Medium-Term Notes Due Nine Months or More from Date of Issue DISTRIBUTION AGREEMENT
Exhibit 1.4
KfW
Medium-Term Notes
Due Nine Months or More from Date of Issue
Due Nine Months or More from Date of Issue
January 5, 2006
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
4 World Financial Center
North Tower, 11th Floor
New York, New York 10080
Incorporated
4 World Financial Center
North Tower, 11th Floor
New York, New York 10080
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
KfW, a German public law institution (Anstalt des öffentlichen Rechts) established under the
Law Concerning the Kreditanstalt für Wiederaufbau (Gesetz über die Kreditanstalt für Wiederaufbau)
(the “Issuer”), hereby agrees with Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated (the
“Arranger”) and Xxxxxxx, Xxxxx & Co. and Xxxxxx Brothers Inc. (together with the Arranger, each, a
“Dealer”, and collectively, the “Dealers”) with respect to the issue and sale by the Issuer of its
Medium-Term Notes (the “Notes”) under the Medium-Term Note Program contemplated hereunder (the
“Program”). The Issuer has entered into a fiscal agency agreement (the “Fiscal Agency Agreement”)
with Deutsche Bank Trust Company Americas (the “Fiscal Agent”) to act as fiscal agent in connection
with the Notes. This agreement (this “Agreement”) relates to the issue and sale by the Issuer of
up to U.S. $ 5,000,000,000 aggregate initial offering price of Notes (or its equivalent, based upon
the exchange rate for foreign or composite currency as the Issuer shall designate at the time of
issuance of any Notes) (the “Program Amount”) to the Dealers. It is understood, however, that the
Issuer may from time to time update or
increase the Program Amount to permit the issuance of additional Notes and that such
additional Notes may be sold to the Dealers pursuant to the terms of this Agreement.
This Agreement provides for the sale of Notes by the Issuer to one or more Dealers as
principal for resale to investors and other purchasers in the United States of America.
The Issuer has filed with the U.S. Securities and Exchange Commission (the “SEC”) a
registration statement on Schedule B (No. 333-121363) and post-effective amendment No. 1 thereto
for the registration of debt securities, including the Notes, under the U.S. Securities Act of
1933, as amended
(the “Securities Act”), and the offering thereof from time to time in accordance
with the Securities Act and the rules and regulations of the SEC under the Securities Act (the
“Securities Act Regulations”).
Such registration statement (as so amended) has become effective under the Securities Act.
Such registration statement (as amended from time to time) is referred to herein as the
“Registration Statement”, provided, that if the Issuer files an additional registration statement
with the SEC relating to this Program for the registration of the Notes under the Securities Act
and the offering thereof from time to time in accordance with the Securities Act and the Securities
Act Regulations, then, after such filing, all references to the “Registration Statement” shall, to
the extent applicable, be deemed to include such additional registration statement; and the final
prospectus and all applicable amendments or supplements thereto (including the final prospectus
supplement relating to the Program and any Pricing Supplement (as defined in Section 3(c))), are
collectively referred to herein as the “Prospectus”;
provided however, that all references to the
“Registration Statement” and the “Prospectus” shall also be deemed to include all documents
incorporated therein by reference that are filed under the U.S. Securities Exchange Act of 1934, as
amended (the “Exchange Act”), prior to any acceptance by the Issuer of an offer for the purchase of
Notes. “Preliminary Prospectus” refers to any prospectus furnished by the Issuer before any
acceptance by the Issuer of an offer for the purchase of Notes (or any prospectus used before any
amendment or additional registration statement relating to this Program became effective) which, in
each case, omitted information to be included upon pricing in a form of prospectus filed with the
SEC pursuant to Rule 424(b) of the Securities Act Regulations. For purposes of this Agreement, all
references to the Registration Statement or Prospectus or to any amendment or supplement thereto
shall be deemed to include any copy thereof filed with the SEC pursuant to its Electronic Data
Gathering, Analysis and Retrieval system (“XXXXX”), or filed pursuant to an exception permitted by
Regulation S-T.
All references in this Agreement to financial statements and schedules and other information
which is “disclosed,” “contained,” “included” or “stated” (or other similar references) in the
Registration Statement or Prospectus shall be deemed to include all such financial statements and
schedules and other information which are incorporated by reference in the Registration Statement
or Prospectus, as the case may be; and all references in this Agreement to “amendments” or
“supplements” to the Registration Statement or Prospectus shall be deemed to include the filing
with the SEC of any document which is incorporated by reference in the Registration Statement or
Prospectus, as the case may be.
1. Appointment as Dealers.
(a) Initial Appointment. The Issuer hereby agrees that, subject to the terms and
conditions stated herein, including Section 1(c) below, the Notes shall be sold exclusively to the
Dealers.
(b) Subsequent Appointments. The Issuer, in its sole discretion (following
consultation with the Arranger), may appoint from time to time one or more additional parties to
act as Dealers hereunder. Any such appointment shall be made in a writing signed by the Issuer and
the party so appointed in substantially the form attached hereto as Exhibit A (each, a “Dealer
Accession Letter”). Any such appointment shall become effective in accordance with its terms after
the execution and delivery of the
Dealer Accession Letter by the Issuer and such other party. When such appointment is
effective, such other party shall be deemed to be one of the Dealers referred to in, and to have
the rights and obligations of a Dealer under, this Agreement, subject to the terms and conditions
of such appointment. The Issuer shall deliver a copy of the Dealer Accession Letter to each other
Dealer promptly after it becomes effective.
(c) Purchase of Notes by Other Persons. The Issuer, in its sole discretion, may from
time to time solicit or accept offers to purchase Notes otherwise than through one of the Dealers
appointed in accordance with Sections 1(a) and 1(b) without giving notice to such Dealers.
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(d) Sale of Notes. The Issuer shall not sell Notes in excess of the Program Amount
(as updated or increased from time to time) registered pursuant to the Registration Statement. The
Dealers shall have no responsibility for maintaining records with respect to the aggregate initial
offering price of Notes sold, or of otherwise monitoring the availability of Notes for sale, under
the Registration Statement.
(e) Nature of Obligations. The Dealers shall not have any obligation to purchase any
Notes as principal from the Issuer pursuant to this Agreement or under the Program. The Dealers,
individually or in a syndicate, may agree from time to time to purchase Notes from the Issuer in
accordance with Section 3(a).
(f) No Advisory or Fiduciary Relationship. Each of the Issuer and the Dealers
acknowledges and agrees that:
(i) the purchase and sale of the Notes pursuant to this Agreement, including the
determination of the initial offering prices of the Notes and any related discounts or
commissions, is an arm’s-length commercial transaction between the Issuer, on the one hand,
and each Dealer, on the other hand;
(ii) in connection with the Program, each Dealer is and has been acting solely as a
principal and is not the agent or fiduciary of the Issuer, or its shareholders, creditors,
employees or any other party;
(iii) no Dealer has assumed or shall assume an advisory or fiduciary responsibility in
respect of the Issuer with respect to the Program (irrespective of whether such Dealer has
advised or is currently advising the Issuer on other matters), and no Dealer has any
obligation to the Issuer with respect to the Program except the obligations expressly set
forth in this Agreement;
(iv) each of the Dealers and its respective affiliates may be engaged in a broad range
of transactions that involve interests that differ from those of the Issuer; and
(v) each of the Dealers has not provided any legal, accounting, regulatory or tax
advice with respect to the Program and the Issuer has consulted its own legal, accounting,
regulatory and tax advisors to the extent it deemed appropriate.
2. Representations and Warranties of the Issuer.
(a) Initial Representations and Warranties. The Issuer represents and warrants, as of
the date hereof, to each Dealer, irrespective of any investigation that any Dealer may have
undertaken, as follows:
(i) Incorporation. The Issuer exists as an institution organized under public
law of the Federal Republic of Germany with full power and authority to own its assets and
conduct its business as described in the Prospectus.
(ii) Agreement. This Agreement has been duly authorized and executed by the
Issuer and constitutes a valid and legally binding obligation of the Issuer.
(iii) Fiscal Agency Agreement. The Fiscal Agency Agreement, when duly executed
by the Issuer, shall constitute a valid and legally binding obligation of the Issuer.
(iv) Notes. The Notes, when duly issued, authenticated and delivered in
accordance with the provisions of the Fiscal Agency Agreement and this Agreement, shall
constitute valid
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and legally binding obligations of the Issuer; and the Notes shall benefit
from the Anstaltslast of the Federal Republic of Germany as well as from the statutory
guarantee of the Federal Republic of Germany pursuant to Section 1a of the Law concerning
Kreditanstalt für Wiederaufbau (Gesetz über die Kreditanstalt für Wiederaufbau (the “KfW
Law”)).
(v) No Consents, etc. No action or thing is required to be taken, fulfilled or
done (including the obtaining of any consent or license or the making of any filing or
registration) for any issue of the Notes, the carrying out by the Issuer of the other
transactions contemplated by this Agreement and the Fiscal Agency Agreement or the
compliance by the Issuer with the terms of this Agreement, the Fiscal Agency Agreement or
the Notes, except for those which have been, or shall prior to the relevant Settlement Date
(as defined in Section 2(b)) for any issue of Notes be, obtained and are, or shall on such
Settlement Date be, in full force and effect.
(vi) No Conflict. The execution and delivery of this Agreement and the Fiscal
Agency Agreement, any issue of the Notes, the carrying out by the Issuer of the other
transactions contemplated by this Agreement and the Fiscal Agency Agreement and compliance
with their terms, do not, and shall not, conflict with or infringe the KfW Law, the by-laws
(Satzung) of the Issuer or any of its other obligations or any rule of law (including,
without limitation, any statute, regulation, rule, decree or order) to which it is subject.
The use of the proceeds from the sale of Notes pursuant to this Program does not, and shall
not, conflict with or infringe the KfW Law, the by-laws (Satzung) of the Issuer or any of
its other obligations or any rule of law (including, without limitation, any statute,
regulation, rule, decree or order) to which it is subject with respect to such particular
use.
(vii) Registration Statement and Prospectus. The Registration Statement has
become effective under the Securities Act, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities Act, no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the Issuer, are
contemplated by the SEC, and any request on the part of the SEC for additional information
has been complied with; the Registration Statement, as of its effective date under the
Securities Act, complied, and as of the date hereof, complies, in all material respects with
the requirements of the Securities Act and the Securities Act Regulations and, as of its
effective date and the effective date of any amendment thereto, did not, and, as of the date
hereof, does not, contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein not
misleading; and the Prospectus, as of its date, complied, and, as of the date hereof,
complies, in all material respects with the requirements of the Securities Act and the
Securities Act Regulations and, as of its date, did not, and, as of the date hereof, does
not, include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were
made, not misleading; and each Prospectus delivered to the relevant Dealers for use in
connection with the offering of Notes shall be identical to any electronically transmitted
copies thereof filed with the SEC pursuant to XXXXX, except to the extent permitted by
Regulation S-T; provided however, that the representations and warranties in this Section
2(a)(vii) shall not apply to statements in or omissions from the Registration Statement or
the Prospectus made in reliance upon and in conformity with information furnished to the
Issuer in writing by the Arranger, on behalf of the Dealers, expressly for use in the
Registration Statement or the Prospectus.
(viii) Incorporated Documents. The Issuer’s annual report on Form 18-K, any
amendments thereto on Form 18-K/A and any other documents incorporated by reference in the
Prospectus, at the time they were filed with the SEC, complied and, as of the date hereof,
comply, in all material respects with the requirements of the Exchange Act and the rules and
regulations of
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the SEC under the Exchange Act and, as of the date of filing thereof, did
not, and, as of the date hereof, do not, include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(ix) Financial Statements. The Issuer’s financial statements included or
incorporated by reference in the Registration Statement and the Prospectus, together with
the related schedules and notes, have been prepared in accordance with either (i) accounting
principles generally accepted in, and pursuant to the relevant laws of, the Federal Republic
of Germany or (ii) International Financial Reporting Standards, consistently applied in each
case, and present fairly the financial position of the Issuer as of the dates, and the
results of operations of the Issuer for the periods, in respect of which they have been
prepared.
(x) No Material Changes. Since the date of the latest audited financial
statements of the Issuer included or incorporated by reference in the Registration Statement
and the Prospectus, there has been no change (nor any development or event reasonably likely
to involve a prospective change) which is materially adverse to the condition (financial or
other), or to the earnings, business or operations, of the Issuer.
(xi) Absence of Proceedings. There are no pending proceedings against or
affecting the Issuer which, if determined adversely to the Issuer, would adversely affect
the ability of the Issuer to perform its obligations under this Agreement, the Fiscal Agency
Agreement or the Notes or which are otherwise material in the context of the Program, and no
such proceedings are, to the best of the Issuer’s knowledge, threatened or contemplated.
(b) Confirmation of Representations and Warranties. The Issuer shall be deemed to
confirm the representations and warranties set forth in Section 2(a), irrespective of any
investigation that any Dealer may have undertaken, in each case as if such representation and
warranty were given or made on the following dates (for the avoidance of doubt, for purposes of
each of the following dates specified in this Section 2(b), references to “the date hereof” in any
representation or warranty set forth in Section 2(a) shall be deemed to be such date specified in
this Section 2(b)):
(i)
to each Dealer as of any time that (y) an amendment to the Registration Statement
or an additional registration statement relating to this Program shall become effective; or
(z) the Prospectus shall be amended or supplemented (other than an amendment or supplement
thereto providing solely for the determination of the terms of the Notes or relating solely
to an offering of debt securities other than the Notes); and
(ii) to each Dealer purchasing Notes pursuant to this Agreement as of, respectively,
the date of (x) the Oral Agreement (as defined in Section 3(a) below), it being understood that any such representation and warranty made on the date of such Oral Agreement with respect to the price of such Notes to the public, the underwriting discount or commission payable
to such Dealer, or the final terms of such Notes shall be made after taking into account such
information as set forth in the Final Terms Sheet (as defined in
Section 4(j)(ii) below) relating to such Notes or,
in the absence of a Final Term Sheet, the Pricing Supplement (as defined in Section 3(c) below); (y) the filing of the Pricing Supplement (as
defined in Section 3(c) below) with the SEC in connection with the issuance of such Notes;
and (z) the delivery of such Notes (the date of each such delivery to such Dealer being
referred to herein as a “Settlement Date”).
3. Purchases and Sales of Notes.
(a) Purchases by Dealers. The Dealers, individually or in a syndicate, may agree from
time to time to purchase Notes from the Issuer as principal for resale to investors and other
purchasers as
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determined by such Dealers. Purchases of Notes from the Issuer by the Dealers,
individually or in a syndicate, shall be made in accordance with terms agreed upon orally between
such Dealer or Dealers and the Issuer (each, an “Oral Agreement”), with written confirmation
prepared by such Dealer or Dealers and sent by facsimile or electronically transmitted to the
Issuer not later than the close of business in New York City on the date of such Oral Agreement
(each, a “Dealer Confirmation”, which shall be
substantially in the form of Exhibit B-1 or Exhibit
B-2 hereto, as applicable). On
the basis of each such Dealer Confirmation, the Issuer shall prepare a separate terms agreement
substantially in the form of Exhibit C hereto (each, a “Terms Agreement”) to be executed by the
Issuer and the Dealer or Dealers. A Dealer’s commitment to purchase Notes shall be deemed to have
been made in reliance on the representations, warranties, covenants and agreements of the Issuer
herein contained and shall be subject to the terms and conditions set forth herein.
Each purchase of Notes, unless otherwise agreed, shall be at a discount from the principal
amount of each such Note as agreed between the Issuer and the Dealers. The Dealers may engage the
services of any broker or dealer in connection with the resale of the Notes purchased by them and
may allow all or any portion of the discount received from the Issuer in connection with such
purchases to such brokers or dealers.
At the time of the Oral Agreement, the Dealer or Dealers shall specify its or their
requirements, if any, for an officers’ certificate, opinions of counsel or comfort letter pursuant
to Section 6. If the Issuer agrees to such requirements, any such requested documents shall be
specified in the Dealer Confirmation and the Terms Agreement. If no such documents are specified
at the time of the Oral Agreement, the Dealer or Dealers shall be deemed to have waived such
requirements.
(b) Defaulting Dealers. If the Issuer and two or more Dealers enter into a Terms
Agreement and one or more of such Dealers shall fail at the Settlement Date to purchase the Notes
which it or they are obligated to purchase (the “Defaulted Notes”), the non-defaulting Dealers
shall immediately notify the Issuer of such default and consult with it as to the actions to be
taken. Unless otherwise agreed with the Issuer, the non-defaulting Dealers shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the Dealers to purchase all,
but not less than all, of the Defaulted Notes in such amounts as may be agreed upon and upon the
terms set forth herein; provided however, that if such arrangements shall not have been completed
within such 24-hour period, then:
(i) if the aggregate principal amount of Defaulted Notes does not exceed 10% of the
aggregate principal amount of Notes to be so purchased by all of such Dealers on the
Settlement Date, the non-defaulting Dealers shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their respective initial
underwriting obligations bear to the underwriting obligations of all non-defaulting Dealers;
or
(ii) if the aggregate principal amount of Defaulted Notes exceeds 10% of the aggregate
principal amount of Notes to be so purchased by all of such Dealers on the Settlement Date,
such Terms Agreement shall terminate without liability on the part of any non-defaulting
Dealer (except, if applicable, as to the re-transfer of any Notes issued and delivered by
the Issuer to any Dealer and the unwinding of payments made by or to any Dealer to the
extent that delivery of, and payment for, Notes have been completed).
No action taken pursuant to this Section 3(b) shall relieve any defaulting Dealer from liability in
respect of its default. In the event of any such default which does not result in a termination of
the relevant Terms Agreement, either the non-defaulting Dealers or the Issuer shall have the right
to postpone the Settlement Date for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or the Prospectus or in any other documents or
arrangements.
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(c) Pricing Supplement; Administrative Procedures. The purchase price, interest rate
or formula, maturity date and other terms of the Notes specified in the Dealer Confirmation
contemplated by Exhibit B-1 or Exhibit B-2 hereto (as applicable) shall be agreed upon between the Issuer and the
relevant Dealer or Dealers and shall be specified in a pricing supplement to the Prospectus (each,
a “Pricing Supplement”) to be prepared by the Issuer in connection with each issuance and sale of
Notes. Except as otherwise specified in the applicable Pricing Supplement, the Notes shall be
issued in denominations of U.S. $1,000 or any larger amount that is an integral multiple of U.S.
$1,000. Administrative procedures with respect to, and to be used in connection with, the issuance
and sale of the Notes (the “Administrative Procedures”) shall be agreed from time to time among the
Issuer, the Dealers and the Fiscal Agent.
4. Covenants of the Issuer.
The Issuer covenants and agrees with each Dealer as follows:
(a) Delivery of Registration Statement. The Issuer shall, upon the reasonable request
of the Arranger, furnish to the Arranger and to U.S. counsel for the Dealers, without charge,
signed and conformed copies of the Registration Statement as originally filed and of each amendment
thereto (including exhibits related to the Program and filed therewith or incorporated by reference
therein and documents incorporated or deemed to be incorporated by reference therein) and conformed
copies of all consents and certificates of experts. The Registration Statement and each amendment
thereto furnished to the Arranger and to U.S. counsel for the Dealers shall be identical to any
electronically transmitted copies thereof filed with the SEC pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(b) Annual and Periodic Filings. The Issuer shall file annually its annual report on
Form 18-K in accordance with the procedures agreed with the SEC and periodically amendments to its
annual report on Form 18-K/A with respect to, without limitation, (i) the release of financial
statements required to be published under applicable German law, (ii) the publication of
preliminary financial information with respect to any fiscal year and (iii) the disclosure of
material developments with respect to the Issuer, which, in the opinion of the Issuer, are
necessary so that the Registration Statement does not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading or the Prospectus does not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances, not misleading.
(c) Filing or Use of Amendments to Registration Statement or Prospectus. The Issuer
shall give U.S. counsel to the Dealers advance notice of its intention to file or prepare any
additional registration statement with respect to the registration of additional Notes, any
amendment to the Registration Statement or any amendment or supplement to the Prospectus (other
than an amendment or
supplement thereto providing solely for the determination of the terms of the Notes or
relating solely to the offering of debt securities other than the Notes), whether pursuant to the
Securities Act, the Exchange Act or otherwise, and shall (y) furnish to U.S. counsel of the Dealers
copies of any such registration statement, amendment or supplement a reasonable amount of time
prior to such proposed filing or use, as the case may be, and (z) not file or use such registration
statement, amendment or supplement to which the U.S. counsel of the Dealers promptly and reasonably
objects.
(d) Revisions of Registration Statement and Prospectus for Material Changes. Except
as otherwise provided below, if at any time during the term of this Agreement any event shall occur
or condition shall exist as a result of which it is necessary, in the reasonable opinion of U.S.
counsel for the Dealers or U.S. counsel for the Issuer, to amend the Registration Statement in
order that the Registration Statement shall not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the statements
therein not misleading or to amend or supplement
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the Prospectus in order that the Prospectus shall
not include an untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light of the circumstances existing at
the time the Prospectus is delivered to an investor and other purchasers, or if it shall be
necessary, in the opinion of either such counsel, to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the Securities Act or the
Exchange Act, the Issuer shall give immediate notice to the Dealers to cease the solicitation of
offers for the purchase of Notes in their capacity as Dealers and to cease sales of any Notes they
have purchased from the Issuer and may then own, and the Issuer shall promptly prepare and file
with the SEC, subject to Section 4(c), such amendment or supplement as may be necessary to correct
such statement or omission or to make the Registration Statement and Prospectus comply with such
requirements, and the Issuer shall furnish to the Dealers, without charge, such number of copies of
such amendment or supplement as the Dealers may reasonably request. The obligation of the Issuer
to amend or supplement the Registration Statement and/or Prospectus pursuant to the preceding
sentence shall cease for the duration of any period during which
(y) the Dealers shall promptly suspend
solicitation of offers for the purchase of Notes in their capacity as Dealers in accordance with a
written request from the Issuer and (z) none of the Dealers is deemed to hold any Notes purchased
from the Issuer. The Dealers shall be deemed to hold Notes purchased from the Issuer if the Issuer
shall have received a notice pursuant to Section 7(c)(i), and such Dealers shall be deemed to
continue to hold such Notes until the earlier of (i) the date of receipt of a notice pursuant to
Section 7(c)(ii), and (ii) six months after the Settlement Date relating to the purchase of such
Notes from the Issuer by the Dealers.
(e) Notice of Certain Events. The Issuer shall notify the Arranger, on behalf of the
Dealers, of the following events:
(i) the effectiveness of any post-effective amendment to the Registration Statement or
the filing of any amendment or supplement to the Prospectus (other than any amendment or
supplement thereto providing solely for the determination of the variable terms of the Notes
or relating solely to the offering of securities other than the Notes);
(ii) the receipt of any comments from the SEC in respect of the Registration Statement
or the Prospectus or any amendments or supplements thereto;
(iii) any request by the SEC for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information; or
(iv) the issuance by the SEC of any stop order suspending the effectiveness of the
Registration Statement, or of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus, or of the initiation of any proceedings for that purpose.
(f) Stop Order. The Issuer shall make every reasonable effort to prevent the issuance
of any stop order by the SEC and, if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(g) Earning Statements. The Issuer shall timely file such reports pursuant to the
Exchange Act as are necessary in order to make generally available to its security holders as soon
as practicable an earning statement for the purposes of, and to provide the benefits contemplated
by, the last paragraph of Section 11(a) of the Securities Act and Rule 158 of the Securities Act
Regulations.
(h) Preparation of Pricing Supplements. The Issuer shall prepare, with respect to any
Notes to be sold to one or more Dealers pursuant to this Agreement, a Pricing Supplement with
respect to such Notes. The Issuer shall deliver to the relevant Dealer or Dealers such Pricing
Supplement no later than
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11.00 a.m. (New York City time) on the Frankfurt Business Day (as defined
below) following the date of the Dealer Confirmation and shall file such Pricing Supplement
pursuant to Rule 424(b) of the Securities Act Regulations within the time period prescribed by such
Rule 424(b). “Frankfurt Business Day” shall mean any day other than a Saturday, Sunday, legal
holiday in Frankfurt am Main, or a day on which commercial banks are authorized or required by law,
regulation, or executive order to close in Frankfurt am Main.
(i) Delivery of Prospectus. The Issuer shall deliver to each Dealer, without charge,
such number of copies of each Preliminary Prospectus and Prospectus (as amended or supplemented) as
such Dealer may reasonably request. The Prospectus and any amendments or supplements thereto
furnished to the Dealers shall be identical to any electronically transmitted copies thereof filed
with the SEC pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(j) Free
Writing Prospectuses.
(i) The Issuer shall not, subject to Section 4(j)(ii),
make any offer relating to any issue of Notes that would constitute a “free writing prospectus” (as
defined in Rule 405 of the Securities Act Regulations), without the prior consent of the relevant
Dealers; the Issuer shall comply with the requirements of Rule 433 of the Securities Act
Regulations with respect to any such free writing prospectus; any such free writing prospectus
shall not, as of its issue date and through the Settlement Date for such issue of Notes, include
any information that conflicts with the information contained in the Registration Statement, the
Prospectus or any Preliminary Prospectus; and any such free writing prospectus, when considered
together with the Registration Statement and the Prospectus, shall not, as of the date it is issued
or filed pursuant to Rule 433 of the Securities Act Regulations, contain an untrue statement of a
material fact or omit to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(ii)
Subject to the last sentence of this clause (ii), the Issuer shall prepare a final
term sheet in substantially the form attached hereto as Exhibit
D-1 or Exhibit D-2 (as applicable, each a “Final Term Sheet”), containing a description of such Notes, which shall be in a form approved by such
Dealers and substantially consistent with the terms agreed in the Oral Agreement and confirmed in
the relevant Dealer Confirmation. The Issuer shall file such term sheet with the SEC pursuant to
Rule 433(d) of the Securities Act Regulations within the time period prescribed by such Rule.
These provisions shall not apply to any issue of Notes hereunder for which the Dealers advise the
Issuer at the time of the Oral Agreement and confirmed in the Dealer Confirmation that they are not
using a term sheet in connection with the sale of such Notes.
(k) Stamp Duties; Taxes. The Issuer shall bear and pay all stamp and other similar
taxes and duties (including interest and penalties) payable pursuant to the laws applicable in the
Federal Republic of Germany on or in connection with the issue and purchase by the Dealers of the
Notes or the execution or delivery of this Agreement or any Terms Agreement.
5. Conditions of Dealers’ Obligations.
The obligations of one or more Dealers to purchase any Notes from the Issuer shall be subject
to (1) the accuracy of the representations and warranties on the part of the Issuer herein
contained or contained in any certificate of an officer of the Issuer delivered pursuant to the
provisions hereof, (2) the performance and observance by the Issuer of its covenants contained in
Sections 4 and 6 hereunder, and (3) the following additional conditions precedent:
(a) Initial Legal Opinions and Initial Disclosure Letters. On the date hereof, the
Dealers shall have received the following written legal opinions and disclosure letters, dated as
of the date hereof and in form and substance satisfactory to the Dealers:
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(i) Legal Opinion of the Issuer’s Legal Department. The opinion of the Legal
Department of the Issuer as to the laws of the Federal Republic of Germany, to the effect
set forth in Annex A hereto;
(ii) Legal Opinion of U.S. Counsel for the Issuer. The opinion of Xxxxxxxx &
Xxxxxxxx LLP, U.S. counsel for the Issuer, to the effect set forth in Annex B hereto;
(iii) Disclosure Letter of U.S. Counsel for the Issuer. The disclosure letter
of Xxxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Issuer, to the effect set forth in Annex C
hereto;
(iv) Legal Opinion of German Counsel for the Dealers. The opinion of Xxxxxxxx
Xxxxxxx Partnerschaft von Rechtsanwälten, German counsel for the Dealers, to the effect set
forth in Annex D hereto; and
(v) Disclosure Letter of U.S. Counsel for the Dealers. The disclosure letter
of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Dealers, to the effect set forth in
Annex E hereto.
(b) Officer’s Certificate. On the date hereof, the Dealers shall have received a
certificate of a senior officer of the Issuer dated the date hereof and signed on behalf of the
Issuer certifying that, as of the date hereof, (i) the representations and warranties contained in
Section 2(a) are true and correct with the same force and effect as though expressly made at and as
of the date of such certificate, (ii) the Issuer has complied with the covenants contained in
Section 4 and Section 6 (to the extent that such compliance is due on or before the date hereof),
and (iii) no stop order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are pending or, to the Issuer’s
knowledge, are threatened by the SEC.
(c) Comfort Letter of Auditors. On the date hereof, the Dealers shall have received a
comfort letter from the independent auditors of the Issuer, dated as of the date hereof and in form
and substance reasonably satisfactory to the Dealers.
(d) Additional Documents. On the date hereof, German and U.S. counsel for the Dealers
shall have been furnished with such documents and opinions as such counsel may require for the
purpose of enabling such counsel to pass upon the issuance and sale of Notes as herein contemplated
and related proceedings, or in order to evidence the accuracy of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained.
Upon signing of this Agreement on the date hereof, the conditions set forth in this Section 5
(except for the condition under Section 5(2) above) shall either be fulfilled or deemed waived,
without
prejudice to any liability with respect to an inaccuracy of any representation and warranty
referred to under Section 5(1) above.
6. Additional Opinions, Officer’s Certificates and Comfort Letters.
Each time that (i) the Registration Statement or the Prospectus shall be amended or
supplemented, including, without limitation, by the filing of an annual report on Form 18-K by the
Issuer or amendments thereto on Form 18-K/A (other than by an amendment or supplement providing
solely for the determination of the terms of the Notes or relating solely to the offering of
securities other than the Notes) or (ii) the Issuer sells Notes to one or more Dealers, but only if
agreed between the Issuer and the Dealer or Dealers at the time of the Oral Agreement and confirmed
in the Dealer Confirmation, the Issuer shall furnish or cause to be furnished to the Dealer or
Dealers, any one or more of the following
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documents in form and substance satisfactory to the
Dealer or Dealers; provided however, that comfort letters need, in the case of clause (i), be
provided only in connection with an amendment or supplement that include additional financial
statements or financial information (except for any preliminary financial information with respect
to any fiscal year):
(a) Legal Opinion of the Issuer’s Legal Department. The written legal opinion of the
Issuer’s Legal Department dated the date of filing with the SEC or the date of effectiveness of
such amendment or supplement, as applicable, or the date of such sale, as the case may be, of the
same tenor as the legal opinion referred to in Section 5(a)(i), but modified, as necessary, to
relate to the Registration Statement and the Prospectus as amended and supplemented at the time of
delivery of such legal opinion or, in lieu of such legal opinion, a letter substantially to the
effect that the Dealers may rely on such legal opinion that was most recently furnished to the
Dealers, to the same extent as though it was dated the date of such letter authorizing reliance
(except that statements in such legal opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery of such letter
authorizing reliance);
(b) Officer’s Certificate. A certificate of a senior officer of the Issuer dated the
date of filing with the SEC or the date of effectiveness of such amendment or supplement, as
applicable, or the date of such sale, as the case may be, and signed on behalf of the Issuer to the
effect that the statements contained in the certificate referred to in Section 5(b) that was most
recently furnished to the Dealers are true and correct at the time of the filing or effectiveness
of such amendment or supplement, as applicable, as though made at and as of such time (except that
such statements shall be deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to such time) or, in lieu of such certificate, a certificate of the same
tenor as the certificate referred to in Section 5(b), modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to the time of delivery of
such certificate;
(c) Opinion and Disclosure Letter of U.S. Counsel for the Issuer. Written legal
opinions and disclosure letters of Xxxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Issuer, or other
U.S. counsel satisfactory to the Dealers, dated the date of filing with the SEC or the date of
effectiveness of such amendment or supplement, as applicable, or the date of such sale, as the case
may be, of the same tenor as the legal opinion and disclosure letter referred to in Sections
5(a)(ii) and (iii), but modified, as necessary, to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such legal opinion and disclosure
letter; and
(d) Comfort Letter. A comfort letter of the independent auditors of the Issuer, dated
the date of filing with the SEC or the date of effectiveness of such amendment or supplement, as
applicable, or the date of such sale, as the case may be, in form and substance reasonably
satisfactory to the Dealers, of the
same tenor as the comfort letter referred to in Section 5(c), but modified to relate to the
Registration Statement and Prospectus as amended and supplemented to the date of such comfort
letter.
In addition, each time that (i) the Registration Statement or the Prospectus shall be amended
or supplemented by the filing of an annual report on Form 18-K by the Issuer or (ii) the Issuer
sells Notes to one or more Dealers, but only if agreed between the Issuer and one or more Dealers
at the time of the Oral Agreement, the Dealers shall have received the legal opinion from German
counsel for the Dealers and the disclosure letter from U.S. counsel for the Dealers, dated the date
of filing with the SEC and in form and substance satisfactory to the Dealers, of the same tenor as
the legal opinion and disclosure letter referred to in Section 5(a)(iv) and 5(a)(v), but modified,
as necessary, to relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such legal opinion and disclosure letter.
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7. Covenants of the Dealers.
(a) Confidential Information. Each Dealer severally agrees not to disclose without
the Issuer’s prior written consent the comfort letters issued by the independent auditors of the
Issuer, pursuant to Sections 5(c) and 6(d), including any attachment to such comfort letter
(together with such comfort letter the “Confidential Information”), to anyone except (i) the
directors, officers, employees and professional advisors of such Dealer or such Dealer’s Group (the
term “Dealer’s Group” being the Dealer and the Dealer’s ultimate parent company and any subsidiary or
branch of the Dealer and the Dealer’s ultimate parent company), to the extent
necessary in the reasonable opinion of such Dealer for the independent consideration and evaluation
as to whether to subscribe to the Notes, and (ii) its auditors. The Issuer, however, agrees that
each Dealer may disclose the Confidential Information (i) where requested or required by any court
of competent jurisdiction or any competent judicial, governmental, supervisory or regulatory body
or necessary in the reasonable opinion of the Dealer to seek to establish any defense in any legal
proceeding or investigation, (ii) where required by the rules of any stock exchange on which the
shares or other securities of such Dealer or any member of the Dealer’s Group are listed, (iii)
where required by the laws or regulations of any country with jurisdiction over the affairs of such
Dealer or any member of the Dealer’s Group, or (iv) if such information is already in the public
domain at the time of its disclosure or shall come into the public domain (for a reason other than
a breach by the Dealer of this Section 7). The obligation of the Dealers in this Section 7(a)
shall survive the termination of this Agreement and shall cease 15 months after delivery of the
relevant Confidential Information.
(b) Free Writing Prospectuses. Each Dealer shall not make any offer relating to any
issue of the Notes that would constitute a “free writing prospectus” (as defined in Rule 405 of the
Securities Act Regulations) required to be filed with the SEC pursuant to Rule 433 of the
Securities Act Regulations, without the prior consent of the Issuer;
provided however, that each
Dealer may, in its discretion, distribute one or more term sheets relating to any issue of Notes
containing customary information that is consistent, in all material
respects, with the Final Term
Sheet prepared and filed by the Issuer pursuant to Section 4(j)(ii). Any free writing prospectus
(including, without limitation, any term sheet) permitted by the preceding sentence (i) shall not,
as of its issue date and through the Settlement Date for such issue of Notes, include any
information that conflicts with the information contained in the Registration Statement, the
Prospectus or any Preliminary Prospectus and (ii) shall not, when considered together with the
Registration Statement and the Prospectus, contain an untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided
however, that no Dealer shall make any representation and warranty to the Issuer with
respect to statements in or omissions from any such free writing prospectus made in reliance upon
and in conformity with any (y) “issuer information” (as defined in Rule 433 of the Securities Act
Regulations) prepared by the Issuer or (z) information furnished to any Dealer in writing
by the Issuer for use in such free writing prospectus.
(c) Unsold Notes. Solely for the purpose of Section 4(d), each Dealer (i) shall
notify the Issuer (no later than on the second New York Business Day (as defined below) following any date on which the Issuer shall have given a written
request to suspend promptly the solicitation of offers for the purchase of
Notes in accordance with Section 4(d)) of the principal amount of any Notes purchased by it that remain unsold to investors or
other purchasers, and (ii) if such Dealer has previously so notified the Issuer, shall notify the
Issuer promptly if and when all of such Notes are sold to investors or other purchasers.
Notwithstanding the preceding sentence, no Dealer shall have any obligation to notify the Issuer in
accordance with clause (i) of the preceding sentence (it being understood that, if a Dealer elects
not to so notify the Issuer, the Issuer shall have no obligation to amend or supplement, or
correct, the Registration Statement or the Prospectus as contemplated
by clause (z) of the second
sentence of Section 4(d)). The Issuer may, from time to time, request information from each of the Dealers concerning any
Notes purchased by such Dealer that remain unsold to investors or other purchasers. “New York
Business Day” shall mean any day, other than a Saturday or Sunday, that is neither a legal holiday
nor a day on which commercial banks are authorized or required by law, regulation or executive
order to close in New York City.
8. Indemnification.
(a) Indemnification of Dealers. The Issuer agrees to indemnify each Dealer and its
directors, officers and employees and each person, if any, who controls any Dealer within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and any
affiliate of such Dealer, from
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and against any and all losses, claims, damages and liabilities
arising out of or in connection with the distribution of the Notes in the United States (including
without limitation the legal fees and other expenses reasonably incurred in connection with any
such suit, action or proceeding or claim asserted) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the Prospectus, any
Preliminary Prospectus, any “issuer free writing prospectus” (as defined in Rule 433 of the
Securities Act Regulations) or any “issuer information” (as defined in Rule 433 of the Securities
Act Regulations) prepared by the Issuer and filed or required to be filed under the Securities Act
pursuant to Rule 433(d) of the Securities Act Regulations, 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 an untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the Issuer by such Dealer
directly or through the Arranger expressly for use in the Registration Statement, the Prospectus,
such Preliminary Prospectus or such issuer free writing prospectus (as defined above).
(b) Indemnification of Issuer, Directors and Officers. Each Dealer agrees, severally
and not jointly, to indemnify the Issuer, its directors (or persons performing similar functions),
officers and employees and other persons who sign the Registration Statement and each person, if
any, who controls the Issuer within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, and any affiliate of the Issuer, to the same extent as the
foregoing indemnity from the Issuer to such Dealer, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration Statement, the
Prospectus, any Preliminary Prospectus or any issuer free writing prospectus (as defined above) in
reliance upon and in conformity with written information furnished to the Issuer by the Dealer
directly or through the Arranger expressly for use in the Registration Statement, the Prospectus or
such Preliminary Prospectus or such issuer free writing prospectus (as defined above).
(c) Actions Against Parties; Notification. If any suit, action, proceeding (including
any governmental investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnity may be sought pursuant to either Section 8(a) or 8(b), such person (the
“Indemnified Person”) shall promptly notify the person against whom such indemnity may be sought
(the “Indemnifying Person”) in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others the Indemnifying Person may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In
any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary, (ii) the
Indemnifying Person has failed within a reasonable
time after receiving such request to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties to any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing interests between them.
It is understood that the Indemnifying Person shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such separate firm for the
Dealers, its directors, officers, employees, controlling persons and affiliates shall be designated
in writing by the Arranger, on behalf of the Dealers, or the applicable Dealers jointly, and any
such separate firm for the Issuer, its directors (or persons performing similar functions),
officers and employees and other persons who sign the Registration Statement and any control
persons and affiliates of the Issuer shall be designated in writing by the Issuer. The
Indemnifying
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Person shall not be liable for any settlement of any proceeding in which it has
elected to participate effected without its written consent, but if such a suit is settled with
such consent or if any proceeding in which the Indemnifying Person, after having received notice
thereof, shall have elected not to participate is settled with or without such consent or if there
be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify the Indemnified
Person from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested
an Indemnifying Person to reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by the third sentence of this paragraph, the Indemnifying Person agrees that it shall
be liable for any settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed the Indemnified
Person in accordance with such request prior to the date of such settlement. No Indemnifying
Person shall, without the prior written consent of the Indemnified Person, effect any settlement of
any pending or threatened proceeding in respect of which any Indemnified Person is or could have
been a party and indemnity could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from all liability on
claims that are the subject matter of such proceeding.
(d) Contribution. If, as a result of the distribution of Notes in the United States
and notwithstanding Section 13(a), an Indemnified Person cannot avail itself of the indemnification
provided for in this Section 8 in whole or in part, then each Indemnifying Person shall contribute
to the amount paid or payable by such Indemnified Person as a result of the losses, claims, damages
or liabilities referred to above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Issuer, on the one hand, and the applicable Dealers on the other from the
offering or offerings of the Notes or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the Issuer, on the one
hand, and the applicable Dealers, on the other, in connection with the statements or omissions
which resulted in losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Issuer, on the one hand, and the applicable
Dealers, on the other, shall be deemed to be in the same proportion as the total net proceeds from
the offering (before deducting expenses) received by the Issuer bear to the total discounts and
commissions received by each applicable Dealer. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to information supplied by the
Issuer, on the one hand, or the applicable Dealers, on the other, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an Indemnified Person as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this Section 8(d) shall be deemed to include any
legal or other expenses incurred by such Indemnified Person
in connection with investigating or defending any action or claim which is the subject of this
subsection. Notwithstanding the provisions of this Section 8(d), no Dealer shall be required to
contribute any amount in excess of the amount by which the total discount or commission received by
such Dealer in connection with its purchase of Notes exceeds the amount of any damages which such
Dealer has otherwise been required to pay by reason of untrue or alleged untrue statement or
omissions 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 Dealers’ obligations in this Section
8(d) to contribute are several in proportion to their respective purchase commitments and not
joint.
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(e) Other Rights. The indemnity agreements contained in this Section 8 are in
addition to any liability which the Indemnifying Persons may otherwise have to the Indemnified
Persons referred to above.
9. Payment of Expenses.
Except as separately agreed with the relevant Dealer in connection with any specific purchase
of Notes, the Issuer shall pay all expenses incident to the performance of its obligations under
this Agreement and any Terms Agreement, including:
(a) the preparation, filing, printing and delivery of the Registration Statement as originally
filed and all amendments thereto, and any Preliminary Prospectus, the Prospectus and any amendments
or supplements thereto;
(b) the preparation, printing and delivery of this Agreement, the Fiscal Agency Agreement and
any Terms Agreement;
(c) the preparation, issuance and delivery of the Notes, including any fees and expenses
relating to the eligibility and issuance of Notes in book-entry form and the cost of obtaining
CUSIP or other identification numbers for the Notes;
(d) the fees and disbursements of the Issuer’s independent accountants, counsel and other
advisors or agents (including any calculation agent or exchange rate agent) and of the Fiscal Agent
and its counsel;
(e) the reasonable fees and disbursements of German and U.S. counsel for the Dealers incurred
in connection with the establishment of the Program and incurred from time to time in connection
with the transactions contemplated hereby;
(f) the fees charged by internationally recognized rating agencies for the rating of the
Program and the Notes;
(g) the filing fees incident to, and the reasonable fees and disbursements of U.S. counsel to
the Dealers in connection with, the review, if any, by the U.S. National Association of Securities
Dealers, Inc. (the “NASD”), if any;
(h) the fees and costs, if any, of qualifying any issue of Notes for sale under the laws of
any state jurisdiction in the United States if agreed between the Issuer and the relevant Dealers
in the Oral Agreement and confirmed in the Dealer Confirmation;
(i) the cost of listing any issue of Notes on any securities exchange or market if agreed to
between the Issuer and the relevant Dealers in the Oral Agreement and confirmed in the Dealer
Confirmation; and
(j) any advertising and other out-of-pocket expenses of the Dealers incurred with the approval
of the Issuer.
10. Termination.
(a) Removal of or Resignation by a Dealer. The Issuer may remove any Dealer, and any
Dealer may resign, from this Program for any reason at any time upon 30 days’ prior written notice,
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except that the Arranger’s appointment shall not terminate unless a successor arranger has been
appointed by the Issuer, or, absent such appointment, 60 days after giving prior written notice of
such termination by the Arranger to the Issuer. The Issuer shall promptly notify the Arranger of
any removal of or resignation by any of the other Dealers, and shall promptly notify the other
Dealers of any change in the Arranger. In the event of such removal or resignation, the Issuer
shall not have any liability to a Dealer so removed or resigned, and a Dealer so removed or
resigned shall not have any liability to the Issuer, except that (i) a Dealer so removed or
resigned shall be entitled to any discounts or commissions earned in accordance with Section 3(a),
and (ii) the covenant set forth in Section 7(a), the provisions of this Section 10, the indemnity
and contribution agreements set forth in Section 8, and the provisions of Sections 12 and 13 shall
remain in effect. No such removal or resignation shall have any force or effect with respect to
any Terms Agreement (including any terms in this Agreement which are applicable pursuant to such
Terms Agreement), which has been entered into prior to any such removal or resignation.
(b) Termination of this Agreement. This Agreement may be terminated for any reason at
any time by either the Issuer or through resignation of all of the Dealers (unless the Issuer
replaces the terminated Dealers with other dealers), upon the giving of 30 days’ prior written
notice of such termination to the other party hereto. In the event of such termination, no party
shall have any liability to the other parties hereto, except that (i) each Dealer shall be entitled
to any discounts or commissions earned in accordance with Section 3(a), and (ii) the covenant set
forth in Section 7(a), the provisions of this Section 10, the indemnity and contribution agreements
set forth in Section 8, and the provisions of Sections 12 and 13 shall remain in effect. No such
termination shall have any force or effect with respect to any Terms Agreement (including any terms
in this Agreement which are applicable pursuant to such Terms Agreement) or sale of Notes pursuant
thereto, which has been entered into or agreed prior to any such
termination, provided however,
that with effect from the Settlement Date relating to any such sale, the covenants set forth in
Section 4 (other than Sections 4(d) and (f)) shall be of no further force or effect.
(c) Termination of a Terms Agreement. The relevant Dealers may, after consultation
with the Issuer, terminate any Terms Agreement immediately upon notice to the Issuer, at any time
at or prior to the Settlement Date relating thereto, if:
(i) there has been, since the date of the relevant Terms Agreement or since the
respective dates as of which information is given in the Prospectus (exclusive of any
supplement thereto), any material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the Issuer, whether or not
arising in the ordinary course of business; or
(ii) there has occurred any material adverse change in the financial markets in the
United States or, if such Notes are denominated and/or payable in, or indexed to, one or
more foreign or composite currencies, in the international financial markets, or any
outbreak of hostilities or escalation thereof or other calamity or crisis or any change or
development or event
involving a prospective change in national or international political, financial or
economic conditions, in each case the effect of which is such as to make it, in the judgment
of such Dealer or Dealers, impracticable or inadvisable to market such Notes or enforce
contracts for the sale of such Notes; or
(iii) trading generally on the New York Stock Exchange or the American Stock Exchange
or in the Nasdaq National Market has been suspended or limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by either of
said exchanges or by such market or by order of the SEC, the NASD or any other governmental
authority, or a material disruption has occurred in commercial banking or securities
settlement or clearance services in the United States; or
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(iv) a banking moratorium has been declared by either U.S. federal or New York state
authorities or by the relevant authorities in the country or countries of origin of any
foreign or composite currency in which such Notes are denominated and/or payable.
In the event of any termination of a Terms Agreement pursuant to this Section 10(c), no party
shall have any liability to the other parties hereto, except that (i) if the termination occurred
due to the occurrence of the event specified in clause (i) above, the Issuer shall reimburse the
Dealer or Dealers for all out-of pocket expenses reasonably incurred by it or them in connection
with such Terms Agreement; and (ii) the covenant set forth in Section 7(a), the provisions of this
Section 10, the indemnity and contribution agreements set forth in Section 8, and the provisions of
Sections 12 and 13 shall remain in effect.
11. Notices.
(a) Form of and Address for Notices. Unless specified otherwise, all notices and
communications hereunder shall be by letter or facsimile or delivered by hand. Each notice or
communication shall be given to the relevant party at the address specified below.
If to the Issuer:
KfW
Xxxxxxxxxxxxxxxxxxx 0-0
D-60325 Frankfurt am Main
Attention: Bereich FM
Telecopy No.: x00 00 0000 0000
If to the Dealers:
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
4 World Financial Center
North Tower — 11th Floor
New York, New York 10080
Attention: MTN Product Management
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Telecopy No.: (000) 000-0000
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
New York, New York 10004
Attention: Credit Control — Medium-Term Notes
Telecopy No.: (000) 000-0000
With a copy to:
00 Xxxxx Xxxxxx
New York, New York 10004
Attention: Xxxxxxx Xxxxxxxx
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
New York, New York 10019
Attention: Fixed Income Syndicate/Medium-Term Notes
Telecopy No.: (000) 000-0000
or at such other address as such party may designate from time to time by notice duly given in
accordance with the terms of this Section 11.
(b) Effectiveness. Every notice or communication sent in accordance with Section
11(a) shall be effective upon receipt by the addressee. Any such notice or communication which
would otherwise take effect after 4:00 p.m. in the place of the addressee on any particular day
shall not take effect until 10:00 a.m. on the immediately succeeding business day in the place of
the addressee.
12. Survival of Certain Provisions. The respective indemnities, representations and
warranties set forth in or made pursuant to this Agreement in relation to any purchase of Notes by
a Dealer shall remain operative and in full force and effect and shall survive each delivery of and
payment for such Notes.
13. Governing Law and Forum; Miscellaneous.
(a) Governing Law. This Agreement and any Terms Agreement and all the rights and
obligations of the parties shall be governed by and construed in accordance with the laws of the
Federal Republic of Germany without regard to conflict of laws principles.
(b) Forum. Any action or legal proceedings arising out of or in connection with this
Agreement or any Terms Agreement entered into between the Issuer and one or more Dealers providing
for the purchase of Notes hereunder shall be brought exclusively in the district court
(Landgericht) in Frankfurt am Main, Germany.
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(c) Remedies. The remedies provided herein shall be cumulative to any remedies
provided by general provisions of German law.
(d) Parties. This Agreement and any Terms Agreement shall inure to the benefit of and
be binding upon the Dealers and the Issuer and their respective successors, and their respective
directors, officers, employees, controlling persons and affiliates referred to in Section 8 hereof;
and no other person shall have any right or obligation hereunder. No purchaser of Notes shall be
deemed to be a successor merely by reason of such purchase.
(e) Exhibits,
Annexes, Effect of Headings. All Exhibits and Annexes hereto form an integral part of this
Agreement. The Article and Section headings herein are for convenience only and shall not affect
the construction hereof.
(f) Amendments to Agreement. Amendments to this Agreement, including this Section
13(f), shall only be made in writing.
(g) Severability and Partial Invalidity. Should any provision of this Agreement be or
become invalid in whole or in part, the other provisions of this Agreement shall remain in full
force and effect.
Any invalid provision shall be deemed replaced by a valid provision which accomplishes as far
as legally possible the economic effects of the invalid provision.
(h) Counterparts. This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall constitute a single
instrument.
If the foregoing is in accordance with the Dealers’ understanding of our agreement, please
sign and return to the Issuer a counterpart hereof, whereupon this Distribution Agreement, along
with all counterparts, shall become a binding agreement among the Dealers and the Issuer in
accordance with its terms.
| Very truly yours, | |||||
| KfW | |||||
| By: | /s/ Czichowski | ||||
| Name: Xx. Xxxxx Xxxxxxxxxx | |||||
| Title: Senior Vice President and Treasurer | |||||
| By: | /s/ Xxxxxxxxxx | ||||
| Name: Xxxxx Xxxxxxxxxx | |||||
| Title: First Vice President | |||||
-19-
| CONFIRMED AND ACCEPTED, as of the date first above written: | ||||
| XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED | ||||
By: |
/s/ Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated | |||
| XXXXXXX, XXXXX & CO. | ||||
By: |
/s/ Xxxxxxx, Xxxxx & Co. | |||
| XXXXXX BROTHERS INC. | ||||
By: |
/s/ Xxxxxx Xxxxxxxx | |||
-20-
EXHIBIT A
Form
of Dealer Accession Letter — Additional Dealer
[NAME AND ADDRESS OF DEALER]
_______, 200_
Re:
KfW — Medium-Term Note Program
Ladies and Gentlemen:
We hereby confirm that, in connection with the Medium-Term Note Program of KfW, we shall treat
you in all respects as a Dealer under the Distribution Agreement,
dated January 5, 2006 (as the
same may from time to time be amended, restated or supplemented, the “Distribution Agreement”) and
you shall have all rights and benefits, and be subject to all obligations, of a Dealer as set forth
in the Distribution Agreement. Capitalized terms used herein and not otherwise defined herein
shall have meanings specified in the Distribution Agreement.
The following documents have been delivered to you:
| (a) | a copy of the Distribution Agreement; | ||
| (b) | a copy of the Administrative Procedures; | ||
| (c) | a copy of the Fiscal Agency Agreement; | ||
| (d) | copies of the Prospectus, in such quantities as you have reasonably requested; and | ||
| (e) | copies of the documents being delivered, or most recently delivered, pursuant to Section 6 of the Distribution Agreement. |
For the purposes of the Distribution Agreement, we will use the following details for purposes
of giving you notices hereunder:
[INSERT NAME, ADDRESS, TELEPHONE AND FAX NUMBER OF DEALER]
Please confirm your acceptance of this appointment by signing this letter and returning it to
us.
| Yours faithfully, KfW |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
cc: Fiscal Agent
Confirmed on behalf of [Dealer]
By: |
||||
| Title: |
-2-
EXHIBIT B-1
FORM OF DEALER CONFIRMATION
[FIXED RATE NOTES]
Dated ________, 200__
We hereby confirm our prior oral agreement on the issuance of Notes with the following terms:
Issuer: KfW |
Title of Securities: | |
Aggregate Principal Amount: |
Interest Rate: % per annum | |
Original Issue Date: |
Maturity Date: | |
Interest Commencement Date: |
Final Redemption Price: |
Payments:
First Interest Payment Date:
Interest Payment Date(s):
Redemption: o Yes o No
Redemption Commencement Date (as provided in §7(3) of the Conditions):
Redemption Date(s) (as provided in §7(2) of the Conditions):
Minimum Redemption Notice Period:
Redemption Price (expressed as a percentage of the Aggregate Principal Amount to be redeemed):
Repayment: o Yes o No
Repayment Date(s):
Minimum Repayment Notice Period:
Repayment Price (expressed as a percentage of the Aggregate Principal Amount to be repaid):
Specified Currency: U.S. dollars for all payments unless otherwise specified below:
Payments of principal and any premium:
Payments of interest:
Authorized Denomination:
Exchange Rate Agent:
Original Issue Discount Note (“OID”): o Yes o No
Total Amount of OID:
Yield to Maturity:
Initial Accrual Period OID:
Other Terms of Notes:
Dealers:
Purchase Price: %, plus accrued interest, if any, from , 200
Price to Public: %, plus accrued interest, if any, from , 200
Documents:
As orally agreed with you, the following documents indicated below shall be provided to us:
| • | Officers’ certificate pursuant to Section 6(b) of the Distribution Agreement: o | ||
| • | Legal opinion pursuant to Section 6(a) of the Distribution Agreement: o | ||
| • | Legal opinions and disclosure letter pursuant to Sections 6(c) of the Distribution Agreement: o | ||
| • | Comfort letter pursuant to Section 6(d) of the Distribution Agreement: o | ||
| • | Legal opinions and disclosure letter pursuant to second paragraph of Section 6 of the Distribution Agreement: o |
Term
Sheet Required: o Yes
o No
Offering
to retail investors contemplated: o
If an offering to retail investors is contemplated, please specify the state jurisdiction(s)
in the United States under which the Notes shall be qualified for sale:
Terms left blank or marked “N/A,” “No,” “None” or in a similar manner shall not apply to the
issue of Notes except as may otherwise be specified.
EXHIBIT
B-2
FORM
OF DEALER CONFIRMATION
[FLOATING RATE NOTES]
Dated ___ , 200 __
We hereby confirm our prior oral agreement on the issuance of Notes with the following terms:
Issuer: KfW
|
Title
of Securities: ___ |
|
Aggregate Principal Amount: ___ |
Maturity Date: ___ |
|
Original Issue Date: ___ |
Initial Interest Rate: ___ |
|
Interest Commencement Date: ___ |
First Interest Payment Date: ___ |
|
Final
Redemption Price: ___ |
Indexed Notes:
Details: ___
Type
of Floating Rate Note:
o Regular Floating Rate
o Floating Rate/Fixed Rate
Fixed Interest Rate: ___
Fixed Rate Commencement Date: ___
o Fixed Rate/Floating Rate
Floating Rate Commencement Date: ___
o Inverse Floating Rate
o Other: ___
Interest
Rate Basis/Bases:
o CD Rate
o CMT Rate: ___
o CMT Moneyline Telerate Page 7051
o CMT Moneyline Telerate Page 7052
o Weekly Average
o Monthly Average
o Commercial Paper Rate
o Eleventh District Cost of Funds Rate
o Federal Funds Rate
o Prime Rate
o LIBOR
LIBOR Currency (if not U.S. dollars): _____
LIBOR Moneyline Telerate Page: _____
LIBOR Reuters Screen Page: _____
o Treasury Rate: _____
o Other: _____
Spread: _____ |
Maximum Interest Rate: _____ | |
Spread Multiplier: _____ |
Minimum Interest Rate: _____ | |
Index Maturity: _____ |
Interest Reset Period:
| o daily | o weekly | o monthly | ||
| o quarterly | o semi-annually | o annually |
Interest Reset Date(s): as provided in §3(B) of the Conditions (unless otherwise specified) _____
Interest Determination Date(s): as provided in §3(C) of the Conditions (unless otherwise specified) _____
Interest Calculation Date(s): as provided in §3(F)(1) of the Conditions (unless otherwise
specified) _____
Calculation Agent:
o Deutsche Bank Trust Company Americas
o Other:
Interest Payment Date(s): unless otherwise specified, the _____ of the following
(subject to §3(E) in the Conditions)
o Each of the 12 calendar months in each year
o Each March, June, September and December in each year:
Each of the following two calendar months in each year: _____
The following calendar month in each year: _____
Redemption: o Yes
o No
Redemption Commencement Date (as provided in §7(3) of the Conditions): _____
Redemption Date(s) (as provided in §7(2) of the Conditions): _____
Minimum Redemption Notice Period: _____
Redemption Price (expressed as a percentage of the Aggregate Principal Amount to be
redeemed): _____
Repayment o Yes
o No
Repayment Date(s): _____
Minimum Repayment Notice Period: _____
Repayment Price (expressed as a percentage of the Aggregate Principal Amount to be repaid): _____
Specified Currency: U.S. dollars for all payments unless otherwise specified below:
Payments of principal and any premium: _____
Payments of interest: _____
Authorized Denomination: _____
Exchange Rate Agent: _____
Original Issue Discount Note (“OID”): o Yes
o No
Total Amount of OID: _____
Yield to Maturity: _____
Initial Accrual Period OID: _____
Other Terms of Notes:
_____
_____
Dealers: _____
Purchase Price: _____%, plus accrued interest, if any, from _____, 200_____
Price to Public: _____%, plus accrued interest, if any, from _____, 200_____
Documents: As orally agreed with you, the following documents indicated below shall be provided to us:
| • | Officers’ certificate pursuant to Section 6(b) of the Distribution Agreement: | ||
| • | Legal opinion pursuant to Section 6(a) of the Distribution Agreement: o | ||
| • | Legal opinions and disclosure letter pursuant to Sections 6(c) of the Distribution Agreement: o | ||
| • | Comfort letter pursuant to Section 6(d) of the Distribution Agreement: o | ||
| • | Legal opinions and disclosure letter pursuant to second paragraph of Section 6 of the Distribution Agreement: o |
Term
Sheet Required: o Yes
o No
Offering
to retail investors contemplated: o
If an offering to retail investors is contemplated, please specify the state
jurisdiction(s) in the United States under which the Notes shall be qualified for sale: _____
Terms left blank or marked “N/A,” “No,” “None” or in a similar manner shall not apply to the issue
of Notes except as may otherwise be specified.
EXHIBIT C
Form of Terms Agreement
TERMS AGREEMENT
THIS AGREEMENT is made on ___, 200_
Between
(1) KfW (the “Issuer”); and
(2) [NAMES OF DEALER[S] ([each, a “Dealer” and, together] the “Dealer[s]”) [if syndicated: [INSERT
NAME OF LEAD MANAGER] (the “Lead Manager”), and [INSERT NAME OF OTHER DEALERS] (each, a “Dealer”
and, together with the Lead Manager the “Dealers”)].
The Issuer proposes to issue [DESCRIPTION OF NOTES] (the “Notes”) pursuant to the Issuer’s
Medium-Term Note Program. The terms of the Notes are set forth in the Global Certificate in
unauthenticated form attached hereto in [Annex A-1][Annex A-2].
This
Agreement is supplemental to the Distribution Agreement, dated
January 5, 2006 (as the
same may from time to time be amended, restated or supplemented, the “Distribution Agreement”).
Each of the provisions of the Distribution Agreement is incorporated herein by reference.
Capitalized terms used herein and not otherwise defined herein have the meanings specified in the
Distribution Agreement.
1. Appointment of Dealer[s]. [Insert for Dealer appointed solely for purposes of
particular issue of Notes: The Issuer appoints [NAME(S) OF DEALER(S)] [each] as a Dealer under the
Distribution Agreement solely for the purposes of the issue of the Notes to which this Agreement
relates.] [The Dealer] [if syndicated: The Lead Manager] confirms that it is in receipt of the
documents referenced below:
| (a) | a copy of the Distribution Agreement; | ||
| (b) | a copy of the Administrative Procedures; | ||
| (c) | a copy of the Fiscal Agency Agreement; | ||
| (d) | copies of the Prospectus, in such quantities as it has reasonably requested; and | ||
| (e) | copies of the documents to be delivered, or most recently delivered, pursuant to Section 6 of the Distribution Agreement. |
| and confirms [on behalf of itself and the other Dealer[s]] that it has found them to be satisfactory or, in the case of any or all documents referred to in clauses (d) and (e) above, has waived delivery thereof. |
[Insert for Dealer appointed solely for purposes of particular issue of Notes: In
consideration of the Issuer appointing [NAME(S) OF DEALER(S)] [each] as a Dealer in respect of the
Notes under the
Distribution Agreement, [each] [the] Dealer hereby undertakes, for the benefit of the Issuer
[and each of the other Dealers], that in relation to this issue of the Notes, it will perform and
comply with all the duties and obligations assumed by a Dealer under the Distribution Agreement, a
copy of which it acknowledges it has received. The Issuer hereby confirms that [each] [the] Dealer
shall be vested with all authority, rights, powers, duties and obligations of a Dealer in relation
to the issue of the Notes. The details for purposes of giving notices to [each] [the] Dealer
hereunder are as follows: [INSERT NAME, ADDRESS, TELEPHONE AND FAX NUMBER OF DEALER[S]]]
2. Issue and Purchase of Notes. Subject to the terms and conditions of the Distribution
Agreement and this Agreement, the Issuer hereby agrees to issue the Notes, and the Dealer[s]
[severally and not jointly] agree[s] to purchase the Notes, at a purchase price of ___% of the
principal amount of the Notes (the “Purchase Price”), being the issue price of ___% less discounts
and commissions of ___% of such principal amount.
3. Payment. The [Dealer] [Lead Manager, on behalf of the Dealers,] shall pay, or cause
payment of, the Purchase Price less the amount payable, if any, in respect of expenses as
separately agreed pursuant to Section 4 hereof (the “Net Proceeds”), in immediately available funds
on the Settlement Date, to such account as the Issuer shall have specified not later than two days
prior to the Settlement Date against delivery of the Notes. For the purposes of this Agreement,
“Settlement Date” means ___a.m. (Frankfurt time) on ___, 200___or such other time and/or
date as the Issuer and the [Dealer] [Lead Manager, on behalf of the Dealers,] shall agree.
4. Expenses. The Issuer and the [Dealer] [Lead Manager, on behalf of the Dealers,] have
separately agreed on the payment of the expenses as referred to in Section 9 of the Distribution
Agreement.
5. Conditions Precedent. This Agreement and the obligations of the Dealer[s] under it are
subject to satisfaction of the conditions set out in Section 5 of the Distribution Agreement on the
Settlement Date[; and the delivery to the [Dealer] [Lead Manager] on the Settlement Date of the
following other documents and instruments as the [Dealer] [Lead Manager, on behalf of the Dealers,]
have requested pursuant to Section 6 of the Distribution Agreement: [Insert documents as requested
and agreed]].
The [Dealer] [Lead Manager, on behalf of the Dealers,] may, in its discretion and upon such
terms as it deems appropriate, waive any of the conditions in this Section 5 or any part of them.
If any of the conditions in this Section 5 is not satisfied on or waived on or before the
Settlement Date, this Agreement shall terminate as of such date and the parties hereto shall have
no further liability under this Agreement except for any liability arising before or in relation to
such termination.
Upon closing, the conditions in this Section 5 shall either be fulfilled or deemed waived,
without any prejudice to any liability with respect to an inaccuracy of any representation and
warranty.
6. Governing Law and Forum; Miscellaneous. Section 13 of the Distribution Agreement shall
apply to this Agreement as if expressly incorporated herein.
-2-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly
authorized representatives, all as of the date first above written.
| KfW | ||||||||
By:
|
||||||||
| Title: | ||||||||
By:
|
||||||||
| Title: | ||||||||
| [NAME OF LEAD MANAGER/DEALER] | ||||||||
By: |
||||||||
| Title: | ||||||||
| [[NAME[S] OF DEALER[S]] | ||||||||
By: |
||||||||
| Title: | ||||||||
-3-
Annex
A-1 to the Terms Agreement
Form
of Global Certificate for Fixed Rate Notes
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL,
INASMUCH AS THE REGISTERED HOLDER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN, AND IS WITHOUT ANY
LEGAL EFFECT.
CUSIP NO. _______
KfW
MEDIUM-TERM NOTES
(Fixed Rate)
MEDIUM-TERM NOTES
(Fixed Rate)
Global Registered Certificate
Representing a principal amount of
[Specify the Aggregate Principal Amount, Interest Rate and Maturity Date]
issued by KfW (the “Issuer”)
GENERAL
This Global Certificate represents [l] notes in the principal amount of [l] each (the
“Notes”).
This Global Certificate has been issued by the Issuer as a registered global certificate to
Cede & Co., as nominee of DTC, and has been deposited in the DTC depositary and clearing system in
order to permit delivery and transfer of Notes within that system in book-entry form without
physical delivery of definitive certificates. DTC and its successor, if any, as depositary for
this Global Certificate shall herein also be referred to as the “Depositary.”
The Notes represented by this Global Certificate shall be evidenced by the records of the
Depositary, which in turn shall be based on the register (the “Register”) maintained by Deutsche
Bank Trust Company Americas, a New York banking corporation, or any successor in such capacity
appointed by the Issuer, acting as registrar (the “Registrar”) on behalf of the Issuer. In the
case of any inconsistency between the Register and the records of the Depositary, the Register
prevails, except in the case of manifest error.
The Issuer hereby undertakes to pay to or to the order of Cede & Co., or its registered
assigns, on the maturity date of the Notes the principal sum of the Notes represented hereby and to
pay interest on the principal sum of the Notes represented
hereby, all in accordance with the specific terms of the Notes set out below (the “Specific
Terms”) and the general terms and conditions of the Notes attached hereto (the “Conditions”). The
Conditions form part of this Global Certificate.
This Global Certificate may not be transferred except as a whole by DTC to a nominee of DTC,
or by a nominee of DTC to DTC or another nominee of DTC, or by DTC or any such nominee to a
successor depositary or a nominee of such successor depositary. Any transfer shall be effective
only if registered upon the books maintained for that purpose by the Registrar. The Global
Certificate will not be exchangeable for definitive certificates representing individual notes
unless DTC is unable or unwilling to continue providing its services and a successor securities
depositary is not obtained.
This Global Certificate is only valid if it has been provided with the manual authentication
signature on behalf of the Fiscal Agent appointed by the Issuer in accordance with the fiscal
agency agreement entered into by the Issuer, Deutsche Bank Trust
Company Americas (the “Fiscal Agent”) and Deutsche
Bank Aktiengesellschaft on
January 4, 2006, as
amended from time to time (the “Fiscal Agency Agreement”).
2
SPECIFIC TERMS
The following terms apply to the Notes represented by this Global Certificate as and to the
extent shown below:
Aggregate Principal Amount:
|
Interest Rate: % per annum | |
Original Issue Date:
|
Maturity Date: |
|
Interest
Commencement Date: |
Final Redemption Price:
|
Payments:
First Interest Payment Date:
Interest Payment Date(s):
Interest Payment Date(s):
Redemption: o Yes o No
Redemption Commencement Date (as provided in §7(3) of the Conditions):
Redemption Date(s) (as provided in §7(2) of the Conditions):
Minimum Redemption Notice Period:
Redemption Price (expressed as a percentage of the Aggregate Principal Amount to be redeemed):
Redemption Date(s) (as provided in §7(2) of the Conditions):
Minimum Redemption Notice Period:
Redemption Price (expressed as a percentage of the Aggregate Principal Amount to be redeemed):
Repayment: o Yes o No
Repayment Date(s):
Minimum Repayment Notice Period:
Repayment Price (expressed as a percentage of the Aggregate Principal Amount to be repaid):
Minimum Repayment Notice Period:
Repayment Price (expressed as a percentage of the Aggregate Principal Amount to be repaid):
Specified Currency: U.S. dollars for all payments unless otherwise specified below:
Payments of principal and any premium:
Payments of interest:
Authorized Denomination:
Exchange Rate Agent:
Payments of interest:
Authorized Denomination:
Exchange Rate Agent:
Original Issue Discount Note (“OID”): o Yes o No
Total Amount of OID:
Yield to Maturity:
Initial Accrual Period OID:
Yield to Maturity:
Initial Accrual Period OID:
Other Terms of Notes:
Terms left blank or marked “N/A,” “No,” “None” or in a similar manner do not apply to the Note
except as may otherwise be specified.
Frankfurt am Main, Federal Republic of Germany , 200
KfW
Authentication signature for and on behalf of
Deutsche Bank Trust Company Americas
as Fiscal Agent
3
TERMS AND CONDITIONS OF THE NOTES
Capitalized terms used but not defined in these Terms and Conditions (the “Conditions”) shall
have the same meaning as set out under “General” and “Specific Terms” in the Global Certificate.
In the event of any inconsistency between the Specific Terms and the Conditions, the Specific Terms
shall prevail.
§ 1
Form
The Notes shall only be issued in book-entry form represented by one or more fully registered
Global Certificates without coupons. Cede & Co. as nominee of DTC, or any successor nominee of
DTC, shall be the registered holder of the Notes (the “Registered Holder”). Each actual purchaser
having an ownership interest in the Notes represented by the Global Certificate(s) as recorded in
the systems of DTC or its participants is referred to as a “Holder.” The Notes may be transferred
only through DTC or its participants.
§ 2
Status
The Notes constitute unsecured and unsubordinated obligations of the Issuer and rank pari
passu with all other present and future unsecured and unsubordinated obligations of the Issuer, but
subject to any applicable mandatory statutory exceptions.
§ 3
Interest
Each Note bears interest from the Interest Commencement Date at the rate per annum equal to
the Interest Rate until the principal thereof is paid.
Interest shall accrue from and including the Interest Commencement Date, if no interest has
yet been paid, or the immediately preceding Interest Payment Date on which interest was paid.
Interest shall accrue until, but excluding, the applicable Interest Payment Date of the Maturity Date
(or any other day on which the Notes become due for redemption or repayment), as the case may be.
If it is necessary to compute interest for a period other than a full calendar year, interest shall
be calculated on the basis of a 360-day year consisting of twelve 30-day months.
Interest shall be payable in arrears on each Interest Payment Date and on the Maturity Date
(or any other day on which the Notes become due for redemption or
5
repayment). The first interest payment shall be made on the First Interest Payment Date.
Should the Issuer fail to redeem any Note on its due date, interest on the Note shall continue
to accrue (subject to the provisions of § 5 regarding payments due on a day other than a Business
Day) beyond the due date until actual redemption of the Note at the default rate of interest
established by law.
§ 4
Maturity
Subject to the provisions of §§ 7, 8, and 11, the Notes shall be redeemed at the Final
Redemption Price on the Maturity Date, unless stated otherwise in the Specific Terms.
§ 5
Payment
Currency of payment. The Issuer will make payments of all amounts payable on the Notes
in U.S. dollars unless the Specified Currency is a currency other than U.S. dollars and the Holder
elects (in the manner described below) to receive payments in such Specified Currency.
Any Holder may elect to receive payment of principal and interest with respect to the Notes in
the Specified Currency by causing DTC, through the relevant DTC participant, to notify the Fiscal
Agent by the time specified below of (i) such Holder’s election to receive all or a portion of such
payment in the Specified Currency and (ii) wire transfer instructions to a specified currency
account (the “Specified Currency Account”). Such election in respect of any payment shall be made
by the Holder at the time and in the manner required by the DTC procedures applicable from time to
time and shall, in accordance with such procedures, be irrevocable. The Fiscal Agent must receive
DTC’s notification of such election, wire transfer instructions, and the amount payable in the
Specified Currency prior to 5:00 p.m., New York time, on the fifth New York Business Day following
the relevant Record Date in the case of interest and prior to 5:00 p.m., New York time, on the eighth
New York Business Day prior to the payment date for the payment of principal.
Absent such election, the Exchange Rate Agent will convert the aggregate amount payable in
U.S. dollars (the “Conversion Amount”) into U.S. dollars. All costs of any such conversion shall
be deducted from such payments. Any such conversion shall be based on the bid quotation of the
Exchange Rate Agent, at or prior to 11:00 a.m., New York time, on the second Conversion Business Day
(as defined below) preceding the relevant payment date, for the purchase by the Exchange Rate Agent
of the Conversion Amount with U.S. dollars for settlement on such payment date. “Conversion
Business Day” means a day which is a New York Business Day and a Frankfurt Business Day (as defined
in the section below entitled “Business Day”). If such bid quotation is not available, the
Exchange Rate Agent shall obtain a bid quotation from a leading foreign exchange bank in The City
of New York selected
6
by the Exchange Rate Agent for such purpose. If no bid quotation from a leading foreign
exchange bank is available, payment of the Conversion Amount will be made in the Specified Currency
to the account or accounts specified by DTC to the Fiscal Agent. Until such account or accounts are
so specified, the funds still held by the Fiscal Agent shall bear interest at the rate of interest
quoted by the Fiscal Agent for deposits with it on an overnight basis, to the extent that the
Fiscal Agent is reasonably able to reinvest such funds.
If the Issuer determines that any amount payable on a relevant payment date in a Specified
Currency other than U.S. dollars is not available to it in freely negotiable and convertible funds
for reasons beyond its control or that such Specified Currency (or any successor currency to it
provided for by law) is no longer used for the settlement of international financial transactions,
the Issuer may fulfill its payment obligations by making such payment in U.S. dollars on, or as
soon as reasonably practicable after, the respective payment date on the basis of the Applicable
Exchange Rate. No further interest or any other payment shall be due as a result thereof. The
“Applicable Exchange Rate” for a Specified Currency other than U.S. dollars means (i) if available,
the noon dollar buying rate in The City of New York for cable transfers for the Specified Currency
on the second Business Day prior to the particular payment as certified for customs purposes (or,
if not so certified, as otherwise determined) by the Federal Reserve Bank of New York or, (ii) if
such rate is not available, the foreign exchange rate for the Specified Currency as determined by
the Issuer in its equitable discretion.
Manner of payment. The Issuer will make payments of any amount payable on the Notes
through the Fiscal Agent by wire transfer of immediately available funds.
Payments in U.S. dollars shall be made by the Fiscal Agent on the relevant payment date to, or
to the order of, the Registered Holder as of the Record Date (as defined below). Such funds will
be distributed through the relevant DTC participants to the Holders as of the Record Date. The
“Record Date” shall be the fifteenth calendar day immediately preceding the relevant payment date.
If a Holder elects payment in a Specified Currency other than U.S. dollars as set out above,
payments in such Specified Currency shall be made by the Fiscal Agent on the relevant payment date
to the Specified Currency Account.
Payments made by the Issuer to, or to the order of, the Registered Holder (or, if applicable,
to the Specified Currency Account) shall discharge the liability of the Issuer under the Notes to
the extent of the sums so paid. Neither the Issuer nor the Fiscal Agent will have any
responsibility or liability for any aspect of the records of any DTC participant relating to or
payments made by any DTC participant to a Holder or for maintaining, supervising, or reviewing any
such records.
Payments of principal (except in the case of partial redemption or partial repayment pursuant
to §§ 7, 8 and 11) shall be made upon surrender of the Global Certificates(s) to the Fiscal Agent.
The Fiscal Agent shall maintain records of payments of principal and interest made in respect of
the Notes.
7
Account designation. The Registered Holder shall designate the account for wire
transfer by transmitting the appropriate information to the Fiscal Agent by mail, hand delivery,
fax, or in any other manner approved by the Fiscal Agent. Unless revoked, any such account
designation made with respect to the Notes by the Registered Holder will remain in effect with
respect to any further payments. Holders must make account designations in accordance with the
procedures of DTC and the relevant DTC participant.
Payments due on a Business Day. Unless otherwise determined in the Specific Terms, if
any amount payable on the Notes is due on a day (a “Specified Day”) that is not a Business Day,
such amount will not be paid or made available for payment until the next succeeding Business Day
with the same force and effect as if such amount were paid on the Specified Day, and no further
interest shall be paid in respect of the delay of such payment.
Business Day. Unless otherwise designated in the Specific Terms, a “Business Day”
means any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which
commercial banks are authorized or required by law, regulation or executive order to close in The
City of New York (such day also being referred to as a “New York Business Day”); provided, however,
that:
(i) with respect to Notes with a Specified Currency that is euros, the day must also be a day
on which the Trans-European Automated Real-Time Gross Settlement Express Transfer (“TARGET”)
System, or any successor system, is open; and
(ii) with respect to Notes with a Specified Currency other than U.S. dollars or euros, the day
must also not be a day on which commercial banks are authorized or required by law, regulation or
executive order to close in the Principal Financial Center (as defined below) of the country
issuing the Specified Currency.
“Principal Financial Center” means, as applicable: the capital city of the country issuing
the Specified Currency; provided, however, that with respect to U.S. dollars,
Australian dollars, Canadian dollars, euros, South African rand and Swiss francs, the
“Principal Financial Center” shall be The City of New York, Sydney, Toronto, Johannesburg
and Zurich, respectively.
A “Frankfurt Business Day” is any day other than a Saturday, Sunday, legal holiday in
Frankfurt am Main, or a day on which commercial banks are authorized or required by law,
regulation, or executive order to close in Frankfurt am Main.
U.S. dollars. References to U.S. dollars or $ shall mean, as of any time, the coin or
currency that is then lawful currency in the United States of America.
Euros.
References to the euro or € shall mean, as of any time, the lawful currency
of the member states of the European Union that have adopted the single currency in accordance with
the Treaty establishing the European Community, as amended by the Treaty on European Union and the
Treaty of Amsterdam, and as further amended from time to time.
8
Other currencies. References to a particular currency other than U.S. dollars and
euros shall mean, as of any time, the coin or currency that is then lawful currency in the country
issuing such currency on the Original Issue Date.
§ 6
The Agents
The
Issuer has initially appointed Deutsche Bank Trust Company Americas as the Fiscal Agent and Registrar pursuant to the Fiscal Agency Agreement. If the principal of or interest
on the Notes is payable in a Specified Currency other than U.S. dollars, the Issuer has initially
appointed the institution named in the Specific Terms as Exchange Rate Agent to act as such agent
with respect to the Notes. The Fiscal Agent, Registrar and the Exchange Rate Agent
are referred to herein as the “Agents.”
The Issuer may, in its sole discretion, appoint any other institution to serve as any such
Agent from time to time. The Issuer will give prompt written notice of any change in any such
appointment to the Fiscal Agent and by notification pursuant to §12 hereof.
All determinations made by any Agent may be made by such Agent in its sole discretion and,
absent manifest error, shall be conclusive for all purposes and binding on the Registered Holder,
Holders, and the Issuer.
The Agents in such capacity are acting exclusively as agents of the Issuer and do not have any
legal relationship of whatever nature with the Registered Holder or the Holders and are not in any
event accountable to the Registered Holder or any Holder.
§ 7
Redemption at the Issuer’s Option
The Notes shall not be redeemable by the Issuer before the Maturity Date unless a Redemption
Date or a Redemption Commencement Date is designated in the Specific Terms.
If a Redemption Date is so specified, and unless otherwise designated in the Specific Terms,
the Notes may be so redeemed on such Redemption Date, in whole or in part, in any amount equal to
an Authorized Denomination or integral multiple thereof (provided that the remaining principal amount
thereof shall at least equal an Authorized Denomination) at the Redemption Price together with
interest accrued thereon to, but excluding, the Redemption Date. Such redemption shall be upon
notice in compliance with §12 hereof and in compliance with the Minimum Redemption Notice Period as
specified in the Specific Terms.
If a Redemption Commencement Date is so specified, and unless otherwise designated in the
Specific Terms, the Notes may be so redeemed any time thereafter, in whole or in part, and in any
amount equal to an Authorized Denomination or integral multiple thereof (provided that the remaining
principal amount thereof shall at least
9
equal an Authorized Denomination) at the Redemption Price together with interest accrued
thereon to, but excluding, the Redemption Date. Such redemption shall be upon notice of not less
than 30 and not more than 60 calendar days and in compliance with §12 hereof.
§ 8
Repayment at the Holder’s Option
The Notes shall not be repayable before the Maturity Date unless one or more Repayment Dates
are designated in the Specific Terms. If a Repayment Date is so specified, and unless otherwise
designated in the Specific Terms, a Holder may request (in the manner described below) repayment of
any Note, in whole or in part, in any amount equal to an Authorized
Denomination or integral multiple
thereof (provided that the remaining principal amount thereof shall at least equal an Authorized
Denomination) at the Repayment Price together with interest accrued thereon to, but excluding, the
Repayment Date.
In order to exercise such repayment option, a Holder must instruct DTC or its participants in
a timely manner as required by the DTC procedures applicable from time to time.
If
so instructed, DTC shall cause the Registered Holder to request such
repayment of the Fiscal Agent on behalf of the Holder in compliance with the Minimum Repayment Notice Period
designated in the Specific Terms. All instructions given to the
Fiscal Agent relating to the
option to elect repayment are irrevocable.
The Issuer shall only be obliged to repay Notes in respect to which a Holder has exercised its
repayment option against transfer of such Holder’s ownership
interest in the relevant Notes to the Fiscal Agent.
§ 9
Further Issues, Purchases and Cancellation
The Issuer may from time to time, without the consent of the Holders, issue further Notes
having the same terms and conditions as the Notes in all respects (or in all respects except for
the issue date, interest commencement date and/or issue price) so as to form a single issuance with
the Notes. The term “Notes” shall, in the event of such increase, also include such further Notes.
The Issuer may at any time purchase Notes in the open market or otherwise and at any price.
Notes purchased by the Issuer may, at the option of the Issuer, be held or resold, or transferred
to the Fiscal Agent for cancellation. If such Notes are redeemed in full or are transferred for
cancellation they shall be cancelled forthwith and may not be reissued or resold.
10
§ 10
Taxation
All payments by the Issuer in respect of the Notes shall be made without deduction or
withholding of taxes or other duties, unless such deduction or withholding is required by law. In
the event of such deduction or withholding, the Issuer shall not be required to pay any additional
amounts in respect of the Notes.
§ 11
Termination for Default
If the Issuer shall fail to pay any amount payable hereunder within 30 days from the relevant
due date, any Holder may, through the Depositary, declare any Notes due and demand repayment
thereof at their principal amount plus interest accrued to the date of repayment. Any notice
declaring the Notes due shall be made by means of written notice to be delivered by hand or
registered mail to the Issuer together with proof that such Holder at the time of such notice has
an ownership interest in the relevant Notes by means of a certificate of the Holder’s Custodian
pursuant to § 14(a) hereof. The right to declare Notes due shall cease if the Issuer has made
payment to or to the order of the Registered Holder (or, in the case of payments to be made in a
Specified Currency other than U.S. dollars, the Specified Currency Account) before the Holder has
exercised such right.
§ 12
Notices
Any notice required to be made by the Issuer concerning the Notes shall be given in writing to
DTC for communication by DTC and its participants to the Holders. Any such notice shall be deemed
to have been given to the Holders on the third day after the day on which the said notice was given
to DTC.
§ 13
Governing Law, Exclusion of General Business Conditions Law
THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE FEDERAL REPUBLIC OF
GERMANY WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
NOTWITHSTANDING THE ABOVE, THE PROVISIONS ON GENERAL BUSINESS CONDITIONS (ALLGEMEINE
GESCHÄFTSBEDINGUNGEN, §§ 305-310 OF THE GERMAN CIVIL CODE) SHALL NOT APPLY TO THE NOTES.
ANY DISPOSITION OF THE NOTES, INCLUDING TRANSFERS AND PLEDGES OF NOTES EXECUTED BETWEEN DTC
PARTICIPANTS, AND
11
BETWEEN DTC AND DTC PARTICIPANTS SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
§ 14
Remedies
Jurisdiction. Any action or other legal proceedings arising out of or in connection with
the Notes may exclusively be brought in the District Court (Landgericht) in Frankfurt am Main.
Enforcement. Any Holder may in any proceedings against the Issuer or to which the Holder
and the Issuer are parties protect and enforce in its own name its rights arising under the Notes
on the basis of (a) a certificate issued by its Custodian (as defined below) (i) stating the full
name and address of the Holder, (ii) specifying an aggregate principal amount of Notes credited on
the date of such statement to such Holder’s securities account maintained with such Custodian, and
(iii) confirming that the Custodian has given written notice to DTC and the Registrar containing
the information pursuant to (i) and (ii) and bearing acknowledgements of DTC and the relevant DTC
participant, and (b) copies of the Global Certificate(s) certified as being true copies by a duly
authorized officer of DTC or the Registrar. For purposes of the
foregoing, “Custodian” means any
bank or other financial institution of recognized standing authorized to engage in securities
custody business with which the Holder maintains a securities account
in respect of the
Notes and includes DTC and its participants.
12
Annex
A-2 to the Terms Agreement
Form
of Global Certificate for Floating Rate Notes
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL,
INASMUCH AS THE REGISTERED HOLDER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN, AND IS WITHOUT ANY
LEGAL EFFECT.
CUSIP NO. _______
KfW
MEDIUM-TERM NOTES
(Floating Rate)
MEDIUM-TERM NOTES
(Floating Rate)
Global Registered Certificate
Representing a principal amount of
[Title of the securities]
issued by KfW (the “Issuer”)
GENERAL
This Global Certificate represents [l] notes in the principal amount of [l] each (the
“Notes”).
This Global Certificate has been issued by the Issuer as a registered global certificate to
Cede & Co., as nominee of DTC, and has been deposited in the DTC depositary and clearing system in
order to permit delivery and transfer of Notes within that system in book-entry form without
physical delivery of definitive certificates. DTC and its successor, if any, as depositary for
this Global Certificate shall herein also be referred to as the “Depositary.”
The Notes represented by this Global Certificate shall be evidenced by the records of the
Depositary, which in turn shall be based on the register (the “Register”) maintained by Deutsche
Bank Trust Company Americas, a New York banking corporation, or any successor in such capacity
appointed by the Issuer, acting as registrar (the “Registrar”) on behalf of the Issuer. In the
case of any inconsistency between the Register and the records of the Depositary, the Register
prevails, except in the case of manifest error.
The Issuer hereby undertakes to pay to or to the order of Cede & Co., or its registered
assigns, on the maturity date of the Notes the principal sum of the Notes represented hereby and to
pay interest on the principal sum of the Notes represented hereby, all in accordance with the
specific terms of the Notes set out below (the “Specific Terms”) and the general terms and
conditions of the Notes attached hereto (the “Conditions”). The Conditions form part of this
Global Certificate.
This Global Certificate may not be transferred except as a whole by DTC to a nominee of DTC,
or by a nominee of DTC to DTC or another nominee of DTC, or by DTC or any such nominee to a
successor depositary or a nominee of such successor depositary. Any transfer shall be effective
only if registered upon the books maintained for that purpose by the Registrar. The Global
Certificate will not be exchangeable for definitive certificates representing individual notes
unless DTC is unable or unwilling to continue providing its services and a successor securities
depositary is not obtained.
This Global Certificate is only valid if it has been provided with the manual authentication
signature on behalf of the Fiscal Agent appointed by the Issuer in accordance with the fiscal
agency agreement entered into by the Issuer, Deutsche Bank Trust
Company Americas (the “Fiscal Agent”) and Deutsche
Bank Aktiengesellschaft on January 4, 2006 as
amended from time to time (the “Fiscal Agency Agreement”).
2
SPECIFIC TERMS
The following terms apply to the Notes represented by this Global Certificate as and to the
extent shown below:
Aggregate Principal Amount:
|
Maturity Date: | |
Original Issue Date:
|
Initial Interest Rate: | |
Interest Commencement Date:
|
First Interest Payment Date: | |
| Final Redemption Price: | ||
Indexed Notes:
Details:
Type of Floating Rate Note:
o Regular Floating Rate
o Floating Rate/Fixed Rate
Fixed Interest Rate:
Fixed Rate Commencement Date:
o Fixed Rate/Floating Rate
Floating Rate Commencement Date:
o Inverse Floating Rate
o Other:
o Floating Rate/Fixed Rate
Fixed Interest Rate:
Fixed Rate Commencement Date:
o Fixed Rate/Floating Rate
Floating Rate Commencement Date:
o Inverse Floating Rate
o Other:
Interest Rate Basis/Bases:
o CD Rate
o CMT Rate:
o CMT Moneyline Telerate Page 7051
o CMT Moneyline Telerate Page 7052
o Weekly Average
o Monthly Average
o Commercial Paper Rate
o Eleventh District Cost of Funds Rate
o Federal Funds Rate
o LIBOR
LIBOR Currency (if not U.S. dollars):
LIBOR Moneyline Telerate Page:
LIBOR Reuters Screen Page: Prime Rate:
o Treasury Rate:
o Prime Rate:
o Other:
o CMT Rate:
o CMT Moneyline Telerate Page 7051
o CMT Moneyline Telerate Page 7052
o Weekly Average
o Monthly Average
o Commercial Paper Rate
o Eleventh District Cost of Funds Rate
o Federal Funds Rate
o LIBOR
LIBOR Currency (if not U.S. dollars):
LIBOR Moneyline Telerate Page:
LIBOR Reuters Screen Page: Prime Rate:
o Treasury Rate:
o Prime Rate:
o Other:
Spread:
|
Maximum Interest Rate: | |
Spread Multiplier:
|
Minimum Interest Rate: | |
Index Maturity: |
Interest Reset Period:
o daily
|
o weekly | o monthly | ||
o quarterly
|
o semi-annually | o annually |
Interest Reset Date(s): as provided in §3(B) of the Conditions (unless otherwise specified)
Interest Determination Date(s): as provided in §3(C) of the Conditions (unless otherwise
specified)
Interest Calculation Date(s): as provided in §3(F)(1) of the Conditions (unless otherwise
specified)
Calculation Agent:
o Deutsche Bank Trust Company Americas
o Other:
o Deutsche Bank Trust Company Americas
o Other:
Interest Payment Date(s): unless otherwise specified, the of the following
(subject to §3(E) in the Conditions)
o Each of the 12 calendar months in each year
o Each March, June, September and December in each year:
Each of the following two calendar months in each year:
The following calendar month in each year:
o Each of the 12 calendar months in each year
o Each March, June, September and December in each year:
Each of the following two calendar months in each year:
The following calendar month in each year:
Redemption: o Yes o No
Redemption Commencement Date (as provided in §7(3) of the Conditions):
Redemption Date(s) (as provided in §7(2) of the Conditions):
Minimum Redemption Notice Period:
Redemption Price (expressed as a percentage of the Aggregate Principal Amount to be redeemed):
Redemption Date(s) (as provided in §7(2) of the Conditions):
Minimum Redemption Notice Period:
Redemption Price (expressed as a percentage of the Aggregate Principal Amount to be redeemed):
Repayment: o Yes o No
Repayment Date(s):
Minimum Repayment Notice Period:
Repayment Price (expressed as a percentage of the Aggregate Principal Amount to be repaid):
Minimum Repayment Notice Period:
Repayment Price (expressed as a percentage of the Aggregate Principal Amount to be repaid):
Specified Currency: U.S. dollars for all payments unless otherwise specified below:
Payments of principal and any premium:
Payments of interest:
Authorized Denomination:
Exchange Rate Agent:
Payments of interest:
Authorized Denomination:
Exchange Rate Agent:
Original Issue Discount Note (“OID”): o Yes o No
Total Amount of OID:
Yield to Maturity:
Initial Accrual Period OID:
Yield to Maturity:
Initial Accrual Period OID:
Other Terms of Notes:
Terms
left blank or marked “N/A,” “No,” “None” or in a similar manner do not apply to the Note
except as may otherwise be specified.
Frankfurt am Main, Federal Republic of Germany , 200
KfW
|
||
Authentication signature for and on behalf of
Deutsche Bank Trust Company Americas
as Fiscal Agent
Deutsche Bank Trust Company Americas
as Fiscal Agent
TERMS AND CONDITIONS OF THE NOTES
Capitalized terms used but not defined in these Terms and Conditions (the “Conditions”) shall
have the same meaning as set out under “General” and “Specific Terms” in the Global Certificate.
In the event of any inconsistency between the Specific Terms and the Conditions, the Specific Terms
shall prevail.
§ 1
Form
The Notes shall only be issued in book-entry form represented by one or more fully registered
Global Certificates without coupons. Cede & Co. as nominee of DTC, or any successor nominee of
DTC, shall be the registered holder of the Notes (the “Registered Holder”). Each actual purchaser
having an ownership interest in the Notes represented by the Global Certificate(s) as recorded in
the systems of DTC or its participants is referred to as a “Holder.” The Notes may be transferred
only through DTC or its participants.
§ 2
Status
The Notes constitute unsecured and unsubordinated obligations of the Issuer and rank pari
passu with all other present and future unsecured and unsubordinated obligations of the Issuer, but
subject to any applicable mandatory statutory exceptions.
§ 3
Interest
Each Note bears interest from the Interest Commencement Date pursuant to the interest rate
formula as designated in the Specific Terms until the principal thereof is paid.
Interest shall accrue from and including the Interest Commencement Date, if no interest has
yet been paid, or the immediately preceding Interest Payment Date on which interest was paid. Interest shall accrue until, but
excluding, the applicable Interest Payment Date or the Maturity Date (or any
other day on which the Notes become due for redemption or repayment), as the case may be.
Interest shall be payable in arrears on each Interest Payment Date and on the Maturity Date
(or any other day on which the Notes become due for redemption or repayment). The first interest
payment shall be made on the First Interest Payment Date.
Should the Issuer fail to redeem any Note on its due date, interest on the Note shall continue
to accrue (subject to §3(E) regarding payments due on a day other than
7
a Business Day) beyond the due date until actual redemption of the Note at the default rate of
interest established by law.
(A) Types of Notes. All Notes are Regular Floating Rate Notes unless they are designated
as Fixed Rate/Floating Rate Notes, Floating Rate/Fixed Rate Notes or as Inverse Floating Rate Notes in
the Specific Terms or as otherwise determined in the Specific Terms. The interest on the Notes
shall never be less than zero. The Initial Interest Rate will be the interest rate for the period
from the Interest Commencement Date to the first Interest Reset Date; commencing on the first
Interest Reset Date, the interest rate will be reset as of each Interest Reset Date.
| (1) | If a Note is a Regular Floating Rate Note, the interest rate is any applicable Interest Rate Basis plus or minus any applicable Spread and/or multiplied by any applicable Spread Multiplier. | ||
| (2) | If a Note is a Fixed Rate/Floating Rate Note, the interest rate is the Fixed Interest Rate designated in the Specific Terms; provided, however, that the interest rate commencing on the Floating Rate Commencement Date will be the applicable Interest Rate Basis plus or minus any applicable Spread and/or multiplied by any applicable Spread Multiplier. | ||
| (3) | If a Note is a Floating Rate/Fixed Rate Note, the interest rate is the applicable Interest Rate Basis plus or minus any applicable Spread and/or multiplied by any applicable Spread Multiplier; provided, however, that the interest rate commencing on the Fixed Rate Commencement Date will be the Fixed Interest Rate designated in the Specific Terms (or, if not so specified, the interest rate in effect on the day immediately preceding the Fixed Rate Commencement Date). | ||
| (4) | If a Note is an Inverse Floating Rate Note, the interest rate is the Fixed Interest Rate minus the Interest Rate Basis plus or minus any applicable Spread and/or multiplied by any applicable Spread Multiplier. |
(B) Interest Reset Dates. The interest rate on the Notes will be reset on the dates
provided in the Specific Terms (the “Interest Reset
Dates”), and the period from and including the
most recent Interest Reset Date, to but excluding the next subsequent Interest Reset Dates, will be
the “Interest Reset Period.” Unless otherwise designated in the Specific Terms, the Interest Reset
Dates will be as follows (subject to the following paragraph):
| (1) | in the case of Notes that reset daily, each Business Day; | ||
| (2) | in the case of Notes that reset weekly, the Wednesday of each week; however, if the applicable Interest Rate Basis is the Treasury Rate (except as otherwise provided with regard to the Treasury Rate in § 3(C)(5) below) the Tuesday of each week; |
8
| (3) | in the case of Notes that reset monthly, the third Wednesday of each month; however, if the Interest Rate Basis is the Eleventh District Cost of Funds Rate, the first calendar day of each month; | ||
| (4) | in the case of Notes that reset quarterly, the third Wednesday of each March, June, September and December; | ||
| (5) | in the case of Notes that reset semi-annually, the third Wednesday of each of the two months in each year specified in the Specific Terms; and | ||
| (6) | in the case of Notes that reset annually, the third Wednesday of the month in each year specified in the Specific Terms; |
provided, however, that for Floating Rate/Fixed Rate Notes, the interest rate will not reset after
the designated Fixed Rate Commencement Date.
If any Interest Reset Date would otherwise be a day that is not a Business Day, such Interest
Reset Date shall be postponed to the next succeeding day that is a Business Day (and the interest
rate in effect immediately prior to the postponed Interest Reset Date will remain in effect to but
excluding such Business Day), except that, unless otherwise designated in the Specific Terms, if
the Interest Rate Basis is LIBOR and such next succeeding Business Day falls in the next succeeding
calendar month, such Interest Reset Date shall be the immediately preceding Business Day.
(C) Interest Determination Dates. The interest rate applicable to an Interest Reset Period
commencing as of the applicable Interest Reset Date will be determined by reference to the
applicable Interest Rate Basis as of the particular “Interest
Determination Date,” which will be:
| (1) | with respect to the Commercial Paper Rate, the Federal Funds Rate and the Prime Rate, the Business Day immediately preceding the related Interest Reset Date; | ||
| (2) | with respect to the CD Rate and the CMT Rate, the second Business Day preceding the related Interest Reset Date; | ||
| (3) | with respect to the Eleventh District Cost of Funds Rate, the last working day of the month immediately preceding the related Interest Reset Date on which the Federal Home Loan Bank of San Francisco publishes the Index (as defined in § 3(J)(2) below); | ||
| (4) | with respect to LIBOR, the second London Banking Day (as defined in § 5 below) preceding the related Interest Reset Date; and | ||
| (5) | with respect to the Treasury Rate, the day on which Treasury Bills (as defined in § 3(N)(1) below) are normally auctioned for the week in which the related Interest Reset Date falls; provided, however, that if an auction is held on the Friday of the week preceding the related Interest Reset Date, the Interest Determination Date will be such preceding Friday. |
9
If the interest rate of a Note is determined with reference to two or more Interest Rate
Bases, the Interest Determination Date pertaining to such Note will be the latest Business Day on
which each Interest Rate Basis is determinable that is at least two Business Days before the
related Interest Reset Date for the applicable Note.
(D) Maximum and Minimum Interest Rates. A Note may also have a maximum numerical
limitation that may accrue during any Interest Reset Period (a
“Maximum Interest Rate”), and/or a
minimum numerical limitation that may accrue during any Interest Reset Period (a “Minimum Interest
Rate”).
(E) Interest Payment Dates. “Interest Payment Dates” means dates on which interest on the
Notes is payable, and the Maturity Date. Unless otherwise designated in the Specific Terms, the
Interest Payment Dates will be:
| (1) | in the case of Notes that reset daily, weekly or monthly, the third Wednesday of each month or the third Wednesday of March, June, September and December of each year, as designated in the Specific Terms; | ||
| (2) | in the case of Notes that reset quarterly, the third Wednesday of March, June, September and December of each year; | ||
| (3) | in the case of Notes that reset semi-annually, the third Wednesday of the two months of each year designated in the Specific Terms; and | ||
| (4) | in the case of Notes that reset annually, the third Wednesday of the month of each year specified in the Specific Terms. |
If any Interest Payment Date other than the Maturity Date would otherwise be a day that is not
a Business Day, such Interest Payment Date will be postponed to the next succeeding Business Day
(and interest will accrue at the rate in effect immediately prior to the postponed Interest Payment
Date to but excluding the postponed Interest Payment Date), except that in the case of a Note as to
which LIBOR is an applicable Interest Rate Basis and that Business Day falls in the next succeeding
calendar month, the particular Interest Payment Date will be the immediately preceding Business Day
(and interest will accrue at the interest rate then in effect only to but excluding such preceding
Business Day).
If the Maturity Date falls on a day that is not a Business Day, the required payment of
interest will be made on the next succeeding Business Day, and no additional interest will accrue
in respect of the payment made on that next succeeding Business Day.
(F) Interest Calculation. The Calculation Agent will determine the interest rate
applicable to each Interest Reset Period on or prior to the Interest Calculation Date (as defined
below), except with respect to LIBOR and the Eleventh District Cost of Funds Rate, which will be
determined on the particular Interest Determination Date. Upon request of a Holder, the
Calculation Agent will disclose the interest rate then in effect and, if determined, the interest
rate that will become effective as a result of the determination made for the next succeeding
Interest Reset Date with respect to the particular Note.
10
| (1) | The “Interest Calculation Date” if applicable, pertaining to any Interest Reset Period will be the earlier of (i) the tenth calendar day after the particular Interest Determination Date for the particular Interest Reset Period or, if such day is not a Business Day, the next succeeding Business Day; and (ii) the third Frankfurt Business Day immediately preceding the applicable Interest Payment Date or the Maturity Date, as the case may be. | ||
| (2) | All percentages resulting from any calculation on Notes will be rounded to the nearest one hundred-thousandth of a percentage point, with five one millionths (0.000005) of a percentage point rounded upwards. All amounts used in or resulting from any calculation of interest payable on the Notes will be rounded, in the case of U.S. dollars, to the nearest cent or, in the case of a non-U.S. currency, to the nearest unit (with one-half cent or unit being rounded upwards). | ||
| (3) | With respect to each Note, accrued interest is calculated by multiplying the principal amount of the Note by an accrued interest factor. Unless specified otherwise, the accrued interest factor is computed by adding the interest factors calculated for each day in the particular interest period for which accrued interest is being calculated. The interest factor for each day will be computed by dividing the interest rate applicable to such day |
| (a) | by 360, in the case of Notes as to which the CD Rate, the Commercial Paper Rate, the Eleventh District Cost of Funds Rate, the Federal Funds Rate, LIBOR, or the Prime Rate is an applicable Interest Rate Basis; or | ||
| (b) | by the actual number of days in the year, in the case of Notes as to which the CMT Rate or the Treasury Rate is an applicable Interest Rate Basis. |
The interest factor for Notes as to which the interest rate is calculated with reference to
two or more Interest Rate Bases will be calculated in each period in the same manner as if only the
applicable Interest Rate Basis designated in the Specific Terms applied.
The Calculation Agent shall determine the rate derived from each Interest Rate Basis in
accordance with the following provisions.
(G) Determination of the CD Rate. The “CD Rate” means:
| (1) | the rate on the particular Interest Determination Date for negotiable U.S. dollar certificates of deposit having the Index Maturity designated in the Specific Terms as published in H.15(519) (as defined below) under the caption “CDs (secondary market)”; or | ||
| (2) | if the rate referred to in clause (1) above is not so published by 3:00 P.M., New York City time, on the related Interest Calculation Date, the rate on the particular Interest Determination Date for negotiable U.S. |
11
| dollar certificates of deposit of the particular Index Maturity as published in H.15 Daily Update (as defined below), or other recognized electronic source used for the purpose of displaying the applicable rate, under the caption “CDs (secondary market)”; or | |||
| (3) | if the rate referred to in clause (2) above is not so published by 3:00 P.M., New York City time, on the related Interest Calculation Date, the rate on the particular Interest Determination Date calculated by the Calculation Agent as the arithmetic mean of the secondary market offered rates as of 10:00 A.M., New York City time, on that Interest Determination Date, of three leading nonbank dealers in negotiable U.S. dollar certificates of deposit in The City of New York (which may include the Agents or their affiliates) selected by the Calculation Agent for negotiable U.S. dollar certificates of deposit of major U.S. money market banks for negotiable U.S. certificates of deposit with a remaining maturity closest to the particular Index Maturity in an amount that is, in the judgment of the Calculation Agent, representative for a single transaction in that market at that time; or | ||
| (4) | if the dealers so selected by the Calculation Agent are not quoting as mentioned in clause (3) above, the CD Rate in effect on the particular Interest Determination Date. |
“H.15(519)” means the weekly statistical release designated as H.15(519), or any successor
publication, published by the Board of Governors of the Federal Reserve System.
“H.15 Daily Update” means the daily update of H.15(519), available through the
world-wide-web site of the Board of Governors of the Federal Reserve System at
xxxx://xxx.xxxxxxxxxxxxxx.xxx/xxxxxxxx/X00/xxxxxx, or any successor site or publication.
(H) Determination of the CMT Rate. The “CMT Rate” means:
| (1) | if CMT Moneyline Telerate Page 7051 is designated in the Specific Terms: |
| (a) | the percentage equal to the yield for United States Treasury securities at “constant maturity” having the Index Maturity specified in the Specific Terms as published in H.15(519) under the caption “Treasury Constant Maturities”, as the yield is displayed on Moneyline Telerate (or any successor service) on page 7051 (or any other page as may replace the specified page on that service) (the “Moneyline Telerate Page 7051”), for the particular Interest Determination Date; or | ||
| (b) | if the rate referred to in clause (1)(a) above does not so appear on Moneyline Telerate Page 7051, the percentage equal to the yield for United States Treasury securities at “constant maturity” having the particular Index Maturity and for the |
12
| particular Interest Determination Date as published in H.15(519) under the caption “Treasury Constant Maturities”; or | |||
| (c) | if the rate referred to in clause (1)(b) above does not so appear in H.15(519), the rate on the particular Interest Determination Date for the period of the particular Index Maturity as may then be published by either the Federal Reserve System Board of Governors or the United States Department of the Treasury that the Calculation Agent determines to be comparable to the rate which would otherwise have been published in H.15(519); or | ||
| (d) | if the rates referred to in clauses (1)(a) through (c) above do not so appear, the rate as described in §3(H)(3) below. |
| (2) | if CMT Moneyline Telerate Page 7052 is designated in the Specific Terms: |
| (a) | the percentage equal to the one-week or one-month, as specified in the Specific Terms, average yield for United States Treasury securities at “constant maturity” having the Index Maturity specified in the Specific Terms as published in H.15(519) opposite the caption “Treasury Constant Maturities”, as the yield is displayed on Moneyline Telerate (or any successor service) (on page 7052 or any other page as may replace the specified page on that service) (the “Moneyline Telerate Page 7052”), for the week or month, as applicable, ending immediately preceding the week or month, as applicable, in which the particular Interest Determination Date falls; or | ||
| (b) | if the rate referred to in clause (2)(a) above does not so appear on Moneyline Telerate Page 7052, the percentage equal to the one-week or one-month, as specified in the Specific Terms, average yield for United States Treasury securities at “constant maturity” having the particular Index Maturity and for the week or month, as applicable, preceding the particular Interest Determination Date as published in H.15(519) opposite the caption “Treasury Constant Maturities”; or | ||
| (c) | if the rate referred to in clause (2)(b) above does not so appear in H.15(519), the one-week or one-month, as specified in the Specific Terms, average yield for United States Treasury securities at “constant maturity” having the particular Index Maturity as otherwise announced by the Federal Reserve Bank of New York for the week or month, as applicable, ending immediately preceding the week or month, as applicable, in which the particular Interest Determination Date falls; or | ||
| (d) | if the rates referred to in clauses (2)(a) through (c) above do not so appear, the rate as described in §3(H)(3) below. |
13
| (3) | If either the Moneyline Telerate Page 7051 or the Moneyline Telerate Page 7052 is designated in the Specific Terms and |
| (a) | if the rates referred to in clauses (1)(c) or (2)(c) above (as appropriate) are not so published, the rate on the particular Interest Determination Date calculated by the Calculation Agent as a yield to maturity based on the arithmetic mean of the secondary market bid prices at approximately 3:30 P.M., New York City time, on that Interest Determination Date of three leading primary United States government securities dealers in The City of New York (which may include the Agents or their affiliates) (each, a “Reference Dealer”), selected by the Calculation Agent from five Reference Dealers selected by the Calculation Agent and eliminating the highest quotation, or, in the event of equality, one of the highest, and the lowest quotation or, in the event of equality, one of the lowest, for United States Treasury securities with an original maturity equal to the particular Index Maturity, a remaining term to maturity no more than one year shorter than that Index Maturity and in a principal amount that is, in the judgment of the Calculation Agent, representative for a single transaction in the securities in that market at that time; or | ||
| (b) | if fewer than five but more than two of secondary market bid prices referred to in clause (3)(a) above are provided as requested, the rate on the particular Interest Determination Date calculated by the Calculation Agent based on the arithmetic mean of the secondary market bid prices obtained and neither the highest nor the lowest of the quotations shall be eliminated; or | ||
| (c) | if fewer than three secondary market bid prices referred to in clause (3)(a) above are provided as requested, the rate on the particular Interest Determination Date calculated by the Calculation Agent as a yield to maturity based on the arithmetic mean of the secondary market bid prices as of approximately 3:30 P.M., New York City time, on that Interest Determination Date of three Reference Dealers selected by the Calculation Agent from five Reference Dealers selected by the Calculation Agent and eliminating the highest quotation or, in the event of equality, one of the highest and the lowest quotation or, in the event of equality, one of the lowest, for United States Treasury securities with an original maturity greater than the particular Index Maturity, a remaining term to maturity closest to that Index Maturity and in a principal amount that is, in the judgment of the Calculation Agent, representative for a single transaction in the securities in that market at that time; or | ||
| (d) | if fewer than five but more than two secondary market bid prices referred to in clause (3)(c) above are provided as |
14
| requested, the rate on the particular Interest Determination Date calculated by the Calculation Agent based on the arithmetic mean of the secondary market bid prices obtained and neither the highest nor the lowest of the quotations will be eliminated; or | |||
| (e) | if fewer than three secondary market bid prices referred to in clause (3)(d) above are provided as requested, the CMT Rate in effect on the particular Interest Determination Date. |
If two United States Treasury securities with an original maturity greater than the Index
Maturity specified in the Specific Terms have remaining terms to maturity equally close to
the particular Index Maturity, the quotes for the United States Treasury security with the
shorter original remaining term to maturity will be used.
(I) Determination of the Commercial Paper Rate. “Commercial Paper Rate” means:
| (1) | the Money Market Yield (as defined below) on the particular Interest Determination Date of the rate for commercial paper having the Index Maturity specified in the Specific Terms as published in H.15(519) under the caption “Commercial Paper-Nonfinancial”; or | ||
| (2) | if the rate referred to in clause (1) above is not so published by 3:00 P.M., New York City time, on the related Interest Calculation Date, the Money Market Yield of the rate on the particular Interest Determination Date for commercial paper having the particular Index Maturity as published in H.15 Daily Update, or such other recognized electronic source used for the purpose of displaying the applicable rate, under the caption “Commercial Paper-Nonfinancial”; or | ||
| (3) | if the rate referred to in clause (2) above is not so published by 3:00 P.M., New York City time, on the related Interest Calculation Date, the rate on the particular Interest Determination Date calculated by the Calculation Agent as the Money Market Yield of the arithmetic mean of the offered rates at approximately 11:00 A.M., New York City time, on that Interest Determination Date of three leading dealers of U.S. dollar commercial paper in The City of New York (which may include the Agents or their affiliates) selected by the Calculation Agent for commercial paper having the particular Index Maturity placed for industrial issuers whose bond rating is “Aa”, or the equivalent, from a nationally recognized statistical rating organization; or | ||
| (4) | if the dealers so selected by the Calculation Agent are not quoting as mentioned in clause (3) above, the Commercial Paper Rate in effect on the particular Interest Determination Date. |
“Money Market Yield” means a yield (expressed as a percentage) calculated in accordance
with the following formula:
15
| D x 360 | ||||||
| Money Maket Yield = | x 100 | |||||
| 360 - (D x M) |
where “D” refers to the applicable per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal and “M” refers to the actual number of days in
the applicable Interest Reset Period.
(J) Determination of the Eleventh District Cost of Funds Rate. “Eleventh District Cost of
Funds Rate” means:
| (1) | the rate equal to the monthly weighted average cost of funds for the calendar month immediately preceding the month in which the particular Interest Determination Date falls as set forth under the caption “11th District” on the display on Moneyline Telerate (or any successor service) on page 7058 (or any other page as may replace the specified page on that service) (“Moneyline Telerate Page 7058”) as of 11:00 A.M., San Francisco time, on that Interest Determination Date; or | ||
| (2) | if the rate referred to in clause (1) above does not so appear on Moneyline Telerate Page 7058, the monthly weighted average cost of funds paid by member institutions of the Eleventh Federal Home Loan Bank District that was most recently announced (the “Index”) by the Federal Home Loan Bank of San Francisco as the cost of funds for the calendar month immediately preceding that Interest Determination Date; or | ||
| (3) | if the Federal Home Loan Bank of San Francisco fails to announce the Index on or prior to the particular Interest Determination Date for the calendar month immediately preceding that Interest Determination Date, the Eleventh District Cost of Funds Rate in effect on the particular Interest Determination Date. |
(K) Federal Funds Rate. “Federal Funds Rate” means:
| (1) | the rate with respect to the particular Interest Determination Date for U.S. dollar federal funds as published in H.15(519) under the caption “Federal Funds (Effective)” and displayed on Moneyline Telerate (or any successor service) on page 120 (or any other page as may replace the specified page on that service) (“Moneyline Telerate Page 120”); or | ||
| (2) | if the rate referred to in clause (1) above does not so appear on Moneyline Telerate Page 120 or is not so published by 3:00 P.M., New York City time, on the related Interest Calculation Date, the rate with respect to the particular Interest Determination Date for U.S. dollar federal funds as published in H.15 Daily Update, or such other recognized electronic source used for the purpose of displaying the applicable rate, under the caption “Federal Funds (Effective)”; or | ||
| (3) | if the rate referred to in clause (2) above is not so published by 3:00 P.M., New York City time, on the related Interest Calculation Date, the |
16
| rate with respect to the particular Interest Determination Date calculated by the Calculation Agent as the arithmetic mean of the rates for the last transaction in overnight U.S. dollar federal funds arranged by three leading brokers of U.S. dollar federal funds transactions in The City of New York (which may include the Agents or their affiliates), selected by the Calculation Agent prior to 9:00 A.M., New York City time, on the Business Day following that Interest Determination Date; or | |||
| (4) | if the brokers so selected by the Calculation Agent are not quoting as mentioned in clause (3) above, the Federal Funds Rate in effect on the particular Interest Determination Date. |
(L) Determination of LIBOR. “LIBOR” means:
| (1) | if “LIBOR Moneyline Telerate” is designated in the Specific Terms or if neither “LIBOR Reuters” nor “LIBOR Moneyline Telerate” is designated in the Specific Terms as the method for calculating LIBOR, the rate for deposits in the LIBOR Currency (as defined below) having the Index Maturity designated in the Specific Terms, commencing on the related Interest Reset Date, that appears on the LIBOR Page (as defined below) as of 11:00 A.M., London time, on the particular Interest Determination Date; or | ||
| (2) | if “LIBOR Reuters” is designated in the Specific Terms, the arithmetic mean of the offered rates, calculated by the Calculation Agent, or the offered rate, if the LIBOR Page by its terms provides only for a single rate, for deposits in the LIBOR Currency having the particular Index Maturity, commencing on the related Interest Reset Date, that appear or appears, as the case may be, on the LIBOR Page as of 11:00 A.M., London time, on the particular Interest Determination Date; or | ||
| (3) | if fewer than two offered rates appear, or no rate appears, as the case may be, on the particular Interest Determination Date on the LIBOR Page as specified in clause (1) or (2) above, as applicable, the rate calculated by the Calculation Agent of at least two offered quotations obtained by the Calculation Agent after requesting the principal London offices of each of four major reference banks (which may include the Agents or their affiliates), in the London interbank market to provide the Calculation Agent with its offered quotation for deposits in the LIBOR Currency for the period of the particular Index Maturity, commencing on the related Interest Reset Date, to prime banks in the London interbank market at approximately 11:00 A.M., London time, on that Interest Determination Date and in a principal amount that is, in the judgment of the Calculation Agent, representative for a single transaction in the LIBOR Currency in that market at that time; or | ||
| (4) | if fewer than two offered quotations referred to in clause (3) above are provided as requested, the rate calculated by the Calculation Agent as the arithmetic mean of the rates quoted at approximately 11:00 A.M., |
17
| in the applicable Principal Financial Center (as defined in § 5 below), on the particular Interest Determination Date by three major banks (which may include the Agents or their affiliates), in that Principal Financial Center selected by the Calculation Agent for loans in the LIBOR Currency to leading European banks, having the particular Index Maturity and in a principal amount that is, in the judgment of the Calculation Agent, representative for a single transaction in the LIBOR Currency in that market at that time; or | |||
| (5) | if the banks so selected by the Calculation Agent are not quoting as mentioned in clause (4) above, LIBOR in effect on the particular Interest Determination Date. |
“LIBOR Currency” means the currency designated in the Specific Terms as to which LIBOR
shall be calculated or, if no currency is specified in the Specific Terms, U.S. dollars.
“LIBOR Page” means either:
| (a) | if “LIBOR Reuters” is specified in the Specific Terms, the display on the Reuter Monitor Money Rates Service (or any successor service) on the page designated in the Specific Terms (or any other page as may replace that page on that service) for the purpose of displaying the London interbank rates of major banks for the LIBOR Currency; or | ||
| (b) | if “LIBOR Moneyline Telerate” is specified in the Specific Terms or neither “LIBOR Reuters” nor “LIBOR Moneyline Telerate” is designated in the Specific Terms as the method for calculating LIBOR, the display on Moneyline Telerate (or any successor service) on the page designated in the Specific Terms (or any other page as may replace such page on such service) for the purpose of displaying the London interbank rates of major banks for the LIBOR Currency. |
(M) Determination of Prime Rate. “Prime Rate” means:
| (1) | the rate on the particular Interest Determination Date as published in H.15(519) under the caption “Bank Prime Loan”; or | ||
| (2) | if the rate referred to in clause (1) above is not so published by 3:00 P.M., New York City time, on the related Interest Calculation Date, the rate on the particular Interest Determination Date as published in H.15 Daily Update, or such other recognized electronic source used for the purpose of displaying the applicable rate, under the caption “Bank Prime Loan”; or | ||
| (3) | if the rate referred to in clause (2) above is not so published by 3:00 P.M., New York City time, on the related Interest Calculation Date, the rate on the particular Interest Determination Date calculated by the Calculation Agent as the arithmetic mean of the rates of interest |
18
| publicly announced by each bank that appears on the Reuters Screen US PRIME 1 Page (as defined below) as the applicable bank’s prime rate or base lending rate as of 11:00 A.M., New York City time, on that Interest Determination Date; or | |||
| (4) | if fewer than four rates referred to in clause (3) above are so published by 3:00 P.M., New York City time, on the related Interest Calculation Date, the rate calculated by the Calculation Agent as the particular Interest Determination Date calculated by the Calculation Agent as the arithmetic mean of the prime rates or base lending rates quoted on the basis of the actual number of days in the year divided by a 360-day year as of the close of business on that Interest Determination Date by three major banks (which may include the Agents or their affiliates) in The City of New York selected by the Calculation Agent; or | ||
| (5) | if the banks so selected by the Calculation Agent are not quoting as mentioned in clause (4) above, the Prime Rate in effect on the particular Interest Determination Date. |
“Reuters Screen US PRIME 1 Page” means the display on the Reuter Monitor Money Rates
Service (or any successor service) on the “US PRIME 1” page (or any other page as may
replace that page on that service) for the purpose of displaying prime rates or base
lending rates of major United States banks.
(N) Determination of Treasury Rate. “Treasury Rate” means:
| (1) | the rate from the auction held on the particular Interest Determination Date (the “Auction”) of direct obligations of the United States (“Treasury Bills”) having the Index Maturity designated in the Specific Terms under the caption “INVESTMENT RATE” on the display on Moneyline Telerate (or any successor service) on page 56 (or any other page as may replace that page on that service) (“Moneyline Telerate Page 56”) or page 57 (or any other page as may replace that page on that service) (“Moneyline Telerate Page 57”); or | ||
| (2) | if the rate referred to in clause (1) above is not so published by 3:00 P.M., New York City time, on the related Interest Calculation Date, the Bond Equivalent Yield (as defined below) of the rate for the applicable Treasury Bills as published in H.15 Daily Update, or another recognized electronic source used for the purpose of displaying the applicable rate, under the caption “U.S. Government Securities/Treasury Bills/Auction High”; or | ||
| (3) | if the rate referred to in clause (2) above is not so published by 3:00 P.M., New York City time, on the related Interest Calculation Date, the Bond Equivalent Yield of the auction rate of the applicable Treasury Bills as announced by the United States Department of the Treasury; or |
19
| (4) | if the rate referred to in clause (3) above is not so announced by the United States Department of the Treasury, or if the Auction is not held, the Bond Equivalent Yield of the rate on the particular Interest Determination Date of the applicable Treasury Bills as published in H.15(519) under the caption “U.S. Government Securities/Treasury Bills/Secondary Market”; or | ||
| (5) | if the rate referred to in clause (4) above is not so published by 3:00 P.M., New York City time, on the related Interest Calculation Date, the rate on the particular Interest Determination Date of the applicable Treasury Bills as published in H.15 Daily Update, or another recognized electronic source used for the purpose of displaying the applicable rate, under the caption “U.S. Government Securities/Treasury Bills/Secondary Market”; or | ||
| (6) | if the rate referred to in clause (5) above is not so published by 3:00 P.M., New York City time, on the related Interest Calculation Date, the rate on the particular Interest Determination Date calculated by the Calculation Agent as the Bond Equivalent Yield of the arithmetic mean of the secondary market bid rates, as of approximately 3:30 P.M., New York City time, on that Interest Determination Date, of three primary United States government securities dealers (which may include the Agents or their affiliates) selected by the Calculation Agent, for the issue of Treasury Bills with a remaining maturity closest to the Index Maturity designated in the Specific Terms; or | ||
| (7) | if the dealers so selected by the Calculation Agent are not quoting as mentioned in clause (6) above, the Treasury Rate in effect on the particular Interest Determination Date. |
“Bond Equivalent Yield” means a yield (expressed as a percentage) calculated in accordance
with the following formula:
| D x N | ||||||
| Bond Equivalent Yield = | x 100 | |||||
| 360 - (D x M) |
where “D” refers to the applicable per annum rate for Treasury Bills quoted on a bank
discount basis and expressed as a decimal, “N” refers to 365 or 366, as the case may be,
and “M” refers to the actual number of days in the applicable Interest Reset Period.
§ 4
Maturity
Subject to the provisions of §§ 7, 8, and 11, the Notes shall be redeemed at the Final
Redemption Price on the Maturity Date, unless stated otherwise in the Specific Terms. If the
Maturity Date falls on a day that is not a Business Day, the required payment of principal and
premium, if any will be made on the next succeeding
20
Business Day, and no interest will accrue in respect of the payment made on that next
succeeding Business Day.
§ 5
Payment
Currency of payment. The Issuer will make payments of all amounts payable on the Notes
in U.S. dollars unless the Specified Currency is a currency other than U.S. dollars and the Holder
elects (in the manner described below) to receive payments in such Specified Currency.
Any Holder may elect to receive payment of principal and interest with respect to the Notes in
the Specified Currency by causing DTC, through the relevant DTC participant, to notify the Fiscal
Agent by the time specified below of (i) such Holder’s election to receive all or a portion of such
payment in the Specified Currency and (ii) wire transfer instructions to a specified currency
account (the “Specified Currency Account”). Such election in respect of any payment shall be made
by the Holder at the time and in the manner required by the DTC procedures applicable from time to
time and shall, in accordance with such procedures, be irrevocable. The Fiscal Agent must receive
DTC’s notification of such election, wire transfer instructions, and the amount payable in the
Specified Currency prior to 5:00 P.M., New York time, on the fifth New York Business Day following
the relevant Record Date in the case of interest and prior to
5:00 P.M., New York time, on the eighth
New York Business Day prior to the payment date for the payment of principal.
Absent such election, the Exchange Rate Agent will convert the aggregate amount payable in
U.S. dollars (the “Conversion Amount”) into U.S. dollars. All costs of any such conversion shall
be deducted from such payments. Any such conversion shall be based on the bid quotation of the
Exchange Rate Agent, at or prior to 11:00 A.M., New York time, on the second Conversion Business Day
(as defined below) preceding the relevant payment date, for the purchase by the Exchange Rate Agent
of the Conversion Amount with U.S. dollars for settlement on such payment date. “Conversion
Business Day” means a day which is a New York Business Day and a Frankfurt Business Day (as defined
in the section below entitled “Business Day”). If such bid quotation is not available, the
Exchange Rate Agent shall obtain a bid quotation from a leading foreign exchange bank in The City
of New York selected by the Exchange Rate Agent for such purpose. If no bid quotation from a
leading foreign exchange bank is available, payment of the Conversion Amount will be made in the
Specified Currency to the account or accounts specified by DTC to the Fiscal Agent. Until such
account or accounts are so specified, the funds still held by the Fiscal Agent shall bear interest
at the rate of interest quoted by the Fiscal Agent for deposits with it on an overnight basis, to
the extent that the Fiscal Agent is reasonably able to reinvest such funds.
If the Issuer determines that any amount payable on a relevant payment date in a Specified
Currency other than U.S. dollars is not available to it in freely negotiable and convertible funds
for reasons beyond its control or that such Specified Currency (or any successor currency to it
provided for by law) is no longer used for the settlement of international financial transactions,
the Issuer may fulfill its payment
21
obligations by making such payment in U.S. dollars on, or as soon as reasonably practicable
after, the respective payment date on the basis of the Applicable Exchange Rate. No further
interest or any other payment shall be due as a result thereof. The “Applicable Exchange Rate” for
a Specified Currency other than U.S. dollars means (i) if available, the noon dollar buying rate in
The City of New York for cable transfers for the Specified Currency on the second Business Day
prior to the particular payment date as certified for customs purposes (or, if not so certified, as
otherwise determined) by the Federal Reserve Bank of New York or, (ii) if such rate is not
available, the foreign exchange rate for the Specified Currency as determined by the Issuer in its
equitable discretion.
Manner of payment. The Issuer will make payments of any amount payable on the Notes
through the Fiscal Agent by wire transfer of immediately available funds.
Payments in U.S. dollars shall be made by the Fiscal Agent on the relevant payment date to, or
to the order of, the Registered Holder as of the Record Date (as defined below). Such funds will
be distributed through the relevant DTC participants to the Holders as of the Record Date. The
“Record Date” shall be the fifteenth calendar day immediately preceding the relevant payment date.
If a Holder elects payment in a Specified Currency other than U.S. dollars as set out above,
payments in such Specified Currency shall be made by the Fiscal Agent on the relevant payment date
to the Specified Currency Account.
Payments made by the Issuer to, or to the order of, the Registered Holder (or, if applicable,
to the Specified Currency Account) shall discharge the liability of the Issuer under the Notes to
the extent of the sums so paid. Neither the Issuer nor the Fiscal Agent will have any
responsibility or liability for any aspect of the records of any DTC participant relating to or
payments made by any DTC participant to a Holder or for maintaining, supervising, or reviewing any
such records.
Payments of principal (except in the case of partial redemption or partial repayment pursuant
to §§ 7, 8, and 11) shall be made upon surrender of the Global Certificates(s) to the Fiscal Agent.
The Fiscal Agent shall maintain records of payments of principal and interest made in respect of
the Notes.
Account designation. The Registered Holder shall designate the account for wire
transfer by transmitting the appropriate information to the Fiscal Agent by mail, hand delivery,
fax, or in any other manner approved by the Fiscal Agent. Unless revoked, any such account
designation made with respect to the Notes by the Registered Holder will remain in effect with
respect to any further payments. Holders must make account designations in accordance with the
procedures of DTC and the relevant DTC participant.
Business Day. Unless otherwise designated in the Specific Terms, a “Business Day”
means any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which
commercial banks are authorized or required by law, regulation or executive order to close in The
City of New York (such day also being referred to as a “New York Business Day”); provided, however,
that:
22
(i) with respect to Notes with a Specified Currency that is euros, the day must also be a day
on which the Trans-European Automated Real-Time Gross Settlement Express Transfer (“TARGET”)
System, or any successor system, is open;
(ii) with respect to Notes with a Specified Currency other than U.S. dollars or euros, the day
must also not be a day on which commercial banks are authorized or required by law, regulation or
executive order to close in the Principal Financial Center (as defined below) of the country
issuing the Specified Currency; and
(iii) with respect to Notes as to which LIBOR is an applicable Interest Rate Basis, the day
must also be a London Banking Day.
“London Banking Day” means a day on which commercial banks are open for business (including
dealings in the LIBOR Currency (as defined in §3(L) above)) in London.
“Principal Financial Center” means, as applicable: the capital city of the country issuing
the Specified Currency; or the capital city of the country to which the LIBOR Currency
relates; provided, however, that with respect to U.S. dollars, Australian dollars,
Canadian dollars, euros, South African rand and Swiss francs, the “Principal Financial
Center” shall be The City of New York, Sydney, Toronto, London (solely in the case of the
LIBOR Currency), Johannesburg and Zurich, respectively.
A “Frankfurt Business Day” is any day other than a Saturday, Sunday, legal holiday in
Frankfurt am Main, or a day on which commercial banks are authorized or required by law,
regulation, or executive order to close in Frankfurt am Main.
U.S. dollars. References to U.S. dollars or $ shall mean, as of any time, the coin or
currency that is then lawful currency in the United States of America.
Euros. References to the euro or € shall mean, as of any time, the lawful currency of
the member states of the European Union that have adopted the single currency in accordance with
the Treaty establishing the European Community, as amended by the Treaty on European Union and the
Treaty of Amsterdam, and as further amended from time to time.
Other currencies. References to a particular currency other than U.S. dollars and
euros shall mean, as of any time, the coin or currency that is then lawful currency in the country
issuing such currency on the Original Issue Date.
§ 6
The Agents
The Issuer has initially appointed Deutsche Bank Trust Company Americas as the Fiscal Agent
and Registrar pursuant to the Fiscal Agency Agreement. The Issuer has initially appointed the
institutions named in the Specific Terms as Calculation Agent, Determination Agent, and, if the
principal of or interest on the Notes is payable in a Specified Currency other than U.S. dollars,
as Exchange Rate Agent, to
23
act as such agent with respect to the Notes. The Fiscal Agent, Registrar, the Exchange Rate
Agent, Calculation Agent and Determination Agent are referred to herein as the “Agents.”
The Issuer may, in its sole discretion, appoint any other institution to serve as any such
Agent from time to time. The Issuer will give prompt written notice of any change in any such
appointment to the Fiscal Agent and by notification pursuant to §12 hereof.
All determinations made by any Agent may be made by such Agent in its sole discretion and,
absent manifest error, shall be conclusive for all purposes and binding on the Registered Holder,
Holders, and the Issuer.
The Agents in such capacity are acting exclusively as agents of the Issuer and do not have any
legal relationship of whatever nature with the Registered Holder or the Holders and are not in any
event accountable to the Registered Holder or any Holder.
§ 7
Redemption at the Issuer’s Option
The Notes shall not be redeemable by the Issuer before the Maturity Date unless a Redemption
Date or a Redemption Commencement Date is designated in the Specific Terms.
If a Redemption Date is so specified, and unless otherwise designated in the Specific Terms,
the Notes may be so redeemed on such Redemption Date, in whole or in part, in any amount equal to
an Authorized Denomination or integral multiple thereof (provided that the remaining principal amount
thereof shall at least equal an Authorized Denomination) at the Redemption Price together with
interest accrued thereon to, but excluding, the Redemption Date. Such redemption shall be upon
notice in compliance with §12 hereof and in compliance with the Minimum Redemption Notice Period as
specified in the Specific Terms.
If a Redemption Commencement Date is so specified, and unless otherwise designated in the
Specific Terms, the Notes may be so redeemed any time thereafter, in whole or in part, and in any
amount equal to an Authorized Denomination or integral multiple thereof (provided that the remaining
principal amount thereof shall at least equal an Authorized Denomination) at the Redemption Price
together with interest accrued thereon to, but excluding, the Redemption Date. Such redemption
shall be upon notice of not less than 30 and not more than 60 calendar days and in compliance with
§12 hereof.
§ 8
Repayment at the Holder’s Option
The Notes shall not be repayable before the Maturity Date unless one or more Repayment Dates
are designated in the Specific Terms. If a Repayment Date is so specified, and unless otherwise
designated in the Specific Terms, a Holder may
24
request (in the manner described below) repayment of any Note, in whole or in part, in any
amount equal to an Authorized Denomination or integral multiple thereof (provided that the remaining
principal amount thereof shall at least equal an Authorized Denomination) at the Repayment Price
together with interest accrued thereon to, but excluding, the Repayment Date.
In order to exercise such repayment option, a Holder must instruct DTC or its participants in
a timely manner as required by the DTC procedures applicable from time to time.
If so instructed, DTC shall cause the Registered Holder to request such repayment of the
Fiscal Agent on behalf of the Holder in compliance with the Minimum Repayment Notice Period
designated in the Specific Terms. All instructions given to the Fiscal Agent relating to the
option to elect repayment are irrevocable.
The Issuer shall only be obliged to repay Notes in respect to which a Holder has exercised its
repayment option against transfer of such Holder’s ownership interest in the relevant Notes to the
Fiscal Agent.
§ 9
Further Issues, Purchases and Cancellation
The Issuer may from time to time, without the consent of the Holders, issue further Notes
having the same terms and conditions as the Notes in all respects (or in all respects except for
the issue date, interest commencement date and/or issue price) so as to form a single issuance with
the Notes. The term “Notes” shall, in the event of such increase, also include such further Notes.
The Issuer may at any time purchase Notes in the open market or otherwise and at any price.
Notes purchased by the Issuer may, at the option of the Issuer, be held or resold, or transferred
to the Fiscal Agent for cancellation. If such Notes are redeemed in full or are transferred for
cancellation they shall be cancelled forthwith and may not be reissued or resold.
§ 10
Taxation
All payments by the Issuer in respect of the Notes shall be made without deduction or
withholding of taxes or other duties, unless such deduction or withholding is required by law. In
the event of such deduction or withholding, the Issuer shall not be required to pay any additional
amounts in respect of the Notes.
§ 11
Termination for Default
If the Issuer shall fail to pay any amount payable hereunder within 30 days from the relevant
due date, any Holder may, through the Depositary, declare any
25
Notes due and demand repayment thereof at their principal amount plus interest accrued to the
date of repayment. Any notice declaring the Notes due shall be made by means of written notice to
be delivered by hand or registered mail to the Issuer together with proof that such Holder at the
time of such notice has an ownership interest in the relevant Notes by means of a certificate of
the Holder’s Custodian pursuant to § 14(a) hereof. The right to declare Notes due shall cease if
the Issuer has made payment to or to the order of the Registered Holder (or, in the case of
payments to be made in a Specified Currency other than U.S. dollars, the Specified Currency
Account) before the Holder has exercised such right.
§ 12
Notices
Any notice required to be made by the Issuer concerning the Notes shall be given in writing to
DTC for communication by DTC and its participants to the Holders. Any such notice shall be deemed
to have been given to the Holders on the third day after the day on which the said notice was given
to DTC.
§ 13
Governing Law, Exclusion of General Business Conditions Law
THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE FEDERAL REPUBLIC OF
GERMANY WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
NOTWITHSTANDING THE ABOVE, THE PROVISIONS ON GENERAL BUSINESS CONDITIONS (ALLGEMEINE
GESCHÄFTSBEDINGUNGEN, §§ 305-310 OF THE GERMAN CIVIL CODE) SHALL NOT APPLY TO THE NOTES.
ANY DISPOSITION OF THE NOTES, INCLUDING TRANSFERS AND PLEDGES OF NOTES EXECUTED BETWEEN DTC
PARTICIPANTS, AND BETWEEN DTC AND DTC PARTICIPANTS SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK.
§ 14
Remedies
Jurisdiction. Any action or other legal proceedings arising out of or in connection with
the Notes may exclusively be brought in the District Court (Landgericht) in Frankfurt am Main.
Enforcement. Any Holder may in any proceedings against the Issuer or to which the Holder
and the Issuer are parties protect and enforce in its own name its rights arising under the Notes
on the basis of (a) a certificate issued by its Custodian (as defined below) (i) stating the full
name and address of the Holder, (ii) specifying an aggregate principal amount of Notes credited on
the date of such statement to such Holder’s securities account maintained with such Custodian, and
(iii) confirming that the Custodian has given written notice to DTC and the Registrar containing
the
26
information pursuant to (i) and (ii) and bearing acknowledgements of DTC and the relevant DTC
participant, and (b) copies of the Global Certificate(s) certified as being true copies by a duly
authorized officer of DTC or the Registrar. For purposes of the foregoing, “Custodian” means any
bank or other financial institution of recognized standing authorized to engage in securities
custody business with which the Holder maintains a securities account
in respect of the
Notes and includes DTC and its participants.
27
EXHIBIT
D-1
Filed pursuant to Rule 433
Registration No. 333-121363
Registration No. 333-121363
FORM OF FINAL TERM SHEET
[FIXED RATE NOTES]
Dated
,
200
Issuer:
KfW
|
Title of Securities: | |
Aggregate Principal Amount:
|
Interest Rate: % per annum | |
Original Issue Date:
|
Maturity Date: | |
Interest Commencement Date: |
Final Redemption Price: |
Payments:
First Interest Payment Date:
Interest Payment Date(s):
Interest Payment Date(s):
Redemption: o Yes o No
Redemption Commencement Date (as provided in §7(3) of the Conditions):
Redemption Date(s) (as provided in §7(2) of the Conditions):
Minimum Redemption Notice Period:
Redemption Price (expressed as a percentage of the Aggregate Principal Amount to be redeemed):
Redemption Date(s) (as provided in §7(2) of the Conditions):
Minimum Redemption Notice Period:
Redemption Price (expressed as a percentage of the Aggregate Principal Amount to be redeemed):
Repayment: o Yes o No
Repayment Date(s):
Minimum Repayment Notice Period:
Repayment Price (expressed as a percentage of the Aggregate Principal Amount to be repaid):
Minimum Repayment Notice Period:
Repayment Price (expressed as a percentage of the Aggregate Principal Amount to be repaid):
Specified Currency: U.S. dollars for all payments unless otherwise specified below:
Payments of principal and any premium:
Payments of interest:
Authorized Denomination:
Exchange Rate Agent:
Payments of interest:
Authorized Denomination:
Exchange Rate Agent:
Original Issue Discount Note (“OID”): o Yes o No
Total Amount of OID:
Yield to Maturity:
Initial Accrual Period OID:
Yield to Maturity:
Initial Accrual Period OID:
Other Terms of Notes:
Price to Public:
Dealers:
Terms left blank or marked “N/A,” “No,” “None” or in a similar manner shall not apply to the
issue of Notes except as may otherwise be specified.
[Note: non-applicable terms may be deleted]
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
XXXXX on the SEC Website at xxx.xxx.xxx. Alternatively, any dealer participating in the
offering will arrange to send you the prospectus, which you may request by calling toll-free [l].
EXHIBIT
D-2
Filed pursuant to Rule 433
Registration No. 333-121363
Registration No. 333-121363
FORM OF FINAL TERM SHEET
[FLOATING RATE NOTES]
Dated
,
200
Issuer:
KfW
|
Title of Securities: | |
Aggregate Principal Amount:
|
Maturity Date: | |
Original Issue Date:
|
Initial Interest Rate: | |
Interest Commencement Date:
|
First Interest Payment Date: | |
| Final Redemption Price: |
Indexed Notes:
Details:
Type of Floating Rate Note:
o Regular Floating Rate
o Floating Rate/Fixed Rate
Fixed Interest Rate:
Fixed Rate Commencement Date:
o Fixed Rate/Floating Rate
Floating Rate Commencement Date:
o Inverse Floating Rate
o Other:
o Floating Rate/Fixed Rate
Fixed Interest Rate:
Fixed Rate Commencement Date:
o Fixed Rate/Floating Rate
Floating Rate Commencement Date:
o Inverse Floating Rate
o Other:
Interest Rate Basis/Bases:
o CD Rate
o CMT Rate:
o CMT Moneyline Telerate Page 7051
o CMT Moneyline Telerate Page 7052
o Weekly Average
o Monthly Average
o Commercial Paper Rate
o Eleventh District Cost of Funds Rate
o Federal Funds Rate
o LIBOR
LIBOR Currency (if not U.S. dollars):
LIBOR Moneyline Telerate Page:
LIBOR Reuters Screen Page:
o Prime Rate
o Treasury Rate:
o Prime Rate
o Other:
o CMT Rate:
o CMT Moneyline Telerate Page 7051
o CMT Moneyline Telerate Page 7052
o Weekly Average
o Monthly Average
o Commercial Paper Rate
o Eleventh District Cost of Funds Rate
o Federal Funds Rate
o LIBOR
LIBOR Currency (if not U.S. dollars):
LIBOR Moneyline Telerate Page:
LIBOR Reuters Screen Page:
o Prime Rate
o Treasury Rate:
o Prime Rate
o Other:
Spread:
|
Maximum Interest Rate: | |
Spread Multiplier:
|
Minimum Interest Rate: | |
Index Maturity: |
Interest Reset Period:
o daily o quarterly |
o weekly o semi-annually |
o monthly o annually |
Interest Reset Date(s): as provided in §3(B) of the Conditions (unless otherwise specified)
Interest Determination Date(s):
as provided in §3(C) of the Conditions (unless otherwise specified)
Interest Calculation Date(s): as provided in §3(F)(1) of the Conditions (unless otherwise
specified)
Calculation Agent:
o Deutsche Bank Trust Company Americas
o Other:
o Deutsche Bank Trust Company Americas
o Other:
Interest Payment Date(s): unless otherwise specified, the of the following
(subject to §3(E) in the Conditions)
o Each of the 12 calendar months in each year
o Each March, June, September and December in each year:
Each of the following two calendar months in each year:
The following calendar month in each year:
o Each of the 12 calendar months in each year
o Each March, June, September and December in each year:
Each of the following two calendar months in each year:
The following calendar month in each year:
Redemption: o
Yes o No
Redemption Commencement Date (as provided in §7(3) of the Conditions):
Redemption Date(s) (as provided in §7(2) of the Conditions):
Minimum Redemption Notice Period:
Redemption Price (expressed as a percentage of the Aggregate Principal Amount to be redeemed):
Redemption Date(s) (as provided in §7(2) of the Conditions):
Minimum Redemption Notice Period:
Redemption Price (expressed as a percentage of the Aggregate Principal Amount to be redeemed):
Repayment: o
Yes o No
Repayment Date(s):
Minimum Repayment Notice Period:
Repayment Price (expressed as a percentage of the Aggregate Principal Amount to be repaid):
Minimum Repayment Notice Period:
Repayment Price (expressed as a percentage of the Aggregate Principal Amount to be repaid):
Specified Currency: U.S. dollars for all payments unless otherwise specified below:
Payments of principal and any premium:
Payments of interest:
Authorized Denomination:
Exchange Rate Agent:
Payments of interest:
Authorized Denomination:
Exchange Rate Agent:
Original
Issue Discount Note
(“OID”): o
Yes o No
Total Amount of OID:
Yield to Maturity:
Initial Accrual Period OID:
Yield to Maturity:
Initial Accrual Period OID:
Other Terms of Notes:
Price to Public:
Dealers:
Terms left blank or marked “N/A,” “No,” “None” or in a similar manner shall not apply to the
issue of Notes except as may otherwise be specified. [Note: non-applicable terms may be deleted]
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
XXXXX on the SEC Website at xxx.xxx.xxx. Alternatively,
any dealer participating in the
offering will arrange to send you the prospectus, which you may
request by calling toll-free
[ l ].
ANNEX A
Form of Legal Opinion of Issuer’s Legal Department
| (1) | KfW is duly established and validly existing as an institution under public law of the Federal Republic of Germany. | ||
| (2) | KfW has full power and authority to issue the Notes and to enter into the Distribution Agreement and the Fiscal Agency Agreement and to perform its obligations thereunder. | ||
| (3) | The Distribution Agreement has been duly authorized, executed and delivered by KfW and, assuming due authorization, execution and delivery of the Distribution Agreement by each of the Dealers, constitutes a valid and legally binding obligation of KfW enforceable in accordance with its terms. | ||
| (4) | The Fiscal Agency Agreement has been duly authorized, executed and delivered by KfW and, assuming due authorization, execution and delivery of the Fiscal Agency Agreement by the Fiscal Agent and Deutsche Bank Aktiengesellschaft, constitutes a valid and legally binding agreement of KfW enforceable in accordance with its terms. | ||
| (5) | The Program has been duly authorized by KfW, and, when the terms of particular Notes and of their issuance and sale have been duly authorized by all necessary corporate action in conformity with the Fiscal Agency Agreement, and the Notes have been duly executed, authenticated and delivered in accordance with the Fiscal Agency Agreement and the Distribution Agreement, the Notes will constitute valid and legally binding obligations of KfW. | ||
| (6) | All regulatory consents, authorizations, approvals and filings required to be obtained or made by KfW under the laws of Germany for the issuance, sale and delivery of the Notes by KfW, for the performance of the obligations of KfW under the Distribution Agreement and under the Fiscal Agency Agreement, and for the performance of the obligations of KfW under the Notes, have been obtained or made. | ||
| (7) | The Registration Statement, the Prospectus and the final prospectus supplement relating to the Program, and their filing with SEC, have been duly authorized by KfW, and the Registration Statement has been duly executed on behalf of KfW. | ||
| (8) | The statements in the Prospectus and the Prospectus Supplement relating to the Notes, the Distribution Agreement and the Fiscal Agency Agreement are correct in all material respects insofar as matters of German law are concerned; and all statements of German law relating to KfW and its administration and operations, and all other statements with respect to or involving German law, including all such statements under the headings “KfW—Relationship with the Federal Republic”, “Description of securities and KfW guarantee—Description of Securities of KfW”, “Responsibility of the Federal Republic for KfW” and “Description of the Notes”, set forth in the Registration Statement, the Prospectus and the Prospectus Supplement are correct in all material respects. | ||
| (9) | The information regarding Germany stated in the Registration Statement, the Prospectus and the Prospectus Supplement to have been supplied by an official or officials of the |
| government of Germany, were supplied by such official or officials in his or their official capacity thereunto duly authorized by the laws of Germany. | |||
| (10) | There are no material legal or governmental proceedings known to the issuer of such opinion to which KfW is a party or to which property of KfW is subject. | ||
| (11) | KfW is not entitled to sovereign immunity. |
| Note: | In the case of each opinion delivered by the Issuer’s Legal Department pursuant to clause (ii) of the first paragraph of Section 6 of the Distribution Agreement, (a) such opinion shall relate to the Notes being delivered on the date of such opinion and not to other Notes (in particular, the opinion in paragraph 5 shall be modified accordingly); (b) the opinion described in paragraphs 3 and 6 above shall also relate to any Terms Agreement relating to such Notes entered into pursuant to Section 3(a) of the Distribution Agreement; and (c) the opinions described in paragraphs 7, 8 and 9 above relating to the “Registration Statement” or the “Prospectus” shall include all applicable amendments or supplements thereto (including, without limitation, [the Final Term Sheet relating to such Notes filed by the Issuer pursuant to Section 4(j)(ii) of the Distribution Agreement and] the Pricing Supplement relating to such Notes). |
-2-
ANNEX B
Form of Legal Opinion of Xxxxxxxx & Xxxxxxxx LLP,
U.S. Counsel for the Issuer
U.S. Counsel for the Issuer
| (1) | The Notes are exempt from the provisions of the U.S. Trust Indenture Act of 1939 as in effect on the date hereof, and, accordingly, it is not necessary to qualify an indenture in respect of the Notes under such Act. | ||
| (2) | KfW is not an “investment company” within the meaning of the U.S. Investment Company Act of 1940, as amended. |
| Note: | In the case of each opinion delivered by such counsel pursuant to clause (ii) of the first paragraph of Section 6 of the Distribution Agreement, (a) such opinion shall relate to the Notes being delivered on the date of such opinion and not to other Notes and (b) the opinions described in paragraph 3 above relating to the “Registration Statement” and the “Prospectus” shall include all applicable amendments or supplements thereto (including, without limitation, the Pricing Supplement relating to such Notes). |
ANNEX C
Form of Disclosure Letter of Xxxxxxxx & Xxxxxxxx LLP,
U.S. Counsel for the Issuer
U.S. Counsel for the Issuer
| (1) | Each part of the Registration Statement, when such part became effective, and the Prospectus, as of the date of the final prospectus supplement relating to the Program, appeared on its face to be appropriately responsive, in all material respects relevant to the offering of the Notes under the Program, to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. | ||
| (2) | Nothing that came to such counsel’s attention has caused such counsel to believe that, insofar as relevant to the offering of the Notes under the Program, any part of the Registration Statement, when such part became effective, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of the date of the final prospectus supplement relating to the Program or as of the time of delivery of such counsel’s disclosure letter, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. |
| Note: | In the case of each disclosure letter delivered by such counsel pursuant to clause (ii) of the first paragraph of Section 6 of the Distribution Agreement, (a) such disclosure letter shall relate to the Notes being delivered on the date of such disclosure letter and (b) the statements described in paragraphs 1 and 2 above relating to the “Registration Statement” and the “Prospectus” shall include all amendments or supplements thereto (including, without limitation, the Pricing Agreement relating to such Notes). In addition, the disclosure letter of such counsel shall include an additional paragraph substantially to the following effect: “Nothing has come to such counsel’s attention that caused such counsel to believe that the Prospectus as amended or supplemented immediately prior to the time of first sale of the relevant Notes by the relevant Dealer or Dealers to investors or other purchasers therefrom, when considered together with and as supplemented by [insert as applicable [the Final Term Sheet relating to such Notes and filed by the Issuer pursuant to Section 4(j)(ii) of the Distribution Agreement and] [the statements under the heading “Description of the Notes” in the Pricing Supplement relating to such Notes]], contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.” |
ANNEX D
Form of Legal Opinion of Hengeler Xxxxxxx Partnerschaft von Rechtsanwaelten,
German Counsel for the Dealers
German Counsel for the Dealers
| (1) | The Issuer is an institution organized under public law (Anstalt des öffentlichen Rechts) duly established under the KfW Law and validly existing in Germany with unlimited corporate existence. | ||
| (2) | The Issuer has the power and capacity to (a) enter into the Distribution Agreement and the Fiscal Agency Agreement and (b) perform its obligations thereunder. | ||
| (3) | The Distribution Agreement and the Fiscal Agency Agreement constitute valid and legally binding obligations of the Issuer. | ||
| (4) | When the terms of particular Notes and of their issuance and sale have been duly authorized by all necessary corporate action in conformity with the Fiscal Agency Agreement, and the Notes have been duly executed, authenticated and delivered in accordance with the Fiscal Agency Agreement and the Distribution Agreement, the Notes will constitute valid and legally binding obligations of the Issuer, and the Notes will benefit from the Anstaltslast of the Federal Republic of Germany as well as from the statutory guarantee of the Federal Republic of Germany pursuant to Section 1a of the KfW Law. | ||
| (5) | No consents, authorizations, approvals, licenses or orders are required by the Issuer from any court or governmental authority in Germany for the issue, offer and sale of the Notes and for the execution and delivery by the Issuer of the Distribution Agreement and the Fiscal Agency Agreement and for the performance by the Issuer of its obligations thereunder, and no filing or registration with any such court or governmental authority is required in Germany for any such purposes. | ||
| (6) | It is not necessary (a) in order to enable those Dealers with registered offices outside Germany (or any of them) to exercise or enforce any of their rights under the Distribution Agreement in Germany, or (b) by reason of the entry into and/or the performance of their obligations under the Distribution Agreement, that those Dealers should be licensed, qualified or entitled to do business in Germany. | ||
| (7) | No stamp duties, registration, issue, transfer, documentary or similar taxes are payable in Germany in connection with the issue, distribution, offer, sale and performance of the Notes or the execution, delivery and performance of the Distribution Agreement and the Fiscal Agency Agreement. | ||
| (8) | Neither the execution and delivery of the Distribution Agreement and the Fiscal Agency Agreement by the Issuer, the issue, offer and sale of the Notes nor the performance by the Issuer of its obligations thereunder conflict with or result in a violation of any of the provisions of the KfW Law, the Charter or any law or regulation applicable in Germany. | ||
| (9) | Neither the Issuer nor any of its assets is entitled to immunity from suit, execution, attachment or other legal process in Germany. |
| (10) | The statements on pages 4 and 5 of the Prospectus under the headings “Relationship with the Federal Republic — Guarantee of the Federal Republic,” Relationship with the Federal Republic — Institutional Liability (Anstaltslast),” and “Relationship with the Federal Republic — Understanding with the European Commission” and on pages 12 of the Prospectus under the heading “Responsibility of the Federal Republic for KfW” regarding the Guarantee of the Federal Republic and Institutional Liability (Anstaltslast) fairly summarize the position in respect of the matters addressed. | ||
| (11) | The statements on page 15 under the heading “Recent Developments — EU Savings Tax Directive” and on pages 12, 13 and 14 of the Prospectus under the heading “Federal Republic Taxation” fairly summarize the position in all material respects. |
| Note: | In the case of each opinion delivered by such counsel pursuant to clause (ii) of the second paragraph of Section 6 of the Distribution Agreement, (a) such opinion shall relate to the Notes being delivered on the date of such opinion and not to other Notes; (b) the opinions described in paragraphs 3, 4, 5, 6, 7 and 8 above shall also relate to any Terms Agreement relating to such Notes entered into pursuant to Section 3(a) of the Distribution Agreement; and (c) the opinions described in paragraphs 10 and 11 above relating to the “Prospectus” shall include all applicable amendments or supplements thereto (including, without limitation, the Pricing Supplement relating to such Notes). |
-2-
ANNEX E
Form of Disclosure Letter of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP,
U.S. Counsel for the Dealers
U.S. Counsel for the Dealers
| (1) | The Registration Statement, as of the date it first became effective under the Securities Act, and the Prospectus, as of the date of the final prospectus supplement relating to the Program, was, on its face, appropriately responsive, in all material respects, to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder (except that in each case such counsel need express no view with respect to the financial statements or other financial or statistical data contained in, incorporated or deemed incorporated by reference in, or omitted from the Registration Statement, the Prospectus or the Exchange Act Documents). | ||
| (2) | Nothing has come to such counsel’s attention that causes such counsel to believe that any part of the Registration Statement, as of the date such part became or was deemed to have become effective under the Securities Act, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus, as of the date of the final prospectus supplement relating to the Program or as of the date of such counsel’s disclosure letter, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that in each case such counsel need express no belief with respect to the financial statements or other financial or statistical data contained in, incorporated or deemed incorporated by reference in, or omitted from the Registration Statement, the Prospectus or the Exchange Act Documents). |
| Note: | In the case of each disclosure letter delivered by such counsel pursuant to clause (ii) of the second paragraph of Section 6 of the Distribution Agreement, (a) such disclosure letter shall relate to the Notes being delivered on the date of such disclosure letter and (b) the statements described in paragraphs 1 and 2 above relating to the “Registration Statement” and the “Prospectus” shall include all amendments or supplements thereto (including, without limitation, the Pricing Agreement relating to such Notes). In addition, the disclosure letter of such counsel shall include an additional paragraph substantially to the following effect: “Nothing has come to such counsel’s attention that caused such counsel to believe that the Prospectus as amended or supplemented immediately prior to the time of first sale of the relevant Notes by the relevant Dealer or Dealers to investors or other purchasers therefrom, when considered together with and as supplemented by [insert as applicable [the Final Term Sheet relating to such Notes and filed by the Issuer pursuant to Section 4(j)(ii) of the Distribution Agreement and] [the statements under the heading “Description of the Notes” in the Pricing Supplement relating to such Notes]], contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (except that in each case such counsel need express no belief with respect to the financial statements or other financial or statistical data contained in, incorporated or deemed incorporated by reference in, or omitted from the Registration Statement, the Prospectus or the Exchange Act Documents).” |
