MEDIOBANCA
AVVISO n.18571 | 31 Ottobre 2012 | MOT - DomesticMOT |
Mittente del comunicato : Borsa Italiana
Societa' oggetto dell'Avviso
: MEDIOBANCA
Testo del comunicato
Oggetto : 'DomesticMOT' - Inizio negoziazioni 'MEDIOBANCA'
Si veda allegato.
Disposizioni della Borsa
Società emittente: MEDIOBANCA
Titolo: "Issue of up to Euro 15,000,000 Inflation Linked Notes "MB7" due October 2017" (Codice ISIN XS0820711132)
Rating Emittente: MEDIOBANCA
Società di Rating Long Term Data Report Standard & Poor's BBB+ 10/02/2012
Oggetto: INIZIO DELLE NEGOZIAZIONI IN BORSA
Data inizio negoziazioni: 02/11/2012
Mercato di negoziazione: Borsa - Mercato telematico delle obbligazioni (MOT),
segmento DomesticMOT, 'classe altri titoli di debito'
EMS: 25.000
Operatore Specialista in acquisto: Mediobanca - Banca di Credito Finanziario S.p.A.
(IT0362)
CARATTERISTICHE SALIENTI DEI TITOLI OGGETTO DI QUOTAZIONE
"Issue of up to Euro 15,000,000 Inflation Linked Notes "MB7" due October 2017"
Modalità di negoziazione: corso secco
dal terzo giorno di borsa aperta antecedente la data di pagamento della seconda cedola:
corso secco (componente interessi fissi)
tel quel (componente interessi legati all'inflazione)
N. obbligazioni in circolazione: 14.200
Valore nominale unitario: 1.000 EUR Valore nominale complessivo
delle obbligazioni in circolazione: 14.200.000 EUR
Interessi: le obbligazioni frutteranno interessi lordi annui in conformità a quanto specificato nei Final Terms del prestito.
Modalità di calcolo dei ratei: ACT/ACT su base periodale (per le prime due cedole in
pagamento)
Godimento: 15/10/2012
Scadenza: 16/10/2017 (rimborso alla pari in un'unica soluzione alla scadenza)
Tagli: unico da nominali 1.000 EUR
Codice ISIN: XS0820711132
Codice Instrument Id: 738277
Descrizione: MEDIOBANCA MB7 INFLATION L MC OT17 EUR
Importo minimo di negoziazione: 1.000 EUR
Obblighi operatore specialista in acquisto:
- quantitativo minimo delle proposte in acquisto: 50.000 EUR
- quantitativo minimo giornaliero: 250.000 EUR
- durata minima dell'impegno: fino a Scadenza
DISPOSIZIONI DELLA BORSA ITALIANA
Dal giorno 02/11/2012 gli strumenti finanziari "Issue of up to Euro 15,000,000 Inflation Linked Notes "MB7" due October 2017" verranno iscritti nel Listino Ufficiale, comparto obbligazionario (MOT).
Allegati:
- Final Terms;
- Estratto del prospetto di quotazione del prestito.
Final Terms
MEDIOBANCA - Banca di Credito Finanziario S.p.A.
Issue of up to Euro 15,000,000 Inflation Linked Notes “MB7” due
October 2017 (the “Notes”) under the
Euro 40,000,000,000
Issuance Programme
Series no: 475
Tranche no: 1
Issue Price: 100.00 per cent.
The date of these Final Terms is 31 August 2012
The Base Prospectus referred to below (as completed by these Final Terms) has been prepared on the basis that, except as provided in sub-paragraph (ii) below, any offer of Notes in any Member State of the European Economic Area which has implemented the Prospectus Directive (2003/71/EC) (the, “Prospectus Directive”) (each, a Relevant Member State) will be made pursuant to an exemption under the Prospectus Directive, as implemented in that Relevant Member State, from the requirement to publish a prospectus for offers of the Notes. Accordingly any person making or intending to make an offer of the Notes may only do so:
(i) in circumstances in which no obligation arises for the Issuer to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive, in each case, in relation to such offer; or
(ii) in those Public Offer Jurisdictions mentioned in Paragraph 43 (Non-exempt offer) of Part A below, provided such person is one of the persons mentioned in Paragraph 43 (Non-exempt offer) of Part A below and that such offer is made during the Offer Period specified for such purpose therein.
Neither the Issuer nor the Lead Manager (as defined below) nor the Distributor (as defined below) has authorised, nor do they authorise, the making of any offer of Notes in any other circumstances.
This document constitutes the Final Terms relating to the issue of Notes described herein. Terms used herein shall be deemed to be defined as such for the purposes of the Conditions set forth in the Base Prospectus dated 30 November 2011, which constitutes a base prospectus for the purposes of the Prospectus Directive (Directive 2003/71/EC). This document constitutes the Final Terms of the Notes described herein for the purposes of Article 5.4 of the Prospectus Directive and must be read in conjunction with such Base Prospectus. Full information on the Issuer and the offer of the Notes is only available on the basis of the combination of these Final Terms and the Base Prospectus. The Base Prospectus is available for viewing at Xxxxxxxxx Xxxxxx 0, 00000, Xxxxx, Xxxxx and xxx.xxxxxxxxxx.xx and copies may be obtained from the Issuer upon request from the investors.
The purchase of the Notes involves substantial risks and is suitable only for investors who have the knowledge and experience in financial and business matters necessary to enable them to evaluate the risks and the merits of an investment in the Notes. Before making an investment decision, prospective purchasers of Notes should ensure they understand the nature of the Notes and the extent of their exposure to risks and that they consider carefully, in the light of their own financial circumstances, financial condition and investment objectives, all the information set forth in the Base Prospectus (including “Risk Factors” on pages 35 to 75 thereof) referred to above and these Final Terms.
No person has been authorised to give any information or make any representation not contained in or not consistent with these Final Terms, or any other information supplied in connection with the Notes and, if given or made, such information or representation must not be relied upon as having been authorised by the Issuer or the Lead Manager or the Distributor.
In accordance with the MiFID Directive (Directive 2004/39/EC), the implementing Directive 2006/73/CE (together the "MiFID Directives") and the relevant implementing rules in Italy, the responsibility in relation to the “categorisation of clients” and “assessment of suitability and appropriateness” is attributable solely to the Distributor listed in paragraph 43 (“Non exempt Offer”) below which, in relation to the investment in the Notes, acts also as “investment advisor” for the purposes of the MiFID Directives and the relevant implementing rules in Italy.
By investing in the Notes each investor represents that:
a) Non-Reliance. It is acting for its own account, and it has made its own independent decision to invest in the Notes and as to whether the investment in the Notes is appropriate or proper for it based upon its own judgement and upon advice from such advisers as it has deemed necessary. It is not relying on any communication (written or oral) of the Issuer or the Lead Manager as investment advice or as a recommendation to invest in the Notes, it being understood that information and explanations related to the terms and conditions of the Notes shall not be considered to be investment advice or a recommendation to invest in the Notes. No communication (written or oral) received from the Issuer, or the Lead Manager shall be deemed to be an assurance or guarantee as to the expected results of the investment in the Notes.
b) Assessment and Understanding. It is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts the terms and conditions and the risks of the investment in the Notes. It is also capable of assuming, and assumes, the risks of the investment in the Notes.
c) Status of Parties. Neither the Issuer nor the Lead Manager is acting as a fiduciary for or adviser to it in respect of the investment in the Notes.
Parte A - General
1. Issuer: Mediobanca - Banca di Credito Finanziario S.p.A.
2. (i) Series Number: 475
(ii) Tranche Number: 1
3. Specified Currency or Currencies: Euro (“EUR”)
4. Aggregate Nominal Amount of Notes admitted to trading:
(i) Series: Up to EUR 15,000,000
(ii) Tranche: Up to EUR 15,000,000
Subject to the provision below, the Aggregate Nominal Amount will not exceed EUR 15,000,000.
However (and as described in greater details in paragraph 8 (Terms and Conditions of the Offer) of Part B below), the Issuer reserves the right to increase, during the Offer Period, the Aggregate Nominal Amount stated above by four times such amount.
In any case, the Aggregate Nominal Amount will be determined at the end of the Offer Period (as defined in paragraph 8 (Terms and Conditions of the Offer) of Part B below) and such final amount will be filed with the CSSF as competent authority and published on the website of the Issuer and the Distributor, pursuant to Articles 8 and 14(2) of the Prospectus Directive.
Unless otherwise specified herein, in these Final Terms any reference to the “Aggregate Nominal Amount” must be construed as a reference to the amount as determined at the end of the Offer Period.
5. Issue Price: 100.00 per cent. of the Aggregate Nominal Amount
6. (i) Specified Denominations: EUR 1,000
(ii) Calculation Amount EUR 1,000
7. (i) Issue Date: 15 October 2012
(ii) Interest Commencement Date: Issue Date
8. Maturity Date: 16 October 2017
9. Interest Basis: 4.00 per cent per annum Fixed Rate for the period from and including the Interest Commencement Date up to but excluding 15 October 2014 (the “Fixed Rate Interest
Period”); | ||
Index-Linked or other Variable-Linked Interest for the period from and including 15 October 2014 up to but excluding the Maturity Date (the | ||
“Index Linked Interest Period”). | ||
Further details are provided under paragraphs 17 (Fixed Rate Note Provisions) and 20 (Index Linked or other Variable-Linked Interest Note Provisions) below | ||
10. Redemption/Payment Basis: Redemption at par
11. Change of Interest or Redemption/ Payment Basis:
Save as specified in paragraph 9 (Interest Basis) above, not applicable
12. Put/Call Options: Not Applicable
13. (i) Status of the Notes: Senior
14. Method of distribution: Non-Syndicated (public offer)
15. Taxation: No gross up is applicable pursuant to paragraph
(ix) of Condition 7 (a) (Taxation – Gross Up) of the Terms and Conditions of the Notes
16. Governing Law: English Law
Provisions relating to interest (if any) payable
17. Fixed Rate Note Provisions Applicable in respect of the Fixed Rate Interest
Period
(i) Rate(s) of Interest: 4.00 per cent. per annum payable annually in arrear
(ii) Interest Payment Date(s): 15 October 2013 and 15 October 2014, as
adjusted in accordance with the Business Day Convention
(iii) Fixed Coupon Amount(s): EUR 40.00 per Calculation Amount, payable on
each Interest Payment Date
(iv) Broken Amount(s): Not Applicable
(v) Adjustment to Interest Period end Date: Not Applicable
(vi) Business Day Convention: Following Business Day Convention
(vii) Day Count Fraction: Actual/Actual (ICMA)
(viii) Other terms relating to the method of calculating interest for Fixed Rate Notes:
Not Applicable
18. Floating Rate Note Provisions Not Applicable
19. Zero Coupon Note Provisions Not Applicable
20. Index-Linked Interest or other Variable-Linked Interest Note Provisions
Applicable in respect of Index Linked Interest Period
(i) Index/Formula/variable: See Part C – Other Applicable Terms, paragraph
1
(ii) Party responsible for calculating the Rate(s) of Interest and Interest Amount(s) (if not the Fiscal Agent):
(iii) Provisions for determining the Rate(s) of Interest and Interest Amount(s) where calculated by reference to Index and/or Formula and/ or other variable:
Mediobanca – Banca di Credito Finanziario
S.p.A. will be the Calculation Agent
See Part C – Other Applicable Terms, paragraph 1
(iv) Determination Date(s): See the definition of HICPt and HICPt-1 set out in Part C – Other Applicable Terms, paragraph 1
(v) Provisions for determining Coupon Rate(s) of Interest and Interest Amount(s) where calculation by reference to Index and/or Formula and/or other variable is impossible or impracticable or otherwise disrupted:
See Part C – Other Applicable Terms, paragraph 2
(vi) Interest or calculation period(s): Interest Period means the period beginning on
and including 15 October 2014 and ending on excluding the Maturity Date
(vii) Specified Interest Payment Dates: 15 October 2015 (t=1) (being the first Specified
Interest Payment Date), 15 October 2016 (t=2) and 15 October 2017 (t=3), as adjusted in accordance with the Business Day Convention
(viii) Adjustment to Interest Period End Date: Not Applicable
(ix) Business Day Convention: Following Business Day Convention
(x) Additional Business Centre(s): Not Applicable
(xi) Minimum Rate of Interest: 1.50 per cent per annum
(xii) Maximum Rate of Interest: Not Applicable
(xiii) Day Count Fraction: ACT/ACT ICMA
21. Dual Currency Note Provisions Not Applicable
Provisions relating to redemption
22. Call Option Not Applicable
23. Regulatory Call / Redemption for taxation reasons
(xiv) Regulatory Call:
(xv) Redemption for taxation reasons:
Not Applicable Not Applicable
24. Put Option Not Applicable
25. Final Redemption Amount of each Note 100 per cent per Calculation Amount
26. Early Redemption Amount
Early Redemption Amount(s) payable on redemption for taxation reasons or on event of default or pursuant to a Seller Merger Notice and/or the method of calculating the same (if required or if different from that set out in the Conditions):
An amount in the Specified Currency being the Aggregate Nominal Amount of the Notes
27. Exchangeable Note Provisions Not Applicable
28 Physical Delivery Notes Provisions Not Applicable
General provisions applicable to the notes
29. Form of Notes: Bearer Notes:
Temporary Global Note exchangeable for a Permanent Global Note which is exchangeable for Definitive Notes in the limited circumstances specified in the Permanent Global Note
30. New Global Note form: Yes
31. Additional Financial Centre(s) or other special provisions relating to Payment Business Dates:
32. Talons for future Coupons or Receipts to be attached to Definitive Notes (and dates on which such Talons mature):
33. Details relating to Partly Paid Notes: amount of each payment comprising the Issue Price and date on which each payment is to be made and consequences (if any) of failure to pay, including any right of the Issuer to forfeit the Notes and interest due on late payment:
Not Applicable
No
Not Applicable
34. Details relating to Instalment Notes: (amount of each instalment, date on which each payment is to be made):
Not Applicable
35. Details relating to Extendible Notes: Not Applicable
36. Total Repurchase Option/Partial Repurchase Option:
Not Applicable
37. Other terms or special conditions: Not Applicable
38. Credit Linked Notes Provisions: Not Applicable
Distribution
39. (i) If syndicated, names and addresses of Managers and underwriting commitments:
Not Applicable.
(ii) Date of Subscription Agreement: Not Applicable.
The Issuer and the Distributor have signed a placement agreement (Accordo di collocamento) on 31 August 2012.
(iii) Stabilising Manager(s) (if any): Not Applicable
40. If non-syndicated, name and address of Dealer:
See paragraph 43 (Non-exempt Offer) below
41. Total commission and concession: The Issue Price includes a distribution
commission to be allocated to the Distributor that will not be greater than 2.50 per cent of the Aggregate Nominal Amount of the Notes actually placed at the end of the Offer Period. The final distribution commission value will be communicated at the end of the Offer Period pursuant to Articles 8 and 14(2) of the Prospectus Directive.
42. US Selling Restrictions: Reg. S Compliance Category; TEFRA D
43. Non-exempt Offer: An offer of the Notes may be made through the Distributor (as defined below) other than pursuant to Article 3(2) of the Prospectus Directive in Italy ("Public Offer Jurisdictions") during the period from 3 September 2012 (included) until the earlier of (i) 27 September 2012 (included) and (ii) the day (excluded) immediately after the date on which subscriptions of the Notes is equal to the Maximum Aggregate Nominal Amount (as defined below), subject to what set forth under Paragraph 8 (Terms and conditions of the Offer) of Part B below.
For the purposes of these Final Terms:
Lead Manager (Responsabile del Collocamento) is Mediobanca – Banca di Credito Finanziario S.p.A – Xxxxxxxxx Xxxxxx Xxxxxx 1 – 00000 - Xxxxx, Xxxxx; and
Distributor (Collocatore) is CheBanca! S.p.A. – Xxxxx Xxxxx 00, Xxxxxxx 0, 00000 Xxxxx, Xxxxx
44. Additional selling restrictions: Not Applicable
Purpose of final terms
These Final Terms comprises the final terms required for issue and public offer in the Public Offer Jurisdictions and admission to trading on the Milan Stock Exchange “Domestic MOT” managed by Borsa Italiana S.p.A. of the Notes described herein pursuant to the Euro 40,000,000,000 Issuance Programme.
Information relating to the issuer
The following information relating to the Issuer is provided pursuant to Article 2414 of the Italian Civil Code.
Mediobanca – Banca di Credito Finanziario S.p.A. is an Italian company with its registered office at Xxxxxxxxx X. Xxxxxx 0, Xxxxx, Xxxxx, registered at the Companies’ Registry of the Chamber of Commerce in Milan under registration number 00714490158.
The Issuer shall engage in the activities described below:
a) the raising of funds and provision of credit in any forms permitted, especially medium- and long-term credit to corporates; and
b) within the limits laid down by current regulations, the execution of all banking, financial and intermediation-related transactions and/or services and the carrying out of any transactions deemed to be instrumental to or otherwise connected with achievement of the Issuer’s purpose.
As part of its supervisory and coordinating activities in its capacity as parent company of the Mediobanca Banking Group (the “Group”) within the meaning of Article 61/4 of Legislative Decree No. 385 dated 1 September 1993, the Issuer shall also issue directives to member companies of the Group to comply with instructions given by the Bank of Italy in the interests of maintaining the Group’s stability.
At the time of the issuance the share capital is equal to 430,564,606, consisting of 861,129,212 ordinary shares with a nominal value of Euro 0.50 each and the reserves and retained earnings are equal to 4,392,122,738.95.
Responsability
The Issuer accepts responsibility for the information contained in these Final Terms. The Issuer confirms that such information has been accurately reproduced and that, so far as it is aware, no facts have been omitted which would render the reproduced information inaccurate or misleading.
Signed on behalf of the Issuer:
By:.................................. By: ...............................
Part B – Other information
1. (i) Listing: The Notes will be listed on the Milan Stock Exchange “Domestic MOT” managed by Borsa Italiana S.p.A. (“Italian Stock Exchange”).
(ii) Admission to trading: Application is expected to be made by the
Issuer (or on its behalf) for the Notes to be admitted to trading on the Italian Stock Exchange
The Issuer will act as specialist in respect of the Notes in the secondary market but only on the buy side (specialista in acquisto)
2. RATINGS
Ratings: The Notes to be issued have been rated BBB+ by S&P
3. Notification
The CSSF has provided the Commissione Nazionale per le Società e la Borsa (CONSOB) in Italy with a certificate of approval attesting that the Base Prospectus has been drawn up in accordance with the Prospectus Directive.
4. Interest of natural and legal persons involved in the issue/offer
Regarding the interest of the persons involved in the issue and Offer, the investor should consider and be aware that:
(i) Mediobanca Banca di Credito Finanziario S.p.A. (“Mediobanca”) will act as Issuer, Lead Manager, and specialist (on the buy side) of the Notes in the secondary market. Consequently, it should be noted that, under certain circumstances, the performance of the Mediobanca’s obligations under such roles may give rise to conflict of interest;
(ii) Mediobanca will act also as Calculation Agent and shall be responsible for determining the Interest Amounts;
(iii) The Distributor is a wholly controlled subsidiary of Mediobanca and, therefore, the performance of its obligations as distributor of the Notes may, under certain circumstances, give rise to conflict of interest. Furthermore, the Distributor will receive, as consideration of its placement activity, a commission up to 2.50 per cent of the Aggregate Nominal Amount of the Notes actually placed during the Offer Period which commission shall have an impact on the Offer Price;
(iv) The Issuer has entered into hedging arrangements in order to hedge its exposure under the Notes.
Save as stated above and with the exception of the Distributor, so far as the Issuer is aware, no person involved in the Offer of the Notes has a material interest in the Offer.
5. Reasons for the offer, estimated net proceeds and total expenses
(i) Reasons for the offer: See section headed "Use of Proceeds" of the Base Prospectus.
(ii) Estimated net proceeds: Up to EUR 14,625,000 or the higher amount as
it will be communicated at the end of the Offer Period
(iii) Estimated total expenses: The estimated total expenses that can be
determined as of the Issue Date, in connection with the admission to trading of the Notes on the Italian Stock Exchange amount to EUR 5,000.
6. Performance of index/formula/other variable, explanation of effect on value of investment and associated risks and other information concerning the underlying
Under the Notes, the Noteholders are entitled to receive a gross fixed coupon in October 2013 and in October 2014, each equal to 4 per cent per annum, regardless of the performance of the HICP Index and on each Specified Interest Payment Date a coupon linked to the performance of the HICP Index (the “Interest Amount” as defined in paragraph 1 of the Part C – Other Applicable Terms, calculated by Calculation Agent in accordance with the formula set forth in paragraph 1 of the Part C – Other Applicable Terms), with a minimum coupon of 1.50 per cent per annum. In order to avoid any doubt, the Interest Amount payable on each Specified Interest Payment Date will not be lower than the product between (i) 1.50 per cent and (ii) the Specified Denomination (the “Minimum Coupon”)
On the Maturity Date, the Noteholders are entitled to receive the amount initially invested.
For further details relating for the determining the Interest Amount, see the paragraph 20 of Part A – General and Part C – Other Applicable Terms.
The Issuer does not intend to provide any past nor post-issuance information on the HICP Index
Information in relation to the hicp index
The Eurozone harmonized index of consumer prices unrevised excluding tobacco is published by Eurostat and measures the level of prices for market goods and services consumed by households in the Eurozone. The Eurozone HICP is the aggregate of the member states’ HICP’s, and the Eurozone is considered as an entity regardless of the elements of which it is composed.
The HICP Index for the European Monetary Union is calculated and produced monthly, subject to the rules of its sponsor, and is disseminated to numerous public information sources. It is available on Bloomberg page CPTFEMU Index. Each country first publishes its own HICP in conjunction with its national Consumer Price Index.
The HICP is said to be harmonised because the methodology and nomenclatures for the index of prices are the same for all of the countries in the Eurozone and the European Union (as required by article 121 of the European Union Treaty). This makes it possible to compare inflation among different Member States of the European Union. Emphasis is placed on the quality and compatibility of the various countries’ indices.
Computation hicp index
The HICP Index is calculated as an annual chained-index, which makes it possible to change the weights every year. The common index reference in 2005 and November is the base month. The weights assigned to each category of the HICP Index vary from country to country depending on the relative importance of consumers’ expenditure on each good or service in each country. There is no uniform basket applying to all Member States.
Following each country’s publication of its HICP Index, Eurostat aggregates these and publishes an HICP Index for the Eurozone, as well as a breakdown by item and country.
7. Operational information
ISIN: XS0820711132
Common Code: 082071113
New Global Note intended to be held in a manner which would allow Eurosystem eligibility:
Any clearing system(s) other than Euroclear Bank S.A./N.V. and Clearstream Banking, société anonyme and the relevant identification number(s):
Yes.
Note that the designation “Yes” simply means that the Notes are intended upon issue to be deposited with one of the ICDSs as common safekeeper and does not necessarily mean that the Notes will be recognised as eligible collateral for Eurosystem monetary policy and intra-day credit operations by the Eurosystem, either upon issue or at any or all times during their life. Such recognition will depend upon satisfaction of the Eurosystem eligibility criteria.
Not Applicable
Delivery: Delivery against payment
Initial Paying Agents: BNP Paribas,
00, Xxx xx Xxxxxxxxx Xxxxxx – Hesprange L-2085 Luxembourg
Names and addresses of additional Paying Agent(s) (if any):
Not Applicable
8. Terms and conditions of the offer
Offer Period: The Notes are being offered to the public in Italy pursuant to Articles 17 and 18 of the Prospectus Directive and the relevant Italian implementing provisions.
The “Offer Period” is (subject to the provisions below) the period commencing on (and including) the date of 3 September 2012 and expiring on the earlier of (i) the date of 27 September 2012 (included) and (ii) the day (excluded) immediately after the date on which subscriptions of the Notes equals the Maximum Aggregate Nominal Amount (as defined below).
The “Maximum Aggregate Nominal Amount is initially fixed in amount equal to EUR 15,000,000 (“Initial Maximum Aggregate Nominal Amount”) which amount can be increased by the Issuer during the Offer Period up to four times the Initial Maximum Aggregate Nominal Amount (the Initial Maximum Aggregate Nominal Amount resulting from the increase, the “Increased Maximum Aggregate Nominal Amount). The Increased Maximum Aggregate Nominal Amount will be published on the websites of the Issuer and the Distributor and will be effective from and including the date on which the communication has been published.
Notwithstanding the foregoing, the investor should be aware that:
a) if an Extraordinary Event (as defined below) occurs between the period from the date of these Final Terms (included) and the day immediately preceding the commencement of the Offer Period (included) the Issuer may revoke the Offer and, in such case, the same will be deemed as cancelled;
b) if an Extraordinary Event occurs within the Issue Date of the Notes, the Issuer has the faculty to withdraw, in whole or in part, the Offer and the subscriptions received until then shall be void and without any effect;
c) the Issuer has, upon the occurrence of a justified reason, the right to early terminate the Offer Period even if the Maximum Aggregate Nominal Amount has not been fully subscribed by the investors;
and
d) the Issuer has the right to extend the Offer Period provided that such right is exercised within the last day of the Offer Period.
In any of the cases provided under letters
(a) to (d) above, the Issuer and the Distributor shall inform the public by publishing a notice on their respective websites. The revocation or withdrawal of the Offer shall be effective from the first TARGET Settlement Day (included) following publication of the notice on the above mentioned websites.
For the purposes of letters (a) and (b) above, “Extraordinary Event” means any circumstances like (but not limited to): (i) adverse changes in the political, financial, economic, monetary, legal or market situation, in Italy or abroad and; (ii) adverse changes in the financial and economic conditions of the Issuer or its group, which, at the reasonable determination of the Issuer following consultation with the Distributor, may affect the result of the Offer.
Offer Amount: Up to € 15,000,000.
Offer Price:
100.00 per cent. of the Specified Denomination
The Offer Price includes also (i) a component as placement commission up to 2.50 per cent of the Offer Price (“Maximum Placement Commission”) to be allotted to the Distributor,
(ii) a component as implicit costs (oneri impliciti) equal to the 3.57 per cent of the Offer Price (“Implicit Costs”) that has been calculated as the difference between the credit spread embedded in the Notes and the secondary market credit spread of the Issuer and (iii) a derivative component.
In the light of the foregoing, the Offer Price of the Notes may be broken down as follows:
Offer Price | 100.00% |
Maximum Distribution Commission | 2.50% |
Implicit Costs | 3.57% |
Minimum Value of the Bond Component | 86.79% |
Value of the Derivative Component | 7.14% |
The Bond Component is represented by a note paying annually, for the first two years, gross fixed coupons each equal to 4.00 per cent per annum and then, for the third, fourth and fifth year, a gross fixed coupon equal to 1.50 per cent per annum.
The Derivative Component is represented by three European calls on the annual European inflation (“Inflation” as defined under paragraph 1 of Part C – Others applicable terms) with strike price equal to 0% that the investor buys from the Issuer.
The values indicated above are calculated as of 29 August 2012.
Conditions to which the Offer is subject: Save as specified above in case of Extraordinary
Event, the offer is not subject to any condition.
Description of the application process: Investors interested to adhere to the Offer and
subscribing the Notes have to, during the Offer Period and during Distributor banking hours, go to the premises (filiali) of the Distributor and fill in, duly execute (also by appropriate attorneys), and deliver a specific subscription application (Scheda di Adesione). Subscription of the Notes may also be made by means of distance marketing techniques by means of distance marketing techniques (tecniche di comunicazione a distanza) which require that the subscription form is filled in and sent electronically by acceding on the Distributor’s website (xxx.xxxxxxxx.xx). Among the distance marketing techniques is provided also the possibility to subscribe the Notes by means of a registered telephone conversation between the investor and the Distributor where the investor shall be identified providing its identification data.
The subscription form is available at each Distributor’s premise and on its website.
There is no limit to the subscription application which may be filled in and delivered by the same prospective investor with the Distributor.
The participation by the investor to the Offer can not be subject to conditions and the subscription form as executed by the investors and delivered to the Distributor (or any of its attorneys) can not be revoked by the investors unless it is so permitted by applicable laws and regulations.
In case of offerings of the Notes through distance marketing techniques (tecniche di
Description of possibility to reduce subscriptions and manner for refunding excess amount paid by applicants:
Details of the minimum and/or maximum amount of application:
Details of the method and time limits for paying up and delivering the Notes:
Manner in and date on which results of the offer are to be made public:
Procedure for exercise of any right of pre- emption, negotiability of subscription rights and treatment of subscription rights not exercised:
Categories of potential investors to which the Notes are offered and whether tranche(s) have been reserved for certain countries:
comunicazione a distanza) and including registered telephone conversation, the participation of the investor to the Offer can be revoked by such investor within the fourteenth day following the date on which the Distributor has accepted the participation of such investor to the Offer.
Not Applicable
The Notes may be subscribed in a minimum amount of EUR 5,000 and then in integral multiples of EUR 1,000 in excess thereof.
The purchase price of the Notes subscribed must be paid by the investor on the Issue Date with the Distributor which has received the relevant subscription form.
The Notes will be delivered on the Issue Date to the purchaser of the Notes in the relevant deposit accounts held, directly or indirectly, by Distributor at Euroclear and/or Clearstream Luxembourg (as the case may be) following the payment of the Offer Price (delivery against payment).
The Aggregate Nominal Amount subscribed by the investors and as determined at the end of the Offer Period as well as the final amount of the placement commission to be allotted to the Distributor will be filed with the CSSF after the end of the Offer Period in accordance with Article 8 of the Prospectus Directive and shall be published on websites of the Issuer and Distributor.
Not later than 5 TARGET Settlement Days after the close of the Offer Period, the Issuer will notify the public of the results of the Offer through a notice published on the Issuer’s and Distributor’s respective websites.
Not Applicable
The Notes will be offered only to the public in Italy.
Process for notification to applicants of the amount allotted and the indication whether dealing may begin before notification is made:
The Distributor shall notify applicants with amounts allotted.
There are no allotment criteria (criteri di riparto), as subscription applications will be satisfied until reaching the Maximum Aggregate Nominal Amount and thereafter the Distributor will immediately suspend receipt of further subscription applications.
Amount of any expenses and taxes specifically charged to the subscriber or purchaser:
Name(s) and address(es), to the extent known to the Issuer, of the placers in the various countries where the offer takes place.
Except for the embedded commission described in paragraph 41 (Total commission and concession) of Part A and the Implicit Costs described above, no expenses and duties will be charged by the Issuer to the subscribers of the Notes.
See paragraph 43 (Non-exempt Offer) of Part A above.
Part C – Other applicable terms
1. Index-Linked Interest or other Variable - Linked Interest:
Unless the Notes are previously redeemed, purchased and cancelled and subject to the provisions set forth below, the variable amount of interest (the “Interest Amount”), payable for each Note on each Specified Interest Payment Date, shall be calculated by Calculation Agent in accordance with the following formula:
Interest Amountt = Eur 1,000* [1.50%+Max (Inflation; 0%)]
Where:
“Inflation” means
HICPt
HICPt—1-1
With t ranking from 1 to 3
“Max" followed by a series of amounts inside brackets, means whichever is the greater of the amounts separated by a semi-colon inside those brackets.
“HICPt” means the European Inflation Index for, as the case may be, the month falling in July 2015 (t=1), July 2016 (t=2) and July 2017 (t=3) as of the relevant Specified Interest Payment Date(t);
“HICPt-1 “means the European Inflation Index for, as the case may be, the month falling in July 2014 (t=0), July 2015 (t=1) and July 2016 (t=2) as of the relevant Specified Interest Payment Date(t)
For avoidance of doubts, for the purpose of determining the Interest Amount payable on a Specified Interest Payment Date reference to (a) HICPt shall be a reference to the level of the European Inflation Index as of the month of July falling in the calendar year of the relevant Specified Interest Payment Date and (b) HICPt-1 shall be a reference to the level of the European Inflation Index as of the month of July falling in the calendar year immediately preceding the relevant Specified Interest Payment Date(t) (e.g., for the purpose of determine the Interest Amount payable on the Specified
Interest Payment Date falling in October 2015, HICPt shall be the level of the European Inflation Index as of July 2015 and HICPt-1 shall be the level of the European Inflation Index as of July 2014).
“European Inflation Index” means in relation to any relevant month, the unrevised All Items Harmonised Index of Consumer Prices (HICP) excluding tobacco as published by Eurostat and appearing for the time being on Bloomberg Page CPTFEMU <Index>or any other substitute page (for which the starting level of 100 was taken in 2005) and applicable to that month as displayed or if the index is not published for any month, any substituted index or index figures published by Eurostat.
However, it should be noted that for the purposes of these Final Terms, in the event of any discrepancy (inter alia as a result of an extraordinary event) between the readings provided by EUROSTAT and those provided by Bloomberg, the HICP Index readings recorded by EUROSTAT or any other page or service replacing it shall be taken into consideration.
If, at any time, the European Inflation Index is revised to a new base it will be necessary to calculate and use a national European Inflation Index figure in substitution for the published rebased European Inflation Index figure applicable for any subsequent month in respect of which the European Inflation Index needs to be calculated for the purposes of determining the Interest Amount. This European Inflation Index figure will be calculated by multiplying (a) the published rebased European Inflation Index figures applicable to the month in respect of which the European Inflation Index needs to be calculated by (b) the index rebasing factor being (i) the figure for European Inflation Index under the old base for the month in which the European Inflation Index is rebased divided by (ii) the figure (usually 100) for European Inflation Index on the new base for the month in which the European Inflation Index is rebased. This procedure shall be repeated each time the European Inflation Index is rebased during the term of the Notes and thereafter two or more rebasing factors shall be applied.
For the avoidance of doubts a later revision of any released HICP Index shall not be taken into account. If the HICP Index is subsequently revised or amended after its initial publication, such amendment shall not be effective for the purposes of any calculation hereunder except in the case where the revision is as a result of a base revision.
2. Additional Provision to HICP Index :
This paragraph 2 should be read in conjunction with the 2006 ISDA Inflation Definitions (the “Inflation Definitions”) as published by the International Swap and Derivative Association, which are incorporated into this paragraph 2. In the event of any inconsistency between the Inflation Definitions and this paragraph 2, this paragraph 2 will govern.
Provisions for determining Interest Amount where calculation by reference to Index and/or Formula and/or other variables is impossible or impracticable or otherwise disrupted:
Index Delay and Disruption Event Provisions Delay of Publication
a) If any level of the European Inflation Index (the “Index”) for a Reference Month which is relevant to the calculation of the Interest Amount (a “Relevant Level”) has not been published or announced by any day that is five (5) Business Days prior to the Specified Interest Payment Date, the Calculation Agent shall determine a substitute index level in place of such “Relevant Level” (the “Substitute Index Level”).
b) If a Relevant Level is published or announced at any time after the day that is five (5) Business Days prior to the Specified Interest Payment Date, such Relevant Level will not be used in any calculations. The Substitute Index Level so determined by the Calculation Agent, in accordance with (a) above, will be the definitive level for that Reference Month.
“Reference Month” means the calendar month for which the level of the Index was reported, regardless of when this information was published or announced. If the period for each index level was reported is a period other than a month, the Reference Month is the period for which the Index level was reported.
Cessation of Publication
If a level for the Index has not been published or announced for two (2) consecutive months or the entity that publishes or announces, directly or through an agent, the index level (the “Index Sponsor”) announces that it will no longer continue to publish or announce the Index then the
Calculation Agent shall determine a successor index (in lieu of the Index) (a “Substitute Index”) which would substantially preserve the economics rights of the Noteholders.
Rebasing of the Index
If the Calculation Agent determines that the Index has been or will be rebased at any time, the Index so rebased (the “Rebased Index”) will be used for purposes of determining the level of the Index from the date of such rebasing; provided, however that the Calculation Agent shall make adjustments to the levels of the Rebased Index so that the Rebased Index levels reflect the same rate of inflation as the Index before it was rebased. Any such rebasing shall not affect any prior payments made.
Material Modification Prior to Specified Interest Payment Date.
If, on or prior to the day that is five (5) Business Days before the Specified Interest Payment Date, the Index Sponsor announces that it will make a material change to the Index then the Calculation Agent shall make those adjustments necessary for the modified Index to continue as the Index.
Manifest Error in Publication
If within thirty (30) days of publication, the Calculation Agent determines that the Index Sponsor has corrected the level of the Index to remedy a manifest error in its original publication, the Calculation Agent will notify the Paying Agent of (i) that correction, (ii) the amount that is payable as a result of that correction and (iii) take such other action as it may deem necessary to give effect to such correction.
TERMS AND CONDITIONS OF THE NOTES
The following is the text of the terms and conditions which, as supplemented, amended and/or replaced by the relevant Final Terms, will be endorsed on each Note in final form issued under the Programme. The terms and conditions applicable to any Notes in global form will differ from those terms and conditions which would apply to the Notes whilst in final form to the extent described under “Summary of Provisions relating to the Notes while in Global Form” below.
Mediobanca - Banca di Credito Finanziario S.p.A. (“Mediobanca”), Mediobanca International (Luxembourg) S.A. (“Mediobanca International”) (each, an ”Issuer” and, together, the “Issuers”) have established an Issuance Programme (the “Programme”) for the issuance of up to Euro 40,000,000,000 in aggregate principal amount of notes (the “Notes”) and the issue of certificates (“Certificates”) and warrants (“Warrants” and, together with the Certificates, “Securities”), guaranteed by Mediobanca (in its capacity as guarantor, the “Guarantor”) in respect of Notes and Securities issued by Mediobanca International.
The Notes are issued pursuant to an amended and restated Issue and Paying Agency Agreement dated 30 November 2011, as amended or supplemented from time to time, (the “Issue and Paying Agency Agreement”) between the Issuers, the Guarantor, BNP Paribas Securities Services, Luxembourg Branch, as fiscal agent and principal paying agent (the “Fiscal Agent”) and Mediobanca in its capacity as Italian paying agent (the “Italian Paying Agent” and together with the Fiscal Agent and any additional or other paying agents in respect of the Notes from time to time appointed, the “Paying Agents”) and with the benefit of deeds of covenant dated 30 November 2011 (each, a “Deed of Covenant” and, together, the “Deeds of Covenant”), each of them executed by the relevant Issuer in respect of Notes issued by such Issuer. The Guarantor has, for the benefit of the holders of Notes issued by Mediobanca International from time to time, executed and delivered a deed of guarantee (the “Deed of Guarantee”) dated 30 November 2011 under which it has guaranteed, in accordance with the terms and subject to limitations of the Deed of Guarantee, the due and punctual payment of the amounts due by Mediobanca International under the Notes and the Deed of Covenant as and when the same shall become due and payable (the “Guarantee of the Notes”). The holders of the Notes (as defined below), the holders of the interest coupons (the “Coupons”) appertaining to interest bearing Notes and, where applicable in the case of such Notes, talons for further Coupons (the “Talons”) and the holders of the instalment receipts (the “Receipts”) appertaining to the payment of principal by instalments are deemed to have notice of all of the provisions of the Issue and Paying Agency Agreement applicable to them.
Notes issued under the Programme are issued in series (each a “Series”) and each Series may comprise one or more tranches (each a “Tranche”) of Notes. Each Tranche is the subject of final terms (the “Note Final Terms”) which supplements these terms and conditions (the “Conditions”). The terms and conditions applicable to any particular Tranche of Notes are these Conditions as supplemented, amended and/or replaced by the relevant Note Final Terms. In the event of any inconsistency between these Conditions and the relevant Note Final Terms, the relevant Note Final Terms shall prevail. All subsequent references in these Conditions to “Notes” are to the Notes which are the subject of the relevant Note Final Terms. Copies of the relevant Note Final Terms are available during normal business hours at the specified office of the Fiscal Agent, the initial Specified Office of which is set out below (the “Specified Office”). Certain provisions of these Conditions are summaries of the Issue and Paying Agency Agreement and are subject to their detailed provisions.
The Note Final Terms issued in respect of each issue of Notes will specify whether the Issuer is Mediobanca or Mediobanca International. In these Conditions, any reference to a statute or regulation shall be construed as a reference to such statute or regulation as the same may have been, or may from time to time be, amended or re-enacted.
Copies of the Issue and Paying Agency Agreement, the Deeds of Covenant and the Deed of Guarantee are available for inspection at the specified office of the Paying Agent.
1. FORM, DENOMINATION AND TITLE
The Notes are issued in bearer form in the Denomination(s) and in the Relevant Currency shown in the Note Final Terms.
Notes are issued with Coupons (and where appropriate, a Talon) attached save in the case of Notes which do not bear interest in which case references to interest (other than in relation to interest due after the date specified in the Note Final Terms as the Maturity Date (as designed below), Coupons and Talons in these Conditions are not applicable. Any Note the principal amount of which is redeemable in instalments is issued with one or more Receipts attached.
Title to the Note and the Receipts, Coupons and Talons shall pass by delivery. Except as ordered by a court of competent jurisdiction or as required by law, the holder of any Note, Receipt, Coupon or Talon shall be deemed to be and may be treated as the absolute owner of such Note, Receipt, Coupon or Talon, as the case may be, for the purpose of receiving payment thereof or on account thereof and for all other purposes, whether or not such Note, Receipt, Coupon or Talon shall be overdue and notwithstanding any notice of ownership, theft or loss thereof or any writing thereon made by anyone. No person shall have any right to enforce any term or condition of any Note under the Contracts (Rights of Third Parties) Xxx 0000.
In these Conditions, “holder” (in relation to a Note, Receipt, Coupon or Talon) means the bearer of any Note, Receipt, Coupon or Talon. All capitalised terms which are not defined in these Conditions will have the meanings given to them in the relevant Note Final Terms, the absence of any such meaning indicating that such term is not applicable to the Notes. Those definitions will be endorsed on the definitive Notes.
2. STATUS OF SENIOR NOTES AND GUARANTEE
(a) Application
This Condition 2 (Status of Senior Notes and Guarantee) is applicable only to Notes specified in the Note Final Terms as being unsubordinated (“Senior Notes”) and Condition 2(c) (Status of Guarantee) is applicable only to Senior Notes issued by Mediobanca International.
(b) Status of Senior Notes
The Senior Notes will constitute direct unconditional, unsubordinated and unsecured obligations of the Issuer and will rank at all times at least pari passu without any preference among themselves and equally with all other present and future unsecured and unsubordinated obligations of the Issuer, save for certain mandatory exceptions of applicable law.
(c) Status of Guarantee
The Guarantee of the Notes constitutes direct, unconditional, unsubordinated and unsecured obligations of the Guarantor pursuant to the terms and conditions and subject to the limitations set out in the Deed of Guarantee which will rank at all times at least pari passu without any preference among themselves and equally with all other present and future unsecured and unsubordinated obligations of the Guarantor, save for certain mandatory exceptions of applicable law.
As more fully set forth in the Guarantee, the Guarantor shall at all times have the right, at its sole and unfettered discretion, to elect not to deliver or procure delivery of the Entitlement to the holders of such Physical Delivery Notes when the same shall become due and deliverable, but in lieu thereof to pay an amount in cash equal to the Guaranteed Cash Settlement Amount. The “Guaranteed Cash Settlement Amount“ in respect of each Note means an amount calculated pursuant to the terms of, or as specified in, the applicable Note Final Terms or, if not specified in the applicable Note Final Terms, an amount equal to the fair market value of the Entitlement in respect of such Note on any date notified as such by the Guarantor to the Issuer and the Calculation Agent, less the cost to the Issuer and/or its Affiliates or agents of unwinding or adjusting any underlying or related hedging arrangements (including the cost of funding in respect of such hedging arrangements), all as determined by the Guarantor in its sole and absolute discretion. Any payment of the Guaranteed Cash Settlement Amount in lieu of the Entitlement shall constitute a complete discharge of the Guarantor’s obligations in respect of such Physical Delivery Notes.
3. STATUS AND SPECIAL PROVISIONS OF SUBORDINATED NOTES
(a) Application: This Condition 3 (Status and Special Provisions of Subordinated Notes) is applicable only to Notes which are:
(i) issued by Mediobanca; and
(ii) specified as being Upper Tier II Subordinated Notes, Lower Tier II Subordinated Notes or Tier III Subordinated Notes in the relevant Note Final Terms (together, “Subordinated Notes”).
(b) Definitions: In these Conditions, the following expressions have the meanings set out below.
“Bank of Italy” means the Bank of Italy and/or any competent authority which at a future date carries out the functions which the Bank of Italy performs as at the Issue Date.
“Bank of Italy Regulations” means the Nuove disposizioni di vigilanza prudenziale per le banche as in force from time to time or such successor regulations as may be in force from time to time.
“Consolidated Banking Law” means Italian Legislative Decree No. 385 of 1 September 1993, as amended or supplemented from time to time.
“Liquidazione Coatta Amministrativa” means Liquidazione Coatta Amministrativa as described in Articles 80 to 94 of the Consolidated Banking Law.
“Lower Tier II Subordinated Notes” means passività subordinate, as defined in Title I, Chapter 2, Section II, paragraph 5.2 of the Bank of Italy Regulations (being those Notes which are specified in the relevant Note Final Terms as being Lower Tier II Subordinated Notes).
“Minimum Capital” means the minimum amount of capital of Mediobanca, as provided for by the Bank of Italy from time to time for the purposes of obtaining or maintaining the authorisation of the Bank of Italy to carry on banking activities (livello minimo di capitale previsto per l’autorizzazione all’attività bancaria), as determined by the external auditors of Mediobanca and certified in writing by two directors of Mediobanca.
“Tier III Subordinated Notes” means prestiti subordinati di 3° livello, as defined in Title I, Chapter 2, Section II, paragraph 1.5 of the Bank of Italy Regulations (being those Notes which are specified in the relevant Note Final Terms as being Tier III Subordinated Notes).
“Upper Tier II Subordinated Notes” means strumenti ibridi di patrimonializzazione as defined in Title I, Chapter 2, Section II, paragraph 5.1 of the Bank of Italy Regulations (being those Notes which are specified in the relevant Note Final Terms as being Upper Tier II Subordinated Notes).
(c) Status of Subordinated Notes: Subordinated Notes and any related Coupons constitute direct, unsecured and subordinated obligations of Mediobanca and, subject to the provisions of this Condition 3 (Status and Special Provisions of Subordinated Notes), will at all times rank pari passu without any preference among themselves. In relation to each Series of Subordinated Notes, all Subordinated Notes of such Series will be treated equally and all amounts paid by Mediobanca in respect of principal and interest thereon will be paid pro rata on all Subordinated Notes of such Series.
(d) Winding up, etc.: In the event of the winding up, dissolution, liquidation or bankruptcy (including, inter alia, Liquidazione Coatta Amministrativa) of Mediobanca, the payment obligations of Mediobanca under each Series of Subordinated Notes, and the relative Coupons as the case may be, will rank in right of payment (A) after unsubordinated creditors (including depositors and any holder of Senior Notes and their respective Coupons) of Mediobanca but
(B) at least pari passu with all other subordinated obligations of Mediobanca which do not rank or are not expressed by their terms to rank junior or senior to such Series of Subordinated Note and (C) in priority to the claims of shareholders of Mediobanca. Lower Tier II Subordinated Notes and Tier III Subordinated Notes rank pari passu amongst themselves and rank senior to Upper Tier II Subordinated Notes.
(e) Waiver: Each holder of a Subordinated Note is deemed unconditionally and irrevocably to have waived any right of set-off, counterclaim, abatement or other similar remedy which it might otherwise have, under the laws of any jurisdiction, in respect of such Subordinated Note.
(f) Loss absorption in respect of Upper Tier II Subordinated Notes: To the extent that Mediobanca at any time suffers losses which, in accordance with Articles 2446 and 2447 of the Italian Civil Code or otherwise in accordance with Italian laws and regulations, would require it to reduce its paid up share capital and reserves to below its Minimum Capital, the obligations of Mediobanca in respect of interest and principal under Upper Tier II
Subordinated Notes will be reduced to the extent necessary to enable it, in accordance with the requirements under Italian law and regulatory provisions, to maintain at least its Minimum Capital. The obligations of Mediobanca in respect of interest and principal due under Upper Tier II Subordinated Notes which are so reduced will be reinstated whether or not the Maturity Date of the relevant obligation has occurred:
(iii) in whole, in the event of bankruptcy, dissolution, liquidation or winding-up of Mediobanca (including, inter alia, Liquidazione Coatta Amministrativa, amministrazione straordinaria or liquidazione volontaria or any other similar liquidation, bankruptcy or winding-up proceedings otherwise in accordance with any applicable Italian laws and regulations) and, with effect immediately prior to the commencement of such bankruptcy, dissolution, liquidation or winding up as if such obligations of Mediobanca had not been so reduced in accordance with this Condition 3(f) (Loss absorption in respect of Upper Tier II Subordinated Notes); and
(iv) in whole or in part, from time to time, to the extent that Mediobanca, by reason of its having made profits or by reason of its obtaining new capital contributions or by reason of the occurrence of any other event would not be required to reduce its obligations in respect of interest and principal in accordance with this Condition 3(f) (Loss absorption in respect of Upper Tier II Subordinated Notes).
Mediobanca shall forthwith give notice of any such reduction and/or reinstatement to the Noteholders in accordance with Condition 13 (Notices).
(g) Deferral of interest on Upper Tier II Subordinated Notes: Mediobanca will not be required to pay interest on Upper Tier II Subordinated Notes on an Interest Payment Date if (i) no annual dividend has been approved, paid or set aside for payment by its shareholders’ meeting or paid in respect of any class of its shares during the 12-month period ending on, but excluding, the fifteenth Business Day immediately preceding such Interest Payment Date or (ii) the Board of Directors of Mediobanca has announced, at the time of the release of any interim accounts published during the six-month period ending on, but excluding, the fifteenth Business Day immediately preceding such Interest Payment Date that, based on such interim accounts, no sums are available at such time for the payment of interim dividends, in accordance with Article 2433-bis of the Italian Civil Code.
Any such unpaid amounts of interest will constitute arrears of interest which will bear interest at the rate applicable to the relevant Upper Tier II Subordinated Notes. Arrears of interest (together with any additional interest amount in respect of such arrears of interest) will become due and payable (i) in part pari passu and pro rata if and to the extent that Mediobanca makes payments of or in respect of amounts of interest on or in relation to any other pari passu claims, and (ii) in full on the earliest to occur of: (A) the Interest Payment Date falling on or after the date on which a dividend is approved or paid on any class of shares of Mediobanca; (B) the date for repayment of the Upper Tier II Subordinated Notes; or (C) the date on which the Liquidazione Coatta Amministrativa of Mediobanca is commenced pursuant to Article 83 of the Consolidated Banking Law or on which Mediobanca becomes subject to a liquidation order.
(h) Notice of interest deferral: Mediobanca shall give not more than 25 nor less than 15 days prior notice to the Paying Agents and to the holders of Notes in accordance with Condition 13 (Notices):
(i) of any Interest Payment Date on which, pursuant to the provisions of Condition 3(g) (Deferral of interest on Upper Tier II Subordinated Notes) above, interest will not be paid;
(ii) of any date upon which amounts in respect of arrears of interest shall become due and payable;
(iii) of (1) the amount of principal and of sums which would otherwise have been payable as interest in respect of the Notes and which, having been applied to meet the losses of Mediobanca pursuant to Condition 3(f) (Loss Absorption in respect of Upper Tier II Subordinated Notes), are to be reinstated as provided herein, (2) the date of such reinstatement and the date on which the relevant amount shall become due and payable in accordance with these Conditions and
(3) details of the event giving rise to such reinstatement.
The information contained in any notice given in accordance with this Condition 3(h) (Notice of interest deferral) will be available at the specified office of the Fiscal Agent from the date of the relevant notice.
(i) Restrictions relating to Tier III Subordinated Notes: Tier III Subordinated Notes shall be subject to the same restrictions provided for in respect of similar indebtedness qualifying as Upper Tier II Subordinated Notes or Lower Tier II Subordinated Notes except that Tier III Subordinated Notes shall be subject to (i) a different minimum Maturity Period as specified in the relevant Note Final Terms and (ii) a lock-in clause pursuant to which payments of interest and repayments of principal shall be suspended during the period (the “Suspension Period”) in which such payments or repayments would reduce the total amount of the assets (ammontare complessivo dei fondi patrimoniali) of Mediobanca below the aggregate of the capital requirements (complesso dei requisiti patrimoniali) of Mediobanca, as provided under the Bank of Italy Regulations and, for the avoidance of doubt, interest shall not accrue on any repayments of principal or payments of interest suspended during the Suspension Period. See “Summary of the Programme”.
4. INTEREST AND OTHER CALCULATIONS
(a) Definitions
In these Conditions, unless the context otherwise requires, the following defined terms shall have the meanings set out below.
“Accrual Yield” has the meaning given in the relevant Note Final Terms.
“Additional Business Centre(s)” means the city or cities specified as such in the relevant Note Final Terms.
“Business Day” means:
(i) in relation to any sum payable in euro, a TARGET Settlement Day and a day on which commercial banks and foreign exchange markets settle payments generally in each (if any) Additional Business Centre; and
(ii) in relation to any sum payable in a currency other than euro, a TARGET Settlement Day and a day on which commercial banks and foreign exchange markets settle payments generally in London, in the Principal Financial Centre of the relevant currency and in each (if any) Additional Business Centre.
“Calculation Agent” means Mediobanca - Banca di Credito Finanziario S.p.A., the Fiscal Agent or such other Person specified in the relevant Note Final Terms as the party responsible for calculating the Interest Rate(s) and Interest Amount(s) and/or such other amount(s) as may be specified in the relevant Note Final Terms.
“Calculation Amount” has the meaning given to it in the relevant Note Final Terms.
“Day Count Fraction” means, in respect of the calculation of an amount for any period of time (the “Calculation Period”), such day count fraction as may be specified in these Conditions or the relevant Note Final Terms and:
(a) if “1/1” is specified, 1;
(b) if “Actual/Actual” or “Actual/Actual (ISDA)” is specified, the actual number of days in the Calculation Period in respect of which payment is being made divided by 365 (or, if any portion of that Calculation Period falls in a leap year, the sum of (i) the actual number of days in that portion of the Calculation Period falling in a leap year divided by 366 and (ii) the actual number of days in that portion of the Calculation Period falling in a non-leap year divided by 365);
(c) if “Actual/Actual (ICMA)” is so specified, means:
(i) where the Calculation Period is equal to or shorter than the Regular Period during which it falls, the actual number of days in the Calculation Period divided by the product of (1) the actual number of days in such Regular Period and (2) the number of Regular Periods in any year; and
(ii) where the Calculation Period is longer than one Regular Period, the sum of:
(A) the actual number of days in such Calculation Period falling in the Regular Period in which it begins divided by the product of (1) the actual number of days in such Regular Period and (2) the number of Regular Periods in any year; and
(B) the actual number of days in such Calculation Period falling in the next Regular Period divided by the product of (1) the actual number of days in such Regular Period and (2) the number of Regular Periods in any year;
(d) if “Actual/365 (Fixed)” is specified, the actual number of days in the Calculation Period in respect of which payment is being made divided by 365;
(e) if “Actual/360” is specified, the actual number of days in the Calculation Period in respect of which payment is being made divided by 360;
(f) if “30/360”, “360/360” or “Bond Basis” is specified, the number of days in the Calculation Period in respect of which payment is being made divided by 360, calculated on a formula basis as follows:
[360 × (Y2 − Y1 )]+ [30 × (M 2 − M 1 )]+ (D2 − D1 )
Day Count Fraction =
360
where:
“Y1” is the year, expressed as a number, in which the first day of the Calculation Period falls;
“Y2” is the year, expressed as a number, in which the day immediately following the last day included in the Calculation Period falls;
“M1” is the calendar month, expressed as a number, in which the first day of the Calculation Period falls;
“M2” is the calendar month, expressed as number, in which the day immediately following the last day included in the Calculation Period falls;
“D1” is the first calendar day, expressed as a number, of the Calculation Period, unless such number would be 31, in which case D1 will be 30; and
“D2” is the calendar day, expressed as a number, immediately following the last day included in the Calculation Period, unless such number would be 31 and D1 is greater than 29, in which case D2 will be 30; and
(g) if “30E/360” or “Eurobond Basis” is specified, the number of days in the Calculation Period in respect of which payment is being made divided by 360, calculated on a formula basis as follows:
[360 × (Y2 − Y1 )]+ [30 × (M 2 − M 1 )]+ (D2 − D1 )
Day Count Fraction =
360
where:
“Y1” is the year, expressed as a number, in which the first day of the Calculation Period falls;
2
“Y ” is the year, expressed as a number, in which the day immediately following the last day included in the Calculation Period falls;
“M1” is the calendar month, expressed as a number, in which the first day of the Calculation Period falls;
“M2” is the calendar month, expressed as a number, in which the day immediately following the last day included in the Calculation Period falls;
“D1” is the first calendar day, expressed as a number, of the Calculation Period, unless such number would be 31, in which case D1 will be 30; and
“D2” is the calendar day, expressed as a number, immediately following the last day included in the Calculation Period, unless such number would be 31, in which case D2 will be 30; and
(h) if “30E/360 (ISDA)” is specified, the number of days in the Calculation Period in respect of which payment is being made divided by 360, calculated on a formula basis as follows:
Day Count Fraction =
[360 × (Y2 − Y1 )]+ [30 × (M 2 − M 1 )]+ (D2 − D1 )
360
where:
“Y1” is the year, expressed as a number, in which the first day of the Calculation Period falls;
“Y2” is the year, expressed as a number, in which the day immediately following the last day included in the Calculation Period falls;
“M1” is the calendar month, expressed as a number, in which the first day of the Calculation Period falls;
“M2” is the calendar month, expressed as a number, in which the day immediately following the last day included in the Calculation Period falls;
“D1” is the first calendar day, expressed as a number, of the Calculation Period, unless
(i) that day is the last day of February or (ii) such number would be 31, in which case D1 will be 30; and
“D2” is the calendar day, expressed as a number, immediately following the last day included in the Calculation Period, unless (i) that day is the last day of February but not the Termination Date or (ii) such number would be 31, in which case D2 will be 30.
“Fixed Coupon Amount” has the meaning given to it in the relevant Note Final Terms.
“Interest Amount” means, in relation to a Note and Interest Period, the amount of interest payable in respect of the Note for that Interest Period.
“Interest Commencement Date” means the Issue Date or such other date as may be specified in the relevant Note Final Terms.
“Interest Determination Date” has the meaning given to it in the relevant Note Final Terms.
“Interest Payment Date” means the date or dates specified as such in, or determined in accordance with the provisions of, the relevant Note Final Terms and, if a Business Day Convention is specified in the relevant Note Final Terms, as the same may be adjusted in accordance with the relevant Business Day Convention.
“Interest Period” means the period beginning on the Interest Commencement Date and ending on the first Interest Payment Date and each successive period beginning on an Interest Payment Date and ending on the next succeeding Interest Payment Date.
“Interest Rate” means the rate of interest (expressed as a percentage per annum) payable from time to time in respect of this Note and which is either specified, or calculated in accordance with the provisions, in the relevant Note Final Terms.
“Issue Date” has the meaning given in the relevant Note Final Terms. “Issue Price” has the meaning given in the relevant Note Final Terms. “Margin” has the meaning given in the relevant Note Final Terms. “Payment Business Day” means:
(i) if the currency of payment is euro, any day which is:
(A) a day on which banks in the relevant place of presentation (if presentation is required) are open for presentation and payment of bearer debt securities and for dealings in foreign currencies; and
(B) in the case of payment by transfer to an account, a TARGET Settlement Day and a day on which dealings in foreign currencies may be carried on in each (if any)
Additional Financial Centre; or
(ii) if the currency of payment is not euro, any day which is:
(A) a day on which banks in the relevant place of presentation are open for presentation and payment of bearer debt securities and for dealings in foreign currencies; and
(B) in the case of payment by transfer to an account, a TARGET Settlement Day and a day on which dealings in foreign currencies may be carried on in the Principal Financial Centre of the currency of payment and in each (if any) Additional Financial Centre.
“Principal Financial Centre” means, in relation to any currency, the principal financial centre for that currency provided, however, that:
(i) in relation to euro, it means the principal financial centre of such Member State of the European Communities as is selected (in the case of a payment) by the payee or (in the case of a calculation) by the Calculation Agent; and
(ii) in relation to Australian dollars, it means either Sydney or Melbourne and, in relation to New Zealand dollars, it means either Wellington or Auckland, in each case as is selected (in the case of a payment) by the payee or (in the case of a calculation) by the Calculation Agent.
“Reference Banks” means, the institutions specified as such in the relevant Note Final Terms or, if none, four (or, if the Relevant Financial Centre is Helsinki, five) major banks selected by the Calculation Agent in the market that is most closely connected with the Reference Rate.
“Reference Price” has the meaning given in the relevant Note Final Terms. “Reference Rate” has the meaning given in the relevant Note Final Terms. “Regular Period” means:
(i) in the case of Notes where interest is scheduled to be paid only by means of regular payments, each period from and including the Interest Commencement Date to but excluding the first Interest Payment Date and each successive period from and including one Interest Payment Date to but excluding the next Interest Payment Date;
(ii) in the case of Notes where, apart from the first Interest Period, interest is scheduled to be paid only by means of regular payments, each period from and including a Regular Date falling in any year to but excluding the next Regular Date, where “Regular Date” means the day and month (but not the year) on which any Interest Payment Date falls; and
(iii) in the case of Notes where, apart from one Interest Period other than the first Interest Period, interest is scheduled to be paid only by means of regular payments, each period from and including a Regular Date falling in any year to but excluding the next Regular Date, where “Regular Date” means the day and month (but not the year) on which any Interest Payment Date falls other than the Interest Payment Date falling at the end of the irregular Interest Period.
“Relevant Currency” means the currency specified as such in the relevant Note Final Terms or, if none is specified, the currency in which the Notes are denominated.
“Relevant Financial Centre” means, with respect to any Floating Rate to be determined on an Interest Determination Date, the financial centre as may be specified as such in the relevant Note Final Terms or, if none is so specified, the financial centre with which the relevant Reference Rate is most closely connected or, if none is so connected, London.
“Relevant Screen Page” means such page, section, caption, column or other part of a particular information service (including, but not limited to, Reuters) as may be specified as the Relevant Screen Page in the relevant Note Final Terms for the purpose of providing a Reference Rate, or such other page, section, caption, column or other part as may replace it on
that information service or on such other information service, in each case as may be nominated by the person or organisation providing or sponsoring the information appearing there for the purpose of displaying rates or prices comparable to that Reference Rate.
“Relevant Time” means, with respect to any Interest Determination Date, the local time in the Relevant Financial Centre specified in the relevant Note Final Terms or, if none is specified, the local time in the Relevant Financial Centre at which it is customary to determine bid and offered rates in respect of deposits in the relevant currency in the interbank market in the Relevant Financial Centre provided that if the Relevant Currency is Euro and the Benchmark is EURIBOR, the Relevant Time shall be 11.00 am Brussels time.
“Specified Currency” has the meaning, if any, given in the relevant Note Final Terms.
“TARGET System” means the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET or TARGET2) System or any successor thereto.
“TARGET Settlement Day” means any day on which the TARGET System is open.
(b) Interest Rate and Accrual
Each Note bears interest on its outstanding principal amount from the Interest Commencement Date at the Interest Rate, such interest being payable in arrear on each interest payment date (each, an “Interest Payment Date”).
Interest will cease to accrue on each Note on the due date for redemption unless, upon due presentation, payment of principal is improperly withheld or refused, in which event interest will continue to accrue (as well after as before judgment) at the Interest Rate in the manner provided in this Condition 4 (Interest and other Calculations) to the Relevant Date (as defined in Condition 7 (Taxation)).
(c) Business Day Convention
If any date referred to in these Conditions which is specified to be subject to adjustment in accordance with a Business Day Convention would otherwise fall on a day which is not a Business Day, then, if the Business Day Convention specified is (i) the Following Business Day Convention, such date shall be postponed to the next day which is a Business Day, (ii) the Modified Following Business Day Convention, such date shall be postponed to the next day which is a Business Day unless it would thereby fall into the next calendar month, in which event such date shall be brought forward to the immediately preceding Business Day or (iii) the Preceding Business Day Convention, such date shall be brought forward to the immediately preceding Business Day.
(d) Interest Rate on Fixed Rate Notes
If the Fixed Rate Note Provisions are specified in the relevant Note Final Terms as being applicable, the amount of interest payable in respect of each Note for any Interest Period shall be the relevant Fixed Coupon Amount and, if the Notes are in more than one Denomination, shall be the relevant Fixed Coupon Amount in respect of the relevant Denomination. The amount of interest payable in respect of each Note for any period for which a Fixed Coupon Amount is not specified shall be calculated by applying the Interest Rate to the Calculation
Amount of such Note, multiplying the product by the relevant Day Count Fraction (not adjusted in accordance with the Business Day Convention) and rounding the resulting figure in accordance with Condition 4(h) (Rounding). Where the Specified Denomination of a Fixed Rate Note comprises more than one Calculation Amount, the amount of interest payable in respect of such Fixed Rate Note shall be the aggregate of the amounts (determined in the manner provided above) for each Calculation Amount comprising the Specified Denomination without any further rounding.
(e) Interest Rate on Floating Rate Notes
If the Floating Rate Note Provisions are specified in the Note Final Terms as being applicable, the Interest Rate for each Interest Period will be determined by the Calculation Agent on the following basis:
(i) Screen Rate Determination: if Screen Rate Denomination is specified in the relevant Note Final Terms as the manner in which the Interest Rate is to be determined, as follow:
(A) if the Reference Rate is a composite quotation or customarily supplied by one entity, the Calculation Agent will determine the Reference Rate which appears on the Relevant Screen Page as of the Relevant Time on the relevant Interest Determination Date;
(B) in any other case, the Calculation Agent will determine the arithmetic mean of the Reference Rates which appear on the Relevant Screen Page as of the Relevant Time on the relevant Interest Determination Date;
(C) if, in the case of (A) above, such rate does not appear on that page or, in the case of (B) above, fewer than two such rates appear on that page or if, in either case, the Relevant Screen Page is unavailable, the Calculation Agent will:
(1) request the principal Relevant Financial Centre office of each of the Reference Banks to provide a quotation of the Reference Rate at approximately the Relevant Time on the Interest Determination Date to prime banks in the Relevant Financial Centre interbank market in an amount that is representative for a single transaction in that market at that time; and
(2) determine the arithmetic mean of such quotations; and
(D) if fewer than two such quotations are provided as requested, the Calculation Agent will determine the arithmetic mean of the rates (being the nearest to the Reference Rate, as determined by the Calculation Agent) quoted by major banks in the Principal Financial Centre of the Relevant Currency, selected by the Calculation Agent, at approximately 11.00 a.m. (local time in the Principal Financial Centre of the Specified Currency) on the first day of the relevant Interest Period for loans in the Specified Currency to leading European banks for a period equal to the relevant Interest Period and in an amount that is representative for a single transaction in that market at that time, and the Interest
Rate for such Interest Period shall be the sum of the Margin and the rate or (as the case may be) the arithmetic mean so determined; provided, however, that if the Calculation Agent is unable to determine a rate or (as the case may be) an arithmetic mean in accordance with the above provisions in relation to any Interest Period, the Interest Rate applicable to the Notes during such Interest Period will be the sum of the Margin and the rate or (as the case may be) the arithmetic mean last determined in relation to the Notes in respect of a preceding Interest Period.
(ii) ISDA Determination: If ISDA Determination is specified in the relevant Note Final Terms as the manner in which the Interest Rate(s) is/are to be determined, the Rate of Interest applicable to the Notes for each Interest Period will be the sum of the Margin and the relevant ISDA Rate where “ISDA Rate” in relation to any Interest Period means a rate equal to the Floating Rate (as defined in the ISDA Definitions) that would be determined by the Calculation Agent under an interest rate swap transaction if the Calculation Agent were acting as Calculation Agent for that interest rate swap transaction under the terms of an agreement incorporating the ISDA Definitions and under which:
(A) the Floating Rate Option (as defined in the ISDA Definitions) is as specified in the relevant Note Final Terms;
(B) the Designated Maturity (as defined in the ISDA Definitions) is a period specified in the relevant Note Final Terms; and
(C) the relevant Reset Date (as defined in the ISDA Definitions) is either (1) if the relevant Floating Rate Option is based on the London inter-bank offered rate (LIBOR) for a currency, the first day of that Interest Period or (2) in any other case, as specified in the relevant Note Final Terms.
(f) Index-Linked Interest or other Variable-Linked Interest: If the Index-Linked Interest or other Variable-Linked Interest Note Provisions are specified in the relevant Note Final Terms as being applicable, the Interest Rate(s) applicable to the Notes for each Interest Period will be determined in the manner specified in the relevant Note Final Terms.
(g) Maximum/Minimum Interest Rates, Instalment Amounts and Redemption Amounts
If any Maximum or Minimum Interest Rate, Instalment Amount or Redemption Amount is specified in the relevant Note Final Terms, then any Interest Rate, Instalment Amount or Redemption Amount shall be subject to such maximum or minimum, as the case may be.
(h) Rounding
For the purposes of any calculations required pursuant to these Conditions (unless otherwise specified), (i) all percentages resulting from such calculations will be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point (with halves being rounded up), (ii) all figures will be rounded to seven significant figures (with halves being rounded up) and (iii) all currency amounts which fall due and payable will be rounded to the nearest unit of such currency (with halves being rounded up), save in the case of Yen, which shall be rounded down
to the nearest Yen. For these purposes “unit” means, with respect to any currency other than Euro, the lowest amount of such currency which is available as legal tender in the country of such currency and, with respect to Euro, means one cent.
(i) Calculations
The amount of interest payable in respect of any Note for any period shall be calculated by multiplying the product of the Interest Rate and the outstanding Calculation Amount by the Day Count Fraction, save that where an Interest Amount (or a formula for its calculation) is specified in respect of such period, the amount of interest payable in respect of such Note for such period will equal such Interest Amount (or be calculated in accordance with a formula). Where the Specified Denomination of a Floating Rate Note or an Index Linked Interest Note comprises more than one Calculation Amount, the Interest Amount payable in respect of such Note shall be the aggregate of the amounts (determined in the manner provided above) for each Calculation Amount comprising the Specified Denomination without any further rounding.
(j) Determination and Publication of Interest Rates, Interest Amounts, Redemption Amounts and Instalment Amounts
After the Relevant Time on each Interest Determination Date or such other time on such date as the Calculation Agent may be required to calculate any Redemption Amount or Instalment Amount, obtain any quote or make any determination or calculation, it will, promptly, determine the Interest Rate and calculate the amount of interest payable (the “Interest Amounts”) on the principal amount of the Notes for the relevant Interest Period, calculate the Redemption Amount or Instalment Amount, obtain such quote or make such determination or calculation, as the case may be, and cause the Interest Rate and the Interest Amounts for each Interest Period and the relevant Interest Payment Date and, if required to be calculated, the Redemption Amount or any Instalment Amount to be notified to the Fiscal Agent, the Issuer, the Paying Agent, the holders of the Notes, any other Calculation Agent appointed in respect of the Notes which is to make a further calculation upon receipt of such information and, if the Notes are listed on a stock exchange and the rules of such exchange so requires, such exchange promptly after their determination but in no event later than (i) the commencement of the relevant Interest Period, if determined prior to such time, in the case of an Interest Rate and Interest Amount, or (ii) in all other cases, the fourth Business Day after such determination. The Interest Amounts and the Interest Payment Date so published may subsequently be amended (or appropriate alternative arrangements made by way of adjustment) without notice in the event of an extension or shortening of the Interest Period. If the Notes become due and payable under Condition 9 (Events of Default), the accrued interest and the Interest Rate payable in respect of the Notes shall nevertheless continue to be calculated as previously in accordance with this Condition but no publication of the Interest Rate or the Interest Amount so calculated need be made. The determination of each Interest Rate, Interest Amount, Redemption Amount and Instalment Amount, the obtaining of each quote and the making of each determination or calculation by the Calculation Agent shall (in the absence of manifest error) be final and binding upon all parties.
(k) Calculation Agent and Reference Banks
The Issuer will use its best endeavours to ensure that there shall at all times be four Reference Banks (or such other number as may be required) with offices in the Relevant Financial Centre and one or more Calculation Agents if provision is made for them in the Conditions applicable to the Notes and for so long as any Notes are outstanding. If any Reference Bank (acting through its relevant office) is unable or unwilling to continue to act as a Reference Bank, then the Issuer will appoint another Reference Bank with an office in the Relevant Financial Centre to act as such in its place. Where more than one Calculation Agent is appointed in respect of the Notes, references in these Conditions to the Calculation Agent shall be construed as each Calculation Agent performing its duties under the Conditions. If the Calculation Agent is unable or unwilling to act as such or if the Calculation Agent fails duly to establish the Interest Rate for any Interest Period or to calculate the Interest Amounts or any other requirements, the Issuer will appoint the London office of a leading bank engaged in the London interbank market to act as such in its place. The Calculation Agent may not resign its duties without a successor having been appointed as aforesaid.
(l) Late payment on Zero Coupon Notes
If the Zero Coupon Note Provisions are specified in the relevant Note Final Terms as being applicable and the Redemption Amount payable in respect of any Zero Coupon Note is improperly withheld or refused, the Redemption Amount shall thereafter be an amount equal to the sum of:
(i) the Reference Price; and
(ii) the product of the Accrual Yield (compounded annually) being applied to the Reference Price on the basis of the relevant Day Count Fraction from (and including) the Issue Date to (but excluding) whichever is the earlier of (i) the day on which all sums due in respect of such Note up to that day are received by or on behalf of the relevant Noteholder and (ii) the day which is seven days after the Fiscal Agent has notified the Noteholders that it has received all sums due in respect of the Notes up to such seventh day (except to the extent that there is any subsequent default in payment).
The calculation of the above amount shall be made (where such calculation is to be made for a period which is not a whole number of years) on the basis of such Day Count Fraction as may be specified in the relevant Note Final Terms for the purposes of this Condition 4(l) (Late payment on Zero Coupon Notes) or, if none is so specified, a Day Count Fraction of 30E/360.
(m) Dual Currency Note Provisions
If the Dual Currency Note Provisions are specified in the relevant Note Final Terms as being applicable and the rate or amount of interest falls to be determined by reference to an exchange rate, the rate or amount of interest payable shall be determined in the manner specified in the relevant Note Final Terms.
5. REDEMPTION, PURCHASE AND OPTIONS
(a) Definitions
In these Conditions, unless the context requires otherwise:
(i) Redemption amount
The expressions “Early Redemption Amount”; “Early Termination Amount”, “Final Redemption Amount”, “Instalment Amount”, “Optional Redemption Amount (Call)”, and “Optional Redemption Amount (Put)” mean, in respect of any Note: (A) such amount as may be specified in, or determined in accordance with the relevant Note Final Terms; or (B) if no such amount is specified, the principal amount of such Note.
“Redemption Amount” means, as appropriate, the Final Redemption Amount, the Instalment Amount, the Early Redemption Amount, the Optional Redemption Amount (Call), the Optional Redemption Amount (Put), the Early Termination Amount or such other amount in the nature of a redemption amount as may be specified in, or determined in accordance with the provisions of, the relevant Note Final Terms.
(ii) Maturity date/period
“Maturity Date” has the meaning given in the relevant Note Final Terms.
“Maturity Period” means the period from and including the Issue Date to but excluding the Maturity Date.
(b) Maturities/Final Redemption
Unless previously redeemed, purchased and cancelled as provided below in accordance with Condition 5(f) (Redemption at the option of the Issuer) or 5(h) (Redemption at the option of holders of Notes) or unless its maturity is extended pursuant to an option of the Issuer or holders of Notes and without prejudice of Condition 5(g) (Redemption and purchase of Subordinated Notes) relating to the redemption of Subordinated Notes, each Note will be redeemed at its Final Redemption Amount on the Maturity Date.
(c) Redemption for taxation reasons
If Redemption for taxation reasons is specified in the Note Final Terms as being applicable, the Notes may be redeemed at the option of the Issuer (but subject, in the case of Subordinated Notes, to the prior approval of the Bank of Italy) in whole, but not in part, on any Interest Payment Date or, if so specified in the relevant Note Final Terms, at any time, on giving not less than 30 nor more than 60 days' notice to the holders of Notes (which notice shall be irrevocable), at their Early Redemption Amount (together with interest accrued to the date fixed for redemption), if (i) based on an opinion of a nationally recognized law firm or other tax adviser in the relevant Taxing Jurisdiction (as appropriate) experienced in such matters, there is more than an unsubstantial risk that the Issuer (or, if the Guarantee of the Notes were called, the Guarantor) (A) has or will become obliged to pay additional amounts as provided or referred to in Condition 7 (Taxation) or (B) has or will become subject to more than a de
minimis additional amount of national income taxes (and/or, in the case of Mediobanca, regional tax on productive activities – IRAP) due to partial or entire limitation to the deductibility of any payments under the Notes (provided that, with respect to Mediobanca, any additional amount of national income taxes arising from a limitation of the deductibility of interest payments exceeding the 4% percentage set forth, as at the date of the Issuing and Paying Agency Agreement, in Article 96, paragraph 5-bis of the Italian Presidential Decree No. 917 of 22 December 1986, would be considered as exceeding the aforesaid de minimis additional amount), in either case as a result of (1) any change in, or amendment to, the laws or regulations of Luxembourg or any political subdivision thereof or any agency or authority thereof or therein having power to tax (in the case of payments made by or on behalf of Mediobanca International) or the Republic of Italy or any political subdivision thereof or any agency or authority thereof or therein having power to tax (in the case of payments made by or on behalf of Mediobanca), or (2) any change in the application or official interpretation of such laws or regulations, or (3) any judicial decision, official administrative pronouncement, published or private ruling, regulatory procedure, notice or announcement (including any notice or announcement of intent to adopt such procedures or regulations) (for purposes of this definition, an “Administrative Action”), or (4) any clarification of, or change in the official position or the interpretation of such Administrative Action or any interpretation or pronouncement that provides for a position with respect to such Administrative Action that differs from the generally accepted position, in each case by any legislative body, court, governmental, administrative or regulatory authority or body, irrespective of the manner in which such clarification or change is made known, which change, amendment, Administrative Action or clarification becomes effective on or after the Issue Date, and (ii) such obligations/limitations under (A) and (B) above cannot be avoided by the Issuer (or the Guarantor, as the case may be) taking reasonable measures available to it which (x) do not require the Issuer (or the Guarantor, as the case may be) to incur material out-of-pocket expenses and (y) would not otherwise be disadvantageous to the Issuer or the Guarantor, as determined in their discretion; provided that in the case under (A) above no such notice of redemption shall be given earlier than 90 days prior to the earliest date on which the Issuer (or the Guarantor, as the case may be) would be obliged to pay such additional amounts were a payment in respect of the Notes (or the Guarantee, as the case may be) then be due. Prior to the publication of any notice of redemption pursuant to this paragraph, the Issuer shall deliver to the Fiscal Agent a certificate signed by a director of the Issuer (or the Guarantor, as the case may be) stating that such Issuer (or the Guarantor, as the case may be) is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to the right of such Issuer (or the Guarantor, as the case may be) so to redeem have occurred, and an opinion of independent legal advisers of recognised standing to the effect that there is more than an unsubstantial risk that the Issuer (or the Guarantor, as the case may be) (A) has or will become obliged to pay such additional amounts or (B) has or will become subject to more than a de minimis additional amount of taxes, as indicated above, due to limitation of the deductibility of payments under the Notes as a result of such change, amendment, Administrative Action or clarification.
(d) Purchases
Subject to Condition 5(g) (Redemption and purchase of Subordinated Notes), the Issuer, the Guarantor and any of the Guarantor's subsidiaries may at any time purchase Notes in the open market or otherwise at any price provided that all unmatured Receipts and Coupons and unexchanged Talons appertaining thereto are attached or surrendered therewith. Without prejudice to the foregoing, if so specified in the relevant Note Final Terms the Issuer will be entitled to exercise the option to repurchase from the holder(s), at its sole discretion, (1) all (but not part of) the Notes of the relevant Series (the “Total Repurchase Option”) or (2) on one or more occasions, any portion of the Notes of the relevant Series, provided that in such circumstances the amount of the Notes of the relevant Series to be purchased from each holder shall be the same proportion that the aggregate principal amount of the Notes of the relevant Series that are subject to the relevant Partial Purchase Option bears to the aggregate principal amount of all the Notes of the relevant Series then outstanding prior to the exercise of the relevant Partial Purchase Option (the “Partial Repurchase Option”). The Total Repurchase Option and the Partial Repurchase Option can only be exercised by the Issuer at the date(s) and the price(s) specified in the relevant Note Final Terms as the Total Repurchase Option date or the Partial Repurchase Option date(s) and the Total Repurchase Option amount or Partial Repurchase Option amount(s), respectively. Upon exercise of the Total Repurchase Option or the Partial Repurchase Option, the holder(s) shall be obliged to sell to the Issuer (or any other entity indicated by the Issuer) all the Notes of the Series in relation to which the Total Repurchase Option or the Partial Repurchase Option (as the case may be) is exercised.
(e) Early Redemption of Zero Coupon Notes, Redemption of Zero Coupon for taxation reasons, Redemption of Zero Coupon at the Option of the holder, Redemption of Zero Coupon Notes at the option of holders of Notes
Unless otherwise specified in the relevant Note Final Terms, the Redemption Amount payable on redemption of a Zero Coupon Note at any time before the Maturity Date shall be an amount equal to the sum of:
(A) the Reference Price; and
(B) the product of the Accrual Yield (compounded annually) being applied to the Reference Price from (and including) the Issue Date to (but excluding) the date fixed for redemption or (as the case may be) the date upon which the Note becomes due and payable.
Where such calculation is to be made for a period which is not a whole number of years, the calculation in respect of the period of less than a full year shall be made on the basis of such Day Count Fraction as may be specified in the relevant Note Final Terms for the purposes of this Condition 5(e) (Early Redemption of Zero Coupon Notes, Redemption of Zero Coupon for taxation reasons, Redemption of Zero Coupon at the Option of the holder, Redemption of Zero Coupon Notes at the option of holders of Notes) or, if none is so specified, a Day Count Fraction of 30E/360.
(f) Redemption at the option of the Issuer
If the Call Option is specified in the relevant Note Final Terms as being applicable, the Issuer may (subject in the case of Subordinated Notes to prior approval of the Bank of Italy), on giving irrevocable notice to the holders of Notes within the period specified in the relevant Note Final Terms (such period to be not less than 30 nor more than 60 days) redeem, or exercise the Issuer's option in relation to, all or, if so provided, some of the Notes in the principal amount or integral multiples thereof and on the date or dates so provided. Any such redemption of Notes shall be at their Optional Redemption Amount (Call) together with interest accrued to the date fixed for redemption, unless otherwise specified in the relevant Note Final Terms.
All Notes in respect of which any such notice is given shall be redeemed, or the Issuer's option shall be exercised, on the date specified in such notice in accordance with this Condition.
In the case of a partial redemption or a partial exercise of an Issuer's option the notice to holders of Notes shall also contain the serial numbers of the Notes to be redeemed, which shall have been drawn in such place as the Fiscal Agent may approve and in such manner as it deems appropriate, subject to compliance with any applicable laws and stock exchange requirements.
(g) Redemption and purchase of Subordinated Notes
(A) Maturities
Upper Tier II Subordinated Notes may be perpetual (passività irredimibili) or with a fixed Maturity Period of ten years or longer (altri strumenti rimborsabili). Lower Tier II Subordinated Notes shall have a minimum Maturity Periods of five years and Tier III Subordinated Notes shall have a minimum Maturity Period of two years, in each case as provided under the Bank of Italy Regulations.
(B) Regulatory approval in case of redemption and/or early redemption
Notwithstanding the foregoing provisions of this Condition 5 (Redemption, Purchase and Options), where required by the then applicable Bank of Italy Regulations, the redemption and/or early redemption of Subordinated Notes shall be subject to the prior approval of the Bank of Italy, such approval in respect of redemption and/or early redemption of Upper Tier II Subordinated Notes being dependent on Mediobanca maintaining its Minimum Capital as prescribed in Title I, Chapter 2 of the Bank of Italy Regulations immediately following redemption of the Upper Tier II Subordinated Notes. If such approval is not given on or prior to the redemption date, Mediobanca will re-apply to the Bank of Italy for its consent to such redemption forthwith upon its having again, by whatever means, such required Minimum Capital. Mediobanca will use its best endeavours to maintain such required minimum capital and to obtain such approval.
(C) Indefinite maturity
Without prejudice to paragraph (B) above, where Lower Tier II Subordinated Notes or Tier III Subordinated Notes have an indefinite Maturity Period but are subject to redemption at the option of Mediobanca, such Notes may only be redeemed by the giving of notice from Mediobanca to holders of Notes as follows: (i) five years’ notice, in the case of Lower Tier II Subordinated Notes; and (ii) two years’ notice, in the case of Tier III Subordinated Notes.
(D) Interest
Amounts that would otherwise be payable on the due date will continue to bear interest until whichever is the earlier of (i) the day on which all sums due in respect of such Subordinated Notes up to that day are received by or on behalf of the holders of Notes and (ii) the day which is seven days after the Fiscal Agent has notified the holders of Notes that it has received all sums due in respect of such Subordinated Notes up to such seventh day.
(E) Purchase
Subordinated Notes may only be purchased by Mediobanca or any of its subsidiaries subject to the prior approval of the Bank of Italy, unless the Notes to be purchased (A) do not exceed 10 per cent. of the aggregate nominal amount of the relevant Series and (B) are not to be purchased in order to be surrendered to any Paying Agent for cancellation.
(F) Redemption for regulatory reasons (Regulatory Call)
If Regulatory Call is specified in the applicable Final Terms, the Subordinated Notes may be redeemed at the option of the Issuer (subject to the prior approval of the Bank of Italy), in whole or in part (as specified in the applicable Final Terms), at any time (if the Note is neither a Floating Rate Note, an Index Linked Interest Note nor a Dual Currency Interest Note) or on any Interest Payment Date (if the Note is either a Floating Rate Note, an Index Linked Interest Note nor a Dual Currency Interest Note), on giving not less than 15 nor more than 30 days’ notice (which notice shall be irrevocable) to the Paying Agent and, in accordance with Condition 13, to the holders of the Notes, if a proportion equal to or more than the Minimum Disqualification Amount of the Subordinated Notes ceases to qualify as “Lower Tier II Capital”, “Upper Tier II Capital” or “Tier III Capital”, as applicable, on a consolidated or non consolidated basis, as a result of changes after the date of issue of the relevant Subordinated Notes in the standards and guidelines of the Bank of Italy or in the applicable legal or regulatory provisions (including legal or regulatory provisions adopted by the European Union).
For the purpose of this Condition, the Minimum Disqualification Amount means 10 per cent. of the aggregate outstanding nominal amount of the relevant Subordinated Notes.
(h) Redemption at the option of holders of Notes
This Condition 5(h) (Redemption at the option of holders of Notes) shall not apply to Subordinated Notes.
If the Put Option is specified as being applicable to the Notes in the relevant Note Final Terms, the Issuer shall, at the option of the holder of any such Note, redeem such Note on the date or dates so provided at its Optional Redemption Amount (Put) together with interest accrued to the date fixed for redemption, unless otherwise specified in the relevant Note Final Terms.
To exercise such option or any other option of a holder of Notes which may be set out in the Note Final Terms, the holder must deposit such Note with any Paying Agent at its specified office, together with a duly completed option exercise notice (“Exercise Notice”) in the form obtainable from any Paying Agent, within the period specified in the relevant Note Final Terms (such period to be not less than 30 nor more than 60 days). No Note so deposited and option exercised may be withdrawn (except as provided in the Issue and Paying Agency Agreement) without the prior consent of the Issuer.
(i) Redemption by instalments
Unless previously redeemed, purchased and cancelled on the relevant Instalment Date (being one of the dates so specified in the Note Final Terms) in accordance with Condition 5(f) (Redemption at the option of the Issuer) or 5(h) (Redemption at the option of holders of Notes) or is extended pursuant to an option of the Issuer or holder of Notes, each Note which provides for Instalment Dates and Instalment Amounts will be partially redeemed on each Instalment Date at the Instalment Amount specified on it, whereupon the outstanding principal amount of such Note shall be reduced by the Instalment Amount for all purposes.
(j) Extendable Notes
If the Note Final Terms specify that the Notes are Extendable Notes, such Notes shall contain an option exercisable by holders of the Notes or the Issuer to extend the original Maturity Period of such Notes. The Note Final Terms will set forth the manner in which the Maturity Period of such Notes are extendable, the final date beyond which the Maturity Period may not be extended and the procedure for notification of such extension.
(k) Cancellation
Notes purchased by or on behalf of the Issuer, the Guarantor or any of the Guarantor's subsidiaries (where applicable) may be surrendered for cancellation, by surrendering each such Note together with all unmatured Receipts and Coupons and all unexchanged Talons to the Fiscal Agent and, if so surrendered, will, together with all Notes redeemed by the Issuer, be cancelled forthwith (together with all unmatured Receipts and Coupons and unexchanged Talons attached thereto or surrendered therewith). Any Notes so surrendered for cancellation may not be reissued or resold and the obligations of the Issuer and the Guarantor (where applicable) in respect of any such Notes shall be discharged.
6. PAYMENTS AND TALONS
(a) Payments outside the United States
Payments of principal and interest in respect of Notes will, subject as mentioned below, be made against presentation and surrender of the relevant Receipts (in the case of payments of Instalment Amounts other than on the due date for redemption and provided that the Receipts are presented for payment together with their relative Notes), Notes (in the case of all other payments of principal and, in the case of interest as specified in Condition 6(e)(vi)) or Coupons (in the case of interest, save as specified in Condition 6(e)(ii)), as the case may be, at the specified office of any Paying Agent outside the United States by a cheque payable in the currency in which such payment is due drawn on, or, at the option of the holder, by transfer to an account denominated in that currency with, a bank in the principal financial centre of that currency: provided that in the case of Euro, the transfer may be to a Euro account.
(b) Payments in the United States
Notwithstanding the foregoing, if any Notes are denominated in US Dollars, payments in respect thereof may be made at the specified office of any Paying Agent in New York City in the same manner as aforesaid if (i) the Issuer shall have appointed Paying Agents with specified offices outside the United States with the reasonable expectation that such Paying Agents would be able to make payment of the amounts on the Notes in the manner provided above when due, (ii) payment in full of such amounts at all such offices is illegal or effectively precluded by exchange controls or other similar restrictions on payment or receipt of such amounts and (iii) such payment is then permitted by United States law, without involving, in the opinion of the Issuer, any adverse tax consequence to the Issuer.
(c) Payments subject to law, etc.
All payments are subject in all cases to any applicable fiscal or other laws, regulations and directives, but without prejudice to the provisions of Condition 7 (Taxation). No commission or expenses shall be charged to the holders of Notes or Couponholders in respect of such payments.
(d) Appointment of Agents
The Fiscal Agent, the Paying Agent and the Calculation Agent initially appointed by the Issuer and their respective specified offices are listed below. The Fiscal Agent, the Paying Agent and the Calculation Agent act solely as agents of the Issuer and the Guarantor (where applicable) and do not assume any obligation or relationship of agency or trust for or with any holder. The Issuer and the Guarantor (where applicable) reserve the right at any time to vary or terminate the appointment of the Fiscal Agent, any other Paying Agent, the Calculation Agent, the Registrar or any Transfer Agent and to appoint additional or other agents provided that the Issuer will at all times maintain (i) a Fiscal Agent, (ii) a Calculation Agent where the Conditions so require one, (iii) the Issuer and the Guarantor (where applicable) will ensure that they maintain a Paying Agent in an EU member state that will not be obliged to
withhold or deduct tax, pursuant to European Council Directive 2003/48/EU, or any law or agreement implementing or complying with, or introduced in order to conform to, such Directive, (iv) Paying Agents having a specified office in at least two major European cities (including Luxembourg so long as the Notes are listed on the Luxembourg Stock Exchange), and (v) such other agents as may be required by the rules of any other stock exchange on which the Notes may be listed.
In addition, the Issuer shall forthwith appoint a Paying Agent in New York in respect of any Notes denominated in US Dollars in the circumstances described in paragraph
(b) above.
Notice of any such change or any change of any specified office will promptly be given to the holders of Notes in accordance with Condition 13 (Notices).
(e) Unmatured Coupons and Receipts and unexchanged Talons
(i) Unless the Notes provide that the relative Coupons are to become void upon the due date for redemption of those Notes, Notes should be surrendered for payment together with all unmatured Coupons (if any) appertaining thereto, failing which an amount equal to the face value of each missing unmatured Coupon (or, in the case of payment not being made in full, that proportion of the amount of such missing unmatured Coupon which the sum of principal so paid bears to the total principal due) will be deducted from the Redemption Amount due for payment. Any amount so deducted will be paid in the manner mentioned above against surrender of such missing Coupon within a period of 10 years from the Relevant Date for the payment of such principal (whether or not such Coupon has become void pursuant to Condition 8 (Prescription)).
(ii) If the relevant Notes so provide, upon the due date for redemption of any Note, unmatured Coupons relating to such Notes (whether or not attached) shall become void and no payment shall be made in respect of them.
(iii) Upon the due date for redemption of any Note, any unexchanged Talon relating to such Note (whether or not attached) shall become void and no Coupon shall be delivered in respect of such Talon.
(iv) Upon the due date for redemption of any Note which is redeemable in instalments, all Receipts relating to such Note having an Instalment Date falling on or after such due date (whether or not attached) shall become void and no payment shall be made in respect of them.
(v) Where any Note which provides that the relative Coupons are to become void upon the due date for redemption of those Notes is presented for redemption without all unmatured Coupons and any unexchanged Talon relating to it, and where any Note is presented for redemption without any unexchanged Talon relating to it, redemption shall be made only against the provisions of such indemnity as the Issuer may require.
(vi) If the due date for redemption of any Note is not a due date for payment of interest, interest accrued from the preceding due date for payment of interest or the Interest Commencement Date, as the case may be, shall only be payable against presentation (and surrender if appropriate) of the relevant Note. Interest accrued on a Note which only bears interest after its Maturity Date shall be payable on redemption of such Note against presentation of the relevant Note.
(f) Talons
On or after the Interest Payment Date for the final Coupon forming part of a Coupon sheet issued in respect of any Note, the Talon forming part of such Coupon sheet may be surrendered to or to the order of the Fiscal Agent in exchange for a further Coupon sheet (and if necessary another Talon for a further Coupon sheet) (but excluding any Coupons which may have become void pursuant to Condition 8 (Prescription)).
(g) Non-Business Days
If the due date for payment of any amount in respect of any Note or Coupon is not a Payment Business Day in the place of presentation, the holder shall not be entitled to payment in such place of the amount due until the next succeeding Payment Business Day in such place and shall not be entitled to any further interest or other payment in respect of any such delay.
In this Condition 6(g) (Non-Business Days):
“Additional Financial Centre” means the city or the cities specified as such in the relevant Note Final Terms; and
“Payment Business Day” means:
(i) if the currency of payment is euro, any day which is:
(a) a day on which banks in the relevant place of presentation are open for presentation and payment of bearer debt securities and for dealings in foreign currencies; and
(b) in the case of payment by transfer to an account, a TARGET Settlement Day and a day on which dealings in foreign currencies may be carried on in each (if any) Additional Financial Centre specified in the Note Final Terms; or
(ii) if the currency of payment is not euro, any day which is:
(a) a day on which banks in the relevant place of presentation are open for presentation and payment of bearer debt securities and for dealings in foreign currencies; and
(b) in the case of payment by transfer to an account, a TARGET Settlement Day and a day on which dealings in foreign currencies may be carried on
in the Principal Financial Centre of the currency of payment and in each (if any) Additional Financial Centre specified in the Note Final Terms.
7. TAXATION
(a) Gross Up
All payments of principal and interest in respect of the Notes, the Receipts and the Coupons by the Issuer or (as the case may be) the Guarantor under the Deed of Guarantee will be made without withholding or deduction for, or on the account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of the Grand Duchy of Luxembourg or any political subdivision thereof or any agency or authority therein or thereof having power to tax (in the case of payments made by or on behalf of Mediobanca International) or the Republic of Italy or any political subdivision thereof or any agency or authority therein or thereof having power to tax (in the case of payments made by or on behalf of Mediobanca), unless the withholding or deduction of such taxes, duties, assessments or governmental changes is required by law. In that event, the Issuer or, as the case may be, the Guarantor will pay such additional amounts as may be necessary in order that the net amounts received by the holders of the Notes, Receipts or Coupons after such withholding or deduction shall equal the respective amounts of principal and interest which would have been received in respect of the Notes, Receipts or (as the case may be) Coupons, in the absence of such withholding or deduction; except that no additional amounts shall be payable with respect to any payment in respect of any Note, Receipt or Coupon or (as the case may be) under the Deed of Guarantee:
(i) (A) to, or to a third party on behalf of, a holder who is subject to such taxes, duties, assessments or governmental charges in respect of such Note, Receipt or Coupon by reason of its having some connection (otherwise than merely by holding the Note, Receipt or Coupon) with (in the case of payments of principal and interest made by or on behalf of Mediobanca International) the Grand Duchy of Luxembourg or (in the case of payments of principal and interest made by or on behalf of Mediobanca and in respect of payments by Mediobanca under the Deed of Guarantee) the Republic of Italy; or (B) with respect to any Note, Receipt or Coupon presented for payment in the Republic of Italy or the Grand Duchy of Luxembourg; or (C) for or on account of imposta sostitutiva pursuant to Italian Legislative Decree No. 239 of 1 April 1996, Legislative Decree No. 461 of 21 November 1997 or related implementing regulations; or
(D) in all circumstances in which the requirements and procedures of such Legislative Decree No. 239 and related implementing rules have not been properly and promptly met or complied with (except where due to the actions or omissions of the Issuer, the Guarantor or their agents); or (E) to, or to a third party on behalf of, a holder who is entitled to avoid such withholding or deduction in respect of such Note, Receipt or Coupon by making a declaration or any other statement, including, but not limited to, a declaration of non-residence or other similar claim for exemption to the relevant taxing authority or intermediary/paying agent, but has failed to do so properly and promptly; or
(ii) (in the case of payments of principal and interest made by or on behalf of Mediobanca and in respect of payments by Mediobanca under the Deed of Guarantee) to a holder who is a non-Italian resident or individual or legal entity which is resident in a tax haven country (as defined and listed in the Italian Ministry of Finance Decree of 23 January 2002 or in any other legislation substituting such decree) or in any country which does not allow for an adequate exchange of information with the Italian tax authorities (not included in Italian Ministerial Decree 4 September 1996 or in any other legislation substituting such decree); or
(iii) for any Note, Receipt or Coupon presented for payment more than 30 days after the Relevant Date except to the extent that the holder thereof would have been entitled to such additional amount on presenting the same for payment on the thirtieth such day; or
(iv) where such withholding or deduction is required to be made pursuant to European Council Directive 2003/48/EC or any law or agreement implementing or complying with, or introduced in order to conform to, such Directive; or
(v) presented for payment by or on behalf of a holder who would have been able to avoid such withholding or deduction by presenting the relevant Note, Receipt or Coupon to another paying agent in a Member State of the European Union; or
(vi) (in the case of payments of principal and interest made by or on behalf of Mediobanca) where withholding or deduction is required by law pursuant to Italian Presidential Decree No. 600 of 29 September 1973; or
(vii) with respect to any Notes qualifying as “atypical” securities (titoli “atipici”) for Italian tax purposes subject to the regime provided for by Italian Law Decree 30 September 1983, No. 512, for and on account of any withholding or deduction required by law pursuant to such decree; or
(viii) with respect to any Notes redeemed (or repurchased and cancelled) by the relevant Issuer earlier than their original maturity date, where withholding or deduction is required by law pursuant to Italian Presidential Decree No. 600 of 29 September 1973; or
(ix) in any case, where in the Note Final Terms it is expressly specified under a section called “Taxation” that “No Gross Up” will apply with respect to any Note, Receipt or Coupon pursuant to this point (ix) of paragraph 7 (a) (Taxation
– Gross Up),
without prejudice to the option of the Issuer to redeem the Notes pursuant to, and subject to the conditions of, Condition 5(c) (Redemption for taxation reasons).
(b) Taxing Jurisdiction
If the Issuer or the Guarantor (where applicable) becomes subject at any time to any taxing jurisdiction other than the Grand Duchy of Luxembourg or the Republic of Italy respectively,
references in these Conditions to Luxembourg or Italy shall be construed as references to the Grand Duchy of Luxembourg or (as the case may be) the Republic of Italy and/or such other jurisdiction.
As used in these Conditions, “Relevant Date” in respect of any Note, Receipt or Coupon means the date on which payment in respect thereof first becomes due or (if any amount of the money payable is improperly withheld or refused) the date on which payment in full of the amount outstanding is made or (if earlier) the date on which notice is duly given to the holders of Notes in accordance with Condition 13 (Notices) that, upon further presentation of the Note, Receipt or Coupon being made in accordance with the Conditions, such payment will be made, provided that payment is in fact made upon such presentation. References in these Conditions to (i) “principal” shall be deemed to include any premium payable in respect of the Notes, all Instalment Amounts, Redemption Amounts, Amortised Face Amounts and all other amounts in the nature of principal payable pursuant to Condition 5 (Redemption, Purchase and Options) or any amendment or supplement to it, (ii) “interest” shall be deemed to include all Interest Amounts and all other amounts payable pursuant to Condition 4 (Interest and other Calculations) or any amendment or supplement to it and (iii) “principal” and/or “interest” shall be deemed to include any additional amounts which may be payable under this Condition.
8. PRESCRIPTION
Claims against the Issuer and the Guarantor (where applicable) for payment in respect of the Notes, Receipts and Coupons (which, for this purpose shall not include Talons) shall be prescribed and become void unless made within ten years (in the case of principal) or five years (in the case of interest) from the appropriate Relevant Date in respect thereof.
9. EVENTS OF DEFAULT
(a) Events of Default of Senior Notes
This Condition 9(a) (Events of Default of Senior Notes) only applies to Senior Notes; any reference to Noteholders shall be construed accordingly. If any of the following events occurs and is continuing, the holder of a Note of any Series may give written notice to the Fiscal Agent at its specified office that such Note is immediately repayable, whereupon the Early Termination Amount of such Note together with accrued interest to the date of payment shall become immediately due and payable:
(i) Default in payment of principal or interest: default is made for a period of five Business Days or more in the payment of any principal on any of the Notes or for a period of fifteen Business Days or more in the payment of any interest due in respect of the Notes or any of them;
(ii) Failure to perform any other Obligation: the Issuer or the Guarantor (where applicable) fails duly to perform any other obligation under or in respect of the Notes, the Deed of Guarantee or the Issue and Paying Agency Agreement and such failure continues for more than 30 days after the service by a holder of a Note of notice on the Issuer requiring the same to be remedied;
(iii) General suspension of payments: the Issuer or the Guarantor (where applicable) suspends its payments generally;
(iv) Bankruptcy, composition or similar event: a court in the country of domicile of the Issuer or the Guarantor (where applicable) institutes bankruptcy proceedings or composition proceedings to avert a bankruptcy or the Issuer or the Guarantor (where applicable) applies for institution of such proceedings or any event occurs which under the laws of the Republic of Italy or Luxembourg has an analogous effect to such proceedings;
(v) Cross-default: (i) any other present or future indebtedness of the Issuer or the Guarantor (where applicable) for or in respect of moneys borrowed or raised becomes due and payable prior to its stated maturity as a result of any payment default thereon by the Issuer or, as the case may be, the Guarantor (where applicable), or (ii) any such indebtedness is not paid when due or, as the case may be, within an applicable grace period, or (iii) the Issuer or the Guarantor (where applicable) fails to pay when due any amount payable by it under any present or future guarantee for, or indemnity in respect of any moneys borrowed or raised provided that an event of default pursuant to this Condition 9(a)(v) shall only occur if: (A) the aggregate amount of the relevant indebtedness, guarantees and indemnities in respect of which one of the events mentioned in paragraphs (i), (ii) or (iii) above have occurred and is continuing exceeds
€35,000,000 and (B) the Issuer or the Guarantor (where applicable) is not contesting in good faith in a competent court in a recognised jurisdiction that the relevant indebtedness or guarantee and/or indemnity is due and enforceable, as appropriate;
(vi) Insolvency: either the Issuer or the Guarantor (where applicable) is (or is deemed by law or a court to be) insolvent or bankrupt or unable to pay its debts, proposes or makes a general assignment or an arrangement or composition with or for the benefit of the relevant creditors in respect of any of such debts or a moratorium is agreed or declared in respect of or affecting all or any part of (or of a particular type of) the debts of the Issuer or the Guarantor (where applicable);
(vii) Winding-up: an order is made or an effective resolution is passed for the winding-up or dissolution or administration of the Issuer or the Guarantor (where applicable), or the Issuer or the Guarantor (where applicable) applies or petitions for a winding-up or administration order in respect of itself or ceases or threatens to cease to carry on all or substantially all of its business or operations, in each case except for the purposes of and pursuant to or in connection with a reconstruction, amalgamation, reorganisation, merger, de-merger, consolidation, deconsolidation or disposal or contribution in kind of assets or branches of business;
(viii) Ownership: in respect of Notes issued by Mediobanca International, Mediobanca International ceases to be controlled by Mediobanca (except in the case of a reconstruction, amalgamation, reorganisation, merger, de-merger,
consolidation or similar transaction by which Mediobanca assumes the payment obligations of Mediobanca International under the Notes).
(ix) Illegality: it is or will become unlawful for the Issuer or the Guarantor (where applicable) to perform or comply with any one or more of its obligations under any of the Notes or the Deed of Guarantee (where applicable); or
(x) Guarantee: in respect of Notes issued by Mediobanca International, the Deed of Guarantee (where applicable) ceases to be a valid and binding obligation of the Guarantor or it becomes unlawful for the Guarantor to perform its obligations under the Deed of Guarantee or the Deed of Guarantee is claimed by Mediobanca International or the Guarantor not to be in full force and effect (except in the case of a reconstruction, amalgamation, reorganisation, merger, de-merger, consolidation or similar transaction by which Mediobanca assumes the payment obligations of Mediobanca International under the Notes).
(b) Events of Default of Subordinated Notes
This Condition 9(b) (Events of Default of Subordinated Notes) applies only to Subordinated Notes; any reference to Noteholders shall be construed accordingly. If any of the following events occurs and is continuing, the holder of a Note may give written notice to the Fiscal Agent at its Specified Office that such Note is immediately repayable:
(i) Default in payment of principal or interest: default is made for a period of five Business Days or more in the payment of any principal due on any of the Notes or for a period of fifteen Business Days or more in the payment of any interest due on any of the Notes; or
(ii) Winding-up: Mediobanca is wound up or dissolved, except for the purposes of, and pursuant to, or in connection with, a reconstruction, amalgamation, reorganisation, merger, de-merger, consolidation, deconsolidation or disposal of assets,
whereupon (in both (i) and (ii) above of this Condition 9(b) (Events of Default of Subordinated Notes)) the Early Termination Amount of such Note together with accrued interest to the date of payment shall become immediately due and payable and any holder of a Note may at its discretion and without further notice institute proceedings to determine the insolvency or bankruptcy of Mediobanca or prove in any winding-up or bankruptcy of Mediobanca. No remedy against Mediobanca other than as specifically provided by this Condition 9(b) (Events of Default of Subordinated Notes) shall be available to holders of the Notes or Coupons for the recovery of amounts owing in respect of the Notes or Coupons.
10. MEETINGS OF HOLDERS OF NOTES AND MODIFICATIONS
(a) Meetings of holders of Notes
The Issue and Paying Agency Agreement contains provisions for convening meetings of holders of Notes to consider any matter affecting their interest, including
modification by Extraordinary Resolution of the Notes (including these Conditions insofar as the same may apply to such Notes). An Extraordinary Resolution duly passed at any such meeting shall be binding on all the holders of Notes, whether present or not and on all relevant holders of Coupons, except that any Extraordinary Resolution proposed, inter alia, (i) to amend the dates of maturity or redemption of the Notes, any Instalment Date or any date for payment of interest thereon, (ii) to reduce or cancel the principal amount or an Instalment Amount of, or any premium payable on redemption of, the Notes, (iii) to reduce the rate or rates of interest in respect of the Notes or to vary the method or basis of calculating the rate or rates or amount of interest or the basis for calculating the Interest Amount in respect thereof, (iv) if a Minimum and/or a Maximum Interest Rate, Instalment Amount or Redemption Amount is shown in the Note Final Terms, to reduce any such Minimum and/or Maximum, (v) to change any method of calculating the Redemption Amount, (vi) to vary the currency or currencies of payment or denomination of the Notes, (vii) to modify the provisions contained concerning the quorum required at any meeting of holders of Notes or any adjournment thereof or concerning the majority required to pass an Extraordinary Resolution, (viii) to modify the provisions which would have the effect of giving any authority, direction or sanction which under the Notes is required to be given pursuant to a meeting of holders of Notes to which the special quorum provisions apply, (ix) to take any steps which as specified in the Note Final Terms may only be taken following approval by an Extraordinary Resolution to which the special quorum provisions apply or (x) to amend the foregoing exceptions in any manner, will only be binding if passed at a meeting of the holders of Notes (or at any adjournment thereof) at which a special quorum (provided for in the Issue and Paying Agency Agreement) is present.
(b) Modification of Issue and Paying Agency Agreement
The Issuer and the Guarantor shall only permit any modification of, or any waiver or authorisation of any breach or proposed breach of or any failure to comply with, the Issue and Paying Agency Agreement, if to do so could not reasonably be expected to be prejudicial to the interests of the holders of Notes.
(c) Errors or inconsistencies
The Issuer and the Guarantor may, without the prior consent of the holders of the Notes correct (i) any manifest error in the Terms and Conditions of the Notes and/or in the Note Final Terms, (ii) any error of a formal, minor or technical nature in the Terms and Conditions of the Notes and/or in the Note Final Terms or (iii) any inconsistency in the Terms and Conditions of the Notes and/or in the Note Final Terms between the Terms and Conditions of the Notes and/or the Note Final Terms and any other documents prepared in connection with the issue and/or offer of a Series of Notes (provided such correction is not materially prejudicial to the holders of the relevant Series of Notes). Any such correction shall be binding on the holders of the relevant Notes and the Issuer and the Guarantor (if applicable) shall cause such correction to be notified to the holders of the Notes as soon as practicable thereafter pursuant to Condition 13 (Notices).
11. REPLACEMENT OF NOTES, RECEIPTS, COUPONS AND TALONS
If a Note, Receipt, Coupon or Talon is lost, stolen, mutilated, defaced or destroyed, it may be replaced, subject to applicable laws and stock exchange regulations, at the specified office of the Fiscal Agent or such other Paying Agent as may from time to time be designated by the Issuer for the purpose and notice of whose designation is given to holders in accordance with Condition 13 (Notices), in each case on payment by the claimant of the fees and costs incurred in connection therewith and on such terms as to evidence, security and indemnity (which may provide, inter alia, that if the allegedly lost, stolen or destroyed Note, Receipt, Coupon or Talon is subsequently presented for payment or, as the case may be, for exchange for further Coupons, there will be paid to the Issuer on demand the amount payable by the Issuer in respect of such Notes, Receipts, Coupons or further Coupons) and otherwise as the Issuer may require. Mutilated or defaced Notes, Receipts, Coupons or Talons must be surrendered before replacements will be issued.
12. FURTHER ISSUES AND CONSOLIDATION
The Issuer may from time to time without the consent of the holders of Notes or Coupons create and issue further notes having the same terms and conditions as the Notes in all respects (or in all respects except for the Issue Price, the Issue Date and/or the first payment of interest) and so that the same shall be consolidated and form a single series with such Notes, and references in these Conditions to “Notes” shall be construed accordingly.
The Issuer may also from time to time upon not less than 30 days' prior notice to Noteholders, without the consent of the holders of Notes or Coupons of any Series, consolidate the Notes with Notes of one or more other Series (the “Other Notes”) issued by it, provided the Notes and the Other Notes have been redenominated into Euro (if not originally denominated in Euro), and otherwise have, in respect of all periods subsequent to such consolidation, the same terms. Notice of any such consolidation will be given to the Noteholders in accordance with Condition 13 (Notices). The Fiscal Agent shall act as the consolidation agent.
With effect from their consolidation, the Notes and the Other Notes will (if listed prior to such consolidation) be listed on at least one European stock exchange on which either the Notes or the Other Notes were listed immediately prior to such consolidation.
The Issuer shall in dealing with holders of such Notes following a consolidation pursuant to this Condition 12 (Further Issues and Consolidation) have regard to the interest of the holders and the holders of the Other Notes, taken together as a class, and shall treat them alike.
13. NOTICES
Notices to the holders of Notes will be valid if published in a leading newspaper having general circulation in Luxembourg (which is expected to be Luxemburger Wort) or on the website of the Luxembourg Stock Exchange (xxx.xxxxxx.xx) or on the website of the relevant Issuer (xxx.xxxxxxxxxx.xx or xxx.xxxxxxxxxxxxx.xx) and the Guarantor (xxx.xxxxxxxxxx.xx). If any such publication is not practicable, notice will be validly given if published in another leading daily English language newspaper of general circulation in Europe.
Any such notice shall be deemed to have been given on the date of such publication or, if published more than once or on different dates, on the date of the first publication as provided above.
Holders of Coupons shall be deemed for all purposes to have notice of the contents of any notice to the holders of Notes in accordance with this Condition.
14. SUBSTITUTION OF THE ISSUER
(a) The Issuer and, in case of Notes issued by Mediobanca International, the Guarantor may at any time, without the consent of the holders of Notes or Coupons, substitute for the Issuer any company (the “Substitute”) upon notice by the Issuer, the Guarantor (in case of Notes issued by Mediobanca International) and the Substitute to be given in accordance with Condition 13 (Notices), provided that;
(i) no payment in respect of the Notes, the Receipts or the Coupons or the Deed of Guarantee (as the case may be) is at the relevant time overdue;
(ii) the Substitute shall, by means of a deed poll in the form scheduled to the Programme Manual as Schedule 15 (the “Deed Poll”), agree to indemnify each holder of Notes and Coupons against any incremental tax, duty, assessment or governmental charge which is imposed on it by (or by any authority in or of) the jurisdiction of the country of the Substitute's residence for tax purposes and, if different, of its incorporation with respect to any Note, Receipt, Coupon, Talon or the Deed of Covenant and which would not have been so imposed or otherwise suffered by any holder of Notes, Receipts or Coupons had the substitution not been made, as well as against any tax, duty, assessment or governmental charge, and any cost or expense, relating to the substitution;
(iii) in respect of Notes issued by Mediobanca International, where the Substitute is not the Guarantor, the obligations of the Substitute under the Deed Poll, the Notes, Receipts, Coupons, Talons and Deed of Covenant shall be unconditionally guaranteed by the Guarantor by means of the Deed Poll, in accordance with the terms thereof;
(iv) all actions, conditions and things required to be taken, fulfilled and done (including the obtaining of any necessary consents) to ensure that the Deed Poll, the Notes, Receipts, Coupons, Talons and Deed of Covenant represent valid, legally binding and enforceable obligations of the Substitute and, where applicable, of the Guarantor have been taken, fulfilled and done and are in full force and effect;
(v) the Substitute shall have become party to the Issue and Paying Agency Agreement, with any appropriate consequential amendments, as if it had been an original party to it;
(vi) legal opinions shall have been delivered to the Fiscal Agent and Dealers from lawyers of recognised standing in each jurisdiction referred to in (ii) above, in Italy and in England as to the fulfilment of the requirements of this Condition 14
(Substitution of the Issuer) and the other matters specified in the Deed Poll and that the Notes, Receipts, Coupons and Talons are legal, valid and binding obligations of the Substitute;
(vii) each stock exchange on which the Notes are listed shall have confirmed that, following the proposed substitution of the Substitute, the Notes will continue to be listed on such stock exchange;
(viii) if applicable, the Substitute has appointed a process agent as its agent in England to receive service of process on its behalf in relation to any legal proceedings arising out of or in connection with the Notes.
(b) Upon the execution of the Deed Poll and the delivery of the legal opinions, the Substitute shall succeed to, and be substituted for, and may exercise every right and power, of the Issuer under the Notes and the Issue and Paying Agency Agreement with the same effect as if the Substitute had been named as the Issuer herein, and the Issuer shall be released from its obligations under the Notes and under the Issue and Paying Agency Agreement.
(c) After a substitution pursuant to Condition 14(a), the Substitute may, without the consent of any holder, effect a further substitution. All the provisions specified in Conditions 14(a) and 14(b) shall apply mutatis mutandis, and references in these Conditions to the Issuer shall, where the context so requires, be deemed to be or include references to any such further Substitute.
(d) After a substitution pursuant to Condition 14(a) or 14(c) any Substitute may, without the consent of any holder, reverse the substitution, mutatis mutandis.
(e) The Deed Poll and all documents relating to the substitution shall be delivered to, and kept by, the Fiscal Agent. Copies of such documents will be available free of charge at the specified office of the Paying Agent.
15. LAW AND JURISDICTION
(a) Governing Law: Unless otherwise provided in the Note Final Terms and being applicable, the Notes and any contractual or non-contractual obligations arising from or connected with the Notes are governed by, and shall be construed in accordance with, English law, except for Conditions 3 (Status and Special Provisions of Subordinated Notes), 5(g) (Redemption and purchase of Subordinated Notes) and 9(b) (Events of Default of Subordinated Notes), which are governed by, and shall be construed in accordance with, Italian law.
(b) English courts: Unless otherwise provided in the Note Final Terms as being applicable in relation to the Governing Law, subject to Condition 15(d) (Rights of the Noteholders to take proceeding outside England), the courts of England have exclusive jurisdiction to settle any dispute (a “Dispute”), arising from or connected with the Notes, whether arising out of or in connection with contractual or non- contractual obligations.
(c) Appropriate forum: Unless otherwise provided in the Note Final Terms as being applicable in relation to the Governing Law, each of the Issuer and the Guarantor (where applicable) agree that the courts of England are the most appropriate and convenient courts to settle any Dispute and, accordingly, that they will not argue to the contrary.
(d) Rights of the Noteholders to take proceeding outside England: Unless otherwise provided in the Note Final Terms as being applicable in relation to the Governing Law, Condition 15(b) (English courts) is for the benefit of the Noteholders only. As a result, nothing in this Condition 15 (Law and Jurisdiction) prevents any Noteholder from taking proceedings relating to a Dispute (“Proceedings”) in any other courts with jurisdiction. To the extent allowed by law, Noteholders may take concurrent Proceedings in any number of jurisdictions.
(e) Service of notices/documents: Unless otherwise provided in the Note Final Terms as being applicable in relation to the Governing Law, each of the Issuer and the Guarantor (where applicable) agree that the documents which start any Proceedings and any other documents required to be served in relation to those Proceedings may be served on them by being delivered to Mediobanca – Xxxxxx Xxxxxx 00 Xxxxxxxxx Xxxxx, Xxxxxx XX0X 0XX Xxxxxx Xxxxxxx. If such person is not or ceases to be effectively appointed to accept service of process on behalf of the Issuer and the Guarantor (where applicable), the Issuer and the Guarantor (where applicable) shall, on the written demand of any Noteholder addressed and delivered to the Issuer and to the Guarantor (where applicable) or to the specified office of the Fiscal Agent appoint a further person in England to accept service of process on their behalf and, failing such appointment within 15 days, any Noteholder shall be entitled to appoint such a person by written notice addressed to the Issuer and the Guarantor (where applicable) and delivered to the Issuer and the Guarantor (where applicable) or to the specified office of the Fiscal Agent. Nothing in this paragraph shall affect the right of any Noteholder to serve process in any other manner permitted by law. This clause applies to Proceedings in England and to Proceedings elsewhere.