentures (whether
as principal or agent) or in circumstances which do not constitute
an offer to the public within the meaning of the Companies Ordinance
of Hong Kong (Cap. 32); and
(b) unless it is a person permitted to do so under the securities laws
of Hong Kong, it has not issued or had in its possession and will
not issue, or have in its possession for the purposes of issue, any
advertisement, invitation or document relating to any Notes issued
pursuant to this Agreement other than with respect to Notes intended
to be disposed of to persons outside Hong Kong or to be disposed of
in Hong Kong only to persons whose business involves the
acquisition, disposal, or holding of securities, whether as
principal or agent.
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4. Japan
The Notes have not been and will not be registered under the Securities
and Exchange Law of Japan (the "Securities and Exchange Law") and each
Programme Dealer agrees, and each further Dealer or appointed under this
Agreement will be required to agree, that it will not offer or sell any of
the Notes, directly or indirectly, in Japan or to, or for the benefit of,
any resident of Japan (which term as used herein means any person resident
in Japan, including any corporation or other entity organised under the
laws of Japan) or to others for re-offering or resale, directly or
indirectly, in Japan or to a resident of Japan, except pursuant to an
exemption from the registration requirements of, and otherwise in
compliance with, the Securities and Exchange Law and any other applicable
laws, regulations and ministerial guidelines of Japan.
5. Italy
The offering of Notes has not been cleared by CONSOB (the Italian
Securities Exchange Commission) pursuant to Italian securities legislation
and, accordingly, no Notes may be offered, sold or delivered, nor may
copies of this Offering Circular or of any other document relating to the
Notes be distributed in the Republic of Italy, except:
(i) to professional investors ("operatori qualificati"), as defined in
Article 31, second paragraph, of CONSOB Regulation No. 11522 of July
1, 1998, as amended;
(ii) in circumstances which are exempted from the rules on solicitation
of investments pursuant to Article 100 of Legislative Decree No. 58
of February 24, 1998 (the "Financial Services Act") and Article 33,
first paragraph, of CONSOB Regulation No. 11971 of May 14, 1999, as
amended; or
(iii) to an Italian resident who submits an unsolicited offer to purchase
Notes.
Any offer, sale or delivery of Notes or distribution of copies of this
Offering Circular or any other document relating to the Notes in the
Republic of Italy under (i) or (ii) above must be:
(a) made by an investment firm, bank or financial intermediary permitted
to conduct such activities in the Republic of Italy in accordance
with the Financial Services Act and Legislative Decree No. 385 of
September 1, 1993 (the "Banking Act"), as amended; and
(b) in compliance with Article 129 of the Banking Act and the
implementing guidelines of the Bank of Italy pursuant to which the
issue or the offer of securities in the Republic of Italy may need
to be preceded and followed by an appropriate notice to be filed
with the Bank of Italy depending, inter alia, on the aggregate value
of the securities issued or offered in the Republic of Italy and
their characteristics.
6. The Netherlands
Each Dealer represents and agrees and each further Dealer appointed under
this Agreement will be required to represent and agree that, in respect of
Notes issued, with the exception of those having a denomination of at
least euro 50,000 or the equivalent thereof in other currencies, it has
not, directly or indirectly, offered, sold, transferred or delivered in
The Netherlands and will not, directly or indirectly, offer, sell,
transfer or deliver in The Netherlands any Notes (including rights
representing an interest in a global Note) to the account of any person or
entity other than to persons or entities who trade or invest in securities
in the conduct of a profession or business within the meaning of the
Securities Transactions Supervision Act 1995 (Wet toezicht effectenverkeer
1995) (the "Dutch Act")
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and its implementing regulations (which includes banks, pension funds,
insurance companies, securities firms, investment institutions and
treasuries and finance companies of large enterprises which trade or
invest in securities), unless (a) another exemption as provided for in the
Dutch Act or any of its implementing regulations applies and the
requirements applicable to such exemption are complied with, or (b) the
Securities Board of The Netherlands has upon request granted an individual
exemption and the requirements applicable to such exemption are complied
with, or (c) the prohibition of section 3, sub-section 1 of the Dutch Act
does not apply.
7. Austria
Each Dealer represents and agrees and each further Dealer appointed under
this Agreement will be required to represent and agree that it will offer
and sell Notes only in compliance with the Capital Markets Act
("Kapitalmarktgesetz") of 1992 and any other pertinent Austrian
legislation or decrees of public authorities.
8. Cayman Islands
No invitation may be made by any Dealer to the public in the Cayman
Islands to purchase any Notes unless such Notes are listed on the Cayman
Islands Stock Exchange at such time.
9. General
Each Dealer has agreed and each further Dealer appointed under this
Agreement will be required to agree that it will (to the best of its
knowledge and belief) comply with all applicable securities laws and
regulations in force in any jurisdiction in which it purchases, offers,
sells or delivers Notes or possesses or distributes the Offering Circular
and will obtain any consent, approval or permission required by it for the
purchase, offer, sale or delivery by it of Notes under the laws and
regulations in force in any jurisdiction to which it is subject or in
which it makes such purchases, offers, sales or deliveries and neither the
Issuer, the Guarantor nor any Dealer shall have any responsibility
therefor.
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SCHEDULE 6
FORM OF PROCEDURES MEMORANDUM
BEAR XXXXXXX GLOBAL ASSET HOLDINGS, LTD.
as Issuer
THE BEAR XXXXXXX COMPANIES INC.
as Guarantor
U.S.$1,500,000,000
NOTE ISSUANCE AGREEMENT
----------------------------------
OPERATING & ADMINISTRATIVE
PROCEDURES MEMORANDUM
------------------------------------
[XXXXX & XXXXX LOGO]
New York
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This Memorandum sets forth the operating, settlement, administrative and other
procedures initially agreed between Bear Xxxxxxx Global Asset Holdings, Ltd.
(the "Issuer"), The Bear Xxxxxxx Companies Inc. (the "Guarantor"), JPMorgan
Chase Bank, acting through various offices in its capacities as Agent (the
"Agent"), Paying Agents (the "Paying Agents"), Registrar (the "Registrar"),
Transfer Agents (the "Transfer Agents") and Exchange Agent (the "Exchange
Agent"), Bear, Xxxxxxx International Limited and Bear, Xxxxxxx & Co. Inc. in the
Amended and Restated Note Issuance Agreement between those parties dated June
28, 2002 as the same may be amended, restated, modified, varied, supplemented or
novated from time to time (the "Note Issuance Agreement") in connection with the
issues of Notes from time to time thereunder. The Issuer, the relevant Dealer
(as defined in the Note Issuance Agreement), the Agent and, in the case of an
issue of Registered Notes, the Registrar, may agree to vary these procedures in
respect of any issue of Notes. Terms used herein shall, unless the context
otherwise requires, have the meanings given to them under the Note Issuance
Agreement and the Offering Circular and, in the case of conflict between the
provisions of this Memorandum and any of the provisions of those documents, the
provisions of those documents shall prevail. In particular, references herein to
the "relevant Dealer" are to the Dealer or Dealers with whom the Issuer has
agreed upon the issue of a particular Tranche or Issue of Notes.
The aggregate nominal amount of all Notes outstanding at any time will not,
subject as provided below, exceed U.S.$1,500,000,000 or its equivalent in other
currencies at the time of agreement to issue subject to the terms of the Note
Issuance Agreement. The Note Issuance Agreement provides for the increase in the
nominal amount of Notes that may be issued thereunder. In that event, this
Procedures Memorandum shall apply to the Note Issuance Agreement as increased.
The Note Issuance Agreement provides for the issue of Notes denominated in any
currency or currencies as may be agreed between the Issuer and the relevant
Dealer, with a minimum maturity of one month (subject to certain restrictions as
to minimum and/or maximum maturities as set out in the Offering Circular
describing the Programme) and being any of:
o Fixed Rate Notes
o Floating Rate Notes
o Zero Coupon Notes
o Dual Currency Notes
o Linked Notes
o Indexed Interest Notes
o Indexed Redemption Amount Notes
o Instalment Notes
o Partly Paid Notes
o Other forms of Notes agreed between the relevant Dealer, the Agent
and the Issuer
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OPERATING PROCEDURES
Dealers must confirm all trades directly with the Issuer, the Guarantor and the
Agent.
A. RESPONSIBILITIES OF THE AGENT
The Agent will, in addition to the responsibilities in relation to
settlement described in Annex A, be responsible for the following:
(i) in the case of Notes which are to be listed on a Stock Exchange,
distributing to the Stock Exchange such number of copies of the
Pricing Supplement as the relevant Stock Exchange may reasonably
require;
(ii) in the case of Notes which are to be listed on a Stock Exchange,
immediately notifying the Issuer and the relevant Dealer if at any
time the Agent is notified by the Listing Agent or the Stock
Exchange that the listing of a Series of Notes had been refused or
otherwise will not take place; and
(iii) determining the end of the distribution compliance period in respect
of a Tranche in accordance with clause 4 of the Note Issuance
Agreement. The Agent shall upon determining the end of the
distribution compliance period in respect of any Tranche notify the
Issuer and the relevant Dealer or Lead Manager, as the case may be.
B. RESPONSIBILITIES OF DEALER/LEAD MANAGER
(i) Each Dealer/Lead Manager will be responsible for preparing and
agreeing with the Issuer a Pricing Supplement (substantially in the
form of Annex D) setting out details of each Tranche of Notes to be
issued.
(ii) Except in the case of a syndicated issue, each Dealer which agrees
to purchase Notes from the Issuer will be responsible for notifying
the Agent upon completion of the distribution of the Notes of each
Tranche purchased by that Dealer. In the case of a syndicated issue
of Notes, the Lead Manager will be responsible for notifying the
Agent upon completion of the distribution of the Notes of such
syndicated issue.
C. SETTLEMENT
The settlement procedures set out in Annex A shall apply to each issue of
Notes (Part 1 in the case of non-syndicated issues, Part 2 in the case of
syndicated issues), unless otherwise agreed between the Issuer, the
Guarantor and the relevant Dealer or the Lead Manager, as the case may be.
With issues of Dual Currency or Indexed Notes or Notes the terms and
conditions of which are not specifically contemplated in the Note Issuance
Agreement more time may be required to settle documentation and with Notes
which are to be listed on a Stock Exchange other than the Luxembourg Stock
Exchange more time may be required to comply with the relevant Stock
Exchange's requirements.
A Trading Desk and Administrative Contact List is set out in Annex E.
Explanatory Notes to Annex A
(a) Each day is a day on which banks and foreign exchange markets are open for
business in London, counted in reverse order from the proposed Issue Date.
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(b) The Issue Date must be a Business Day. For the purposes of this
Memorandum, "Business Day" means a day which is both:
(i) a day on which commercial banks and foreign exchange markets settle
payments and are open for general business (including dealings in
foreign exchange and foreign currency deposits) in London and, in
the case of an issue of Registered Notes, New York City; and
(ii) either (A) in relation to Notes denominated in a Specified Currency
other than euro, a day on which commercial banks and foreign
exchange markets settle payments in the principal financial centre
of the country of the relevant Specified Currency (if other than
London and which if the Specified Currency is Australian dollars or
New Zealand dollars, shall be Sydney or Auckland respectively) or
(B) in relation to Notes denominated in euro, a day on which the
TARGET system is open.
(c) Times given are the approximate times for the taking of the action in
question and are references to London time (unless otherwise indicated).
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ANNEX A
PART 1
SETTLEMENT PROCEDURES FOR NON-SYNDICATED ISSUES
Latest
Day time Action
No later than 2:00 p.m. The Issuer and the Guarantor may agree with a
Issue Date Minus 3 relevant Dealer for the issue and purchase of
Notes (whether pursuant to an unsolicited bid
from a relevant Dealer or pursuant to an enquiry
by the Issuer).
3.00 p.m. If a relevant Dealer has reached agreement with
the Issuer by telephone, such relevant Dealer
confirms the terms of the Agreement to the Issuer
by telex or fax (substantially in the form set out
Annex B) attaching a copy of the applicable
Pricing Supplement (substantially in the form set
out in Annex D). The details set out in this telex
or fax shall, once countersigned or confirmed by
the Issuer, be conclusive evidence of the
agreement (save in the case of manifest error) and
shall be binding on the parties accordingly.
4.00 p.m. The Issuer confirms its instructions to the Agent
and the Registrar, in the case of Registered
Notes, to carry out the duties to be carried out
by them under these Settlement Procedures and the
Note Issuance Agreement (including, in the case of
Floating Rate Notes, for the purposes of rate
fixing) by sending a confirmation (substantially
in the form set out in Annex C (the
"Confirmation")) to them together with a copy of
the applicable Pricing Supplement by telex or fax.
The Issuer also sends the Confirmation to the
relevant Dealer for information.
In the case of the first Tranche of Notes of a
Series, the Agent or, in the case of Registered
Notes (if applicable), the Registrar [, in the
case of Reg. S Notes and/or Bearer Notes,]
telephones each of Euroclear and Clearstream,
Luxembourg with a request for a common code and
ISIN for such Series and in the case of a
subsequent Tranche of Notes of that Series the
Agent telephones each of Euroclear and
Clearstream, Luxembourg with a request for a
temporary common code and ISIN for such Tranche.
In the case of the first Tranche of Registered
Notes of a Series, the Registrar also selects the
next available CUSIP and/or (in the case of Reg. S
Notes) CINS numbers from the list provided by
Standard & Poor's, for such Series. Each common
code, ISIN, CUSIP and/or CINS number is notified
by the Agent or the Registrar, as the case may be,
by telephone, telex or fax to the Issuer and the
relevant Dealer.
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No later than 3:00 p.m. In the case of Floating Rate Notes, the Agent
Issue Date notifies Euroclear, Clearstream, Luxembourg, the
Minus 2 Issuer, the relevant Stock Exchange, the Lead
Manager, and, in the case of Registered Notes, DTC
and the Registrar, by telex or fax of the Rate of
Interest for the first Interest Period (if already
determined). Where the Rate of Interest has not
yet been determined, this will be notified by the
Agent in accordance with this paragraph as soon as
it has been determined.
4:30 p.m. The relevant Dealer: (a) in the case of Bearer
Notes and Reg. S Notes instructs Euroclear and/or
Clearstream, Luxembourg to debit its account and
pay the purchase price, (save as otherwise
instructed) against delivery of the Notes to the
Agent's account with Euroclear and/or Clearstream,
Luxembourg on the Issue Date and the Agent
receives details of such instructions through the
records of Euroclear and/or Clearstream,
Luxembourg; and (b) in the case of Registered
Notes, notifies DTC of the participant accounts to
be credited with interests in the Registered
Global Notes to be issued.
No later than 2.00 p.m. In the case of Notes which are to be listed on a
Issue Date (in the Stock Exchange, the Agent notifies (or arranges
Minus 1 location for notification of) the relevant Stock Exchange
of the by fax or by hand of the details of the Notes to
relevant be issued by sending the Pricing Supplement
Stock (substantially in the form set out in Annex D)
Exchange to the relevant Stock Exchange and will publish
(or arrange for the publication of) any formal
notice in accordance with the requirements of
the relevant Stock Exchange.
3.00 p.m. In the case of Bearer Notes, the Agent prepares
and authenticates a Temporary Bearer Global Note
for each Tranche of Bearer Notes which is to be
purchased and, in the case of the first Tranche of
a Series where the applicable Pricing Supplement
does not specify that such Temporary Bearer Global
Note is to be exchangeable only for Bearer Notes
in definitive form, a Permanent Bearer Global Note
in respect of such Series. The Temporary Bearer
Global Note and any such Permanent Bearer Global
Note are then delivered by the Agent to a common
depositary for Euroclear and Clearstream,
Luxembourg and instructions are given by the Agent
to Euroclear or, as the case may be, Clearstream,
Luxembourg to credit the Bearer Notes represented
by such Temporary Bearer Global Note to the
Agent's distribution account. The Agent further
instructs Euroclear or, as the case may be,
Clearstream, Luxembourg to debit from the
distribution account the nominal amount of the
relevant Tranche of Bearer Notes for value on the
Issue Date. The relevant Dealer gives
corresponding instructions to Euroclear or
Clearstream, Luxembourg. The parties (which for
this purpose shall include the Agent) may agree to
arrange for "free delivery" to be made through the
relevant clearing system if specified in the
applicable Pricing Supplement, in which case these
settlement procedures will be amended accordingly.
In the case of Registered Notes, the Registrar
prepares and authenticates Registered Global
Note(s) and, if applicable, Definitive Registered
Notes for each Tranche of Notes which is to
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be purchased. Each Registered Global Note is then
delivered by the Registrar to a custodian for DTC
to credit the principal amount of the relevant
Tranche of Registered Notes to the appropriate
participants' accounts of DTC previously notified
to the relevant Dealer. The relevant Dealer
instructs DTC to credit the interests in the
Registered Global Notes representing Notes
purchased by or through such Dealer to such
accounts as the Dealer has directed DTC and/or
Euroclear and/or Clearstream, Luxembourg.
Issue Date DTC and/or Euroclear and/or Clearstream,
Luxembourg debit and credit accounts in accordance
with instructions received by them. (In the case
of Euroclear and/or Clearstream, Luxembourg, this
will take place overnight between the Issue Date
Minus One and the Issue Date).
In the case of Bearer Notes, the Agent or, in the
case of Registered Notes, the Registrar, pays to
the Issuer for value on the Issue Date the
aggregate purchase moneys received by it to such
account of the Issuer as shall have been notified
to the Agent or the Registrar, as the case may be,
for the purpose in the Confirmation.
The Agent or the Registrar, as the case may be,
notifies the Issuer forthwith in the event that a
Dealer does not pay the purchase price due from it
in respect of a Note.
On or In the case of Bearer Notes, the Agent or, in
subsequent to the case of Registered Notes, the Registrar
the Issue Date notifies the Issuer of the issue of the Notes
giving details of each of the Notes issued and the
nominal sum represented thereby.
The relevant Dealer promptly notifies the Agent
that the distribution of the Notes purchased by it
has been completed. The Agent promptly notifies
the Issuer, the relevant Dealer, Euroclear and
Clearstream, Luxembourg of the date of the end of
the Distribution Compliance Period with respect to
the relevant Tranche of Notes.
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PART 2
SETTLEMENT PROCEDURES FOR SYNDICATED ISSUES
Latest
Day time Action
No later than - The Issuer and the Guarantor may, subject to
Issue Date minus the execution of the Syndication Agreement
10 (or such referred to below, agree terms with a relevant
other number of Dealer (which expression in this Part 2
days agreed includes any entity to be appointed as a dealer
between the under the Syndication Agreement referred to
Issuer and the below) (the "Lead Manager") for the issue and
Lead Manager) purchase of Notes on a syndicated basis (whether
pursuant to an unsolicited bid by such Lead
Manager or pursuant to an enquiry by the Issuer).
The Lead Manager invites other Dealers (new or
additional) approved by the Issuer to join the
underwriting syndicate either on the basis of an
invitation telex agreed between the Issuer and the
Lead Manager or on the terms of the Pricing
Supplement referred to below and the Syndication
Agreement. The Lead Manager and such Dealers are
together referred to as the "Managers".
The Issuer and the Lead Manager agree a form of
Pricing Supplement (in substantially the form of
Annex D) which is submitted to the lawyers
rendering a legal opinion in connection with the
relevant issue for approval. A copy is then passed
to the Agent and, in the case of Registered Notes,
the Registrar. A draft Syndication Agreement (in
substantially the form of Schedule 14 to the Note
Issuance Agreement or such other form as may be
agreed between the Issuer and the Lead Manager) is
also prepared and agreed. The Syndication
Agreement may, if so agreed, be called by another
name. The Syndication Agreement is executed and a
copy sent to the Agent and, in the case of
Registered Notes, the Registrar, which shall act
as the Agent's or, as the case may be, Registrar's
authorisation to carry out the duties to be
carried but by it under these Settlement
Procedures and the provisions of the Note Issuance
Agreement.
In the case of the first Tranche of Notes of a
Series, the Agent or, in the case of Registered
Notes, the Registrar, in the case of Reg. S Notes
and/or Bearer Notes, telephones each of Euroclear
and Clearstream, Luxembourg with a request for a
common code and ISIN for such Series and in the
case of a subsequent Tranche of Notes of that
Series the Lead Manager telephones Euroclear
and/or Clearstream, Luxembourg with a request for
a temporary common code and ISIN for such Tranche.
In the case of the first Tranche of Registered
Notes of a Series, the Agent also selects the next
available CUSIP and/or (in the case of Reg. S
Notes) CINS number from the list provided by
Standard & Poors for such Series. Each common
code, ISIN, CUSIP and/or CINS number is notified
by the Agent or the Registrar, as the case may be,
by telephone, telex or by fax to the Issuer and
the Lead Manager.
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Day time Action
No later than 3:00 p.m. In the case of Floating Rate Notes, the Agent
Issue Date minus notifies Euroclear, Clearstream, Luxembourg, 2 the
Issuer, the relevant Stock Exchange, the Lead
Manager and, in the case of Registered Notes, DTC
and the Registrar, by telex or fax of the Rate of
Interest for the first Interest Period (if already
determined). Where the Rate of Interest has not
yet been determined, this will be notified by the
Agent in accordance with this paragraph as soon as
it has been determined.
4.30 p.m. In respect of Notes to be resold pursuant to Rule
144A, each Manager notifies DTC of the participant
accounts to be credited with interests in the
Restricted Global Note(s) to be issued; in respect
of Notes to be sold pursuant to Regulation S under
the Securities Act, the Lead Manager notifies
Euroclear and Clearstream, Luxembourg of the
relevant accounts to be credited with Notes
represented by interests in the Reg. S Global
Note(s) to be issued.
In the case of Managers purchasing Notes through
Euroclear or Clearstream, Luxembourg, the Lead
Manager instructs Euroclear and/or Clearstream,
Luxembourg, subject to further instructions, on
the Issue Date or, in the case of Notes
denominated in a currency requiring a pre-closing,
the Issue Date minus 1, to debit its account and
pay the purchase price against delivery of the
Notes as instructed by the Lead Manager on the
Issue Date, to the account specified by the
Issuer.
Issue Date Minus 1 2:00 p.m. In the case of Notes to be listed on a Stock
(in the Exchange, the Agent notifies (or arranges for
location notification of) the relevant Stock
of the Exchange by fax or by hand of details of the Notes
relevant to be issued by sending the Pricing Supplement
Stock (substantially in the form of Annex D) to the
Exchange) relevant Stock Exchange and will publish (or
arrange for the publication of) any formal notice
in accordance with the requirements of the
relevant Stock Exchange.
Issue Date Minus 1 agreed In the case of Bearer Notes, the Agent prepares
(in the case of time and authenticates the Temporary Bearer Global Note
pre-closed for each Tranche of Notes which is to be
issues) or Issue purchased, and in the case of the first Tranche of
Date (in any other a Series where the Pricing Supplement for such
case) Tranche does not specify that such Temporary
Bearer Global Note is to be exchangeable only for
Notes in definitive form, a Permanent Bearer
Global Note for such Series. The conditions
precedent in the Syndication Agreement are
satisfied and/or waived. The Temporary Bearer
Global Note and any such Permanent Bearer Global
Note are then delivered by the Agent to a common
depositary for Euroclear and Clearstream,
Luxembourg and instructions are given by the Agent
(on behalf of the Issuer) to the common depositary
to hold the Notes represented by such Temporary
Bearer Global Note to the Issuer's order. Any such
Permanent Bearer Global Note is held by the common
depositary for the account of the Agent. The
Issuer instructs the common
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Latest
Day time Action
depositary to credit such nominal amount of the
relevant Tranche of Bearer Notes to the accounts
of the person entitled thereto with Euroclear or
Clearstream, Luxembourg against payment to the
specified account of the Issuer of the purchase
price for the relevant Tranche of Notes for value
on the Issue Date. The parties (which for this
purpose shall include the Agent) may agree to
arrange for "free delivery" to be made through the
relevant clearing system if specified in the
applicable Pricing Supplement, in which case these
Settlement Procedures will be amended accordingly.
In the case of Registered Notes, the Registrar
prepares and authenticates the Registered Global
Notes and, if applicable, Definitive Registered
Notes for each Tranche of Registered Notes to be
purchased. The conditions precedent in the
Syndication Agreement are satisfied and/or waived.
The Registered Global Notes are then delivered by
the Registrar to a custodian, for DTC to credit
the nominal amount of the relevant Tranche to the
relevant participants' accounts previously
notified by the Lead Manager.
In respect of Registered Notes resold pursuant to
Rule 144A, each Manager instructs DTC to credit
the interests in the Restricted Global Note(s)
representing Registered Notes purchased by each
Manager to such participant accounts as it has
previously notified to DTC; in respect of Notes
sold pursuant to Regulation S under the Securities
Act, the Lead Manager instructs Euroclear and
Clearstream, Luxembourg to credit the interests in
Reg. S Global Note(s) to Euroclear or Clearstream,
Luxembourg.
Issue Date DTC and/or Euroclear and/or Clearstream,
Luxembourg debit and credit accounts in accordance
with instructions received by them. (In the case
of Euroclear and/or Clearstream, Luxembourg, this
will take place on the Issue Date Plus 1 with a
back valuation to the Issue Date).
On or subsequent In the case of Bearer Notes, the Agent or, in
to the Issue Date the case of Registered Notes, the Registrar
notifies the Issuer of the issue of the Notes
giving details of nominal amount of each of the
Notes issued. Each Manager promptly notifies the
Lead Manager when the distribution of the Notes
purchased by it has been completed and the Lead
Manager promptly notifies the Agent upon
completion of the distribution of the Notes of the
relevant Tranche. The Agent promptly notifies the
Issuer, the Lead Manager, DTC, Euroclear and
Clearstream, Luxembourg (as applicable) of the
date of the end of the Distribution Compliance
Period with respect to the relevant Tranche of
Notes.
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ANNEX B
FORM OF DEALER'S CONFIRMATION TO ISSUER
FOR NON-SYNDICATED ISSUES
[Date]
To: Bear Xxxxxxx Global Asset Holdings, Ltd.
c.c. JPMorgan Chase Bank
Bear Xxxxxxx Global Asset Holdings, Ltd.
[Title of relevant Series of Notes (specifying type of Notes)]
issued pursuant to the Amended and Restated Note Issuance Agreement
dated June 28, 2002 (the "Note Issuance Agreement")
We hereby confirm our agreement for the purchase by us of Notes under the Note
Issuance Agreement pursuant to the terms of issue set out in the form of Pricing
Supplement attached hereto.
[The selling commission in respect of the Notes will be ........ per cent. of
the principal amount of the Notes and will be deductible from the net proceeds
of the Issue.] Please confirm your agreement to the terms of issue by signing
and returning a copy of this Confirmation (including the form of Pricing
Supplement attached hereto) or otherwise confirm in writing or by telex to us
your agreement hereto.
[Name of Dealer]
By:
We confirm our agreement as set out above and in the form of Pricing Supplement
attached hereto.
Bear Xxxxxxx Global Asset Holdings, Ltd.
By:
[FORM OF PRICING SUPPLEMENT ATTACHED]
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ANNEX C
FORM OF ISSUER'S CONFIRMATION TO AGENT AND DEALER
FOR ISSUES OF NOTES ON A NON-SYNDICATED BASIS
[Date]
To: JPMorgan Chase Bank
and: [Name of Dealer]
Bear Xxxxxxx Global Asset Holdings, Ltd.
[Title of relevant Series of Notes (specifying type of Notes)]
issued pursuant to the Amended and Restated Note Issuance Agreement
dated June 28, 2002 (the "Note Issuance Agreement")
Terms defined in the Procedures Memorandum and the Note Issuance Agreement have
the same meanings herein.
We hereby confirm our telephone instruction to you as Agent to undertake the
duties set out in Part 1 of Annex A of the Procedures Memorandum appearing as
Schedule 6 to the Note Issuance Agreement including, as required, giving
instructions to Euroclear or Clearstream, Luxembourg or DTC to credit the
account number ....... with [Euroclear/Clearstream, Luxembourg/DTC/other] (1) of
[name of Dealer] with the Notes described in the confirmation from the Dealer to
us and copied to you together with a form of Pricing Supplement against payment
to the account of ....... with [Euroclear/Clearstream, Luxembourg/DTC/other] (1)
of ......., being the net purchase monies of such Notes.
Bear Xxxxxxx Global Asset Holdings, Ltd.
By:
----------------
(1) Delete as appropriate.
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ANNEX D
FORM OF PRICING SUPPLEMENT
[Date]
BEAR XXXXXXX GLOBAL ASSET HOLDINGS, LTD.
[Title of relevant Series of Notes (specifying type of Notes)]
issued pursuant to the Amended and Restated
Note Issuance Agreement dated June 28, 2002
as amended, restated and supplemented from time to time
(the "Note Issuance Agreement")
This document constitutes the Pricing Supplement relating to the issue of Notes
described herein. Terms used herein shall be deemed to be defined as such for
the purposes of the conditions set forth in the Offering Circular dated June 28,
2002. This Pricing Supplement must be read in conjunction with such Offering
Circular.
Terms used herein shall be deemed to be defined as such for the purposes of the
Conditions.
[Include whichever of the following apply]
1. Name of:
(a) Issuer; and
(b) Guarantor
2. Series Number (of each Tranche, if [ ]
applicable) and, if not a new Series, the
date from which the Tranche being issued
will form a single Series with the other
Notes comprised in that Series:
3. Whether Notes are in bearer and/or [ ]
registered form:
4. Whether Notes will initially be [Temporary Bearer Global Note -
represented by a Temporary Bearer Global [ ]/Reg. S Global Note -
Note and/or Restricted Global Note and/or [ ]/Restricted Global Note -
Reg. S Global Note and/or definitive [ ] Definitive Registered Notes -
Registered Notes and, in each case, the [ ]]
initial aggregate nominal amount which
each such global Note will represent
and/or of definitive Registered Notes to
be issued:
5. Specified Currency (or currencies in the [ ]
case of Dual Currency Notes):
6. Aggregate Nominal Amount: [ ]
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7. Interest Payment Basis and, if more than Fixed Rate Notes/Floating Rate Notes/
one, the dates during which each Zero Coupon Notes/Indexed Redemption
Interest/Payment Basis will apply and/or Amount Notes/Indexed Interest Notes/
details as to if convertible Linked Notes/Dual Currency Notes/
automatically or at option of Issuer Partly Paid Notes
and/or Noteholders into Notes of another
Interest/Payment Basis:
8. Issue Date: [ ]
9. Specified Denominations: [ ]
10. Issue Price: [ ]
11. Details relating to Partly Paid Notes; [ ]
amount of each payment comprising the
Issue Price and date on which each
payment is to be made and consequences
(if any) of failure to pay:
12. Interest Commencement Date (for interest [ ]
bearing Notes):
13. Maturity Date: [ ]
14. Final Redemption Amount: [ ]% per [ ] in nominal amount
15. Instalment Dates [ ]
(Notes redeemable in instalments):
16. Instalment Amounts (Notes redeemable in [ ]% per [ ] in nominal amount
instalments):
17. Fixed Rate(s) of Interest (Fixed Rate [ ]% per cent. [ ] per annum
Notes):
18. Fixed Interest Date(s) (Fixed Rate Notes): [ ]
19. Initial Broken Amount (Fixed Rate Notes): [ ]% per [ ] in nominal amount
20. Final Broken Amount (Fixed Rate Notes): [ ]% per [ ] in nominal amount
21. Determination Date(s) (Fixed Rate Notes): [ ] in each year
[Insert interest payment dates except
where there are long or short periods.
In these cases, insert regular payment
dates] (NB: Only relevant where Day
Count Fraction is Actual/Actual
(ISMA))
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22. Interest Period(s) and Interest Payment [ ]
Date(s) (Floating Rate Notes/Indexed
Interest Notes):
23. Applicable Business Day Convention [ ]
(Floating Rate Notes/Indexed Interest
Notes):
24. Manner in which the Rate of Interest is [ISDA Determination/Screen Role
to be determined (Floating Rate Determination/other (give details)]
Notes/Indexed Interest Notes):
25. Margin (Floating Rate Notes/Indexed [+/-] [ ] per cent. per annum
Interest Notes):
26. Details of: [ ]
(a) the "Floating Rate Option";
(b) the "Designated Maturity"; and
(c) the "Reset Dates",
if other than as provided in Condition
6(b)(iii)(C) (ISDA Determination):
27. Reference Rate (Screen Rate
Determination):
28. Interest Determination Date(s) (Screen [The second London Business Day as
Rate Determination): defined in Condition 5(b)(viii) prior to
the commencement of the relevant
Interest Period (in the case of Notes
denominated in any Specified Currency
other than Sterling)]. [The first day
of the relevant Interest Period [(in
the case of Notes denominated in
Sterling)]/[other]
29. Relevant Screen Page (Screen Rate [ ]
Determination):
30. The party responsible for calculating the [ ]
Rate of Interest and Interest Amount (if
not the Agent) (Floating Rate Notes):
31 Applicable "Business Day" definition and [ ]
relevant convention (for the purposes of
Condition 5(a)(i)) (Floating Rate
Notes/Indexed Interest Notes):
32. Minimum Rate of Interest (Floating Rate [ ] per cent. per annum
Notes):
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33. Maximum Rate of Interest (Floating Rate [ ] per cent. per annum
Notes):
34. The denominator for calculating the [ ]
Interest Amount (if different from that
in Condition 5(b)(vii)) (Floating Rate
Notes):
35. Accrual Yield (Zero Coupon Notes): [ ] per cent. per annum
36. Reference Price (Zero Coupon Notes): [ ]
37. Any other formula/basis of determining [ ]
amount payable (Zero Coupon Notes): (Consider applicable day count
fraction if not U.S. dollar
denomination)
38. Index and Index Formula (Indexed Notes): [give details]
39. (a) Agent responsible for [ ]
calculating the principal and/or
interest due (Indexed Notes):
(b) Provisions where calculation by [ ]
reference to Index and/or
Formula is impossible or
impracticable (Indexed Notes):
(c) Name of Sponsor [ ]
(Indexed Notes):
(d) [Stock Exchange/Related [ ]
Exchange]:
(e) Valuation Date: [ ]
40. (a) Underlying Securities and/or [ ]
Formula to be used to determine
principal and/or interest or the
Securities Amount (Linked Notes):
(b) Settlement by way of cash and/or [ ]
physical delivery (Linked Notes):
(c) Issuer [/Noteholder] option to [Yes/No]
vary method of settlement and,
if yes, method of election, and
procedure, for variation of
settlement (Linked Notes):
(d) If settlement is by way of
physical delivery (Linked
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Notes):
(i) method of delivery of [ ]
Securities Amount [and
consequences of a
Settlement Disruption
Event];
(ii) details of how and when [ ]
Transfer Notice is to
be delivered; and
(iii) details of how [ ]
entitlement to
Securities Amount will
be evidenced:
(e) The party responsible for
calculating the amount of
principal and/or interest or the
Securities Amount (if not the
Agent) (Linked Notes): [ ]
(f) Provisions where calculation by
reference to the Underlying
Securities and/or Formula is
impossible or impracticable
(Linked Notes): [ ]
(g) Details of any other relevant
terms, any stock exchange
requirements/tax considerations
(including details of person
responsible for Transfer Expenses [ ]
- if different from Condition
7(e)) (Linked Notes):
(h) Method of calculating Early
Redemption amount (if for reasons
other than following a redemption
for tax reasons or an Event of
Default) (Linked Notes): [ ]
(i) ISDA Credit Derivatives
Definitions applicable (Linked [ ]
Notes):
(j) Such other additional terms or [ ]
provisions as may be required
(Linked Notes):
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41. (a) Rate of Exchange/method of [give details]
calculating Rate of Exchange [ ]
(Dual Currency Notes):
(b) Agent, if any, responsible for [ ]
calculating the principal and/or
interest payable (Dual Currency
Notes):
(c) Provisions where calculation by [ ]
reference to Rate of Exchange
impossible or impracticable
(Dual Currency Notes):
(d) Person at whose option Specified [ ]
Currencies is/are payable (Dual
Currency Notes):
(e) Any special U.S. tax [ ]
considerations applicable to
Dual Currency Notes:
42. Issuer's Optional Redemption: [Yes/No]
If yes,
(a) Optional Redemption Date(s): [ ]
(b) Optional Redemption Amount of
each Note and method, if any, of
calculation of such amount(s): [ ]
(c) If redeemable in part
(i) Minimum Redemption [ ]
Amount
(ii) Maximum Redemption [ ]
Amount
43. Redemption at the Option of the [Yes/No]
Noteholders:
If yes,
(a) Optional Redemption Date(s): [ ]
(b) Optional Redemption Amount of
each Note and method, if any, of
calculation of such amount(s): [ ]
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44. Early Redemption Amounts payable on
redemption for taxation reasons or
following an Event of Default and/or the
method of calculating the same (if
required or if different from that set out [ ]
in Condition 7(e)):
45. Definition of "Payment Business Day" if [ ]
different from Condition 6(c):
46. Talons for future Coupons or Receipts to
be attached to Definitive Notes (and [Yes/No. If yes, give details]
dates on which such Talons mature):
47. Where applicable, whether interests in the
Temporary Bearer Global Note are [Permanent Bearer Global Note/
exchangeable for interests in the Definitive Bearer Notes only/
Permanent Bearer Global Note or for Definitive Registered Notes]
Definitive Bearer Notes only and whether
interests in Registered Global Notes are
exchangeable for Definitive Registered
Notes:
[ ]
48. Other terms or special Conditions,
including whether Redenomination applies:
49. Additional transfer restrictions: [give details]
50. Additional selling restrictions: [give details]
51. Method of distribution: [Syndicated/Non-Syndicated]
52. (a) If syndicated, names of Managers [Give details]
and, if non-syndicated, name of
Dealer:
(b) Presumption that [Yes/No]
[Dealer/Managers] [is/are]
selling as principal for its own
account, and not as agent, is
correct:
53. Details of the relevant stabilising [ ]
manager:
54. Details of additional/alternative [ ]
clearance system approved by the Issuer,
the Guarantor and the Agent:
55. Rating of Notes (if different from rating [ ]
of Programme):
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56. Notes to be listed on a [Yes (give details)/No]
Stock Exchange:
-------------------------------------------------------------------------
(1) Euroclear and Clearstream, Luxembourg Common Code: * ISIN:
CUSIP: * CINS:
-------------------------------------------------------------------------
For and on behalf of Bear Xxxxxxx Global Asset Holdings, Ltd.
By: ...............................
Authorised Signatory
----------------
(1) Reg. S Notes and Bearer Notes only
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ANNEX E
TRADING DESK AND ADMINISTRATIVE INFORMATION
The Issuer
Bear Xxxxxxx Global Asset Holdings, Ltd. Telephone: (000) 000 0000
X.X. Xxx 000, Xxxxxx Xxxx, Xxxxx Xxxxxx Facsimile: (000) 000 0000
Cayman Islands, BWI Attention: Xxx Xxxxxx
The Guarantor
The Bear Xxxxxxx Companies Inc. Telephone: (000) 000 0000
000 Xxxxxxx Xxxxxx Telex: 17780BEARCO UT
Xxx Xxxx, XX 00000 Facsimile: (000) 000 0000
Attention: Treasury
The Dealers
Bear, Xxxxxxx International Limited Telephone: 00 000 000 0000
One Canada Square Telex: 8811424 BEARCO G
Xxxxxx X00 0XX Facsimile: 44 207 516 6251
Attention: Derivatives Desk
Bear, Xxxxxxx & Co. Inc. Telephone: (000) 000 0000
000 Xxxxxxx Xxxxxx Telex: 17780 BEARCO UT
Xxx Xxxx, XX 00000 Facsimile: (000) 000 0000
Attention: Xxx Xxxxxx
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SCHEDULE 7A
FORM OF TRANSFER NOTICE - EUROCLEAR AND CLEARSTREAM, LUXEMBOURG
Bear Xxxxxxx Global Asset Holdings, Ltd.
[Title of Linked Notes]
issued pursuant to the Amended and Restated Note Issuance Agreement
dated June 28, 2002
Common Code: ......
When completed, this Notice should be delivered in writing, or by tested telex
confirmed in writing, to whichever of Euroclear or Clearstream, Luxembourg
records on its books the Notes referred to below, with a copy to the
[Settlement] Agent at its office specified below.
To: * Euroclear Bank S.A./N.V.
(as operator of the Euroclear System)
0 Xxxxxxxxx xx Xxx Xxxxxx XX
X-0000 Xxxxxxxx
Xxxxxxx
Attention: Custody Processing Department
Telex: 61025 MGTEC B
or Clearstream Banking, societe anonyme
00 Xxxxxxxxx Xxxxxx-Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxx-Xxxxx
X-0000 Xxxxxxxxxx
Attention: OCE Department
Telex: 2791
Failure properly and completely to deliver this Notice (in the sole and absolute
determination of Euroclear or Clearstream, Luxembourg, as the case may be, in
consultation with the [Settlement] Agent) may result in this Notice being
treated as null and void.
I/We(1) being or representing the Accountholder(s) specified in 1. below, being
the Accountholder(s) of the Notes referred to below, hereby irrevocably
authorise Bear Xxxxxxx Global Asset Holdings, Ltd. (the "Issuer") to deliver
and, if applicable, pay the Securities Amount to which I/we(1) am/are(1)
entitled in relation to such Notes, in accordance with the Conditions, as set
out below. Expressions defined in the Conditions shall bear the same meanings
herein.
1. Name(s) and Address(es) of Accountholder(s):
2. Aggregate nominal amount of Notes subject to this Notice:
---------------
(1) Delete as appropriate.
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3. Instructions to Euroclear/Clearstream, Luxembourg(1) and the [Settlement]
Agent
I/We(1) hereby irrevocably authorise and instruct Euroclear/Clearstream,
Luxembourg(1) to debit the number of Notes referred to above from the
Notes Account referred to below on the [Early Redemption/Maturity] Date
against the transfer of the relevant Securities Amount to which we are
entitled in relation to such Notes to [us/our account at [ ] / hold on our
behalf at [ ]].
I/We(1) hereby irrevocably authorise the [Settlement] Agent to execute all
relevant notices and transfer form(s) on our/my(1) behalf in relation to
the Securities Amounts to which this Notice relates.
4. Notes Account details
No:
Name:
5. Acknowledgement as to expenses
I/We(1) hereby acknowledge that the Issuer shall be entitled to deduct any
Transfer Expenses and other charges and expenses in relation to the Notes
and the Securities Amount to which this Notice applies in accordance with
the Conditions.
6. Beneficial ownership certificate
I/We(1) hereby certify that I/We(1) am/are(1) not, as of the date hereof,
a U.S. person and none of the Notes referred to above is beneficially
owned by a U.S. person. Terms used in this paragraph shall have the
meanings ascribed to them in Regulation S under the United States
Securities Act of 1933, as amended.
[I/We(1) hereby certify that I/we(1) am/are(1) eligible to hold the
Securities Amount to be delivered to us, or on our behalf.]
[Any relevant certifications required for U.S. Securities Act purposes to
be set out.]
7. Authorisation of production in proceedings
I/We(1) hereby authorise the production of this Notice in any
administrative or legal proceedings instituted in connection with the
Notes to which this Notice relates.
Signed........................... Date...............................
[Settlement] Agent
JPMorgan Chase Bank
Trinity Tower
9 Xxxxxx Xxxx Street
London E1W 1YT
------------------
(1) Delete as appropriate.
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Copies: 1 to be retained by the Accountholder
1 to be sent to the Issuer [and the Agent] by the [Settlement] Agent
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SCHEDULE 7B
FORM OF TRANSFER NOTICE - DTC
Bear Xxxxxxx Global Asset Holdings, Ltd.
[Title of Notes]
issued pursuant to the Amended and Restated Note Issuance Agreement
dated June 28, 2002
CUSIP: ......
When completed, this Notice should be delivered in writing to the Registrar [for
delivery to the custodian] on behalf of DTC, with a copy to the [Settlement]
Agent at its office specified below.
To: (1)JPMorgan Chase Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate & Municipal Agency Department, 15th Floor
Fax: (000) 000 0000
Failure properly and completely to deliver this Notice (in the determination of
the Agent in consultation with the [Settlement] Agent) may result in this Notice
being treated as null and void.
I/We(1), being or representing the Noteholder(s) specified in 1. below, being
the Noteholder(s) of the Notes referred to below, hereby irrevocably authorise
Bear Xxxxxxx Global Asset Holdings, Ltd.(the "Issuer") to deliver and, if
applicable, pay the Securities Amount to which I/we(1) am/are(1) entitled in
relation to such Notes, in accordance with the Conditions, as set out below.
Expressions defined in the Conditions shall bear the same meanings herein.
1. (a) Name(s) and Address(es) of Noteholder(s):
(b) Name of Participant:
2. Aggregate nominal amount of Notes subject to this Notice
Aggregate nominal amount: [ ]
3. Instructions to the Agent and the [Settlement] Agent
I/We(1) hereby irrevocably undertake to deliver to the Registrar on the
Maturity Date the number of Notes held by me/us(1) or to authorise and
instruct the Registrar to arrange for the debit of, the number of Notes
referred to above from my/our(1) account with the Participant at DTC
referred to below on the [Early Redemption/Maturity] Date against the
transfer of the relevant Securities Amount to which we are entitled in
relation to such Notes to [us/our account at [ ] / hold on our behalf at
[ ]].
--------------------
(1) Delete as appropriate
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I/We(1) hereby irrevocably authorise the [Settlement] Agent to execute all
relevant notices and share transfer form(s) on our/my(1) behalf in
relation to the Securities Amount to which this Notice relates.
4. DTC Account details
No:
Name:
5. Acknowledgement as to expenses
I/We(1) hereby acknowledge that the Issuer shall be entitled to deduct any
Transfer Expenses and other charges and expenses in relation to the Notes
and the Underlying Securities to which this Notice applies in accordance
with the Conditions.
6. Certificate as to status
I/We(1) hereby certify that I/We(1) am/are(1), as of the date hereof, a
"Qualified Institutional Buyer". Terms used in this paragraph shall have
the meanings ascribed to them in Rule 144A under the United States
Securities Act of 1933, as amended.
[I/We(1) hereby certify that I/we(1) am/are(1) eligible to hold the
Securities Amount to be delivered to us, or on our behalf.]
[Any relevant certifications required for U.S. Securities Act purposes to
be set out.]
7. Authorisation of production in proceedings
I/We(1) hereby authorise the production of this Notice in any
administrative or legal proceedings instituted in connection with the
Notes to which this Notice relates.
Signed........................... Date...............................
[Settlement] Agent
JPMorgan Chase Bank
Trinity Tower
9 Xxxxxx Xxxx Street
London E1W 1YT
Copies: 1 to be retained by Noteholder
1 to be sent to the Issuer [and the Agent] by the [Settlement] Agent.
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SCHEDULE 8
PART 1
FORM OF EXCHANGE REQUEST
Bear Xxxxxxx Global Asset Holdings, Ltd.
[Title of Relevant Series of Notes (specifying type of Notes)] (the "Notes")
issued pursuant to the Amended and Restated Note
Issuance Agreement dated June 28, 2002
(the "Agreement")
Terms defined in the Agreement shall have the same meanings when used herein.
To: Transfer Agent/Registrar(1)
(1) I/We*, the undersigned, being the registered holder(s) of those Bearer
Notes of Bear Xxxxxxx Global Asset Holdings, Ltd. attached hereto/ of
$.......................... in principal amount request that such Bearer
Notes be exchanged for Registered Notes in denomination(s) of
$........................../a beneficial interest in the Reg. S Global
Note/Restricted Global Note.
(2) I/We* request that the Definitive Registered Notes to be issued on
exchange, be delivered at the specified office of the Transfer
Agent/Registrar/sent by uninsured mail to the following address:
..............................
..............................
..............................
Signature(s) .....................
Name(s): ......................... (2)Dated: ......................
1. Each Bearer Note surrendered for Exchange must be accompanied by all
unmatured, coupons receipts and talons appertaining thereto, other than
the coupon in respect of the next Interest Payment Date for falling after
the date of surrender in the case of a Bearer Note surrender for exchange
between the Record Date and such Interest Payment Date.
2. The exchange of Notes will be subject to the provisions of all applicable
fiscal and other laws and regulations as provided in the Conditions.
3. Notes, if mailed, will be mailed to Noteholders at their own risk within
seven business days.
----------------------------
(1) Delete as appropriate
(2) To be dated not earlier than the Exchange Date as defined in the
Conditions.
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To be completed by the Registrar
(1) Date of surrender ........................................
(2) Number and type of Notes to be issued or type of Note through which
interest will be held..................................
(3) Denominations and number of each denomination of Notes to be issued
...........................
(4) Date on which Definitive Registered Notes to be delivered/dispatched
or interest in Registered Global Note to be registered.
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SCHEDULE 8
PART II
FORM OF CERTIFICATE FOR EXCHANGE OR TRANSFER
OF REGISTERED NOTES OR BENEFICIAL INTEREST IN REGISTERED NOTES
[DATE]
To: JPMorgan Chase Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, X.X. 00000
BEAR XXXXXXX GLOBAL ASSET HOLDINGS, LTD. (the "Issuer")
[Title of Series of Notes] (the "Notes")
issued pursuant to the Amended and Restated Note Issuance Agreement
dated June 28, 2002 (the "Agreement")
Reference is made to the terms and conditions of the Notes (the "Conditions")
set out in Schedule 1 to the Agreement as subsequently supplemented, amended and
restated. Terms defined in the Conditions shall have the same meaning when used
in this Certificate unless otherwise stated.
This Certificate relates to [insert nominal amount of Notes] (1)[Reg. S Notes,
CUSIP (CINS) number [ ]/[Legended Notes, CUSIP number [ ]] which are
(2)[registered in the name of] (3)[held in the form of a beneficial interest in
the (1)[Reg. S Global Notes/Restricted Global Note] with
(1)[Euroclear/Clearstream, Luxembourg/DTC] (4)[,through DTC] by or on behalf of
[insert name of transferor] [as beneficial owner] (the "Transferor"). The
Transferor has requested an exchange or transfer of (3)[its beneficial interest
in] the above Notes for (3)[ a beneficial interest in the (1)[Reg. S Global
Note/Restricted Global Note] which shall held with (1)[Euroclear/Clearstream,
Luxembourg/DTC] (4)[, through DTC]] (2) (1) [Reg. S Notes/Legended Notes] in
definitive form]. In connection with such request, the Transferor hereby
certifies that such transfer or exchange has been effected in accordance with:
(a) the transfer restrictions set forth in the Conditions;
(b) any applicable securities laws of the United States of America, any state
of the United States of America or any other jurisdiction;
(c) any applicable rules and regulations of DTC, Euroclear and Clearstream,
Luxembourg from time to time; and
(6)[(d) to a person who is an institutional Accredited Investor and that a
duly executed IAI investment letter is attached to this Certificate.]
------------------------
(1) Delete as appropriate
(2) Include for Notes in definitive form.
(3) Include for Notes in global form.
(4) Only include if Notes to be transferred through Euroclear or Clearstream,
Luxembourg.
(6) Delete as appropriate
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(6)[(d) in accordance with Regulation S under the Securities Act (5)[, and
that immediately following such transfer or exchange the interest in the
Notes transferred or exchanged will be held through Euroclear or
Clearstream, Luxembourg.] ]
(6)[(d) to a person who is an institutional Accredited Investor and that a
duly executed IAI investment letter is attached to this Certificate.]
This Certificate and the statements contained herein are made for the benefit of
the addressee hereof and the benefit of the Dealers of the above Notes.
[Insert name of Transferor]
By: .............................
Name:
Title:
Dated: ..........................
-------------------
(5) Include where transfer or exchange is prior to expiry of the applicable
Restricted Period.
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SCHEDULE 9
INSTITUTIONAL ACCREDITED INVESTOR INVESTMENT LETTER
TO: JPMorgan Chase Bank, as Registrar
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
and
TO: Bear Xxxxxxx Global Asset Holdings, Ltd.
Dear Sirs,
In connection with our proposed purchase of $...... aggregate nominal amount of
Notes (the "Notes") of Bear Xxxxxxx Global Asset Holdings, Ltd. (the "Issuer")
under its U.S.$1,500,000,000 Note Issuance Programme, we confirm that:
1. We have received a copy of the Offering Circular, dated ...... (1), (the
"Offering Circular") relating to the Notes and such other information as
we deem necessary in order to make our investment decision.
2. We understand that any subsequent transfer of the Notes is subject to
certain restrictions and conditions set forth in the Offering Circular and
the Notes and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes except in compliance with such
restrictions and conditions and the United States Securities Act of 1933,
as amended (the "Securities Act").
3. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes may not be offered
or sold except as permitted in the following sentence. We agree, on our
own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, on our own behalf and on behalf of any account for
which we are purchasing the Notes, and each subsequent holder of the Notes
by its acceptance thereof will agree, not to offer, sell or otherwise
transfer such Notes except (A) to the Issuer or a Dealer (as defined in
the Offering Circular), (B) to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) in a transaction which
meets the requirements of Rule 144A, (C) to an Institutional Accredited
Investor (as defined in the Offering Circular) that, prior to such
transfer, furnishes to us and to the Issuer, a signed letter,
substantially identical to this letter, containing certain representations
and agreements relating to the transfer of the Notes, (D) outside the
United States in a transaction which meets the requirements of Rule 904
under the Securities Act, (E) pursuant to an effective registration
statement under the Securities Act or (F) pursuant to any other available
exemption from the registration requirements of the Securities Act.
4. We understand that, on any proposed resale of any Notes, we will be
required to furnish to the Issuer such certifications, legal opinions, and
other information as it may reasonably require to confirm that the
proposed sale complies with the foregoing restrictions. We further
understand that the Notes purchased by us will bear a legend to the
foregoing effect.
---------------------------------
(1) Insert date of most recent Offering Circular.
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5. We are an Institutional Accredited Investor within the meaning of Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act and
have such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting are each able to
bear the economic risk of our or its investment.
6. We are acquiring the Notes purchased by us for our own account or for one
or more accounts (each of which is an Institutional Accredited Investor)
as to each of which we exercise sole investment discretion.
You are entitled to rely upon this letter and are irrevocably authorised to
produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
.........................
Name:
Title:
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SCHEDULE 10
REGISTER AND TRANSFER OF REGISTERED NOTES
1. The Issuer shall at all times ensure that the Registrar maintains in New
York, or at such other place as the Agent may agree, a register showing
the amount of the Registered Notes from time to time outstanding and the
dates of issue and all subsequent transfers and changes of ownership
thereof and the names and addresses of the holders of the Registered
Notes. The holders of the Registered Notes or any of them and any person
authorised by any of them may at all reasonable times during office hours
inspect the register and take copies of or extracts from it. The register
may be closed by the Issuer for such periods at such times (not exceeding
in total 30 days in any one year) as it may think fit.
2. Each Registered Note shall have an identifying serial number which shall
be entered on the register.
3. The Registered Notes are transferable by execution of the form of transfer
endorsed thereon under the hand of the transferor or, where the transferor
is a corporation, under its common seal or under the hand of two of its
officers duly authorised in writing. In each case the signature(s) must be
guaranteed by a commercial bank with a correspondent bank in New York
City, Luxembourg or London or by an institution which is a member of The
New York Stock Exchange or The American Stock Exchange in New York City or
the Luxembourg Stock Exchange or the London Stock Exchange Limited.
4. The Registered Notes to be transferred must be delivered for registration
to the specified office of the Registrar with the form of transfer
endorsed thereon duly completed and executed and must be accompanied by
such documents, evidence and information as may be required pursuant to
the Conditions and such other evidence as the Issuer may reasonably
require to prove the title of the transferor or his right to transfer the
Registered Notes and, if the form of transfer is executed by some other
person on his behalf or in the case of the execution of a form of transfer
on behalf of a corporation by its officers, the authority of that person
or those persons to do so.
5. The executors or administrators of a deceased holder of Registered Notes
(not being one of several joint holders) and in the case of the death of
one or more of several joint holders the survivor or survivors of such
joint holders shall be the only person or persons recognised by the Issuer
as having any title to such Registered Notes.
6. Any person becoming entitled to Registered Notes in consequence of the
death or bankruptcy of the holder of such Registered Notes may upon
producing such evidence that he holds the position in respect of which he
proposes to act under this paragraph or of his title as the Issuer shall
require be registered himself as the holder of such Registered Notes or,
subject to the preceding paragraphs as to transfer, may transfer such
Registered Notes. The Issuer shall be at liberty to retain any amount
payable upon the Registered Notes to which any person is so entitled until
such person shall be registered as aforesaid or shall duly transfer the
Registered Notes.
7. Unless otherwise requested by him, the holder of Registered Notes of any
series shall be entitled to receive only one Registered Note in respect of
his entire holding of such series.
8. The joint holders of Registered Notes of any series shall be entitled to
one Registered Note only in respect of their joint holding of such series
which shall, except where they otherwise
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direct, be delivered to the joint holder whose name appears first in the
register of the holders of Registered Notes in respect of such joint
holding.
9. Where a holder of Registered Notes has transferred part only of his
holding of any series there shall be delivered to him without charge a
Registered Note in respect of the balance of such holding.
10. The Issuer shall make no charge to the Noteholders for the registration of
any holding of Registered Notes or any transfer thereof or for the issue
thereof or for the delivery thereof at the specified office of the
Registrar or by post to the address specified by the holder. If any holder
entitled to receive a Registered Note wishes to have the same delivered to
him otherwise than at the specified office of the Registrar, such delivery
shall be made, upon his written request to the Registrar, at his risk and
(except where sent by post to the address specified by the holder) at his
expense.
11. The holder of a Registered Note may (to the fullest extent permitted by
applicable laws) be treated at all times, by all persons and for all
purposes as the absolute owner of such Registered Note notwithstanding any
notice any person may have of the right, title, interest or claim of any
other person thereto. The Issuer and the Guarantor shall not be bound to
see to the execution of any trust to which any Registered Note may be
subject and no notice of any trust shall be entered on the register. The
holder of a Registered Note will be recognised by the Issuer and the
Guarantor as entitled to his Registered Note free from any equity, set-off
or counterclaim on the part of the Issuer and the Guarantor against the
original or any intermediate holder of such Registered Note.
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SCHEDULE 11
INITIAL DOCUMENTATION LIST
1. A certified copy of the constitutional documents of the Issuer and the
Guarantor.
2. A certified copy of all resolutions and other authorisations required to
be passed or given, and evidence of any other action required to be taken,
on behalf of the Issuer and the Guarantor:
(a) to approve this Agreement, the Offering Circular and any other
documents required in connection with the listing of the Programme
and the issue of Notes under this Agreement;
(b) to authorise appropriate persons to execute each of this Agreement,
any other such documents and the Notes issued under this Agreement
and to take any other action in connection therewith; and
(c) to authorise appropriate persons to enter into agreements with any
Dealer on behalf of the Issuer to issue Notes in accordance with
clause 2 of this Agreement.
3. A certified list of the names, titles and specimen signatures of the
persons authorised on behalf of the Issuer and the Guarantor in accordance
with paragraph 2(b) and (c) above.
4. Certified copies of any other governmental or other consents required for
the Issuer to issue, or (where relevant) for the Guarantor to guarantee,
Notes under this Agreement, for the Issuer and the Guarantor to execute
and deliver this Agreement, the Deed of Guarantee, the Deed of Covenant
and to fulfil their respective obligations under this Agreement and the
Notes.
5. Confirmation that one or more master Temporary Bearer Global Notes, master
Permanent Bearer Global Notes, master Restricted Global Notes and master
Reg. S Global Notes in respect of the Issuer (from which copies can be
made for each particular issue of Notes under this Agreement), duly
executed by a person or persons authorised to take action on behalf of the
Issuer as specified in paragraph (2)(b) above, have been delivered to the
Agent.
6. A legal opinion addressed to each of the Programme Dealers dated on or
after the date of this Agreement, in such form and with such content as
the Programme Dealers may reasonably require, from:
(a) Xxxxx & Xxxxx, legal advisers to the Programme as to English law;
(b) Cadwalader, Xxxxxxxxxx & Xxxx, legal advisers to the Guarantor as to
U.S. law, excluding tax;
(c) Weil, Gotshal & Xxxxxx, legal advisers to the Guarantor as to U.S.
law relating to tax; and
(e) Xxxxxx and Calder Europe, legal advisers to the Issuer as to Cayman
Islands law.
7. A copy of a comfort letter from Deloitte & Touche, auditors to the
Guarantor, in such form and with such content as the Programme Dealers may
reasonably require.
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8. A conformed copy of this Agreement and confirmation that executed copies
have been delivered to the Registrar, the Agent and the Paying Agents
appointed under this Agreement.
9. A printed final version of the Offering Circular.
10. Confirmation that the Luxembourg Stock Exchange will list Notes to be
issued under this Agreement.
11. Confirmation that Notes with a maturity of more than 365 days to be issued
under this Agreement will be rated A2 by Xxxxx'x Investors Service
Limited, A by Standard & Poor's Ratings Services and A+ by Fitch IBCA
Limited and Notes with a maturity of no more than 365 days to be issued
under this Agreement will be rated P-1 by Xxxxx'x Investors Service
Limited, A-1 by Standard & Poor's Ratings Services and F1 by Fitch IBCA
Limited.
12. A Letter from Bear Xxxxxxx International Trading Limited confirming its
acceptance as agent for service of process of the Guarantor and the Issuer
under this Agreement.
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SCHEDULE 12
LETTER REGARDING INCREASE IN THE NOMINAL AMOUNT
OF THE PROGRAMME
[ ], [ ]
To: The Programme Dealers and the Listing Agents
(as those expressions are defined
in the amended and Amended and Restated Note Issuance Agreement dated
June 28, 2002, as amended from
time to time, (the "Note Issuance Agreement"))
Dear Sirs,
Bear Xxxxxxx Global Asset Holdings, Ltd. (the "Issuer")
The Bear Xxxxxxx Companies Inc. (the "Guarantor")
U.S.$1,500,000,000 Note Issuance Programme
We notify you, pursuant to clause 12 of the Note Issuance Agreement, that the
aggregate nominal amount of such Programme shall be increased to [U.S.$ ] from
[insert date] whereupon all references in the Note Issuance Agreement. We
understand that this increase is subject to the satisfaction of the conditions
set out in clause 12 of the Note Issuance Agreement.
Terms used in this letter have the meanings given to them in the Note Issuance
Agreement.
Yours faithfully,
For: Bear Xxxxxxx Global Asset Holdings, Ltd.
By:
------------------------------
For: The Bear Xxxxxxx Companies Inc.
By:
------------------------------
cc: JPMorgan Chase Bank (Agent)
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SCHEDULE 13
PART I
FORM OF PROGRAMME DEALER ACCESSION LETTER
[ ], [ ]
To: Bear Xxxxxxx Global Asset Holdings, Ltd.
The Bear Xxxxxxx Companies Inc.
Dear Sirs,
Bear Xxxxxxx Global Asset Holdings, Ltd. (the "Issuer")
The Bear Xxxxxxx Companies Inc. (the "Guarantor")
U.S.$1,500,000,000 Note Issuance Programme
We refer to the amended and restated Note Issuance Agreement dated June 28, 2002
made between the Issuer, the Guarantor, the Registrar, the Paying Agents, the
Transfer Agents, the Exchange Agent and the Programme Dealers (which agreement,
as amended from time to time, is referred to in this letter as the "Note
Issuance Agreement").
Conditions Precedent
We confirm that we are in receipt of:
(i) a copy of the Note Issuance Agreement; and
(ii) such of the documents referred to in Schedule 11 to the Note Issuance
Agreement as we have requested,
and have found them to our satisfaction or in the case of documents referred to
in (ii) above have waived such production.
For the purposes of the Note Issuance Agreement our notice details are as
follows:
[(insert name, address, telephone, facsimile, telex (+ answerback) and
attention).]
In consideration of the Issuer appointing us as a Programme Dealer under the
Note Issuance Agreement we undertake, for the benefit of the Issuer, the
Guarantor and each of the other Dealers (as defined in the Note Issuance
Agreement), that we will perform and comply with all the duties and obligations
expressed to be assumed by a Programme Dealer under the Note Issuance Agreement,
This letter is governed by, and shall be construed in accordance with, English
law.
Yours faithfully,
[Name of new Programme Dealer]
By:
------------------------------
cc: JPMorgan Chase Bank (Agent)
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PART II
FORM OF CONFIRMATION LETTER - PROGRAMME DEALER
[ ], [ ]
To: [Name and address of new Programme Dealer]
Dear Sirs,
Bear Xxxxxxx Global Asset Holdings, Ltd. (the "Issuer")
The Bear Xxxxxxx Companies Inc. (the "Guarantee")
U.S.$1,500,000,000 Note Issuance Programme
We refer to the amended and restated Note Issuance Agreement dated June 28, 2002
(such agreement, as amended from time to time, the "Note Issuance Agreement")
entered into in respect to the above Note Issuance Programme and acknowledge
receipt of your Dealer Accession Letter to us dated [ ].
In accordance with clause 1l(l)(b) of the Note Issuance Agreement we confirm
that, with effect from the date of this letter, you shall become a party to the
Note Issuance Agreement, vested with all the authority, rights, powers, duties
and obligations of a Programme Dealer as if originally named as a Programme
Dealer under the Note Issuance Agreement.
Yours faithfully,
For: The Bear Xxxxxxx Companies Inc.
By:
------------------------------
For: Bear Xxxxxxx Global Asset Holdings, Ltd.
By:
------------------------------
cc: JPMorgan Chase Bank (Agent)
Bear, Xxxxxxx International Limited
(Arranger, for distribution to the other Programme Dealers)
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PART III
FORM OF ISSUE DEALER ACCESSION LETTER
[ ], [ ]
To: Bear Xxxxxxx Global Asset Holdings, Ltd.
The Bear Xxxxxxx Companies Inc.
Dear Sirs,
Bear Xxxxxxx Global Asset Holdings, Ltd. (the "Issuer")
The Bear Xxxxxxx Companies Inc. (the " Guarantor")
U.S.$1,500,000,000 Note Issuance Programme
We refer to the amended and restated Note Issuance Agreement dated June 28, 2002
made between the Issuer, the Guarantor, the Registrar, the Paying Agents, the
Transfer Agents, the Exchange Agent and the Programme Dealers (which agreement,
as amended from time to time, is referred to in this letter as the "Note
Issuance Agreement").
Conditions Precedent
We confirm that we are in receipt of:
(i) a copy of the Note Issuance Agreement; and
(ii) such of the documents referred to in Schedule 11 to the Note Issuance
Agreement as we have requested,
and have found them to our satisfaction or in the case of any documents referred
to in (ii) above have waived such production.
For the purposes of the Note Issuance Agreement our notice details are as
follows:
[(insert name, address, telephone, facsimile, telex (+ answerback) and
attention).]
In consideration of the Issuer and appointing us as an Issue Dealer in respect
of the issue of [insert issue details] (the "Notes") under the Note Issuance
Agreement we undertake, for the benefit of the Issuer, the Guarantor and each of
the other Dealers (as defined in the Note Issuance Agreement) that in relation
to the issue of Notes we will perform and comply with all the duties and
obligations expressed to be assumed by an Issue Dealer under the Note Issuance
Agreement.
This letter is governed by, and shall be construed in accordance with, English
law.
Yours faithfully,
For: [Name of Issue Dealer]
By:
------------------------------
cc: JPMorgan Chase Bank (Agent)
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PART IV
FORM OF CONFIRMATION LETTER - ISSUE DEALER
[ ], [ ]
To: [Name and address of new Issue Dealer]
Dear Sirs,
Bear Xxxxxxx Global Asset Holdings, Ltd. (the "Issuer")
The Bear Xxxxxxx Companies Inc. (the "Guarantor")
U.S.$1,500,000,000 Note Issuance Programme
We refer to the amended and restated Note Issuance Agreement dated June 28, 2002
entered into in respect of the above Note Issuance Programme (such agreement, as
amended from time to time, the "Note Issuance Agreement") and acknowledge
receipt of your Issue Dealer Accession Letter to us dated [ ] in respect of the
[insert issue details] (the "Notes").
In accordance with clause 1l(l)(b) of the Note Issuance Agreement we confirm
that, with effect from the date of this letter in respect of the issue of the
Notes, you shall become a party to the Note Issuance Agreement, vested with all
the authority, rights, powers, duties and obligations of an Issue Dealer in
relation to the Notes as if originally named as an Issue Dealer under the Note
Issuance Agreement.
Yours faithfully,
For: Bear Xxxxxxx Global Asset Holdings, Ltd.
By:
------------------------------
For: The Bear Xxxxxxx Companies Inc.
By:
------------------------------
cc: JPMorgan Chase Bank (Agent)
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SCHEDULE 14
DRAFT SYNDICATION AGREEMENT FOR A SYNDICATED NOTE ISSUE
[DATE]
To: [ ]
(the "Managers")
c/o [ ]
(the "Lead Manager")
cc: JPMorgan Chase Bank (Agent)
Dear Sirs,
Bear Xxxxxxx Global Asset Holdings, Ltd. (the "Issuer")
The Bear Xxxxxxx Companies Inc. (the "Guarantor")
U.S.$1,500,000,000 Note Issuance Agreement
Bear Xxxxxxx Global Asset Holdings, Ltd. (the "Issuer") proposes to issue
[description of issue] (the "Notes"), inter alia, pursuant to the Amended and
Restated Note Issuance Agreement dated June 28, 2002 made between the Issuer,
the Guarantor, the Transfer Agents, the Exchange Agent and the Dealers. The
Notes will be unconditionally and irrevocably guaranteed by the Guarantor. The
terms of the issue shall be as set out in the form of Pricing Supplement
attached to this Agreement as Annexe A.
This Agreement is supplemental to the amended and restated Note Issuance
Agreement (the "Note Issuance Agreement") dated June 28, 2002 made between the
Issuer, the Guarantor, the Transfer Agents, the Exchange Agent and the Programme
Dealers party thereto, [as amended at the date of this Agreement]. All terms
with initial capitals used in this agreement without definition have the
meanings given to them in the Note Issuance Agreement.
We wish to record the arrangements agreed between us in relation to the issue:
[1. Conditions Precedent
This Agreement appoints each Manager which is not a party to the Note Issuance
Agreement (each a "New Dealer") as an Issue Dealer in accordance with the
provisions of clause 11 of the Note Issuance Agreement for the purposes of the
issue of the Notes. [The]/[Each] New Dealer undertakes for the benefit of the
Issuer, the Guarantor and each other Dealer, that in relation to the issue of
the Notes it will perform and comply with all the duties and obligations
expressed to be assumed by an Issue Dealer under the Note Issuance Agreement.
The Lead Manager confirms that it is in receipt of the documents referenced
below:
(i) a copy of the Note Issuance Agreement;
(ii) a copy of such of the documents referred to in Schedule 11 to the Note
Issuance Agreement as the Lead Manager (on behalf of the Managers) has
requested,
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and has confirmed with [each of] the New Dealer[s] that [it]/[they] [has]/[have]
found them to be satisfactory or (in the case of any or all of the documents
referred to in (ii)) [has]/[have] waived the production of such documents to the
Lead Manager. The Lead Manager confirms (on behalf of the New Dealer[s]) that it
has waived production of any document referred to in Schedule 11 to the Note
Issuance Agreement which it has not so requested.]
[1.] For the purposes of the Note Issuance Agreement the details of the Lead
Manager for service of notices are as follows:
[insert name, address, telephone, facsimile, telex (+ answerback) and
attention].
2. Subject to the terms and conditions of the Note Issuance Agreement and
this Agreement the Issuer hereby agrees to issue the Notes and the
Managers jointly and severally agree to purchase the Notes [as
agent/principal] at a purchase price of [ ] per cent. of the principal
amount of the Notes (the "Purchase Price"), being the issue price of [ ]
per cent. less a selling concession of [ ] per cent. of such principal
amount and a management and underwriting fee of [ ] per cent. of such
principal amount.
3. The settlement procedures set out in Part 2 of Annexe A to the Procedures
Memorandum shall apply as if set out in this Agreement provided that, for
the purposes of this Agreement:
(i) the sum payable on the Issue Date shall be [ ] (representing the
Purchase Price[, less the amount payable in respect of Managers'
expenses specified in clause 4 of this Agreement]);
(ii) "Issue Date" means [ ] a.m. ([ ] time) on [ ] or such other time
and/or date as the Issuer and the Lead Manager on behalf of the
Managers may agree; and
(iii) "Payment Instruction Date" means the Issue Date unless there is to
be a pre-closing for the issue in which case it means the business
day (being a day on which banks and foreign exchange markets are
open for business in London) prior to the Issue Date.
4. The Issuer, or failing the Issuer, the Guarantor shall bear and pay
(together with any applicable value added or similar tax) all costs and
expenses incurred in or in connection with the printing of the Notes, this
Agreement and the Pricing Supplement prepared in connection with the issue
of the Notes, the listing of the Notes on the Luxembourg Stock Exchange
and making initial delivery of the Notes. In addition, the Issuer, or
failing the Issuer, the Guarantor agrees to pay to the Lead Manager [ ] in
respect of reasonable legal, travelling, telex, facsimile, telephone,
postage and advertising expenses incurred and to be incurred by the
Managers in connection with the preparation and management of the issue
and distribution of the Notes which sum may be deducted from the Purchase
Price as provided in clause 3 hereof.
5. The obligation of the Managers to purchase the Notes is conditional upon:
(i) the conditions set out in clause 3(2) (other than that set out in
clause 3(2)(f)) of the Note Issuance Agreement being satisfied as of
the Payment Instruction Date, without prejudice to the aforesaid,
the Offering Circular dated [ ][,as supplemented by [ ],] containing
all material information relating to the assets and liabilities,
financial position, profits and losses of the Issuer and the
Guarantor and nothing having happened or being expected to happen
which would require the Offering Circular [, as so supplemented,] to
be [further] supplemented or updated;
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(ii) the delivery to the Lead Manager on the Payment Instruction Date of:
(A) legal opinions addressed to the Managers dated the Payment
Instruction Date in such form and with such contents as the
Lead Manager, on behalf of the Managers, may reasonably
require from [Cadwalader, Xxxxxxxxxx & Xxxx], the legal
advisers to the Guarantor as to U.S. law other than tax,
[Weil, Gotshal & Xxxxxx], the legal advisers to the Guarantor
as to U.S. tax law, [Xxxxxx and Calder Europe], the legal
advisers to the Issuer as to the law of the Cayman Islands and
from [Xxxxx & Xxxxx], the legal advisers to the Managers as to
English law;
(B) a certificate dated as at the Payment Instruction Date signed
by a duly authorised officer of the Issuer and a certificate
dated on at the Payment Instruction Date signed by a duly
authorised officer of the Guarantor giving confirmation to the
effect stated in paragraph (i) of this clause; and
(C) a comfort letter dated the [date hereof and the] Payment
Instruction Date from the independent auditors of the
Guarantor, in such form and with such content as the Managers
may reasonably request; and
(iii) [specify other agreed conditions precedent].
If any of the foregoing conditions is not satisfied on or before the
Payment Instruction Date, this Agreement shall terminate on such date and
the parties hereto shall be under no further liability arising out of this
Agreement (except for the liability of the Issuer, or failing the Issuer,
the Guarantor in relation to expenses as provided in clause 4 and except
for any liability arising before or in relation to such termination),
provided that the Lead Manager, on behalf of the Managers, may in its
discretion waive any of the aforesaid conditions or any part of them.
6. The Lead Manager, on behalf of the Managers, may, by notice to the Issuer
and the Guarantor, terminate this Agreement at any time prior to payment
of the net purchase money to the Issuer if in the opinion of the Lead
Manager there shall have been such a change in national or international
financial, political or economic conditions or currency exchange rates or
exchange controls as would in its view be likely to prejudice materially
the success of the offering and distribution of the Notes or dealings in
the Notes in the secondary market and, upon such notice being given, the
parties to this Agreement shall (except for the liability of the Issuer,
or failing the Issuer, the Guarantor in relation to expenses as provided
in clause 4 of this Agreement and except for any liability arising before
or in relation to such termination) be released and discharged from their
respective obligations under this Agreement.
7. This Agreement shall be governed by, and construed in accordance with,
English law. Clauses 47 and 48 of the Note Issuance Agreement shall be
deemed to be incorporated in this Agreement as if set out in full herein.
8. This Agreement may be executed in any number of counterparts, all of
which, taken together, shall constitute one and the same agreement and any
party may enter into this Agreement by executing a counterpart.
Please confirm that this letter correctly sets out the arrangements agreed
between us.
Yours faithfully,
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200
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For: Bear Xxxxxxx Global Asset Holdings, Ltd.
By:
------------------------------
For: The Bear Xxxxxxx Companies Inc.
By:
------------------------------
We agree to the foregoing.
For: [NAMES OF MANAGERS]
By:
------------------------------
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201
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ANNEXE A TO THE SYNDICATION AGREEMENT
[Form of Pricing Supplement]
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202
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SIGNATORIES
The Issuer
BEAR XXXXXXX GLOBAL ASSET HOLDINGS, LTD.
X.X. Xxx 000
Xxxxxx Xxxx
Xxxxx Xxxxxx
Xxxxxx Xxxxxxx
BWI
Telephone: (000) 000 0000
Telex No: (000) 000 0000
Attention: Treasury
By: XXXXXX XXXXXXXX
The Guarantor
THE BEAR XXXXXXX COMPANIES INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000 0000
Telefax No: (000) 000 0000
Attention: Treasury
By: XXXX XXXXXX
The Agent and a Transfer Agent
JPMORGAN CHASE BANK
Trinity Tower
0 Xxxxxx Xxxx Xxxxxx
Xxxxxx X0X 0XX
Telephone: (00) 0 000 00 0000
Telex No: (00) 0 000 00 0000
Telefax No: 8954681 CMB G
Attention: Institutional Trust Services
By: XXXXX XXXXXXX
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The Registrar, the Other Transfer Agent and the Exchange Agent
JPMORGAN CHASE BANK
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000 0000
Telefax No: (000) 000 0000
Attention: Corporate and Municipal Agency Department, 15th Floor
By: XXXXX XXXXXXX
The other Paying Agents
KREDIETBANK S.A. LUXEMBOURGEOISE
00, Xxxxxxxxx Xxxxx
X-0000 Xxxxxxxxxx
R.C. Luxembourg B6395
Telephone: 000 00 000
Telefax No: 352 47 97 73 907
Attention: Back Office Emissions
By: XXXXXX XXXXX XXXX XXXXXXXX
Without prejudice to the foregoing execution of this Agreement by the parties to
this Agreement, Kredietbank S.A. Luxembourg hereby expressly and specifically
confirms its agreement with the provisions of Clause 47 of this Note Issuance
Agreement.
By: XXXXXX XXXXX XXXX XXXXXXXX
The Dealers
BEAR, XXXXXXX & CO. INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000 0000
Telefax No: (000) 000 0000
Attention: Treasury
By: XXXX XXXXXX
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BEAR, XXXXXXX INTERNATIONAL LIMITED
Xxx Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Telephone: x00 000 000 0000
Telex No: 8811424 BEARCO G
Telefax No: x00 (000) 000 0000
Attention: Xxxxx Xxxxxxxx
By: XXXXXX XXXXXXXX
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