MORGAN STANLEY Global Medium-Term Notes, Series G and Series H Global Units, Series G and Series H EURO DISTRIBUTION AGREEMENT
XXXXXX
XXXXXXX
Global
Medium-Term Notes, Series G and Series H
Global
Units, Series G and Series H
December
23, 2008
Xxxxxx
Xxxxxxx & Co. International plc
00 Xxxxx
Xxxxxx
Xxxxxx
Xxxxx Xxxxxx X00 0XX
Xxxxxx
Xxxxxxx
Ladies and
Gentlemen:
Xxxxxx
Xxxxxxx, a Delaware corporation (the “Company”), confirms its
agreement with you with respect to the issue and sale from time to time by the
Company primarily outside the United States of up to $165,452,274,876 (or the
equivalent thereof in one or more currencies other than U.S. dollars) aggregate
initial public offering price, as such amount may be increased from time to time
upon due authorization by the Company, of its Global Medium-Term Notes, Series G
and Series H, each due more than nine months from the date of issue (the “Notes”) and its Global Units,
Series G and Series H (the “Units” and together with the
Notes, and any other securities that may be offered by post-effective amendment
to the Registration Statement referred to below, the “Program Securities”), in each
case subject to reduction as a result of (A) the prior sale of the Company’s
Notes and Units and (B) the prior or future sale of the Company’s (i) Global
Medium-Term Notes, Series F, to be sold primarily inside the United States, (ii)
Global Units, Series F, to be sold primarily inside the United States, (iii)
Global Warrants, Series F, to be sold primarily inside the United States, and
(iii) the sale of certain of the Company’s other debt securities, warrants,
common stock, preferred stock, purchase contracts and units and of capital
securities of certain Xxxxxx Xxxxxxx Capital Trusts. The Series G Notes are
intended to be admitted to listing on the Official List of the United Kingdom
Financial Services Authority (the “UK Listing Authority”) in its
capacity as United Kingdom competent authority for the purposes of Directive
2003/71/EC (the “Prospectus
Directive”) and relevant implementing measures in the United Kingdom, and
to trading on the gilt edged and fixed income market of the London Stock
Exchange plc (the “London Stock
Exchange”) or admitted to listing, trading and/or quotation by any other
listing authority, stock exchange and/or quotation system, if so required by
Section 3(j) hereof. Application may, in certain circumstances described in the
Prospectus Supplement (as defined below), be made to admit the Series G Units to
the Official List of the UK Listing Authority and to trading on the gilt edged
and fixed income market of the London Stock Exchange. The Series H Notes and the
Series H Units will not be listed on any stock exchange.
The Notes may be issued as senior indebtedness (the “Senior Notes”) or as
subordinated indebtedness (the “Subordinated Notes”) of the
Company. The Senior Notes will be issued, either alone or as part of a Unit,
pursuant to the provisions of a senior indenture dated as of November 1, 2004,
between the Company and The Bank of New York Mellon (successor to JPMorgan Chase
Bank, N.A. (formerly known as JPMorgan Chase Bank)), as trustee (the “Senior Debt Trustee”) (as
supplemented by the First Supplemental Senior Indenture dated as of September 4,
2007, the Second Supplemental Senior Indenture dated as of January 4, 2008, the
Third Supplemental Senior Indenture dated as of September 10, 2008 and the
Fourth Supplemental Senior Indenture dated as of December 1, 2008, and as may be
further supplemented or amended from time to time, the “Senior Debt Indenture”). The
Subordinated Notes will be issued pursuant to the provisions of a subordinated
indenture dated as of October 1, 2004, between the Company and The Bank of New
York Mellon (as successor to X.X. Xxxxxx Trust Company, National Association),
as trustee (the “Subordinated
Debt Trustee”) (as may be supplemented or amended from time to time, the
“Subordinated Debt
Indenture”). The Senior Debt Indenture and the Subordinated Debt
Indenture are sometimes hereinafter referred to individually as an “Indenture” and collectively as
the “Indentures,” and
the Senior Debt Trustee and the Subordinated Debt Trustee are sometimes
hereinafter referred to individually as a “Trustee” and collectively as
the “Trustees.” Purchase
contracts (“Purchase
Contracts”) that require holders to satisfy their obligations thereunder
when such Purchase Contracts are issued are referred to as “Pre-paid Purchase Contracts.”
Pre-paid Purchase Contracts that settle in cash (“Cash-settled Pre-paid Purchase
Contracts”) generally will be issued under an Indenture. Pre-paid
Purchase Contracts that do not settle in cash (“Physically-settled
Pre-paidPurchase
Contracts”) may be issued either under the Senior Debt Indenture (such
Physically- settled
Pre-paid Purchase Contracts, together with the Cash-settled Pre-paid Purchase
Contracts, the “Indenture
Pre-paid Purchase Contracts”) or under the Unit Agreement (as defined
below). Purchase Contracts, other than Pre-paid Purchase Contracts (“Non-Pre-paid Purchase Contracts”), entered into by
the Company and the holders thereof will be governed by the Unit Agreement.
The Units
will be issued either pursuant to the Unit Agreement dated as of November 1,
2004, among the Company, The Bank of New York Mellon (as successor to JPMorgan
Chase Bank, N.A. (formerly known as JPMorgan Chase Bank)), as Unit Agent, as
Collateral Agent, as Trustee and Paying Agent under the Indenture referred to
therein, and as Warrant Agent under the Warrant Agreement referred to therein,
and the holders from time to time of the Units described therein (as may be
amended from time to time, the “Unit Agreement”) or, if the
Units do not include Purchase Contracts (or include only Pre-paid Purchase
Contracts) or otherwise do not involve obligations on the part of the holders of
the Units, pursuant to the Unit Agreement Without Holders’ Obligations dated as
of August 29, 2008, between the Company and The Bank of New York Mellon, as Unit
Agent, as Trustee and Paying Agent under the Indenture referred to therein, and
as Warrant Agent under the Warrant Agreement referred to therein (as may be
amended from time to time, the “Unit Agreement Without Holders’
Obligations”). Units may include one or more (i) Senior Notes, (ii)
warrants (“Warrants”)
entitling the holders thereof to purchase or sell (a) securities issued by the
Company or by an entity not affiliated with the Company (or securities issued by
an entity affiliated with the Company in the case of Series H Units), a basket
of such securities, an index or indices of such securities or any other
property, (b) currencies, (c) commodities, (d) any other property or (e) any
combination of the foregoing, (iii) Purchase Contracts, including Pre-paid
Purchase Contracts, requiring the holders thereof to
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The
Warrants issued as part of a Unit will be issued pursuant to the Warrant
Agreement dated as of November 1, 2004 (as may be amended from time to time, the
“Warrant Agreement”) between the
Company and The Bank of New York Mellon (as successor to JPMorgan Chase Bank,
N.A. (formerly known as JPMorgan Chase Bank)), as Warrant Agent.
The Notes,
whether issued alone or as part of a Unit, will have the maturities, interest
rates, redemption provisions, if any, and other terms as set forth in the
Prospectus referred to below and any Term Sheets (as defined in Section 3(m)
below) referred to below. The Warrants will have the exercise prices, exercise
dates, expiration dates and other terms as set forth in the Prospectus and any
Term Sheets. The Purchase Contracts will have the closing dates, purchase or
sale prices and other terms as set forth in the Prospectus and any Term Sheets.
Program Securities other than Notes and Units or any combination thereof,
whether issued alone or as part of a Unit, will have the terms as set forth in
the Prospectus and any Term Sheets.
The
Company has initially appointed (i) The Bank of New York Mellon, London Branch
(as successor to JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase
Bank), London Branch), at its principal office in London, as principal paying
agent for the Senior Notes (in such capacity, the “Senior Principal Paying
Agent”) and (ii) the Subordinated Debt Trustee (acting through The Bank
of New York Mellon, London Branch (as successor to JPMorgan Chase Bank, N.A.
(formerly known as JPMorgan Chase Bank), London Branch), at its principal office
in London, as its sub-agent) as principal paying agent for the Subordinated
Notes (in such capacity, the “Subordinated Principal Paying
Agent”). References herein to the “Principal Paying Agent” are to the
Senior Principal Paying Agent (in the case of duties relating to the Senior Notes) or to the
Subordinated Principal Paying Agent (in the case of duties relating to the
Subordinated Notes).
The Notes
will be issued in bearer form or in definitive registered form without coupons
(the “Registered
Notes”), the Units will be issued in bearer form or in definitive
registered form (the “Registered Units”) and the
securities included in a Unit will be in the form of such
Unit. The
Program Securities issued in bearer form will be represented initially by, in
the case of the Notes, a temporary global Note and, in the case of the Units, a
temporary global Unit. In addition, global bearer Notes will be issued in either
Classic Global Note (“CGN”) form or in New Global
Note (“NGN”) form.
Temporary global bearer Notes issued in CGN form and temporary global Units will
be delivered to a common depositary located outside the United States for
Euroclear Bank S.A./N.V., as operator of the Euroclear System (the “Euroclear Operator”), Clearstream
Banking, société anonyme (“Clearstream”), or any other
relevant
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The
Company hereby appoints you as its exclusive agent for the purpose of soliciting
and receiving offers to purchase Program Securities from the Company by others
and, on the basis of the representations and warranties herein contained, but
subject to the terms and conditions herein set forth, you agree to use
reasonable efforts to solicit and receive offers to purchase Program Securities
upon terms acceptable to the Company at such times and in such amounts as the
Company shall from time to time specify. In addition, you may also purchase
Program Securities as principal pursuant to the terms of a terms agreement
relating to such sale (in the case of Notes, a “Notes Terms Agreement” and, in
the case of Units, a “Units
Terms Agreement”)
in accordance with the provisions of Section 2(b) hereof.
The
Company has filed with the Securities and Exchange Commission (the “Commission”) a registration
statement, including a prospectus, relating to the Program Securities. Such
registration statement as amended at the Commencement Date (as hereinafter
defined), including the documents incorporated therein by reference and the
information (if any) deemed to be part of the registration statement at the time
of effectiveness pursuant to Rule 430B of the Securities Act of 1933, as amended
(the “Securities Act”)
is hereinafter referred to as the “Registration Statement.” The
Company proposes to file with the Commission from time to time, pursuant to Rule
424 under the Securities Act, supplements to the prospectus relating to the
Program Securities included in the Registration Statement that will describe
certain terms of the Program Securities. The prospectus covering the Program
Securities in the form first used to confirm each sale of Program Securities (or
in the form first made available to the agents by the Company to meet requests
of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter
referred to as the “Basic
Prospectus.” The Basic Prospectus, as supplemented by a
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1.
Representations and
Warranties. The Company represents and warrants to and agrees with you as
of the Commencement Date, as of each date on which you solicit offers to
purchase Program Securities, as of each date on which the Company accepts an
offer to purchase Program Securities (including any purchase by you as principal
pursuant to a Notes Terms Agreement or a Units Terms Agreement), as of each date
the Company issued and delivers Program Securities and as of each date the
Registration Statement or the Basic Prospectus is amended or supplemented, as
follows (it being understood that such representations, warranties and
agreements shall be deemed to relate to the Registration Statement, the Basic
Prospectus and the Prospectus, each as amended or supplemented to each such
date):
(a) The
Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for
such purpose are pending before or threatened by the Commission. If the
Registration Statement is an automatic shelf registration statement as defined
in Rule 405 under the Securities Act, the Company is a well-known seasoned
issuer (as defined in Rule 405 under the Securities Act) eligible to use the
Registration Statement as an automatic shelf registration statement and the
Company has not received notice that the Commission objects to the use of the
Registration Statement as an automatic shelf registration
statement.
(b) (i) Each
document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Time of Sale Prospectus or the Prospectus
complied or will comply when so filed in all material respects with the Exchange
Act and the applicable rules and regulations of the Commission thereunder, (ii)
each part of the Registration Statement, when such part became effective, did
not contain and each such part, as amended or supplemented, if applicable, will
not contain any untrue
5
(c)
The Company is not an “ineligible issuer” in connection with the offering
pursuant to Rules 164, 405 and 433 under the Securities Act. Any free writing
prospectus that the Company is required to file pursuant to Rule 433(d) under
the Securities Act has been, or will be, filed with the Commission in accordance
with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Each free writing prospectus that the
Company has filed, or is required to file, pursuant to Rule 433(d) under the
Securities Act or that was prepared by or on behalf of or used or referred to by
the Company complies or will comply in all material respects with the
requirements of the Securities Act and the applicable rules and regulations of
the Commission thereunder. Except for any free writing prospectuses and
electronic road shows each furnished to you before first use, the Company has
not prepared, used or referred to, and will not, without your prior consent,
prepare, use or refer to, any free writing prospectus.
6
(e)
Each
subsidiary of the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and the Time of Sale
Prospectus, if applicable, and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its consolidated subsidiaries,
taken as a whole; all of the issued shares of capital stock of each consolidated
subsidiary of the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims.
(f)
Each of
this Agreement and any applicable Written Notes Terms Agreement or Written Units
Terms Agreement (each as hereinafter defined) has been duly authorized, executed
and delivered by the Company.
(g)
Each
Indenture has been duly qualified under the Trust Indenture Act and each of the
Senior Indenture, the Subordinated Indenture, the Unit Agreement, the Unit
Agreement Without Holders’ Obligations, the Warrant Agreement and the
International Central Securities Depositaries Agreement dated January 4, 2008
among the Company, the Euroclear Operator and Clearstream (the “ICSD Agreement”) has been duly
authorized, executed and delivered by, and is a valid and binding agreement of,
the Company, enforceable in accordance with its terms subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights generally
and equitable principles of general applicability.
(h)
The forms
of Notes (including the forms of Indenture Pre-paid Purchase Contracts), whether
issued alone or as part of a Unit, have been duly authorized and established in
conformity with the provisions of the relevant Indenture and, when the Notes
(and the Indenture Pre-paid Purchase Contracts) have been executed and
authenticated in accordance with the provisions of the relevant Indenture (and,
if the Notes are issued in NGN form and are not physically delivered to the CSK,
have been duly effectuated by the relevant CSK) and delivered to and duly paid
for by the purchasers thereof, the Notes (and the Indenture Pre-paid Purchase
Contracts) will be entitled to the benefits of such Indenture and will be valid
and binding obligations of the Company, enforceable in accordance with their
respective terms subject to
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(i)
The forms
of Units under the Unit Agreement, including the forms of Warrants,
Physically-settled Pre-paid Purchase Contracts and Non-Pre-paid Purchase
Contracts, have been duly authorized and established in conformity with the
provisions of (i) in the case of such Units, Physically-settled Pre-paid
Purchase Contracts and Non-Pre-paid Purchase Contracts, the Unit Agreement and
(ii) in the case of Warrants, the Warrant Agreement. When such Units have been
delivered to and duly paid for by the purchasers thereof and (A) any
Physically-settled Pre-paid Purchase Contracts and Non-Pre-paid Purchase
Contracts included in such Units have been executed by the Company and
countersigned by the Unit Agent and (B) any Warrants included in such Units have
been executed by the Company and countersigned by the Warrant Agent, such Units
(including any such Physically-settled Pre-paid Purchase Contracts, Non-
Pre-paid Purchase Contracts or Warrants contained therein) will be entitled to
the benefits of the Unit Agreement and, in the case of the Warrants, the Warrant
Agreement and will be valid and binding obligations of the Company, enforceable
in accordance with their respective terms subject to applicable bankruptcy,
insolvency and similar laws affecting creditors’ rights generally and equitable
principles of general applicability.
(j)
The forms
of Units under the Unit Agreement Without Holders’ Obligations have been duly
authorized and established in conformity with the provisions of the Unit
Agreement Without Holders’ Obligations. When such Units have been delivered to
and duly paid for by the purchasers thereof, and any Warrants included in such
Units have been executed by the Company and countersigned by the Warrant Agent,
such Units (including any such Warrants contained therein) will be entitled to
the benefits of the Unit Agreement Without Holders’ Obligations and will be
valid and binding obligations of the Company, enforceable in accordance with
their respective terms subject to applicable bankruptcy, insolvency and similar
laws affecting creditors’ rights generally and equitable principles of general
applicability.
(k)
The
execution and delivery by the Company of this Agreement, the Notes and Indenture
Pre-paid Purchase Contracts (whether issued alone or as part of a Unit), the
Units (including any Purchase Contracts and Warrants included therein), the
Indentures, the Unit Agreement, the Unit Agreement Without Holders’ Obligations,
the Warrant Agreement, the ICSD Agreement and any applicable Written Notes Terms
Agreement or Written Units Terms Agreement and the performance by the Company of
its obligations under this Agreement, the Notes, the Indenture Pre-paid Purchase
Contracts, the Units (including any Purchase Contracts or Warrants included
therein), the Indentures, the Unit Agreement, the Unit Agreement Without
Holders’ Obligations, the Warrant Agreement, the ICSD Agreement and any
applicable Notes Terms Agreement or Units Terms Agreement will not contravene
any provision of applicable law or the certificate of incorporation or by-laws
of the Company or any agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and its consolidated
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the
8
(l)
There has
not occurred any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its subsidiaries,
taken as a whole, from that set forth in the Prospectus and the Time of Sale
Prospectus, if applicable.
(m)
There are
no legal or governmental proceedings pending or threatened to which the Company
or any of its consolidated subsidiaries is a party or to which any of the
properties of the Company or any of its consolidated subsidiaries is subject (i)
other than proceedings accurately described in all material respects in the
Prospectus and the Time of Sale Prospectus, if applicable, and proceedings that
would not have a material adverse effect on the Company and its consolidated
subsidiaries, taken as a whole, or on the power or ability of the Company to
perform its obligations under this Agreement, the Indenture or the Program
Securities or to consummate the transactions contemplated by the Prospectus or
(ii) that are required to be described in the Registration Statement or the
Prospectus and are not so described and there are no statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed or incorporated by
reference as exhibits to the Registration Statement that are not described,
filed or incorporated as required.
(n)
The
Company is not, and after giving effect to the offering and sale of the Program
Securities and the application of the proceeds thereof as described in the
Prospectus will not be, required to register as, an “investment company” as such
term is defined in the Investment Company Act of 1940, as amended.
(o)
Each of
the Company and its consolidated subsidiaries has all necessary consents,
authorizations, approvals, orders, certificates and permits of and from, and has
made all declarations and filings with, all federal, state, local and other
governmental authorities, all self-regulatory organizations and all courts and
other tribunals, to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus and the Time of
Sale Prospectus, if applicable, except to the extent that the failure to obtain
or file would not have a
9
(p)
Xxxxxx
Xxxxxxx & Co. Incorporated is registered as a broker-dealer and investment
adviser with the Commission, is registered with the Commodity Futures Trading
Commission as a futures commission merchant and is a member of the New York
Stock Exchange, Inc. and the Financial Industry Regulatory Authority,
Inc.
(q)
If the
Notes are issued in NGN form and are not physically delivered to the CSK, the
Notes will have been properly effectuated by the CSK.
Notwithstanding
the foregoing, it is understood and agreed that the representations and
warranties set forth in Section 1(b)(iii), 1(b)(iv), 1(b)(v), 1(b)(vi) and
1(b)(vii), 1(h) (except as to due authorization of the Notes and Indenture
Pre-paid Purchase Contracts), 1(i) (except as to due authorization of the Units,
Warrants, Physically-settled Pre-paid Purchase Contracts and Non- Pre-paid
Purchase Contracts), 1(j) (except as to due authorization of the Units and
Warrants) and 1(k), when made as of the Commencement Date, or as of any date on
which you solicit offers to purchase Program Securities, with respect to any
Program Securities the payments of principal or interest on which, or any other
payments with respect to which, will be determined by reference to one or more
currency exchange rates, commodity prices, securities of entities affiliated or
unaffiliated with the Company, baskets of such securities, equity indices or to
other property or other factors, shall be deemed not to address the application
of the Commodity Exchange Act, as amended, or the rules, regulations or
interpretations of the Commodity Futures Trading Commission.
2.
Solicitations
as Agents; Purchases as Principals.
(a) Solicitations as Agents. In
connection with your actions as agent hereunder, you agree to use reasonable
efforts to solicit offers to purchase Program Securities upon the terms and
conditions set forth in the Prospectus as then amended or
supplemented.
The
Company reserves the right, in its sole discretion, to instruct you to suspend
at any time, for any period of time or permanently, the solicitation of offers
to purchase Program Securities. Upon receipt of at least one business day’s
prior notice from the Company, you will forthwith suspend solicitations of
offers to purchase Program Securities from the Company until such time as the
Company has advised you that such solicitation may be resumed. While such
solicitation is suspended, the Company shall not be required to deliver any
certificates, opinions or letters in accordance with Sections 5(a), 5(b) and
5(c); provided, however, that if the
Registration Statement or Prospectus is amended or supplemented during the
period of suspension (other than by an amendment or supplement providing solely
for (i) in the case of Notes issued alone or as part of a Unit, a change in the
interest rates, redemption provisions, amortization schedules or maturities
offered on the Notes, (ii) in the case of Units, a change in the exercise price,
exercise date or period or expiration of an underlying Warrant or a change in
the settlement date or purchase or sale price of an underlying Purchase Contract
or (iii) for a change you deem to be immaterial), you shall not be required to
resume soliciting offers to purchase Program Securities until the Company has
delivered such certificates, opinions and letters as you may
request.
10
You shall
communicate to the Company, orally or in writing, each offer to purchase Program
Securities received by you as agent that in your judgment should be considered
by the Company. The Company shall have the sole right to accept offers to
purchase Program Securities and may reject any offer in whole or in part. You
shall have the right to reject any offer to purchase Program Securities that you
consider to be unacceptable, and any such rejection shall not be deemed a breach
of your agreements contained herein. The procedural details relating to the
issue and delivery of Program Securities sold by you as agent and the payment
therefor shall be as set forth in the Administrative Procedures (as hereinafter
defined).
(b)
Purchases as
Principals. Each sale of Program Securities to you as principals shall be
made in accordance with the terms of this Agreement. In connection with each
such sale, the Company will enter into a Notes Terms Agreement or Units Terms
Agreement that will provide for the sale of such Program Securities to and the
purchase thereof by you. Each Notes Terms Agreement or Units Terms Agreement
will take the form of either (i) a written agreement between you and the
Company, which may be substantially in the form of Exhibit A or Exhibit A-1 (as
applicable) hereto (in the case of Notes, a “Written Notes Terms
Agreement,” and in the case of Units, a “Written Units Terms
Agreement”), or (ii) an oral agreement between you and the Company
confirmed in writing by you to the Company.
Your
commitment to purchase Program Securities as principal pursuant to a Notes Terms
Agreement or Units Terms Agreement shall be deemed to have been made on the
basis of the representations and warranties of the Company herein contained and
shall be subject to the terms and conditions herein set forth. Each (i) Notes
Terms Agreement shall specify the principal amount of Notes to be purchased by
you pursuant thereto, the maturity date of such Notes, the price to be paid to
the Company for such Notes, the interest rate and interest rate formula, if any,
applicable to such Notes and any other terms of such Notes and (ii) Units Terms
Agreement shall specify (a) the information set forth in (i) above with respect
to any Notes issued as part of a Unit, (b) with respect to any Warrants issued
as part of a Unit, the exercise price, the exercise date or period, the
expiration date and any other terms of such Warrants and (c) with respect to any
Purchase Contracts issued as part of a Unit, the settlement date, the purchase
or sale price or any other terms of such Purchase Contracts. Each such Notes
Terms Agreement or Units Terms Agreement may also specify any requirements for
officers’ certificates, opinions of counsel and letters from the independent
auditors of the Company pursuant to Section 4 hereof. A Notes Terms Agreement
and a Unit Terms Agreement may also specify certain provisions relating to the
reoffering of such Notes or Units, as the case may be, by you.
11
Each Notes
Terms Agreement and each Units Terms Agreement shall specify the time and place
of delivery of and payment for such Notes or Units, as the case may be. Unless
otherwise specified in a Notes Terms Agreement or a Units Terms Agreement, the
procedural details relating to the issue and delivery of Notes or Units, as the
case may be, purchased by you as principal and the payment therefor shall be as
set forth in the Administrative Procedures. Each date of delivery of and payment
for Program Securities to be purchased by you as principal pursuant to a Notes
Terms Agreement or a Units Terms Agreement, as the case may be, is referred to
herein as a “Settlement
Date.”
Unless
otherwise specified in a Notes Terms Agreement or a Units Terms Agreement, if
you are purchasing Program Securities as principal you may resell such Program
Securities to other dealers. Any such sales may be at a discount, which shall
not exceed the amount set forth in the Time of Sale Prospectus and Prospectus
relating to such Notes or Units.
(c) Administrative Procedures.
You and the Company agree to perform the respective duties and
obligations specifically provided to be performed in the Global Medium Term
Notes, Series G and Series H and Global Units, Series G and Series H,
Administrative Procedures (attached hereto as Exhibit B) (the “Administrative Procedures”),
as amended from time to time. The Administrative Procedures may be amended only
by written agreement of the Company and you.
(d) Delivery. The documents
required to be delivered by Section 4 of this Agreement as a condition
precedent to your obligation to begin soliciting offers to purchase Program
Securities as agent of the Company shall be delivered at the office of Sidley
Austin LLP, your counsel,
not later than 4:00 p.m., New York City time, on the date hereof, or at such
other time and/or place as you and the Company may agree upon in writing, but in
no event later than the day prior to the earlier of (i) the date on which you
begin soliciting offers to purchase Program Securities and (ii) the first date
on which the Company accepts any offer by you to purchase Program Securities as
principal. The date of delivery of such documents is referred to herein as the
“Commencement
Date.”
(e) Free Writing Prospectuses. In
connection with your actions hereunder, you covenant that, unless
you obtain the prior consent of the Company, you will not make any offer
relating to the Program Securities that would constitute an “issuer free writing
prospectus,” as defined in Rule 433(h) under the Securities Act, or that would
otherwise constitute a free writing prospectus required to be filed with the
Commission.
3. Agreements. The
Company agrees with you that:
(a)
The
Company will furnish to you a copy of each proposed free writing prospectus to
be prepared by or on behalf of, used by, or referred to by the Company relating
to the offering of the Program Securities and the Company will not use or refer
to any proposed free writing prospectus to which you reasonably
object.
(b)
The
Company will not take any action that would result in you or the Company being
required to file with the Commission pursuant to Rule 433(d) under
the
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(c)
If the
Time of Sale Prospectus is being used to solicit offers to buy Program
Securities at a time when the Prospectus is not yet available to prospective
purchasers and any event shall occur or condition exist as a result of which it
is necessary to amend or supplement the Time of Sale Prospectus in order to make
the statements therein, in the light of the circumstances, not misleading, or if
any event shall occur or condition exist as a result of which the Time of Sale
Prospectus conflicts with the information contained in the Registration
Statement then on file, or if, in the opinion of your counsel, it is necessary
to amend or supplement the Time of Sale Prospectus to comply with applicable
law, the Company will forthwith prepare, file with the Commission and furnish,
at the Company’s own expense, to you and to any dealer upon request, either
amendments or supplements to the Time of Sale Prospectus so that the statements
in the Time of Sale Prospectus as so amended or supplemented will not, in the
light of the circumstances when delivered to a prospective purchaser, be
misleading or so that the Time of Sale Prospectus, as amended or supplemented,
will no longer conflict with the Registration Statement, or so that the Time of
Sale Prospectus, as amended or supplemented, will comply with applicable
law.
(d)
Prior to
the termination of the offering of the Program Securities pursuant to this
Agreement or pursuant to any Notes Terms Agreement or Units Terms Agreement, the
Company will not file any Time of Sale Prospectus or prospectus supplement
(including any product supplement or pricing supplement) relating to the Program
Securities or any amendment to the Registration Statement relating to the
Program Securities unless the Company has previously furnished to you a copy
thereof for your review and will not file any such proposed supplement or
amendment to which you reasonably object; provided, however, that the foregoing
requirement shall not apply to any of the Company’s periodic filings with the
Commission required to be filed pursuant to Section 13(a), 13(c), 13(f), 14 or
15(d) of the Exchange Act, copies of which filings the Company will cause to be
delivered to you promptly after being transmitted for filing with the
Commission. Subject to the foregoing sentence, the Company will promptly cause
each supplement to the Basic Prospectus relating to the Program Securities
(including any product supplement or pricing supplement) to be filed with or
transmitted for filing to the Commission in accordance with Rule 424(b) under
the Securities Act. The Company will promptly advise you (i) of the filing of
any amendment or supplement to the Basic Prospectus, (ii) of the filing and
effectiveness of any amendment to the Registration Statement, (iii) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Basic Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose, (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Program Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (vi) of the issuance by any
non-United States regulatory authority of any request for information relating
to the Program Securities or suspension of the listing, trading and/or quotation
of any
13
(e)
If, at any time when the Prospectus (or in lieu thereof the notice
referred to in Rule 173(a) under the Securities Act) relating to the Program
Securities is required to be delivered under the Securities Act or made
available to purchasers of the Program Securities, any event occurs or condition
exists as a result of which the Prospectus, as then amended or supplemented,
would include an untrue statement of a material fact, or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances when the Prospectus (or in lieu thereof the notice referred to in
Rule 173(a) under the Securities Act), as then amended or supplemented, is
delivered to a purchaser, not misleading, or if, in your opinion or in the
opinion of the Company, it is necessary at any time to amend or supplement the
Prospectus, as then amended or supplemented, to comply with applicable law, the
Company will immediately notify you by telephone (with confirmation in writing)
to suspend solicitation of offers to purchase Program Securities and, if so
notified by the Company, you shall forthwith suspend such solicitation and cease
using the Prospectus, as then amended or supplemented. If the Company shall
decide to amend or supplement the Registration Statement or Prospectus, as then
amended or supplemented, it shall so advise you promptly by telephone (with
confirmation in writing) and, at its expense, shall prepare and cause to be
filed promptly with the Commission an amendment or supplement to the
Registration Statement or Prospectus, as then amended or supplemented, that will
correct such statement or omission or effect such compliance and will supply
such amended or supplemented Prospectus to you in such quantities as you may
reasonably request. If any documents, certificates, opinions and letters
furnished to you pursuant to Section 3(i) and Sections 5(a), 5(b) and 5(c) in
connection with the preparation and filing of such amendment or supplement are
satisfactory in all respects to you, upon the filing with the Commission of such
amendment or supplement to the Prospectus or upon the effectiveness of an
amendment to the Registration Statement, you will resume the solicitation of
offers to purchase Program Securities hereunder. Notwithstanding any other
provision of this Section 3(e), until the distribution of any Program Securities
you may own as principal has been completed, if any event described above in
this Section 3(e) occurs, the Company will, at its own expense, forthwith
prepare and cause to be filed promptly with the Commission an amendment or
supplement to the Registration Statement or Prospectus, as then amended or
supplemented, satisfactory in all respects to you, will supply such amended or
supplemented Prospectus to you in such quantities as you may reasonably request
and shall furnish to you pursuant to Section 3(i) below and Sections 5(a), 5(b)
and 5(c) such documents, certificates, opinions and letters as you may request
in connection with the preparation and filing of such amendment or
supplement.
14
(g)
The
Company will furnish in New York City, without charge, (i) to you, a signed copy
of the Registration Statement, including exhibits and all amendments thereto,
and as many copies of the Prospectus, any documents incorporated by reference
therein and any supplements and amendments thereto as you may reasonably request
and (ii) to the Agent that purchases Program Securities pursuant to a Notes
Terms Agreement or Units Terms Agreement or solicits an offer to purchase
Program Securities that is accepted by the Company, prior to 10:00 a.m. New York
City time on the business day next succeeding the date of such Notes Terms
Agreement or Units Terms Agreement or the acceptance of such offer, as many
copies of the Prospectus, as then amended or supplemented (including the Time of
Sale Prospectus and the Prospectus Supplement relating to the Program Securities
to be purchased pursuant to such Notes Terms Agreement or Units Terms Agreement
or accepted offer), as such Agent may reasonably request.
(h)
During the
term of this Agreement, the Company shall furnish to you such relevant documents
and certificates of officers of the Company relating to the business, operations
and affairs of the Company, the Registration Statement, the Basic Prospectus,
any amendments or supplements thereto, any Time of Sale Prospectus, the
Indentures, the Unit Agreement, the Unit Agreement Without Holders’ Obligations,
the Warrant Agreement, the ICSD Agreement, the Notes, the Units, the Warrants,
the Purchase Contracts, this Agreement, the Administrative Procedures, any Notes
Terms Agreement or Units Terms Agreement and the performance by the Company of
its obligations hereunder or thereunder as you may from time to time reasonably
request.
(i)
The
Company shall notify you promptly in writing of any downgrading, or of its
receipt of any notice of any intended or potential downgrading or of any review
for possible change that does not indicate the direction of the possible change,
in the rating accorded the Company or any of the securities of the Company or in
the rating outlook for the Company by any “nationally recognized statistical
rating organization,” as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act.
(j)
Whether or
not any sale of Program Securities is consummated or this Agreement or any Notes
Terms Agreement or Units Terms Agreement is terminated, the Company will pay or
cause to be paid all expenses incident to the performance of its obligations
under this Agreement and any Notes Terms Agreement or Units Terms Agreement,
including: (i) the fees, disbursements and expenses of the Company’s counsel and
the Company’s accountants, of the Trustees and their counsel, of the Unit Agent
and its counsel, of the Warrant Agent and its counsel and of the Principal
Paying Agent and its counsel and any paying agents for the Program Securities
appointed by
15
the Company in connection with the registration and delivery of the
Program Securities under the Securities Act and all other fees or expenses in
connection with the preparation and filing of the Registration Statement, the
Prospectus, any preliminary prospectus, the Time of Sale Prospectus, any free
writing prospectus prepared by or on behalf of, used by, or referred to by the
Company and amendments and supplements to any of the foregoing, including the
filing fees payable to the Commission relating to the Securities (within the
time required by Rule 456(b)(1), if applicable), all printing costs associated
therewith, and the mailing and delivering of copies thereof to you and the
dealers, in the quantities hereinabove specified, (ii) all costs and expenses
related to the transfer and delivery of the Program Securities to you, including
any transfer or other taxes payable thereon, (iii) the fees and expenses
incurred with respect to the admission of the Series G Notes (and the Series G
Units, if application for such admission is made) to the Official List of the UK
Listing Authority and to trading on the London Stock Exchange or to listing,
trading and/or quotation by any other listing authority, stock exchange and/or
quotation system if so required by Section 3(o) hereof, (iv) all filing fees and
the reasonable fees and disbursements of your counsel, if any, incurred in
connection with the review and qualification of the offering of the Program
Securities by the Financial Industry Regulatory Authority, Inc., (v) any fees
charged by the rating agencies for the rating of the Program Securities, (vi)
all fees and expenses in connection with the preparation and filing of any
registration statement on Form 8-A relating to any Program Securities and all
costs and expenses incident to listing the Program Securities on any national
securities exchanges and foreign stock exchanges,(vii) the cost
of the preparation, issuance and delivery of the Program Securities,
(viii) the costs
and charges of any trustee, transfer agent, registrar or depositary, (ix) the
costs and expenses of the Company relating to investor presentations on any
“road show” undertaken in connection with the marketing of the offering of the
Program Securities, including, without limitation, expenses associated with the
preparation or dissemination of any electronic road show, expenses associated
with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants, and the
cost of any aircraft chartered in connection with the road show, (x) the
document production charges and expenses associated with printing this
Agreement, the Indentures, the Unit Agreement, the Unit Agreement Without
Holders’ Obligations, the Warrant Agreement, any Note Terms Agreement and any
Unit Terms Agreement, (xi) the fees and disbursements of your counsel incurred
in connection with the offering and sale of the Program Securities, including
any opinions to be rendered by such counsel hereunder, (xii) any out-of-pocket
expenses incurred by you (provided that any advertising expenses incurred by you
shall have been approved by the Company) and (xiii) all other costs and expenses
incident to the performance of the obligations of the Company hereunder for
which provision is not otherwise made in this Section. It is understood,
however, that except as provided in this Section and Section 6 entitled
“Indemnification and Contribution,” you will pay all of your costs and expenses,
including fees and disbursements of your counsel, transfer taxes payable on
resale of any of the Program Securities by you and any advertising expenses
connected with any offers you may make.
16
(l)
During the
period beginning on the date of any Notes Terms Agreement or Units Terms
Agreement relating to either Notes or Units, as the case may be, and continuing
to and including the Settlement Date with respect to such Notes Terms Agreement
or Units Terms Agreement, the Company will not, without your prior consent,
offer, sell, contract to sell or otherwise dispose of (i) in the case of Notes,
any debt securities of the Company substantially similar to the Notes set forth
in such Notes Terms Agreement (other than (A) the Notes that are to be sold
pursuant to such Notes Terms Agreement, (B) Notes previously agreed to be sold
by the Company and (C) commercial paper issued in the ordinary course of
business) or (ii) in the case of Units, any securities substantially similar to
such Units (other than (A) the Units that are sold pursuant to such Units Terms
Agreement or (B) Units previously agreed to be sold by the Company), in each
case, except as may otherwise be provided in the applicable Notes Terms
Agreement or Units Terms Agreement.
(m)
Unless
otherwise notified by you, the Company will prepare a final term sheet (a “Term Sheet”) relating to each
offering of the Program Securities, containing only information that describes
the final terms of the Program Securities or the offering, in a form consented
to by you, and will file such Term Sheet within the period required by Rule
433(d)(5)(ii) under the Securities Act following the date the final terms have
been established for the offering of the Program Securities.
(n)
The
Company will indemnify and hold you harmless against any documentary, stamp or
similar transfer or issue tax, including any interest and penalties, on the
issue of the Program Securities in accordance with the terms of this Agreement,
on the execution and delivery of this Agreement, any Written Notes Terms
Agreement or Written Units Terms Agreement and on the exchange of any temporary
global Notes for definitive Notes or permanent global Notes, of any temporary
global Units for definitive Units or permanent global Units, of any permanent
global bearer Notes for definitive bearer Notes or of any permanent global
bearer Units for definitive bearer Units, that are or may be required to be paid
under the laws of the United Kingdom, the United States or any political
subdivision or taxing authority thereof or therein.
(o)
In
connection with any application to admit the Series G Notes or Series G Units to
the Official List of the UK Listing Authority and to trading on the gilt edged
and fixed income market of the London Stock Exchange, the Company will furnish
from time to time any and all documents, instruments, information and
undertakings and publish all advertisements or other material that may be
necessary in order to effect
17
(p)
In respect of any Notes which have a maturity of less than one year where
either (a) the issue proceeds of such Notes are received by the Company in the
United Kingdom or (b) the activity of issuing such Notes is carried on from an
establishment maintained by the Company in the United Kingdom, the Company will
issue such Notes only if the following conditions apply (or the Notes can
otherwise be issued without contravention of Section 19 of the Financial
Services and Markets Xxx 0000 (the “FSMA”)): (i) you represent,
warrant and agree in the terms relating to the Notes set out in Section 7(b)(i);
and (ii) the redemption value of each such Note is not less than ₤100,000 (or an
amount of equivalent value denominated wholly or partly in a currency other than
sterling), and no part of any Note may be transferred unless the redemption
value of that part is not less than ₤100,000 (or such an equivalent
amount).
4.
Conditions of the
Obligations of the Agents. Your obligation to solicit offers to purchase
Program Securities as agent of the Company, your obligation to purchase Program
Securities as principals pursuant to any Notes Terms Agreement or Units Terms
Agreement and the obligation of any other purchaser to purchase Program
Securities will be subject to the accuracy of the representations and warranties
on the part of the Company herein, to the accuracy of the statements of the
Company’s officers made in each certificate furnished pursuant to the provisions
hereof and to the performance and observance by the Company of all covenants and
agreements herein contained on its part to be performed and observed (in the
case of your obligation to solicit offers to purchase Program Securities, at the
time of such solicitation, and, in the case of your or any other purchaser’s
obligation to purchase Program Securities, at the time
18
(a)
Prior to
such solicitation or purchase, as the case may be:
(i)
there
shall not have occurred any change, or any development involving a prospective
change, in the condition, financial or otherwise, or in the earnings, business
or operations of the Company and its consolidated subsidiaries, taken as a
whole, from that set forth in the Time of Sale Prospectus that, in your
judgment, is material and adverse and that makes it, in your judgment,
impracticable to market the Program Securities on the terms and in the manner
contemplated by the Time of Sale Prospectus;
(ii)
there
shall not have occurred such a change in national or international financial,
political or economic conditions or currency exchange rates or exchange controls
as would in your view be likely to prejudice materially the success of the
offering and distribution of the Program Securities or dealings in the Program
Securities in the secondary market; and
(iii)
there
shall not have occurred any downgrading, nor shall any notice have been given of
any intended or potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in the rating
accorded the Company or any of the securities of the Company or in the rating
outlook for the Company by any “nationally recognized statistical rating
organization,” as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act;
(A) except, in
each case described in paragraph (i), (ii) or (iii) above, as disclosed to you
in writing by the Company prior to such solicitation or, in the case of a
purchase of Program Securities, before the offer to purchase such Program
Securities was made or (B) unless in each case described in (ii) above, the
relevant event shall have occurred and been known to you prior to such
solicitation or, in the case of a purchase of Program Securities, before the
offer to purchase such Program Securities was made.
(b) On the
Commencement Date and, if called for by any Notes Terms Agreement or Units Terms
Agreement, on the corresponding Settlement Date, you shall have
received:
(i)
The
opinion, dated as of such date, of Xxxxx Xxxx & Xxxxxxxx, special counsel to
the Company, or of other counsel satisfactory to you and who may be an officer
of the Company, to the following effect that:
(A)
the
Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the State of Delaware, has the corporate power and
authority to own its property and to conduct its business as described in the
Prospectus, as amended or supplemented, and the Time of Sale Prospectus, if
applicable, and is duly
19
(B)
each of
Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxx Xxxxxxx International Holdings
Inc. (each a “Material
Subsidiary”) has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus, as amended or supplemented,
and the Time of Sale Prospectus, if applicable, and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole;
(C)
each of
the Company and its Material Subsidiaries has all necessary consents,
authorizations, approvals, orders, certificates and permits of and from, and has
made all declarations and filings with, all federal, state, local and other
governmental authorities, all self regulatory organizations and all courts and
other tribunals, to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus, as amended or
supplemented, and the Time of Sale Prospectus, if applicable, except to the
extent that the failure to obtain or file would not have a material adverse
effect on the Company and its consolidated subsidiaries, taken as a
whole;
(D)
each of
this Agreement and any applicable Written Notes Terms Agreement or Written Units
Terms Agreement has been duly authorized, executed and delivered by the
Company;
(E)
each
Indenture has been duly qualified under the Trust Indenture Act and each of the
Senior Indenture, the Subordinated Indenture, the Unit Agreement, the Unit
Agreement Without Holders’ Obligations, the Warrant Agreement and the ICSD
Agreement has been duly authorized, executed and delivered by the Company and is
a valid and binding agreement of the Company, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally, concepts of reasonableness and equitable principles
of general applicability;
(F)
the forms
of Notes (including the forms of Indenture Pre- paid Purchase Contracts),
whether issued alone or as part of a Unit, have been duly authorized and
established in conformity with the provisions of
20
(G)
the forms
of Units under the Unit Agreement, including the forms of Warrants,
Physically-settled Pre-paid Purchase Contracts and Non-Pre-paid Purchase
Contracts, have been duly authorized and established in conformity with the
provisions of (i) in the case of Units under the Unit Agreement,
Physically-settled Pre-paid Purchase Contracts and Non-Pre-paid Purchase
Contracts, the Unit Agreement and (ii) in the case of the Warrants, the Warrant
Agreement. If such Units (including the Warrants, the Physically-settled
Pre-paid Purchase Contracts and the Non- Pre-paid Purchase Contracts) had been
delivered to and duly paid for by the purchasers thereof (and any Purchase
Contracts included therein had been executed by the Company and countersigned by
the Unit Agent and any Warrants included therein had been executed by the
Company and countersigned by the Warrant Agent) on the date of such opinion,
such Units (including the Physically-settled Pre-paid Purchase Contracts, the
Non-Pre-paid Purchase Contracts and the Warrants contained therein) would be
entitled to the benefits of the Unit Agreement and, in the case of the Warrants,
the Warrant Agreement, and would be valid and binding obligations of the
Company, enforceable in accordance with their respective terms, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors’ rights
generally, concepts of reasonableness and equitable principles of general
applicability;
(H)
the forms
of Units under the Unit Agreement Without Holders’ Obligations have been duly
authorized and established in conformity with the provisions of the Unit
Agreement Without Holders’ Obligations (and the forms of any Warrants included
therein have been duly authorized and established in conformity with the
provisions of the Warrant Agreement). If such Units (including any such Warrants
included therein) had been delivered to and duly paid for by the purchasers
thereof (and any Warrants included therein had been executed by the Company and
countersigned by the Warrant Agent) on the date of such opinion, such Units
(including the Warrants contained therein) would be entitled to the benefits of
the Unit Agreement Without Holders’ Obligations and in
21
(I)
the
execution and delivery by the Company of the Notes and Indenture Pre-paid
Purchase Contracts (whether issued alone or as part of a Unit), the Units
(including any Purchase Contract or Warrant included therein), the Indentures,
the Unit Agreement, the Unit Agreement Without Holders’ Obligations, the Warrant
Agreement and any applicable Written Notes Terms Agreement or Written Units
Terms Agreement and the performance by the Company of its obligations under this
Agreement, the Notes, the Indenture Pre-paid Purchase Contracts, the Units
(including any Warrants or Purchase Contracts included therein), the Indentures,
the Unit Agreement, the Unit Agreement Without Holders’ Obligations, the Warrant
Agreement and any applicable Notes Terms Agreement or Units Terms Agreement will
not contravene any provision of applicable law or the certificate of
incorporation or by laws of the Company or, to the best of such counsel’s
knowledge, any agreement or other instrument binding upon the Company or any of
its subsidiaries that is material to the Company and its consolidated
subsidiaries, taken as a whole, or, to the best of such counsel’s knowledge, any
judgment, order or decree of any U.S. governmental body, agency or court having
jurisdiction over the Company or any of its consolidated subsidiaries, and no
consent, approval, authorization or order of or qualification with any U.S.
governmental body or agency is required for the performance by the Company of
its obligations under this Agreement, the Notes, the Indenture Pre-paid Purchase
Contracts, the Units (including any Purchase Contracts or Warrants included
therein), the Indentures, the Unit Agreement, the Unit Agreement Without
Holders’ Obligations, the Warrant Agreement and any applicable Notes Terms
Agreement or Units Terms Agreement; provided, however, that no opinion is
expressed on whether the purchase of the Program Securities
constitutes a “prohibited transaction” under Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, or Section 4975 of
the Internal Revenue Code of 1986, as amended;
(J)
the
statements relating to legal matters, documents or proceedings included in (1)
the Prospectus, as then amended or supplemented, and the Time of Sale
Prospectus, if applicable, under the captions “Description of Notes” (in the
Prospectus Supplement), “Description of Debt Securities” (in the Basic
Prospectus), “Description of Units” (in the Prospectus Supplement and the Basic
Prospectus), “Plan of Distribution” (in the Prospectus Supplement and the Basic
Prospectus), “Description of Purchase Contracts” (in the Basic Prospectus) and
“Description of Warrants” (in the Basic Prospectus), (2) the
Registration
22
(K)
after due
inquiry, such counsel does not know of any legal or governmental proceedings
pending or threatened to which the Company or any of its consolidated
subsidiaries is a party or to which any of the properties of the Company or any
of its consolidated subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus, as then amended or supplemented,
and are not so described or of any U.S. federal or state statutes, regulations,
contracts or other documents governed by U.S. federal or state law that are
required to be described in the Registration Statement or the Prospectus, as
then amended or supplemented, or to be filed or incorporated by reference as
exhibits to such Registration Statement that are not described, filed or
incorporated by reference as required;
(L)
the
Company is not, and after giving effect to the offering and sale of the Program
Securities and the application of the proceeds thereof as described in the
Prospectus, will not be, required to register as an “investment company” as such
term is defined in the Investment Company Act of 1940, as amended;
and
(M) (1) in the
opinion of such counsel (A) each document filed pursuant to the Exchange Act and
incorporated by reference in the Registration Statement and the Prospectus, as
then amended or supplemented, and the Time of Sale Prospectus, if applicable
(except for the financial statements and financial schedules and other financial
and statistical data included therein, as to which such counsel need not express
any opinion), appeared on its face to be appropriately responsive as of its
filing date in all material respects to the requirements of the Exchange Act and
the applicable rules and regulations of the Commission thereunder and
(B) the
Registration Statement and the Prospectus, as then amended or supplemented, if
applicable (except for the financial statements and financial schedules and
other financial and statistical data included therein and except for those parts
of the Registration Statement that constitute the Forms T-1, as to which such
counsel need not express any opinion), appear on their face to be appropriately
responsive in all material respects to the requirements of the Securities Act
and the applicable rules and regulations of the Commission thereunder, and (2)
nothing has come to the attention of such counsel that causes such counsel to
believe that (A) any part of the Registration Statement, as then amended, if
applicable, when
23
(ii)
The opinion, dated as of such date, of Sidley Austin LLP, your special counsel,
covering the matters in subparagraphs (D), (E), (F), (G), (H) and (J) (with
respect to statements in the Prospectus and the Time of Sale Prospectus, if
applicable, as then amended or supplemented, under the captions “Description of
Notes” (in the Prospectus Supplement), “Description of Debt Securities” (in the
Basic Prospectus), “Description of Units” (in the Prospectus Supplement and the
Basic Prospectus), “Plan of Distribution” (in the Prospectus Supplement and in
the Basic Prospectus), “Description of Purchase Contracts” (in the Basic
Prospectus) and “Description of Warrants” (in the Basic Prospectus)) and clauses
4(b)(i)(M)(2)(B), 4(b)(i)(M)2(C) and 4(b)(i)(M)(2)(D) above.
Notwithstanding
the foregoing, the opinions described in Sections 4(b)(i)(F) (except as to due
authorization of the Notes and Indenture Pre-paid Purchase Contracts),
4(b)(i)(G) (except as
24
With
respect to Section 4(b)(i)(M) above, if such opinion is given by counsel who is
also an officer of the Company, such counsel may state that his or her opinions
and beliefs are based upon his or her participation, or the participation of
someone under his or her supervision, in the preparation of the Registration
Statement, the Time of Sale Prospectus and the Prospectus and any amendments or
supplements thereto and review and discussion of the contents thereof, but are
without independent check or verification, except as specified. With respect to
Section 4(b)(i)(M) above, Sidley Austin LLP and, if Xxxxx Xxxx &
Xxxxxxxx is giving such opinion, Xxxxx Xxxx & Xxxxxxxx may state that their
opinions and beliefs are based upon their participation in the preparation of
the Registration Statement, the Time of Sale Prospectus, the Prospectus, the
preliminary prospectus supplement, if any, any identified free writing
prospectuses (but not including documents incorporated therein by reference) and
upon review and discussion of the contents of the Registration Statement, the
Time of Sale Prospectus and the Prospectus (including documents incorporated
therein by reference), but are without independent check or verification, except
as specified.
(iii)
The opinion, dated as of such date, of Xxxxx Xxxx & Xxxxxxxx, special
counsel to the Company, to the effect that the statements set forth under the
caption “United States Federal Taxation” in the Basic Prospectus and the
Prospectus Supplement and under the caption “Forms of Securities—Limitations on
Issuance of Bearer Securities” in the Basic Prospectus, insofar as such
statements relate to statements of law or legal conclusions under the laws of
the United States or matters of United States law, fairly present the
information called for and fairly summarize the matters referred to
therein.
The
opinion of Xxxxx Xxxx & Xxxxxxxx described in Section 4(b)(iii) and in
Section 4(b)(i), if such opinion is given by Xxxxx Xxxx & Xxxxxxxx, shall be
rendered to you at the request of the Company and shall so state
therein.
(c)
On the Commencement Date and, if called for by any Notes Terms Agreement
or Units Terms Agreement, on the corresponding Settlement Date, you shall have
received a certificate, dated the Commencement Date or such Settlement Date, as
the case may be, and signed by an officer of the Company to the effect set forth
in Section 4(a)(iii) above and to the effect that the representations and
warranties of the Company contained in this Agreement are true and correct as of
such date and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied on or
before such date.
25
(d)
On the
Commencement Date and, if called for by any Notes Terms Agreement or Units Terms
Agreement, on the corresponding Settlement Date, the Company’s public
accountants shall have furnished to you a letter or letters, dated as of the
Commencement Date or such Settlement Date, as the case may be, in form and
substance satisfactory to you containing statements and information of the type
ordinarily included in accountants’ “comfort letters” to underwriters with
respect to the financial statements and certain financial information contained
in or incorporated by reference into the Registration Statement, the Time of
Sale Prospectus and the Prospectus, as then amended or supplemented; provided that each letter so
furnished shall use a “cut-off date” no more than three business days prior to
the date of such letter.
(e)
On the
Commencement Date and on each Settlement Date, the Company shall have furnished
to you such appropriate further information, certificates and documents as you
may reasonably request.
(f)
On the
Commencement Date, application to admit the Series G Notes issued by the Company
during the twelve months following the date of the approval of such application
to listing on the Official List of the UK Listing Authority and to trading on
the London Stock Exchange shall have been made and, prior to the issuance of the
first Series G Note offered pursuant to this Agreement, such admission to
listing and to trading shall have been granted, subject to official notice of
issuance.
5.
Additional Agreements of the
Company. (a) Each time the Registration Statement or Prospectus
is amended or supplemented (other than by an amendment or supplement providing
solely for (i) in the case of Notes, a change in the interest rates, redemption
provisions, amortization schedules or maturities offered on the Notes issued
alone or as part of a Unit, (ii) in the case of Units, (x) a change in the
exercise price, exercise date or period or expiration of an underlying Warrant
or (y) a change in the settlement date or purchase or sale price of an
underlying Purchase Contract or (iii) a change you deem to be immaterial), the
Company will deliver or cause to be delivered forthwith to you a certificate
signed by an executive officer of the Company, dated the date of such amendment
or supplement, as the case may be, in form reasonably satisfactory to you, of
the same tenor as the certificate referred to in Section 4(c) relating to the
Registration Statement or the Prospectus as amended or supplemented to the time
of delivery of such certificate.
(b)
Each time
the Company furnishes a certificate pursuant to Section 5(a) (other than any
amendment or supplement to the Registration Statement or Prospectus caused by
the filing of a Current Report on Form 8-K unless you shall reasonably request
based on disclosure included or omitted from such Report), the Company will
furnish or cause to be furnished forthwith to you a written opinion of counsel
for the Company. Any such opinion shall be dated the date of such amendment or
supplement, as the case may be, shall be in a form satisfactory to you and shall
be of the same tenor as the opinions referred to in Section 4(b), but modified
to relate to the Registration Statement
26
(c)
Each time
the Registration Statement or the Prospectus is amended or supplemented to set
forth amended or supplemental financial information or such amended or
supplemental information is incorporated by reference in the Prospectus, the
Company shall cause its independent auditors forthwith to furnish you with a
letter, dated the date of such amendment or supplement, as the case may be, in
form satisfactory to you, of the same tenor as the letter referred to in Section
4(d), with regard to the amended or supplemental financial information included
or incorporated by reference in the Registration Statement or the Prospectus as
amended or supplemented to the date of such letter; provided that each letter so
furnished shall use a “cut-off date” no more than three business days prior to
the date of such letter.
6.
Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless you and each
person, if any, who controls you within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act and each of your affiliates
within the meaning of Rule 405 under the Securities Act from and against any and
all losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus, the Time of Sale
Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under
the Securities Act, any Company information that the Company has filed, or is
required to file, pursuant to Rule 433(d) under the Securities Act, or the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to you furnished to the Company in writing by you expressly for use
therein.
(b)
You agree,
severally and not jointly, to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement and each person, if
any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to you, but only with reference to
information relating to you furnished to the Company in writing by you expressly
for use in the Registration Statement, any preliminary prospectus, the Time of
Sale Prospectus, any issuer free writing prospectus or the Prospectus or any
amendments or supplements thereto.
(c)
In case
any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought
pursuant
27
(d)
To the extent the indemnification provided for in Section 6(a) or 6(b) is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein in connection with any
offering of Program Securities, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and you on the other hand from the offering of such Program Securities or
(ii) if the allocation provided by clause 6(d)(i) above is not permitted by
applicable law,
28
(e)
The
Company and you agree that it would not be just or equitable if contribution
pursuant to this Section 6 were determined by pro rata allocation or by any
other method of allocation that does not take account of the equitable
considerations referred to in Section 6(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 6(d) shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6, you shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Program Securities referred to in Section 6(d) above that
were offered and sold to the public through you exceeds the amount of any
damages that you have otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in
equity.
(f)
The
indemnity and contribution provisions contained in this Section 6 and the
representations, warranties and other statements of the Company, its officers
and you contained in or made pursuant to this Agreement or any Notes Terms
Agreement or Units Terms Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement or any such Notes
Terms Agreement or Units Terms Agreement, (ii) any investigation made by or on
behalf of you or any person controlling you, any of your affiliates or by or on
behalf of the Company, its officers or directors or any person controlling the
Company and (iii) acceptance of and payment for any of the Program
Securities.
29
(a) (i)
you have not (A) offered,
sold or delivered and will not offer, sell or deliver
during the Restricted Period (as defined below) Bearer Notes (whether
offered
alone or as part of a Unit) (including any Note that is exchangeable for Bearer
Notes) or Bearer Units directly or indirectly in the United States (as defined
below) or to or for the account of any United States person (as defined below),
other than to a Qualifying Foreign Branch (as defined below) or to certain other
persons as provided under United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(1)(iii)(B) and (C); and (B) delivered and will not deliver
within the United States definitive Bearer Notes or Bearer Units that are sold
during the Restricted Period;
(ii)
you have,
and throughout the Restricted Period will have, in effect procedures reasonably
designed to ensure that your employees or agents who are directly engaged in
selling Bearer Notes (whether offered alone or as part of a Unit) or Bearer
Units are aware that such Bearer Notes or Bearer Units may not be offered or
sold during the Restricted Period to a person who is within the United States or
to a United States person, except as permitted by Section 7(a)(i)(A)
above;
(iii)
if you are
a United States person, you are acquiring the Bearer Notes (whether offered
alone or as part of a Unit) or Bearer Units for purposes of resale in connection
with their original issuance and if you retain Bearer Notes or Bearer Units for
your own account, you will only do so in accordance with the requirements of
United States Treasury Regulations Section 1.163- 5(c)(2)(i)(D)(6);
(iv)
if you
transfer to any affiliate Bearer Notes (whether offered alone or as part of a
Unit) or Bearer Units for the purpose of offering or selling such Bearer Notes
or Bearer Units during the Restricted Period, you will either (A) obtain from
such affiliate for the benefit of the Company the representations and agreements
contained in clauses (i), (ii) and (iii) above or (B) repeat and confirm the
representations and agreements contained in clauses (i), (ii) and (iii) above on
such affiliate’s behalf and obtain from such affiliate the authority to so
obligate it;
(v)
you will
obtain for the benefit of the Company the representations and agreements
contained in clauses (i), (ii), (iii) and (iv) above from any person other than
your affiliate with whom you enter into a written contract, within the meaning
of United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(4), for the
offer or sale during the Restricted Period of Bearer Notes (whether offered
alone or as part of a Unit) or Bearer Units; and
(vi)
you will
comply with or observe any other restrictions or limitations set forth in the
Prospectus on persons to whom, or the jurisdictions in which, or the manner in
which, the Bearer Notes (whether offered alone or as part of a Unit) or Bearer
Units may be offered, sold, resold or delivered.
30
(b)
With respect to Program Securities to be offered or sold in the United
Kingdom:
(i)
in relation to any Program Securities that have a maturity of less than
one year, (x) you are a person whose ordinary activities involve you in
acquiring, holding, managing or disposing of investments (as principal or agent)
for the purposes of your business and (y) you have not offered or sold and will
not offer or sell any Program Securities other than to persons:
(A)
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
(B)
who it is
reasonable to expect will acquire, hold, manage or dispose of investments (as
principal or agent) for the purposes of their businesses
where the
issue of the Program Securities would otherwise constitute a contravention of
Section 19 of the FSMA by the Company;
(ii)
you have only communicated or caused to be communicated and will only
communicate or cause to be communicated an invitation or inducement
31
(iii)
you have complied and will comply with all applicable provisions of the
FSMA with respect to anything done by you in relation to any Program Securities
in, from or otherwise involving the United Kingdom.
(c)
You will
not purchase, deliver, offer or sell any Program Securities or possess or
distribute offering material in relation to such Program Securities in any
jurisdiction if such purchase, delivery, offer or sale or the possession or
distribution of such offering material would not be in compliance with any
applicable law or regulation or if any consent, approval or permission is needed
for such purchase, delivery, offer or sale or the possession or distribution by
you or for or on behalf of the Company unless such consent, approval or
permission has been previously obtained. Without prejudice to the provisions of
this Section 7 above and subject to the obligations of the Company set forth in
Section 3 of this Agreement, the Company shall have no responsibility for, and
you will obtain, any consent, approval or permission required by you for the
subscription, offer, sale or delivery by you of Program Securities, or the
possession or distribution of any offering materials, under the laws and
regulations in force in any jurisdiction to which you are subject or in or from
which you make any subscription, offer, sale or delivery.
(d)
You will
not offer or sell any Program Securities, 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
organized under the laws of Japan) or to others for the re-offering or re-sale,
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 of Japan and other relevant laws and
regulations of Japan.
(e)
The Agent
and the Company represents and agrees that Program Securities will be issued
outside the Republic of France, that it will not offer or sell any Program
Securities in the Republic of France and will not distribute or cause to be
distributed in the Republic of France the Prospectus or any other offering
material relating to Program Securities, except to qualified investors (investisseurs qualifiés) as
defined in and in accordance with Articles L.411-2 and D.411-1 of the Code Monétaire et Financier.
(f)
In
relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (each, a “Relevant Member State”), with
effect from and including the date on which the Prospectus Directive is
implemented in that Relevant Member State (the “Relevant Implementation Date”)
you have not made and will not make an offer of Program Securities to the public
in that Relevant Member State except that you may, with effect from and
including the Relevant
32
(i)
if the
Prospectus Supplement in relation to such Program Securities specifies that an
offer of those Program Securities may be made other than pursuant to Article
3(2) of the Prospectus Directive in that Relevant Member State (a “Non-exempt Offer”), following
the date of publication of a prospectus in relation to such Program Securities
which has been approved by the competent authority in that Relevant Member State
or, where appropriate, approved in another Relevant Member State and notified to
the competent authority in that Relevant Member State, provided that any such
prospectus has subsequently been completed by the Prospectus Supplement
contemplating such Non-exempt Offer, in accordance with the Prospectus
Directive, in the period beginning and ending on the dates specified in such
prospectus or Prospectus Supplement, as applicable;
(ii)
at any
time to legal entities which are authorized or regulated to operate in the
financial markets or, if not so authorized or regulated, whose corporate purpose
is solely to invest in securities;
(iii)
at any
time to any legal entity which has two or more of (1) an average of at least 250
employees during the last financial year; (2) a total balance sheet of more than
€43,000,000; and (3) an annual net turnover of more than €50,000,000, as shown
in its last annual or consolidated accounts;
(iv)
at any
time to fewer than 100 natural or legal persons (other than qualified investors
as defined in the Prospectus Directive) subject to obtaining the prior consent
of the relevant agent, underwriter or dealer nominated by Xxxxxx Xxxxxxx for any
such offer; or
(v)
at any
time in any other circumstances falling within Article 3(2) of the Prospectus
Directive,
provided
that no such offer of Program Securities referred to in (ii) to (v) above shall
require Xxxxxx Xxxxxxx or any agent, underwriter and dealer to publish a
prospectus pursuant to Article 3 of the Prospectus Directive or supplement a
prospectus pursuant to Article 16 of the Prospectus Directive.
For the
purposes of this Section 7(f), the expression an "offer of Program Securities to
the public" in relation to any Program Securities in any Relevant Member State
means the communication in any form and by any means of sufficient information
on the terms of the offer and the Program Securities to be offered so as to
enable an investor to decide to purchase or subscribe the Program Securities, as
the same may be varied in that Member State by any measure implementing the
Prospectus Directive in that Member State and the expression "Prospectus
Directive" means Directive 2003/71/EC and includes any relevant implementing
measure in each Relevant Member State.
33
9.
Termination. This Agreement
may be terminated at any time either by the Company or by you upon
the giving of written notice of such termination to the other parties hereto,
but without prejudice to any rights, obligations or liabilities of the other
parties hereto accrued or incurred prior to such termination. The termination of
this Agreement shall not require termination of any Notes Terms Agreement or
Units Terms Agreement, and the termination of any such Notes Terms Agreement or
Units Terms Agreement shall not require termination of this Agreement. If this
Agreement is terminated, the provisions of the third paragraph of Section 2(a),
the last sentence of Section 3(e) and Sections 3(f), 3(h), 3(j), 3(k), 6, 7, 8,
10, 11 and 13 shall survive; provided that if at the time
of termination an offer to purchase Program Securities has been accepted by the
Company but the time of delivery to the purchaser or its agent of such Program
Securities has not occurred, the provisions of Sections 1, 2(b), 2(c), 3(d),
3(g), 3(h), 3(f), 3(i), 4 and 5 shall also survive until such delivery has been
made.
10.
Notices. All communications
hereunder will be in writing and effective only on receipt, and (a) if
sent to Xxxxxx Xxxxxxx & Co. International plc, will be mailed, delivered or
telefaxed and confirmed to Xxxxxx Xxxxxxx & Co. International plc, 00 Xxxxx
Xxxxxx, Xxxxxx Xxxxx, Xxxxxx X00 0XX, Xxxxxx Xxxxxxx, to the attention of Global
Capital Markets – Head of Transaction Management Group (Telephone No.:
x00-00-0000-0000; Telecopy No.: +44-20- 7677-7999) and (b) if sent to the
Company, will be mailed, delivered or telefaxed and confirmed to Xxxxxx Xxxxxxx,
000 Xxxxxxx Xxx, Xxx Xxxx XX 00000, Attention: Treasurer (Telecopy No.:
212-762-0337) (or to such other address as the Company may
designate).
11.
Successors. This Agreement
and any Notes Terms Agreement or Units Terms Agreement will inure to
the benefit of and be binding upon the parties hereto and their respective
successors and the officers, directors and controlling persons referred to in
Section 6 and the purchasers of Notes and Units (to the extent expressly
provided in Section 4), and no other person will have any right or obligation
hereunder.
12.
Counterparts. This Agreement
may be signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument.
13.
Applicable Law. This
Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
34
35
|
Very
truly yours,
|
|||
|
XXXXXX
XXXXXXX
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
hereby
confirmed and accepted as
of the
date first above written.
|
XXXXXX
XXXXXXX & CO.
INTERNATIONAL
PLC
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
XXXXXX
XXXXXXX
GLOBAL
MEDIUM-TERM NOTES, SERIES G AND SERIES H
NOTES
TERMS AGREEMENT
_____________,
200_
Xxxxxx
Xxxxxxx
0000
Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
|
Re:
|
Euro Distribution Agreement dated December 23, 2008
(the “Euro
Distribution
Agreement”)
|
The
undersigned agrees to purchase your Global Medium-Term Notes, Series G/H,
[specific designation] having the terms set forth below. The offering of the
Notes will be made pursuant to a Prospectus dated December 23, 2008, as amended
by a Prospectus Supplement dated December 23, 2008[,] [and] [Pricing
Supplement No. [ ] which we
expect to be dated on or about [ ]][,]
[and] [a free writing prospectus which we expect to be dated on or about
[ ]][,] [and] [a Term Sheet which we expect to be dated
on or about [ ]]
(collectively, the “Time of
Sale Prospectus”). The Notes
are expected to have the terms set forth below, but the final terms of the Notes will be
those set forth in the Time of Sale Prospectus.
|
All
Notes
|
Fixed
Rate Notes
|
Floating
Rate Notes
|
||
|
Principal
Amount:
|
Interest
Rate:
|
Base
Rate:
|
||
|
Purchase
Price:
|
Applicability
of Modified
|
Index
Maturity:
|
||
|
Payment
upon Acceleration:
|
||||
|
Price
to Public:
|
If
yes, state issue price:
|
Spread
(Plus or Minus):
|
||
|
Settlement
Date and Time:
|
Amortization
Schedule:
|
Spread
Multiplier:
|
||
|
Place
of Delivery:
|
Applicability
of Annual
|
Alternate
Rate Event Spread:
|
||
|
Interest
Payments:
|
||||
|
Specified
Currency:
|
Denominated
Currency (if
|
Initial
Interest Rate:
|
||
|
any):
|
||||
|
Original
Issue Date:
|
Indexed
Currency or
|
Initial
Interest Reset Date:
|
||
|
Currencies
(if any):
|
A-1
|
All
Notes
|
Fixed
Rate Notes
|
Floating
Rate Notes
|
||
|
Interest
Accrual Date:
|
Payment
Currency (if any):
|
Interest
Reset Dates:
|
||
|
Interest
Payment Date(s):
|
Exchange
Rate Agent (if any):
|
Interest
Reset Period:
|
||
|
Interest
Payment Period:
|
Reference
Dealers:
|
Maximum
Interest Rate:
|
||
|
Maturity
Date:
|
Face
Amount (if any):
|
Minimum
Interest Rate:
|
||
|
Optional
Repayment Date(s):
|
Fixed
Amount of each
|
Calculation
Agent:
|
||
|
Indexed
Currency (if any):
|
||||
|
Optional
Redemption Date(s):
|
Aggregate
Fixed Amount of
|
Reporting
Service:
|
||
|
each
Indexed Currency (if
|
||||
|
any):
|
||||
|
Initial
Redemption Date:
|
Index
Currency:
|
|||
|
Initial
Redemption
|
Designated
CMT Telerate
|
|||
|
Percentage:
|
Page:
|
|||
|
Annual
Redemption
|
Designated
CMT Maturity
|
|||
|
Percentage
Reduction:
|
Index:
|
|||
|
Redemption
Percentage at
Maturity:
|
||||
|
Ranking:
|
||||
|
Series:
|
||||
|
Minimum
Denominations:
|
||||
|
Form:
|
||||
|
New
Global Note (“NGN”):
[Yes/No]
|
||||
|
If
the Notes are NGNs, are they intended to be held in a manner that would
allow eligibility as collateral for Eurosystem intra-day credit and
monetary policy operations?
|
||||
|
[Yes]
|
A-2
|
All
Notes
|
Fixed
Rate Notes
|
Floating
Rate Notes
|
||
|
Other
Terms:
|
|
|
The
provisions of Sections 1, 2(b) and 2(c) and 3 through 7 and 10 through 14 of the
Euro Distribution Agreement and the related definitions are incorporated by
reference herein and shall be deemed to have the same force and effect as if set
forth in full herein.
This
Agreement is also subject to termination on the terms incorporated by reference
herein. If this Agreement is so terminated, the provisions of Sections 3(j), 6,
10, 11 and 13 of the Euro Distribution Agreement shall survive for the purposes
of this Agreement.
The
following information, opinions, certificates, letters and documents referred to
in Section 4 of the Euro Distribution Agreement will be required:
________________.
|
XXXXXX
XXXXXXX & CO.
INTERNATIONAL
PLC
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
Accepted:
|
XXXXXX
XXXXXXX
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
X-0
XXXXXX
XXXXXXX
GLOBAL
UNITS, SERIES G AND SERIES H
UNITS
TERMS AGREEMENT
_______________,
200_
Xxxxxx
Xxxxxxx
0000
Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
The
undersigned agrees to purchase your Global Units, Series G/H, [specified
designation] having the terms set forth below. The offering of the Units will be
made pursuant to a Prospectus dated December 23, 2008, as amended by a
Prospectus Supplement dated December
23, 2008[,] [and] [Pricing Supplement No. [ ] which we
expect to be dated on or about [ ]][,]
[and] [a free writing prospectus which we expect to be dated on or about
[ ]][,] [and] [a Term Sheet which we expect to be dated on or
about [ ]]
(collectively, the “Time of
Sale Prospectus”). The Units
are expected to have the terms set forth below, but the final terms of the Units will be
those set forth in the Time of Sale Prospectus.
|
Warrants
Issued as Part of a
|
Purchase
Contracts Issued
|
|||
|
All
Units:
|
Unit:
|
as
Part of a Unit:
|
||
|
Settlement
Date and Time:
|
Price:
|
Price:
|
||
|
Number
(Face Amount):
|
Designation
of the Series of
|
Designation
of the Series of
|
||
|
Warrants:
[Call] [Put]
|
Purchase
Contracts:
|
|||
|
Warrants
|
[Purchase][Sale]
Purchase
|
|||
|
Contracts
|
||||
|
Purchase
Price:
|
Warrant
Property:
|
Aggregate
Number of
|
||
|
Purchase
Contracts:
|
||||
|
Specified
Currency:
|
Aggregate
Number of
|
Purchase
Contract Property:
|
||
|
Warrants:
|
||||
|
Severability:
|
Date(s)
upon which Warrants
|
Quantity
per Purchase
|
A-1-1
|
Warrants
Issued as Part of a
|
Purchase
Contracts Issued
|
|||
|
All
Units:
|
Unit:
|
as
Part of a Unit:
|
||
|
may
be exercised:
|
Contract:
|
|||
|
Other
Terms:
|
Currency
in which exercise
|
[Purchase]
[Sale] Price:
|
||
|
payments
shall be made:
|
||||
|
Exchange
Rate (or method of
|
Settlement
Date:
|
|||
|
calculation:
|
||||
|
Expiration
Date:
|
Payment
Location:
|
|||
|
Form
of Settlement:
|
Method
of Settlement:
|
|||
|
[Call Price:]1
|
||||
|
[Formula
for determining
|
Currency
of Settlement
|
|||
|
Cash Settlement
Value:]2
|
Payment:
|
|||
|
[Amount
of Warrant Property
|
Contract
Fees, if any:
|
|||
|
Salable per Warrant:]3
|
||||
|
[Put
Price for such specified
|
Corporation
Acceleration:
|
|||
|
amount
of Warrant Property
|
||||
|
per Warrant:]2
|
||||
|
[Method
of delivery of any
|
Holders’
Acceleration:
|
|||
|
Warrant
Property to be
|
||||
|
delivered
for sale upon
|
||||
|
exercise of Warrants:]3
|
||||
|
Other
Terms:
|
Redemption
Provisions:
|
|||
|
Other
Terms:
|
1 Applicable to Call
Warrants
2 Applicable to Put
Warrants
3 Applicable to Put Warrants only if such
Put Warrants contemplate that the holder deliver Warrant Property to settle Put
Warrants
A-1-2
|
Unit:
|
Fixed Rate Notes Issued
as
Part of a
Unit:
|
Floating
Rate Notes Issued
as
Part of a Unit:
|
||
|
Principal
Amount:
|
Interest
Rate:
|
Base
Rate:
|
||
|
Purchase
Price:
|
Applicability
of Modified
|
Index
Maturity:
|
||
|
Payment
upon Acceleration:
|
|
|||
|
Price
to Public:
|
If
yes, state issue price:
|
Spread
(Plus or Minus):
|
||
|
Settlement
Date and Time:
|
Amortization
Schedule:
|
Spread
Multiplier:
|
||
|
Place
of Delivery:
|
Applicability
of Annual
|
Alternate
Rate Event Spread:
|
||
|
Interest
Payments:
|
|
|||
|
Specified
Currency:
|
Denominated
Currency (if
|
Initial
Interest Rate:
|
||
|
any):
|
|
|||
|
Original
Issue Date:
|
Indexed
Currency or
|
Initial
Interest Reset Date:
|
||
|
Currencies
(if any):
|
|
|||
|
Interest
Accrual Date:
|
Payment
Currency (if any):
|
Interest
Reset Dates:
|
||
|
Interest
Payment Date(s):
|
Exchange
Rate Agent (if any):
|
Interest
Reset Period:
|
||
|
Interest
Payment Period:
|
Reference
Dealers:
|
Maximum
Interest Rate:
|
||
|
Maturity
Date:
|
Face
Amount (if any):
|
Minimum
Interest Rate:
|
||
|
Optional
Repayment Date(s):
|
Fixed
Amount of each
|
Calculation
Agent:
|
||
|
Indexed
Currency (if any):
|
|
|||
|
Optional
Redemption Date(s):
|
Aggregate
Fixed Amount of
|
Reporting
Service:
|
||
|
each
Indexed Currency (if
|
|
|||
|
any):
|
|
|||
|
Initial
Redemption Date:
|
Index
Currency:
|
|||
|
Initial
Redemption
|
Designated
CMT Telerate
|
|||
|
Percentage:
|
Page:
|
|||
|
Annual
Redemption
|
Designated
CMT Maturity
|
|||
|
Percentage
Reduction:
|
Index:
|
|||
|
Ranking:
|
A-1-3
| All Notes Issued as Part of a
Unit:
|
Fixed Rate Notes Issued
as
Part of a
Unit:
|
Floating
Rate Notes Issued
as
Part of a Unit:
|
||
|
Series:
|
|
|
||
|
Minimum
Denominations:
|
|
|
||
|
|
|
|||
|
Other
Terms, including the identification of any other security or property
included as a component of the Unit:
|
|
|
The
provisions of Sections 1, 2(b) and 2(c) and 3 through 7 and 10 through 14 of the
Euro Distribution Agreement and the related definitions are incorporated by
reference herein and shall be deemed to have the same force and effect as if set
forth in full herein.4
This
Agreement is also subject to termination on the terms incorporated by reference
herein. If this Agreement is terminated, the provisions of Sections 3(j), 6, 10,
11 and 13 of the Euro Distribution Agreement shall survive for the purposes of
this Agreement.
The
following information, opinions, certificates, letters and documents referred to
in Section 4 of the Euro Distribution Agreement will be required:
___________.
|
XXXXXX
XXXXXXX & CO.
INTERNATIONAL
PLC
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
Accepted:
|
XXXXXX
XXXXXXX
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
4 In the case of Physically-settled
Pre-paid Purchase Contracts issued under the Unit Agreement Without Holders’ Obligations, additional
representations and warranties will be added with respect to such
Physically-settled Pre-paid Purchase Contracts and the opinions of counsel
delivered pursuant to Sections 4(b)(i) and 4(b)(ii) will cover such additional
representations and warranties, as appropriate.
A-1-4
EXHIBIT
B
XXXXXX
XXXXXXX
GLOBAL
MEDIUM TERM NOTES, SERIES G AND SERIES H
GLOBAL
UNITS, SERIES G AND SERIES H
ADMINISTRATIVE
PROCEDURES
_________________________________
Explained
below are the administrative procedures and specific terms of the offering of
(i) Global Medium-Term Notes, Series G (the “Series G Notes”), (ii) Global
Medium Term Notes, Series H (the “Series H Notes” and together
with the Series G Notes, the “Notes”), (iii) Global Units,
Series G (the “Series G
Units”) and (iv) Global Units, Series H (the “Series H Units” and together with the
Series G Units, the “Units”, and the Units together
with the Notes, the
“Program Securities”),
on a continuous basis by Xxxxxx Xxxxxxx (the “Company”) pursuant to the Euro
Distribution Agreement dated December 23, 2008 (as may be amended from time to
time, the “Distribution
Agreement”) between the Company and Xxxxxx Xxxxxxx & Co.
International plc (the “Agent”). The Notes may be
issued, either alone or as part of a Unit, in registered form without coupons
(“Registered Notes”), in
bearer form with or without coupons (“Bearer Notes”) or in any
combination of Registered Notes and Bearer Notes. The Units may be issued in
registered form (“Registered
Units”), in bearer form (“Bearer Units”) or in any
combination of Registered Units and Bearer Units. The securities comprised by a
Unit will be issued in the same form as such Unit. Bearer Notes and Bearer Units
initially will be represented by, in the case of Bearer Notes, a Temporary
Global Note and, in the case of Bearer Units, a Temporary Global Unit. Such
Temporary Global Note and Temporary Global Unit will subsequently be represented
by, in the case of the Temporary Global Note, a Permanent Global Note and, in
the case of the Temporary Global Unit, a Permanent Global Unit. Global Bearer
Notes will be issued either in Classic Global Note (“CGN”) form or in New Global
Note (“NGN”) form. Interests in a Permanent Global Note may be exchanged, in
whole or, if such Permanent Global Note is a Global Bearer Note issued in NGN
form, in whole or from time to time in part, for individual definitive Bearer
Notes with or without coupons attached. Definitive Bearer Notes may be
exchanged, if the applicable Pricing Supplement so specifies, in whole or in
part, for Registered Notes. Interests in a Permanent Global Unit may be
exchanged, in whole, for individual definitive Bearer Units. Definitive Bearer
Units may be exchanged, if the applicable Pricing Supplement so specifies, in
whole or in part, for Registered Units.
The Notes
may be issued as senior indebtedness (the “Senior Notes”) or subordinated
indebtedness (the “Subordinated
Notes”) of the Company, and as used herein the term “Notes” includes the Senior
Notes and the Subordinated Notes. The Senior Notes will be issued, either alone
or as part of a Unit, pursuant to the provisions of a senior indenture dated
November 1, 2004 (as supplemented by the First Supplemental Senior Indenture
dated as of September 4, 2007, the Second Supplemental Senior Indenture dated as
of January 4, 2008, the Third
B-1
Unless
otherwise specified in any applicable free writing prospectus, Term Sheet or
Pricing Supplement, the Units will be issued (i) pursuant to the Unit Agreement
dated as of November 1, 2004, among the Company, The Bank of New York Mellon (as
successor to JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank)),
as Unit Agent, as Collateral Agent, as Trustee and Paying Agent under the
Indenture referred to therein, and as Warrant Agent under the Warrant Agreement
referred to therein, and the holders from time to time of the Units described
therein (as may be amended from time to time, the “Unit Agreement”) or (ii) if Units
do not include Purchase Contracts (or include only Pre-paid Purchase Contracts) or
otherwise do not involve obligations on the part of the holders of Units,
pursuant to the Unit Agreement Without Holders’ Obligations dated as of August
29, 2008 between the Company and The Bank of New York Mellon, as Unit Agent, as
Trustee and Paying Agent under the Indenture referred to therein, and as Warrant
Agent under the Warrant Agreement referred to therein (as may be amended from
time to time, the “Unit
Agreement Without
Holders’ Obligations”). Units may include one or more (i) Series G &
H Senior Notes,
(ii) warrants (“Warrants”) entitling the
holders thereof to purchase or sell (a) securities issued by the Company or by
an entity not affiliated with the Company (or securities issued by an entity
affiliated with the Company in the case of Series H Units), a basket of such
securities, an index or indices of such securities or any other property, (b)
currencies, (c) commodities, (d) any other property or (e) any combination of
the foregoing, (iii) purchase contracts (“Purchase Contracts”), including
Pre-paid Purchase Contracts, requiring the holders thereof to purchase or sell (a) securities
issued by the Company or by an entity not affiliated with the Company (or
securities issued by an entity affiliated with the Company in the case of Series
H Units), a basket of such securities, an index or indices of such securities or
any other property, (b) currencies, (c) commodities (d) any other property, or
(e) any combination of the foregoing, (iv) debt obligations or other securities
of an entity not affiliated with the Company (or debt obligations or other
securities of an entity affiliated with the Company in the case of the Series H
Units) or
B-2
In the
Distribution Agreement, the Agent has agreed to use reasonable efforts to
solicit purchases of the Notes and the Units, and the administrative procedures
explained below will govern the issuance and settlement of any Notes or Units
sold through the Agent, as agent of the Company. The Agent, as principal, may
also purchase Notes or Units for its own account, and the Company and the Agent
will enter into a terms agreement (in the case of Notes, a “Notes Terms Agreement” and, in the
case of Units, a “Units Terms
Agreement”), as contemplated by the Distribution
Agreement. The administrative procedures explained below will govern the
issuance and settlement of any Notes or Units purchased by the Agent, as
principal, unless otherwise specified in the applicable Notes Terms Agreement or
Units Terms Agreement.
The Bank
of New York Mellon, London Branch (as successor to JPMorgan Chase Bank, N.A.
(formerly known as JPMorgan Chase Bank)), (“The Bank of New York Mellon”),
has initially been appointed the (i) Calculation Agent and Principal Paying
Agent for the Senior Notes (and any Indenture Pre-Paid Purchase Contracts), (ii)
the Unit Agent for the Units and Purchase Contracts (other than Indenture
Pre-Paid Purchase Contracts), (iii) the Warrant Agent for the Warrants and (iv)
the Registrar for the Senior Registered Notes, and will perform the duties
specified herein. The Bank of New York Mellon, London Branch (as successor to
X.X. Xxxxxx Trust Company, National Association) has initially been appointed
the (x) Calculation Agent and Principal Paying Agent for the Subordinated Notes
and (y) the Registrar for the Subordinated Registered Notes, and will perform
the duties specified herein. As used herein, the term “Principal Paying Agent” shall
mean (i) The Bank of New York Mellon, London Branch, in connection with the
authentication and delivery of the Senior Notes outside the United States and
(ii) The Bank of New York Mellon, London Branch, in connection with the
authentication and delivery of the Subordinated Notes outside the United States,
in each case whether issued alone or as part of a Unit, pursuant to the terms of
the Indentures, and the term “Unit Agent” shall mean The
Bank of New York Mellon, London Branch, in connection with the completion and
delivery of the Units outside the United States (including, as applicable,
countersigning and delivering any Warrants, as Warrant Agent, and
countersigning, executing and delivering any Purchase Contracts (other than
Indenture Pre-Paid Purchase Contracts), as Unit Agent, includable in such Unit),
pursuant to the terms of the Unit Agreements. “Warrant Agent” shall mean The
Bank of New York Mellon, London Branch. The Series G Notes are intended to be,
and the Series G Units, in certain circumstances described in the Prospectus
Supplement (as such term is defined in the Distribution Agreement), may be,
admitted to the Official List of the United Kingdom Financial Services Authority
(the “UK Listing
Authority”) in its capacity as the United Kingdom competent authority for
the purposes of Directive 2003/71/EC (the “Prospectus Directive”) and
relevant implementing measures in the United Kingdom, and to trading on the gilt
edged and fixed income market of the London Stock Exchange plc (the “London Stock Exchange”).
Series H Notes and the Series H Units will not be listed on any stock exchange.
The Company has appointed Xxxxxx Xxxxxxx & Co. International plc as
the
B-3
Each
Bearer Note and each Bearer Unit (including each security comprised by such
Bearer Unit) initially will be represented by, in the case of a Bearer Note, a
Temporary Global Note and, in the case of a Bearer Unit, a Temporary Global
Unit. Temporary Global Bearer Notes will be issued in either CGN form or in NGN
form. Temporary Global Bearer Notes issued in CGN form and Temporary Global
Units will be delivered to a common depositary located outside the United States
(the “Depositary”) for Euroclear Bank S.A./N.V., as operator of the Euroclear
System (the “Euroclear
Operator”), Clearstream Banking, société anonyme (“Clearstream”), and/or any
other relevant clearing system (including Euroclear France). Temporary Global
Bearer Notes issued in NGN form will be delivered to a common safe-keeper (a
“CSK”) located outside the United States for the Euroclear Operator and
Clearstream. In either case, such Temporary Global Note and Temporary Global
Unit will subsequently be represented by, in the case of the Temporary Global
Note, a Permanent Global Note and, in the case of the Temporary Global Unit, a
Permanent Global Unit. Upon the first request by any beneficial owner to
exchange any interest in a Permanent Global Bearer Note issued in CGN form to a
definitive Bearer Note, or if any Note represented by a Permanent Global Note is
accelerated following an event of default with respect to such Note or if either
the Euroclear Operator, Clearstream or any other relevant clearing system is
closed for business for a continuous period of fourteen days (other than by
reason of public holidays) or announces an intention to cease business
permanently or in fact does so, then all (and not less than all) interests in
such Permanent Global Note shall be exchanged for definitive Bearer Notes; provided that, if the
applicable Pricing Supplement so specifies, nothing herein shall prevent the
further exchange of definitive Bearer Notes for Registered Notes. Upon any
request by a beneficial owner to exchange all or a portion of its beneficial
interest in a Permanent Global Bearer Note issued in NGN form for a definitive
Bearer Note or Notes, that portion of such beneficial owner’s beneficial
interest shall be exchanged for definitive Bearer Notes, with coupons attached,
if appropriate, or, if the applicable Pricing Supplement so specifies, one or
more Registered Notes in authorized denominations and the Principal Paying Agent
shall instruct the Euroclear Operator and Clearstream to make entries in their
records to reflect the reduction in the issue outstanding amount (the “IOA”) of
such Permanent Global Bearer Note by an amount equal to the aggregate principal
amount of such definitive Bearer Note or Notes or Registered Note or Notes so
exchanged. Upon the first request by any beneficial owner to exchange any
interest in a Permanent Global Unit to a definitive Bearer Unit, or if any Note
comprised by such Permanent Global Note is accelerated following an event of
default with respect to such Note or if either the Euroclear Operator,
Clearstream or any other relevant clearing system is closed for business for a
continuous period of fourteen days (other than by reason of public holidays) or
announces an intention to cease business permanently or in fact does so, then
all (and not less than all) interests in such Permanent Global Unit shall be
exchanged for definitive Bearer Units; provided that, if the
applicable Pricing Supplement so specifies, nothing herein shall prevent the
further exchange of definitive Bearer Units for Registered Units.
Unless
otherwise defined herein, terms defined in the Indentures, the Unit Agreement,
the Unit Agreement Without Holders’ Obligations, the Warrant Agreement, the
Notes, the Units, the
B-4
The
Company will advise the Agent in writing of the employees of the Company with
whom the Agent is to communicate regarding offers to purchase Notes and Units
and the related settlement details.
B-5
BEARER
NOTES, REGISTERED NOTES,
BEARER
UNITS AND REGISTERED UNITS
|
Issuance:
|
Bearer
Notes. Each Bearer Note, whether issued alone or as part
of a Unit, will be dated as of its Original Issue Date. Each
Bearer Note will bear an Original Issue Date, which will be (i) with
respect to a Temporary Global Note (or any portion thereof), the date of
its original issue as specified in such Temporary Global Note or (ii) with
respect to any Permanent Global Note or any definitive Bearer Note (or any
portion thereof) issued subsequently upon transfer or exchange of a Bearer
Note or in lieu of a destroyed, lost or stolen Bearer Note (a “Replacement Bearer
Note”), the Original Issue Date of the predecessor Bearer Note,
regardless of the date of authentication of such subsequently issued
Bearer Note.
|
|
|
Registered
Notes. Each Registered Note, whether issued alone or as
part of a Unit, will be dated as of the date of its
authentication by The Bank of New York Mellon. Each Registered
Note will also bear an Original Issue Date, which will be (i) with respect
to an original Registered Note (an “Original Registered
Note”) (or any portion thereof), its original issuance date (which
will be the settlement date) and (ii) with respect to any Registered Note
(or portion thereof) issued subsequently upon transfer or exchange of a
Registered Note or in lieu of a destroyed, lost or stolen Registered Note
or upon exchange of a Bearer Note (a “Replacement Registered
Note”), the original issuance date of the predecessor Registered
Note or Bearer Note, as the case may be, regardless of the date of
authentication of such subsequently issued Registered
Note.
|
||
|
Bearer
Units. Each Bearer Unit (whether in temporary, permanent
or definitive form) will be deemed to be dated as of the Original Issue
Date of the Bearer Note comprised by such Unit or, if there is no such
underlying Bearer Note, the date of the other securities comprised thereby
in accordance with the procedures described above.
|
||
|
Registered
Units. Each Registered Unit will be deemed to be dated
as of the Original Issue Date of the Registered Note comprised by such
Unit or, if there is no such underlying Registered Note, as of the date of
the other securities comprised thereby in accordance with the procedures
|
B-6
| described above. | ||
|
Denominations:
|
Bearer
Notes. Unless otherwise specified in any applicable free
writing prospectus, Term Sheet and Pricing Supplement, Bearer Notes,
whether issued alone or as part of a Unit, will be issued only in
denominations of $1,000 (or, in the case of Bearer Notes not denominated
in U.S. dollars, the equivalent thereof in the Specified Currency, rounded
to the nearest 1,000 units of the Specified Currency) or any amount in
excess thereof which is an integral multiple of $1,000 (or, in the case of
Bearer Notes not denominated in U.S. dollars, 1,000 units of the Specified
Currency).
|
|
|
Registered
Notes. Unless otherwise specified in any applicable free
writing prospectus, Term Sheet and Pricing Supplement, Registered Notes
will be issued, either alone or as part of a Unit, only in denominations
of $1,000 (or, in the case of Registered Notes not denominated in U.S.
dollars, the equivalent thereof in the Specified Currency, rounded to the
nearest 1,000 units of the Specified Currency) or any amount in excess
thereof which is an integral multiple of $1,000 (or, in the case of
Registered Notes not denominated in U.S. dollars, 1,000 units
of the Specified Currency).
|
||
|
Bearer
Units. Unless otherwise specified in any applicable free
writing prospectus, Term Sheet and Pricing Supplement, Bearer Units will
be issued only in denominations of a single Unit and any integral multiple
thereof, with face amounts in denominations as indicated in any applicable
free writing prospectus, Term Sheet and Pricing Supplement, generally
corresponding to the denominations of any Notes or other securities
comprised by such Units.
|
||
|
Registered
Units. Unless otherwise specified in any applicable free
writing prospectus, Term Sheet and Pricing Supplement, Registered Units
will be issued only in denominations of a single Unit and any integral
multiple thereof, with face amounts in denominations as indicated in the
applicable Pricing Supplement, generally corresponding to the
denominations of any Notes or other securities comprised by such
Units.
|
||
|
Global
Notes and Definitive Bearer and Registered Notes:
|
Until
Final Certification (as defined below) with respect to an issuance of
Bearer Notes has occurred, such Notes, together with all other Bearer
Notes that have the same terms (other than their respective principal
amounts) (all such Notes herein
|
B-7
| referred to collectively as a “Note Tranche”), will be represented by a single Temporary Global Note in bearer form without interest coupons. The Company shall execute, and upon Company instructions the Principal Paying Agent shall complete and authenticate, such Temporary Global Note upon the same conditions and in substantially the same manner, and with the same effect, as an individual definitive Bearer Note. On or prior to the settlement date (which will normally be the Original Issue Date) with respect to such Notes, the Principal Paying Agent shall deposit the Temporary Global Note with the Depositary or, if such Temporary Global Note is a Temporary Global Bearer Note issued in the NGN form, the CSK, in the manner specified below under “Settlement Procedures; Bearer Notes and Bearer Units” and, in the case of Notes issued in NGN form and that are not physically delivered to the CSK, shall instruct the CSK to effectuate the Note. The interest of each beneficial owner of Notes represented by such Temporary Global Note will be credited to the appropriate account with the Euroclear Operator, Clearstream or any other relevant clearing system and, in the case of Notes issued in NGN form, the Principal Paying Agent shall instruct the Euroclear Operator and Clearstream to make the appropriate entries into their records to reflect the initial IOA of the Note. | ||
|
On
or after the date (the “Exchange Date”) that is
the 40th day following the date on which the Company receives the proceeds
of the sale of a Temporary Global Note (the “Closing Date”), or if
such Note is held by the Agent as part of an unsold allotment or
subscription more than 40 days after the Closing Date for such Note, on or
after the day after the date such Note is sold by the Agent, all as
notified by the Agent in writing to The Bank of New York Mellon, the
interest of the beneficial owners of the Notes represented by the
Temporary Global Note shall be canceled and such interests shall
thereafter be represented by a Permanent Global Note in bearer form
without interest coupons held in London by the Depositary or the CSK, as
applicable; provided that Final
Certification (as described below) has occurred. The interest
of each beneficial owner of Notes represented by such Permanent Global
Note will be credited to the appropriate account with the Euroclear
Operator, Clearstream or any other relevant clearing system and, in the
case of Notes issued in NGN form, the Principal Paying Agent shall
instruct the Euroclear Operator and Clearstream to make the appropriate
entries in their records to reflect such cancellation and
|
B-8
| exchange. | ||
|
If
the beneficial owner of an interest in a Permanent Global Note issued in
NGN form requests to exchange all or a portion of its beneficial interest
in the Permanent Global Note for Definitive Bearer Notes or Registered
Notes, at any time upon 30 days’ written notice to the Principal Paying
Agent given by such beneficial owner through either the Euroclear
Operator, Clearstream or any other relevant clearing system, as the case
may be, that portion of such beneficial owner’s beneficial interest shall
be canceled and one or more Definitive Bearer Notes, with coupons
attached, if appropriate, or, if the applicable Pricing Supplement so
specifies, one or more Registered Notes in authorized denominations equal
in aggregate principal amount to that portion of such beneficial interest
so requested to be exchanged shall be issued to such beneficial owner,
through the Euroclear Operator, Clearstream or any other relevant clearing
system, as the case may be, and the Principal Paying Agent shall instruct
the Euroclear Operator and Clearstream to make appropriate entries in
their records to reflect such exchange.
If
the beneficial owner of an interest in a Permanent Global Bearer Note
issued in CGN form or a Permanent Global Registered Note requests, at any
time, upon 30 days’ written notice to the Principal Paying Agent given by
such beneficial owner through either the Euroclear Operator, Clearstream
or any other relevant clearing system, as the case may be, or if any Note
represented by a Permanent Global Bearer Note or a Permanent Global
Registered Note is accelerated following an event of default with respect
to such Note or if either the Euroclear Operator, Clearstream or any other
relevant clearing system is closed for business for a continuous period of
fourteen days (other than by reason of public holidays) or announces an
intention to cease business permanently or in fact does so, such Permanent
Global Bearer Note or such Permanent Global Registered Note, as
applicable, shall be exchanged for one or more definitive Bearer Notes
with coupons attached, if appropriate, or, if the applicable Pricing
Supplement so specifies, one or more Registered Notes in authorized
denominations equal in aggregate principal amount to such beneficial
interest; provided
that any such exchange of an interest in a Permanent Global Bearer
Note issued in CGN form or a Permanent Global Registered Note for a
definitive Bearer Note as a result of a request by a beneficial owner, and
any such exchange of an interest in a Permanent Global
|
B-9
| Bearer Note for a definitive Bearer Note or in a Permanent Global Registered Note for a definitive Registered Note resulting from the acceleration of such Note or the closure of the Euroclear Operator, Clearstream or any other relevant clearing system as set out above, shall result in the exchange of all (and not less than all) interests in such Permanent Global Note for definitive Bearer Notes; provided further, that, if the applicable Pricing Supplement so specifies, nothing herein shall prevent the further exchange of definitive Bearer Notes for Registered Notes. To effect such exchange, the interest of such beneficial owner in such Permanent Global Bearer Note or such Permanent Global Registered Note shall be canceled and one or more definitive Bearer Notes or Registered Notes, as the case may be, shall be issued to such beneficial owner, through the Euroclear Operator, Clearstream or any other relevant clearing system, as the case may be. | ||
|
In
all events, Bearer Notes and coupons will be delivered by the Principal
Paying Agent only outside the United States.
|
||
|
Global
Units and Definitive Bearer and Registered Units:
|
Until
Final Certification (as defined below) has occurred with respect to an
issuance of Bearer Notes included in an issuance of Bearer Units, such
Units, together with all other Bearer Units that include securities that
have the same terms (other than their respective number and face amounts)
(all such Units herein referred to collectively as a “Unit Tranche”), will be
represented by a single Temporary Global Unit in bearer form (which form
shall include the corresponding temporary global forms of each security
comprised by such Unit). The Company shall execute, and upon
Company instructions, The Bank of New York Mellon, as Unit Agent, shall
complete, such Temporary Global Unit (including, as applicable,
authenticating any Temporary Global Note or Indenture Pre-paid Purchase
Contracts, as Principal Paying Agent, countersigning and delivering any
Warrants, as Warrant Agent, and countersigning, executing and delivering
any Purchase Contracts (other than Cash-settled Pre-paid Purchase
Contracts), as Unit Agent, includable in such Unit) upon the same
conditions and in substantially the same manner, and with the same effect,
as an individual definitive Bearer Unit. On or prior to the
settlement date (which will normally be the Original Issue Date of the
Note comprised by a Unit or, if there is no such underlying Note, the date
of the other securities comprised thereby) with respect to such Units, the
Unit Agent shall deposit the Temporary Global Unit (with
|
B-10
| the corresponding temporary global forms of each security comprised by such Unit) with the Depositary in the manner specified below under “Settlement Procedures; Bearer Notes and Bearer Units.” The interest of each beneficial owner of Units represented by such Temporary Global Unit will be credited to the appropriate account with the Euroclear Operator, Clearstream or any other relevant clearing system. | ||
|
On
or after the Exchange Date of any Temporary Global Note comprised by a
Temporary Global Unit, the interest of the beneficial owners of the Units
represented by the Temporary Global Unit shall be canceled and such
interests shall thereafter be represented by a Permanent Global Unit in
bearer form (with the corresponding permanent global forms of each
security comprised by such Unit) held in London by the Depositary; provided that Final
Certification (as described below) of any Notes comprised by such Unit has
occurred. The interest of each beneficial owner of Units
represented by such Permanent Global Unit will be credited to the
appropriate account with the Euroclear Operator, Clearstream or any other
relevant clearing system.
|
||
|
If
the beneficial owner of an interest in a Permanent Global Unit requests,
at any time, upon 30 days’ written notice to the Unit Agent given by such
beneficial owner through either the Euroclear Operator, Clearstream or any
other relevant clearing system, as the case may be, or if any Note
comprised by such Permanent Global Note is accelerated following an event
of default with respect to such Note or if either the Euroclear Operator,
Clearstream or any other relevant clearing system is closed for business
for a continuous period of fourteen days (other than by reason of public
holidays) or announces an intention to cease business permanently or in
fact does so, such Permanent Global Unit shall be exchanged for one or
more definitive Bearer Units or, if any applicable free writing
prospectus, Term Sheet and Pricing Supplement so specifies, one or more
Registered Units in authorized denominations equal in aggregate number and
aggregate face amount to such beneficial interest; provided that any such
exchange in any interest in a Permanent Global Unit for a definitive
Bearer Unit shall result in the exchange of all (and not less than all)
interests in such Permanent Global Unit for definitive Bearer Units; provided further, that,
if any applicable free writing prospectus, Term Sheet and Pricing
Supplement so specifies, nothing herein shall prevent the further exchange
of definitive Bearer Units for Registered Units. To effect such
exchange, the interest of such beneficial owner in such Permanent
|
B-11
| Global Unit shall be canceled and one or more definitive Bearer Units or Registered Units, as the case may be, shall be issued to such beneficial owner, through the Euroclear Operator, Clearstream or any other relevant clearing system, as the case may be. | ||
|
In
all events, Bearer Units will be delivered by the Unit Agent only outside
the United States.
|
||
|
Notes
or Units Purchased by U.S. Persons:
|
All
Notes (whether issued alone or as part of a Unit) purchased in connection
with their original issuance by or on behalf of a United States person (as
defined in the Distribution Agreement) (other than a branch of a United
States financial institution (as defined in the applicable United States
Treasury Regulation) located outside the United States purchasing for its
own account or for resale (a “Qualifying Foreign
Branch”) or other permitted U.S. purchasers as provided in the
Prospectus Supplement that satisfies the conditions for receiving Bearer
Notes as described under “Final Certification”
below) will be issued only as Registered Notes and any Units comprising
such Notes will be issued only as Registered Units.
|
|
|
Final
Certification:
|
Final
Certification with respect to a Temporary Global Note (whether issued
alone or as part of a Unit) shall mean the delivery by the Euroclear
Operator, Clearstream or any other relevant clearing system, as the case
may be, to the Principal Paying Agent of a signed certificate (each a
“Clearance System
Certificate”) in the form set forth in Appendix 1 hereto with
respect to the Notes being exchanged, dated no earlier than the Exchange
Date for such Notes, to the effect that the Euroclear Operator,
Clearstream or any other relevant clearing system, as the case may be, has
received certificates in writing, by tested telex or by electronic
transmission from the account holders appearing on its records as entitled
to such Notes (“Ownership
Certificates”) in the form set forth in Appendix 2 hereto with
respect to each of such Notes, which Ownership Certificates shall be dated
no earlier than ten days before the Exchange Date.
|
|
|
Preparation
of Pricing Supplement:
|
If
any offer to purchase a Program Security is accepted by or on behalf of
the Company, the Company will prepare a free writing prospectus and/or
Term Sheet, if applicable, and a pricing supplement (a “Pricing Supplement”)
reflecting the terms of such Program Security. The Company (i)
will
|
B-12
| arrange to file with the Commission an electronic format document, in the manner prescribed by the XXXXX Xxxxx Manual, of such Term Sheet and Pricing Supplement in accordance with, in the case of any free writing prospectus and/or Term Sheet, Rule 433 under the Securities Act and, in the case of the Pricing Supplement, the applicable paragraph of Rule 424(b) under the Securities Act and (ii) will, with respect to each of the free writing prospectus and/or Term Sheet, if applicable, and the Pricing Supplement, as soon as possible and in any event not later than the date on which the applicable document is filed with the Commission, deliver the number of copies of such Pricing Supplement to the Agent as the Agent shall request. The Agent will cause the free writing prospectus and/or Term Sheet, if applicable, and the Pricing Supplement to be delivered or otherwise made available, to the purchaser of the Program Security. | ||
|
In
each instance that a Pricing Supplement is prepared, the Agent will affix
the Pricing Supplement to Prospectuses prior to their
use. Outdated free writing prospectuses, Term Sheets, Pricing
Supplements, and the Prospectuses to which they are attached (other than
those retained for files), will be destroyed.
|
||
|
Settlement:
|
The
receipt by the Company of immediately available funds in exchange for (i)
the delivery of an authenticated Temporary Global Note or a Temporary
Global Unit (including each security comprised by such Unit) to the
Depositary or the CSK, as applicable, and, in the case of Notes issued in
NGN form, the effectuation, if applicable, of such Temporary Global Note
by the CSK in the manner described in “Settlement Procedures; Bearer
Notes and Bearer Units” below or (ii) the delivery of an
authenticated Registered Note or a Registered Unit (including each
security comprised by such Unit) to the Agent shall constitute “settlement” with respect
to such Note or Unit. All offers accepted by the Company will
be settled on the fifth Business Day next succeeding the date of
acceptance pursuant to the timetable for settlement set forth below,
unless the Company and the purchaser agree to settlement on another day,
which shall be no earlier than the next Business Day.
|
|
|
Settlement
Procedures; Bearer Notes and Bearer Units:
|
Procedures
with regard to each Bearer Note or Bearer Unit sold by the Company to or
through the Agent (unless otherwise specified pursuant to a Notes Terms
Agreement or a
|
B-13
| Units Terms Agreement) shall be as follows: |
|
A.
|
In
the case of a Bearer Note (whether issued alone or as part of a Unit), the
Agent will advise the Company by telephone that such Note is initially a
Bearer Note and of the following settlement
information:
|
|
1.
|
Principal
amount.
|
|
|
2.
|
Maturity
Date.
|
|
|
3.
|
Interest
Payment Date(s).
|
|
|
4.
|
In
the case of a Fixed Rate Bearer Note, the Interest Rate and whether such
Note is an Amortizing Note, and, if so, the amortization schedule, or, in
the case of a Floating Rate Bearer Note, the Initial Interest Rate (if
known at such time), Interest Payment Period, Calculation Agent, Base
Rate, Index Maturity, Index Currency, Interest Reset Period, Initial
Interest Reset Date, Interest Reset Dates, Spread or Spread Multiplier (if
any), Minimum Interest Rate (if any), Maximum Interest Rate (if any) and
the Alternate Rate Event Spread (if any).
|
|
|
5.
|
Redemption
or repayment provisions, if any.
|
|
|
6.
|
Ranking.
|
|
|
7.
|
Settlement
date and time (Original Issue Date).
|
|
|
8.
|
Interest
Accrual Date.
|
|
|
9.
|
Price.
|
|
|
10.
|
Agent’s
commission, if any, determined as provided in the Distribution
Agreement.
|
|
|
11.
|
Specified
Currency.
|
|
|
12.
|
Whether
the Note is an Original Issue Discount Note (an “OID Note”), and if it is
an OID Note, the applicability of Modified Payment upon Acceleration (and,
if so, the Issue Price).
|
B-14
|
13.
|
Agent’s
account number at the Euroclear Operator, Clearstream or any other
relevant clearing system.
|
|
|
14.
|
Whether
such Note is a Series G Note or a Series H Note.
|
|
|
15.
|
Whether
such Bearer Note will be issued in NGN form.
|
|
|
16.
|
If
issued in NGN form, whether such Bearer Note is intended to be held in a
manner that would allow eligibility as collateral for Eurosystem intra-day
credit and monetary policy operations and whether effectuation will be
required.
|
|
|
17.
|
Any
other applicable provisions.
|
|
B.
|
In
the case of a Bearer Unit, the Agent will advise the Company by telephone
that such Unit is initially a Bearer Unit, of the information set forth in
Settlement Procedures; Bearer Notes and Bearer Units “A” above with respect to
Bearer Notes that constitute a part of such Bearer Unit and of the
following information:
|
|
1.
|
Settlement
date and time.
|
|
|
2.
|
Face
Amount.
|
|
|
3.
|
Agent’s
commission, if any, determined as provided in the Distribution
Agreement.
|
|
|
4.
|
Designation
of the Securities comprised by such
Units:
|
|
a.
|
Notes (See “Settlement
Procedures; Bearer Notes and Bearer Units” “A”);
|
|
|
b.
|
Warrants, if any;
|
|
|
c.
|
Purchase Contracts, if any;
|
|
|
d.
|
debt obligations or other securities of an entity not affiliated with the
Company (or debt obligations or other securities of an entity affiliated
with the
|
B-15
| Company in the case of the Series H Units), if any; and | ||
|
e.
|
other property, if any.
|
|
5.
|
Whether,
and the terms under which, the Securities comprised by such Unit will be
separately tradeable.
|
|
|
6.
|
Any
other provisions applicable to the Unit (other than those provisions
applicable to the securities comprised by such Unit).
|
|
|
7.
|
If
the Bearer Unit comprises Bearer
Warrants:
|
|
a.
|
Designation of the Series of Warrants: [Call] [Put]
Warrants;
|
|
|
b.
|
Warrant Property;
|
|
|
c.
|
Aggregate Number of Warrants;
|
|
|
d.
|
Price to Public;
|
|
|
e.
|
Warrant Exercise Price;
|
|
|
f.
|
Dates upon which Warrants may be exercised;
|
|
|
g.
|
Expiration Date;
|
|
|
h.
|
Form;
|
|
|
i.
|
Currency in which exercise payments shall be made;
|
|
|
j.
|
Minimum number of Warrants exercisable by any holder on any
day;
|
|
|
k.
|
Maximum number of Warrants exercisable on any day: [In the
aggregate] [By any beneficial owner];
|
|
|
l.
|
Formula for determining Cash Settlement Value;
|
|
|
m.
|
Exchange Rate (or method of
calculation);
|
B-16
|
n.
|
Whether the Company or the holder is the writer of the Warrant;
and
|
|
|
o.
|
Any other applicable provisions.
|
|
8.
|
If
the Bearer Unit comprises Bearer Purchase
Contracts:
|
|
a.
|
Purchase Contract Property;
|
|
|
b.
|
Price to Public;
|
|
|
c.
|
Settlement Date;
|
|
|
d.
|
Payment Location;
|
|
|
e.
|
Method of Settlement;
|
|
|
f.
|
Method of Computing Settlement Amount;
|
|
|
g.
|
Currency of Settlement Payment;
|
|
|
h.
|
Authorized Number of Purchase Contracts;
|
|
|
i.
|
[Purchase] [Sale] Price of Purchase Contract Property;
|
|
|
j.
|
Contract Fees;
|
|
|
k.
|
Corporation Acceleration;
|
|
|
l.
|
Holders’ Acceleration;
|
|
|
m.
|
Redemption Provisions; and
|
|
|
n.
|
Any other applicable provisions.
|
|
C.
|
The
Company will advise The Bank of New York Mellon, as the Principal Paying
Agent for the Notes or as the Unit Agent for the Units, by telephone or
electronic transmission (confirmed in writing at any time on the same
date) of the information set forth in “Settlement Procedures; Bearer
Notes and Bearer Units” “A” or “B”, above, as
applicable, and shall give the Principal Paying Agent or the Unit Agent,
as the case may be, written instructions (substantially in the form set
out in Appendix 3 and Appendix 4, as
|
B-17
| applicable) to prepare a Temporary Global Note for each Note (and, in the case of any Note issued in NGN form which will not be physically delivered to the CSK, to instruct the CSK to effectuate such Note) or a Temporary Global Unit (with the corresponding temporary global forms of each security comprised by such Unit) for each Unit Tranche, as the case may be, which the Company has agreed to sell. The Company will send a copy of such instructions to the Agent and the relevant Trustee, such instructions to contain a representation as to the aggregate principal amount of Program Securities permitted to be issued hereunder after such issuance. | ||
|
The
Principal Paying Agent or the Unit Agent shall telephone each of the
Euroclear Operator, Clearstream or any other relevant clearing system with
a request for a security code for each Note Tranche or Unit Tranche (and,
if applicable, a security code for each security comprised by the Units of
such Unit Tranche) agreed to be issued and shall notify the Company and
the Agent of such security code or codes as soon as
practicable.
|
||
|
D.
|
In
accordance with instructions received from the Company, (i) the Principal
Paying Agent shall authenticate and deliver a Temporary Global Note (and,
in the case of any Note issued in NGN form which will not be physically
delivered to the CSK, instruct the CSK to effectuate such Note) or
Indenture Pre-paid Purchase Contract for each Note Tranche or Unit
Tranche, as applicable, which the Company has agreed to sell and (ii) the
Unit Agent shall prepare a Temporary Global Unit for each Unit Tranche
which the Company has agreed to sell (including, as applicable, by
countersigning and delivering any Warrants includable in such Unit, by
countersigning, executing and delivering any Purchase Contracts (other
than Indenture Pre-Paid Purchase Contracts) includable in such Unit and by
obtaining from the Principal Paying Agent any Notes or Indenture Pre-paid
Purchase Contracts to be included in such Units, authenticated in
accordance with clause (i) above). The settlement of each of
the Note Tranche and the Unit Tranche is to occur on the relevant
settlement date. All such Temporary Global Notes and all such
Temporary Global Units (including all of the securities included in such
Units) will then be delivered to the Depositary or
|
B-18
| the CSK, as applicable. The Principal Paying Agent or the Unit Agent, as the case may be, will also give instructions to the Euroclear Operator, Clearstream or any other relevant clearing system to credit the Notes or Units represented by such Temporary Global Note or Temporary Global Unit delivered to such Depositary or CSK, as applicable, to, in the case of the Notes, the Principal Paying Agent’s distribution account and, in the case of the Units, the Unit Agent’s distribution account, at the Euroclear Operator, Clearstream or any other relevant clearing system. In the case of a Note issued in NGN form, the Principal Paying Agent shall also instruct the Euroclear Operator and Clearstream to make the appropriate entries in their records of the relevant initial IOA of the Temporary Global Bearer Note so delivered. At settlement of any Note Tranche, the Principal Paying Agent will instruct the Euroclear Operator, Clearstream or any other relevant clearing system to debit, on the settlement date, from the distribution account of the Principal Paying Agent the principal amount of Notes of each Note Tranche, with respect to which the Agent has solicited an offer to purchase and to credit, on the settlement date, such principal amount to the account of the Agent with the Euroclear Operator, Clearstream or any other relevant clearing system against payment of the purchase payment price of such Notes. At settlement of any Unit Tranche, the Unit Agent will instruct the Euroclear Operator, Clearstream or any other relevant clearing system to debit, on the settlement date, from the distribution account of the Unit Agent the number and face amount of Units of each Unit Tranche, with respect to which the Agent has solicited an offer to purchase and to credit, on the settlement date, such number and face amount to the account of the Agent with the Euroclear Operator, Clearstream or any other relevant clearing system against payment of the purchase payment price of such Units. In the case of the Notes and the Units, the Agent shall give corresponding instructions to the Euroclear Operator, Clearstream or any other relevant clearing system. | ||
|
E.
|
The
Euroclear Operator, Clearstream and any other relevant clearing system
shall debit and credit accounts in accordance with instructions received
from the Principal Paying Agent and the Agent, in the case of Notes and
the Unit Agent and the Agent, in the case of
|
B-19
| Units. | ||
|
Each
of the Principal Paying Agent and the Unit Agent shall pay the Company the
aggregate net proceeds received by it in immediately available funds via a
transfer of funds to the U.S. dollar account of the Company with a bank in
New York City (or, with respect to Notes and Units payable in a Specified
Currency other than U.S. dollars, to an account maintained at a bank
selected by the Company, which bank shall be located outside the United
Kingdom in the case of Notes and Units payable in a Specified Currency
other than pounds sterling that mature not later than five years from and
including the date of issue thereof) designed by the Company in
writing.
|
|
Settlement
Procedures Timetable;
Bearer Notes and
Bearer Units:
|
For
sales by the Company of Bearer Notes or of Bearer Units to or through the
Agent, “Settlement
Procedures; Bearer Notes and Bearer Units” “A” through “E” above shall be
completed on or before the respective times set forth
below:
|
|
Settlement
Procedure;
Bearer
Notes
and
Bearer Units
|
Time
|
|
A
|
12:00
P.M. (NYC time) three days before settlement date
|
|
|
B
|
12:00
P.M. (NYC time) three days before settlement date
|
|
|
C
|
9:00
A.M. (London time) two days before settlement date
|
|
|
D
|
3:45
P.M. (London time) one day before settlement date
|
|
|
E
|
5:00
P.M. (NYC time) on settlement date
|
|
Settlement
Procedures; Registered Notes and Registered Units:
|
Settlement
Procedures with regard to each Registered Note and Registered Unit sold by
the Company to or through the Agent (unless otherwise specified pursuant
to a Notes Terms Agreement or a Units Terms Agreement) shall be as
follows:
|
B-20
|
AA.
|
In
the case of a Registered Note (whether issued alone or as part of a Unit),
the Agent will advise the Company by telephone that such Note is a
Registered Note and of the following settlement
information:
|
|
1.
|
Name
in which such Note is to be registered (“Registered Note
Owner”).
|
|
|
2.
|
Address
of the Registered Note Owner and address for payment of principal and
interest.
|
|
|
3.
|
Taxpayer
identification number of the Registered Note Owner (if
available).
|
|
|
4.
|
Principal
amount.
|
|
|
5.
|
Maturity
Date.
|
|
|
6.
|
Interest
Payment Date(s).
|
|
|
7.
|
In
the case of a Fixed Rate Registered Note, the Interest Rate, whether such
Note is an Amortizing Note and, if so, the amortization schedule, or, in
the case of a Floating Rate Registered Note, the Initial Interest Rate (if
known at such time), Interest Payment Dates, Interest Payment Period,
Calculation Agent, Base Rate, Index Maturity, Index Currency, Interest
Reset Period, Initial Interest Reset Date, Interest Reset Dates, Spread or
Spread Multiplier (if any), Minimum Interest Rate (if any), Maximum
Interest Rate (if any) and the Alternate Rate Event Spread (if
any).
|
|
|
8.
|
Redemption
or repayment provisions (if any).
|
|
|
9.
|
Ranking.
|
|
|
10.
|
Settlement
date and time (Original Issue Date).
|
|
|
11.
|
Interest
Accrual Date.
|
|
|
12.
|
Price.
|
|
|
13.
|
Agent’s
commission (if any) determined as provided in the Distribution
Agreement.
|
|
|
14.
|
Denominations.
|
B-21
|
15.
|
Specified
Currency.
|
|
|
16.
|
Whether
the Note is an OID Note, and if it is an OID Note, and the applicability
of Modified Payment upon Acceleration (and if so, the Issue
Price).
|
|
|
17.
|
Whether
such Note is a Series G Note or a Series H Note.
|
|
|
18.
|
Any
other applicable provisions.
|
|
BB.
|
In
the case of a Registered Unit, the Agent will advise the Company by
telephone that such Unit is a Registered Unit, of the information set
forth in “Settlement
Procedures; Registered Notes and Registered Units” “A” above with respect to
any Registered Notes that constitute a part of such Registered Unit and of
the following information:
|
|
1.
|
Name
in which such Unit is to be registered (“Registered Unit
Owner”).
|
|
|
2.
|
Address
of the Registered Unit Owner.
|
|
|
3.
|
Taxpayer
identification number of the Registered Unit Owner (if
available).
|
|
|
4.
|
Denominations.
|
|
|
5.
|
Settlement
date and time.
|
|
|
6.
|
Number
of Units (and Face Amount).
|
|
|
7.
|
Agent’s
commission, if any, determined as provided in the Distribution
Agreement.
|
|
|
8.
|
Designation
of the Securities comprised by such
Units:
|
|
a.
|
Notes,
if any (See “Settlement
Procedures; Registered Notes and Registered Units” “A”);
|
|
|
b.
|
Warrants,
if any;
|
|
|
c.
|
Purchase
Contracts, if any;
|
B-22
|
d.
|
debt
obligations or other securities of an entity not affiliated with the
Company (or debt obligations or other securities of an entity affiliated
with the Company in the case of the Series H Units), if any;
and
|
|
|
e.
|
other
property, if any.
|
|
9.
|
Whether,
and the terms under which, the Securities comprised by such Unit will be
separately tradeable.
|
|
|
10.
|
Any
other provisions applicable to the Unit (other than those provisions
applicable to the securities comprised by such Unit).
|
|
|
11.
|
If
the Registered Unit comprises Registered
Warrants:
|
|
a.
|
Designation
of the Series of Warrants: [Call][Put] Warrants;
|
|
|
b.
|
Warrant
Property;
|
|
|
c.
|
Aggregate
Number of Warrants;
|
|
|
d.
|
Price
to Public;
|
|
|
e.
|
Warrant
Exercise Price;
|
|
|
f.
|
Dates
upon which Warrants may be exercised;
|
|
|
g.
|
Expiration
Date;
|
|
|
h.
|
Currency
in which exercise payments shall be made;
|
|
|
i.
|
Minimum
number of Warrants exercisable by any holder on any
day;
|
|
|
j.
|
Maximum
number of Warrants exercisable on any day: [In the aggregate]
[By any beneficial owner];
|
|
|
k.
|
Formula
for determining Cash Settlement Value;
|
|
|
l.
|
Exchange
Rate (or method of calculation);
|
B-23
|
m.
|
Whether
the Company or the holder is the writer of the warrant;
and
|
|
|
n.
|
Any
other applicable provisions.
|
|
12.
|
If
the Registered Unit comprises Registered Purchase
Contracts:
|
|
a.
|
Purchase
Contract Property;
|
|
|
b.
|
Price
to Public;
|
|
|
c.
|
Settlement
Date;
|
|
|
d.
|
Payment
Location;
|
|
|
e.
|
Method
of Settlement;
|
|
|
f.
|
Method
of Computing Settlement Amount;
|
|
|
g.
|
Currency
of Settlement Payment;
|
|
|
h.
|
Authorized
Number of Purchase Contracts;
|
|
|
i.
|
[Purchase]
[Sale] Price of Purchase Contract Property;
|
|
|
j.
|
Contract
Fees;
|
|
|
k.
|
Corporation
Acceleration;
|
|
|
l.
|
Holders’
Acceleration;
|
|
|
m.
|
Redemption
Provisions; and
|
|
|
n.
|
Any
other applicable provisions.
|
|
CC.
|
The
Company will advise The Bank of New York Mellon as Principal Paying Agent
for the Notes or as Unit Agent for the Units, by telephone or electronic
transmission (confirmed in writing at any time on the same date) of the
information set forth in “Settlement Procedures;
Registered Notes and Registered Units” “AA” and “BB” above, as
applicable, such advice to contain a representation as to the aggregate
principal amount of Program Securities permitted to be issued hereunder
after such issuance.
|
B-24
|
DD.
|
The
Company will have delivered to The Bank of New York Mellon as Principal
Paying Agent for the Notes, or as Unit Agent for the Units, a pre-printed
four-ply packet for such Note or such Unit, as the case may be, which
packet will contain the following documents in forms that have been
approved by the Company, the Agent and The Bank of New York Mellon, as
Principal Paying Agent for the Notes, or as Unit Agent for the
Units:
|
|
1.
|
Note
or Unit, as the case may be, with customer
confirmation.
|
|
|
2.
|
Stub
One - For The Bank of New York Mellon.
|
|
|
3.
|
Stub
Two - For the Agent.
|
|
|
4.
|
Stub
Three - For the Company.
|
|
EE.
|
The
Bank of New York Mellon will (i) authenticate and deliver any Note
(whether issued alone or as part of a Unit) or Indenture Paid Purchase
Contract through the Principal Paying Agent, if necessary, with the
confirmation and Stubs One and Two to the Agent, and (ii) complete and
deliver any Unit (including by countersigning and delivering any Warrant
includable in such Unit, by countersigning, executing and delivering any
Purchase Contract (other than Indenture Pre-paid Purchase Contracts)
includable in such Unit and by obtaining from the Principal Paying Agent
any Notes or Cash-settled Pre-paid Purchase Contracts to be included in
such Units, authenticated in accordance with clause (i) above) with the
confirmation and Stubs One and Two to the Agent. The Agent will
acknowledge receipt of the Note or the Unit, as the case may be, by
stamping or otherwise marking Stub One and returning it to The Bank of New
York Mellon, through the Principal Paying Agent, in the case of the Notes,
if necessary. Such delivery will be made only against such
acknowledgment of receipt and evidence that instructions have been given
by the Agent, with respect to Program Securities denominated in U.S.
dollars, for payment to the account of the Company at The Bank of New York
Mellon, New York, New York (or, with respect to Program Securities payable
in a Specified Currency other than U.S. dollars, to an account maintained
at a bank selected by the Company,
|
B-25
|
which
bank shall be located outside the United Kingdom in the case of Program
Securities payable in a Specified Currency other than pounds sterling that
mature not later than five years from and including the date of issue
thereof), in immediately available funds, of an amount equal to the
purchase price of such Program Securities less the Agent’s commission (if
any). In the event that the instructions given by the Agent for
payment to the account of the Company are revoked, the Company will as
promptly as possible wire transfer to the account of the Agent an amount
of immediately available funds equal to the amount of such payment
made.
|
||
|
The
Principal Paying Agent and the Unit Agent shall pay the Company the
aggregate net proceeds received by it in immediately available funds via a
transfer of funds to the U.S. dollar account of the Company with The Bank
of New York Mellon in New York City (or, with respect to Program
Securities payable in a Specified Currency other than U.S. dollars, to an
account maintained at a bank selected by the Company which bank shall be
located outside the United Kingdom in the case of Program Securities
payable in a Specified Currency other than pounds sterling that mature not
later than five years including the date of issue thereof) designated by
the Company in writing.
|
||
|
FF.
|
Unless
the Agent purchased such Program Securities as principal, the Agent will
deliver (with confirmation) such Program Securities to the customer
against payment in immediately available funds. The Agent will
obtain the acknowledgment of receipt of such Program Securities by
retaining Stub Two.
|
|
|
GG.
|
In
the case of all Program Securities, The Bank of New York Mellon will send
Stub Three to the Company by first-class mail. Periodically,
The Bank of New York Mellon will also send to the Company a statement
setting forth, in the case of the Notes, the principal amount of the Notes
outstanding as of that date under each Indenture and, in the case of the
Units, the number of Units outstanding under each of the Unit Agreement
and the Unit Agreement Without Holders’ Obligations, and in each case,
setting forth a brief description of any sales of which the Company has
advised The Bank of New York Mellon that have not yet been
settled.
|
B-26
|
Settlement
Procedures Timetable; Registered Notes and Registered
Units:
|
For
sales by the Company of Registered Notes or Registered Units to or through
the Agent, “Settlement
Procedures; Registered Notes and Registered
Units” “AA”
through “GG” set
forth above shall be completed on or before the respective times (London
time) set forth below:
|
B-27
|
Settlement
Procedure;
Registered
Notes
and
Registered Units
|
Time
|
|
AA
|
2:00
P.M. on second day before settlement date
|
|
|
BB
|
2:00
P.M. on second day before settlement date
|
|
|
CC
|
3:00
P.M. on second day before settlement date
|
|
|
DD-EE
|
2:15
P.M. on settlement date
|
|
|
FF
|
3:00
P.M. on settlement date
|
|
|
GG
|
5:00
P.M. on settlement date
|
|
Failure
to Settle:
|
Bearer Notes and
Bearer Units. If the Agent shall have advanced its own
funds for payment against subsequent receipt of funds from the purchaser
and if a purchaser shall fail to make payment for a Note or a Unit, the
Agent will promptly notify, in the case of a Note, the Company, the
Principal Paying Agent, the Depositary (and, in the case of a Note issued
in NGN form, the CSK), and the Euroclear Operator, Clearstream and any
other relevant clearing system, and, in the case of the Unit, the Company,
the Unit Agent, the Depositary, and the Euroclear Operator, Clearstream
and any other relevant clearing system, in each case by telephone,
promptly confirmed in writing (but no later than the next Business
Day). In such event, the Company shall promptly instruct the
Principal Paying Agent, in the case of the Note, and the Unit Agent, in
the case of the Unit, to cancel the purchaser’s interest in the
appropriate Temporary Global Note representing such Note or the
appropriate Temporary Global Unit representing such Unit. Upon
(i) confirmation from the Principal Paying Agent or the Unit Agent in
writing (which may be given by telex or telecopy) that the Principal
Paying Agent or the Unit Agent has canceled such purchaser’s interest in
such Temporary Global Note or Temporary Global Unit, as the case may be,
and (ii) confirmation from the Agent in writing (which may be given by
telex or telecopy) that the Agent has not received payment from the
purchaser for the Note or the Unit, the Company will promptly pay to the
Agent an amount in immediately available funds equal to the amount
previously paid by the Agent in respect of such Bearer Note or Bearer
Unit. Such payment will be made on the settlement
|
B-28
|
date,
if possible, and in any event not later than 12 noon (New York City time)
on the Business Day following the settlement date. The
Principal Paying Agent or the Unit Agent, as the case may be, and, in the
case of a Note Tranche in CGN form, the Depositary will make or cause to
be made such revisions to such Temporary Global Note or Temporary Global
Unit as are necessary to reflect the cancellation of such portion of such
Temporary Global Note or Temporary Global Unit, or in the case of a Note
Tranche issued in NGN form, the Principal Paying Agent shall instruct the
Euroclear Operator and Clearstream to make the appropriate entries to
their records to reflect the changes in the IOA of such Temporary Global
Note.
|
||
|
If a
purchaser shall fail to make payment for the Note or Unit for any reason
other than a default by the Agent in the performance of its obligations
hereunder and under the Distribution Agreement, then the Company will
reimburse the Agent on an equitable basis for the Agent’s loss of the use
of funds during the period when they were credited to the account of the
Company, the Principal Paying Agent or the Unit Agent, as
applicable.
|
||
|
Immediately
upon such cancellation, the Principal Paying Agent or the Unit Agent, as
the case may be, will make appropriate entries in its records to reflect
the fact that a settlement did not occur with respect to such Note or
Unit.
|
||
|
Registered Notes and
Registered Units. If a purchaser fails to accept
delivery of and make payment for any Registered Note or Registered Unit,
the Agent will notify the Company and The Bank of New York Mellon, as
Registrar of the Registered Notes or as Unit Agent, by telephone and
return such Note or Unit to The Bank of New York Mellon through the
Principal Paying Agent, in the case of the Notes or the Unit Agent, in the
case of the Units, if necessary. Upon receipt of such notice,
the Company will immediately wire transfer to the account of the Agent an
amount equal to the amount previously credited to the Company’s account in
respect of such Note or Unit. Such wire transfer will be made
on the settlement date, if possible, and in any event not later than the
Business Day following the settlement date. If the failure
shall have occurred for any reason other than a default by the Agent in
the performance of its obligations hereunder and under the Distribution
Agreement, then the Company will reimburse the Agent on an equitable basis
for its loss of the use of the funds during the period when they were
credited to
|
B-29
|
the
account of the Company or The Bank of New York
Mellon. Immediately upon receipt of the Registered Note or
Registered Unit in respect of which such failure occurred, The Bank of New
York Mellon will xxxx such Note or Unit “canceled,” make
appropriate entries in The Bank of New York Mellon’s records and send such
Note or Unit to the Company.
|
||
|
Cancellation
of Issuance:
|
If
any Program Securities of a particular series in respect of which
information has been supplied under “Settlement Procedures”
above is not to be issued on a given issue date, the Issuer shall promptly
notify the Principal Paying Agent and the Trustee and shall promptly
confirm such notification in writing. Upon receipt of such
notice, neither the Principal Paying Agent nor the Trustee shall
thereafter issue or release the relevant Program Securities but shall, if
applicable, cancel and, unless otherwise instructed by the Issuer in
writing, dispose of them in accordance with their customary
procedures.
|
|
|
Notice
of Issuance to the UK Listing Authority and the London Stock
Exchange:
|
The
Sponsoring Member Firm will provide information with respect to the
issuance of each Series G Note and Series G Unit to the UK Listing
Authority and the London Stock Exchange or any other stock exchange or
quotation system, as appropriate, and will advise the Company in writing
as to the effectiveness of the listing of such Series G Note and Series G
Unit by the close of business on the related settlement
date.
|
|
|
Listing:
|
The
Sponsoring Member Firm will, on a regular basis, provide the UK Listing
Authority and the London Stock Exchange or any other stock exchange or
listing authority or quotation system, as appropriate, with such
information regarding Series G Notes and Series G Units issued and
outstanding as such exchange or listing authority may
require.
|
|
B-30
[FORM
OF CERTIFICATE TO BE GIVEN BY
EUROCLEAR,
CLEARSTREAM AND/OR ANY OTHER RELEVANT
CLEARING
SYSTEM]
CERTIFICATE
_______________
Xxxxxx
Xxxxxxx
Notes,
Series G/H
Represented
by Temporary Global [Fixed/Floating] Rate Senior Bearer Note No.
__
This is to
certify that, based solely on certifications we have received in writing, by
tested telex or by electronic transmission from member organizations appearing
in our records as persons being entitled to a portion of the principal amount
set forth below (our “Member Organizations”) substantially
to the effect set forth in Appendix 2 to Exhibit B to the Euro Distribution Agreement
relating to such Notes, as of the date hereof, __________ principal amount of
the above-captioned Securities (i) is owned by persons that are not citizens or
residents of the United States, domestic partnerships, domestic corporations or
any other entity created or organized in or under the laws of the United States
or any political subdivision thereof, an estate the income of which is subject
to United States federal income taxation regardless of its source or a trust if
both (a) a court within the United States is able to exercise primary
supervision over the administration of the trust and (b) one or more United
States persons have the authority to control all substantial decisions of the
trust (“United
Statespersons”),
(ii) is owned by United States persons that are (a) foreign branches of United
States financial
institutions (as defined in the applicable U.S. Treasury Regulations) (“financial institutions”) purchasing for
their own account or for resale, or (b) United States persons who 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 U.S. 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 the applicable U.S. Treasury Regulations),
and such 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. Any such certification by electronic transmission satisfies the
requirements set forth in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(3)(ii). We will retain all certifications from our Member
Organizations for the period specified in United States Treasury Regulations
Section 1.163- 5(c)(2)(i)(D)(3)(i).
We further
certify (i) that we are not making available herewith for exchange (or, if
relevant, seeking to collect principal or interest with respect to) any portion
of the temporary global Security representing the above-captioned Securities
excepted in the above-referenced certificates of Member Organizations and (ii)
that as of the date hereof we have not received any notification from any of our
Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith (or, if
relevant, with respect to which principal or interest is being requested) 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 are commenced or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorize you to produce this certification to any interested
party in such proceedings.
Dated:
___________, 20__
[To be
dated no earlier than [insert
date of
Interest Payment Date prior
to
Exchange Date] [insert date of
Redemption
Date prior to Exchange
Date]
[insert Exchange Date]]
2
|
[EUROCLEAR
BANK S.A./N.V., as Operator of the Euroclear System]
[CLEARSTREAM
BANKING, SOCIÉTÉ ANONYME]
[OTHER]
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
3
[FORM
OF CERTIFICATE TO BE GIVEN BY
AN
ACCOUNT HOLDER OF EUROCLEAR, CLEARSTREAM AND/OR
ANY
OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
______________
Xxxxxx
Xxxxxxx
Notes,
Series G/H
Represented
by Temporary Global [Fixed/Floating] Rate Senior Bearer Note No.
__
This is to
certify that as of the date hereof, and except as set forth below, the
above-captioned Securities held by you for our account (i) are owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any other entity created or organized in
or under the laws of the United States or any political subdivision thereof, an
estate the income of which is subject to United States Federal income taxation
regardless of its source, or a trust if both (a) a court within the United
States is able to exercise primary supervision over the administration of the
trust and (b) one or more United States persons have the authority to control
all substantial decisions of the trust (“United States persons”), (ii) is owned by
United States persons that are (a) foreign branches of United States financial institutions
(as defined in the applicable U.S. Treasury Regulations) (“financial institutions”) purchasing for their own
account or for resale, or (b) United States persons who 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 U.S. 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 the applicable U.S. Treasury Regulations),
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)) 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
This
certification excepts and does not relate to [U.S.$] _________ of such interest
in the above-captioned Securities in respect of which we are not able to certify
and as to which we understand exchange for and delivery of definitive Securities
(or, if relevant, exercise of any rights or collection of any principal or
interest) cannot be made until we do so certify.
We
understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorize you to produce this certification to any interested
party in such proceedings.
2
[To be
dated no earlier than the
10th day
before [insert date of
Interest
Payment Date prior to
Exchange
Date] [insert date of
Redemption
Date prior to
Exchange
Date] [insert Exchange
Date]]
|
[NAME
OF ACCOUNT HOLDER]
|
|||
|
By:
|
|||
|
(Authorized
Signatory)
|
|||
|
Name:
|
|||
|
Title:
|
|||
3
FORM OF COMPANY’S NOTICE TO
PRINCIPAL PAYING AGENT
|
To:
|
The
Bank of New York Mellon
|
||
|
London
Branch
|
|
Attention:
|
________________________
|
||
|
________________________
|
|||
and with a
copy to:
[The Bank
of New York Mellon, as [Senior/Subordinated] Debt Trustee]
|
Re:
|
Euro
Distribution Agreement
|
|
dated December 23,
2008
|
Terms
defined in the Administrative Procedures relating to the above Euro Distribution
Agreement have the same meanings herein.
We hereby
confirm our telephone instruction to prepare, complete, authenticate and issue a
Temporary Global Note in accordance with the terms of the [Notes Terms Agreement
dated _______,]
Administrative Procedures and Euro Distribution Agreement[, to instruct the
common safe-keeper to effectuate such Temporary Global Note if so indicated in
the Notes Terms Agreement, to give instructions to the Euroclear Operator and
Clearstream to make the appropriate entries in their records to reflect the
issue outstanding amount of the Temporary Global Note]1 and to
give instructions to the Euroclear Operator, Clearstream and/or any other
relevant clearing system in order for you to:2
Credit
account of [Name of Agent] with [Euroclear/Clearstream/Other]3 with the
following Bearer Notes:
1 To be
used only if the Note Tranche is issued in New Global Note form and the Note
will not be manually signed and physically delivered to the common
safe-keeper.
2 Separate
instructions are to be sent in respect of each offer accepted by the Company.
Repeat this information (numbering consecutively) if Bearer Units of more than
one Units Tranche are to be issued to an Agent.
3 Delete
as appropriate.
|
All
Notes:
|
Fixed
Rate Notes:
|
Floating
Rate Notes:
|
|
Principal
Amount:
|
Interest
Rate:
|
Base
Rate:
|
|
Purchase
Price:
|
Applicability
of Modified Payment upon Acceleration:
|
Index
Maturity:
|
|
Price
to Public:
|
If
yes, state issue price:
|
Spread
(Plus or Minus):
|
|
Settlement
Date and Time:
|
Amortization
Schedule:
|
Spread
Multiplier:
|
|
Place
of Delivery:
|
Applicability
of Annual Interest Payments:
|
Alternate
Rate Event Spread:
|
|
Specified
Currency:
|
Denominated
Currency (if any):
|
Initial
Interest Rate:
|
|
Original
Issue Date:
|
Indexed
Currency or Currencies (if any):
|
Initial
Interest Reset Date:
|
|
Interest
Accrual Date:
|
Payment
Currency (if any):
|
Interest
Reset Dates:
|
|
Interest
Payment Date(s):
|
Exchange
Rate Agent (if any):
|
Interest
Reset Period:
|
|
Maturity
Date:
|
Reference
Dealers:
|
Maximum
Interest Rate:
|
|
Optional
Redemption Date(s):
|
Face
Amount:
|
Minimum
Interest Rate:
|
|
Initial
Redemption Date:
|
Fixed
Amount of each Indexed Currency (if any):
|
Interest
Payment Period:
|
|
Initial
Redemption Percentage:
|
Aggregate
Fixed Amount of each Indexed Currency (if any):
|
Calculation
Agent:
|
|
Annual
Redemption Percentage Reduction:
|
Indexed
Currency (if any):
|
Reporting
Service:
|
|
Ranking:
|
Index
Currency:
|
|
|
Series:
|
Designated
CMT Telerate Page:
|
|
|
Minimum
Denominations:
|
Designated
CMT
Maturity
Index:
|
2
|
Form:
|
||
|
New
Global Note (“NGN”):
[yes/no]
|
||
|
If
the Notes are NGNs, are they intended to be held in a manner that would
allow eligibility as collateral for Eurosystem intra-day credit and
monetary policy operations?
[Yes]
|
||
|
Other
Provisions:
|
3
|
against payment of
[ ]
for the Bearer Notes.
|
|||
| Date: | |||
|
XXXXXX
XXXXXXX
|
|||
|
By:
|
|||
4
FORM OF
COMPANY’S NOTICE TO UNIT AGENT
|
To:
|
The
Bank of New York Mellon
|
|||
|
Attention:
|
__________________
|
|||
|
__________________
|
||||
|
Re:
|
Euro
Distribution Agreement
|
|
|
dated December 23,
2008
|
Terms
defined in the Administrative Procedures relating to the above Euro Distribution
Agreement have the same meanings herein.
We hereby
confirm our telephone instruction to prepare, complete and issue a Temporary
Global Unit in accordance with the terms of the [Units Terms Agreement dated
_______________] Administrative
Procedures and Euro Distribution Agreement and to give instructions to the
Euroclear Operator, Clearstream and/or any other relevant clearing system in
order for you to:1
Credit
account of [Name of Agent] with
[Euroclear/Clearstream/Other]2 with the
following Bearer Units:
1 Separate
instructions are to be sent in respect of each offer accepted by the Company.
Repeat this information (numbering consecutively) if Bearer Notes of more than
one Note Tranche are to be issued to an Agent.
2 Delete
as appropriate.
|
All
Units:
|
Warrants
Issued
as Part of a Unit:
|
Purchase
Contracts
Issued
as Part of a Unit:
|
|
Principal
Amount:
|
Price:
|
Price:
|
|
Purchase
Price:
|
Specified
Currency or Composite Currency:
|
Settlement
Date and Time:
|
|
Price
to Public:
|
Exercise
Date:
|
Buy
or Sell:
|
|
Place
of Delivery:
|
Warrant
Property:
|
Purchase
Contract Property:
|
|
Specified
Currency:
|
Permitted
Payment:
|
Purchase
or Sale Price:
|
|
Original
Issue Date:
|
Exercise
Price:
|
|
|
Expiration
Date:
|
Specified
Currency or Composite Currency:
|
|
|
Put
or Call:
|
Permitted
Payment:
|
|
2
|
All
Notes Issued as Part of a Unit:
|
Fixed
Rate Notes Issued as Part of a Unit:
|
Floating
Rate Notes Issued as Part of a Unit:
|
|
Principal
Amount:
|
Interest
Rate:
|
Base
Rate:
|
|
Purchase
Price:
|
Applicability
of Modified Payment upon Acceleration:
|
Index
Maturity:
|
|
Price
to Public:
|
If
yes, state issue price:
|
Spread
(Plus or Minus):
|
|
Settlement
Date and Time:
|
Amortization
Schedule:
|
Spread
Multiplier:
|
|
Place
of Delivery:
|
Applicability
of Annual Interest Payments:
|
Alternate
Rate Event Spread:
|
|
Specified
Currency:
|
Denominated
Currency (if any):
|
Initial
Interest Rate:
|
|
Original
Issue Date:
|
Indexed
Currency or Currencies (if any):
|
Initial
Interest Reset Date:
|
|
Interest
Accrual Date:
|
Payment
Currency (if any):
|
Interest
Reset Dates:
|
|
Interest
Payment Date(s):
|
Exchange
Rate Agent (if any):
|
Interest
Reset Period:
|
|
Maturity
Date:
|
Reference
Dealers:
|
Maximum
Interest Rate:
|
|
Optional
Repayment Date(s):
|
Face
Amount:
|
Minimum
Interest Rate:
|
|
Optional
Redemption Date(s):
|
Fixed
Amount of each Indexed Currency (if any):
|
Interest
Payment Period:
|
|
Initial
Redemption Date:
|
Aggregate
Fixed Amount of each Indexed Currency (if any):
|
Calculation
Agent:
|
|
Initial
Redemption Percentage:
|
Indexed
Currency (if any):
|
Reporting
Service:
|
|
Annual
Redemption Percentage Reduction:
|
:
|
Index
Currency
|
3
|
All
Notes Issued as Part of a Unit:
|
Fixed
Rate Notes Issued as Part of a Unit:
|
Floating
Rate Notes Issued as Part of a
Unit:
|
|
Ranking:
|
Designated
CMT Telerate Page:
|
|
|
Series:
|
Designated
CMT Maturity Index:
|
|
|
Minimum
Denominations:
|
||
|
Other
Provisions:
|
4
