EXHIBIT 2.3
▇ ▇ ▇ ▇ ▇ ▇ ▇ ▇ LIMITED LIABILITY PARTNERSHIP
C H A N C E
EXECUTION COPY
ABB INTERNATIONAL FINANCE LIMITED
ABB FINANCE INC.
ABB CAPITAL B.V.
as issuers
PROGRAMME FOR THE ISSUANCE OF DEBT INSTRUMENTS
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AMENDED AND RESTATED FISCAL AGENCY AGREEMENT
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30 MAY 2001
CONTENTS
SECTION PAGE
1. Interpretation................................................................................2
2. Appointment Of The Paying Agents And The Registrars...........................................5
3. The Instruments...............................................................................5
4. Issuance Of Instruments.......................................................................7
5. Replacement Instruments......................................................................11
6. Payments To The Fiscal Agent Or The Registrar................................................13
7. Payments To Holders Of Bearer Instruments....................................................14
8. Payments To Holders Of Registered Instruments................................................16
9. Miscellaneous Duties Of The Fiscal Agent And The Paying Agents...............................17
10. Early Redemption.............................................................................21
11. Miscellaneous Duties Of The Registrars.......................................................22
12. Commissions, Fees And Expenses...............................................................24
13. Terms Of Appointment.........................................................................25
14. Changes In Agents............................................................................26
15. Substitution.................................................................................29
16. Further Issuers..............................................................................29
17. Notices......................................................................................30
18. Law And Jurisdiction.........................................................................32
19. Modification.................................................................................32
20. Counterparts.................................................................................32
21. Contracts (Rights Of Third Parties) Act 1999.................................................32
THE FIRST SCHEDULE................................................................................34
Form Of Temporary Global Instrument...............................................................34
THE SECOND SCHEDULE...............................................................................46
Form Of Permanent Global Instrument...............................................................46
THE THIRD SCHEDULE................................................................................52
Form Of Definitive Instrument ("ISMA" Format).....................................................52
THE FOURTH SCHEDULE...............................................................................61
Form Of Registered Instrument.....................................................................61
THE FIFTH SCHEDULE................................................................................64
Provisions For Meetings Of Holders Of Instruments.................................................64
THE SIXTH SCHEDULE................................................................................72
Form Of Deed Of Assumption........................................................................72
THE SEVENTH SCHEDULE..............................................................................77
Regulations Concerning Transfers Of Registered Instruments And....................................77
Exchanges Of Bearer Instruments For Registered Instruments........................................77
THE EIGHTH SCHEDULE...............................................................................79
The Specified Offices Of The Paying Agents And The Registrars.....................................79
THIS AMENDED AND RESTATED
FISCAL AGENCY AGREEMENT is made on 30 May 2001 and
replaces the
fiscal agency agreement dated 10 March 1993 as supplemented.
BETWEEN:
(1) ABB INTERNATIONAL FINANCE LIMITED ("AIFLTD"), ABB FINANCE INC. ("AFI")
and ABB CAPITAL B.V. ("ACBV") (the "ISSUERS" and each an "ISSUER", which
expression shall, where the context so permits, include any Further
Issuer as defined in Clause 16.1 hereof);
(2) BANQUE GENERALE DU LUXEMBOURG S.A. in its capacities as fiscal agent
(the "FISCAL AGENT", which expression shall include any successor to
Banque Generale du Luxembourg S.A. in its capacity as such) and
principal registrar (the "PRINCIPAL REGISTRAR", which expression shall
include any successor to Banque Generale du Luxembourg S.A. in its
capacity as such);
(3) THE CHASE MANHATTAN BANK in its capacity as alternative registrar (the
"ALTERNATIVE REGISTRAR", which expression shall include any successor to
The Chase Manhattan Bank in its capacity as such); and
(4) BANQUE GENERALE DU LUXEMBOURG (SUISSE) S.A. in its capacity as paying
agent (the "PAYING AGENTS", which expression shall include the Fiscal
Agent and any substitute or additional paying agents appointed in
accordance herewith).
WHEREAS:
(A) The Issuers established a programme (the "PROGRAMME") for the issuance
of debt instruments (the "INSTRUMENTS") having any maturity up to thirty
years, subject to compliance with all legal and/or regulatory
requirements in connection with which they entered into a dealership
agreement (the "DEALERSHIP AGREEMENT") dated 10 March 1993 and amended
and restated on 30 May 2001 and made between the Issuers, ABN AMRO Bank
N.V., Credit Suisse First Boston (Europe) Limited, Deutsche Bank AG
London, ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, ▇▇▇▇▇▇ Brothers International
(Europe), ▇.▇. ▇▇▇▇▇▇ Securities Ltd., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
International Limited, Societe Generale and UBS AG, acting through its
business group UBS Warburg, (the "DEALERS", which expression shall
include any substitute or additional dealers appointed in accordance
with the Dealership Agreement). In respect of bearer Instruments issued
in temporary global or permanent global form, each of the Issuers have
executed and delivered a deed of covenant (the "DEEDS OF COVENANT") each
dated 10 March 1993.
(B) Instruments may be issued on a listed or unlisted basis. Each of the
Issuers has made an application to the Luxembourg Stock Exchange (the
"LUXEMBOURG STOCK EXCHANGE") for Instruments issued by it under the
Programme to be listed on the Luxembourg Stock Exchange, in connection
with which application an information memorandum dated 30 May 2001 has
been prepared to permit Instruments to be so listed during the period of
twelve months or such other period as may be allowed by the relevant
Stock Exchange from the date of such information memorandum.
(C) The parties hereto wish to record certain arrangements which they have
made in relation to the Instruments to be issued under the Programme.
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IT IS AGREED as follows:
1. INTERPRETATION
1.1 In this Agreement, any reference to:
"AUTHORISED AMOUNT" shall have the meaning ascribed in the Dealership
Agreement;
"BANKING DAY" is to a day (other than Saturdays and Sundays) on which
commercial banks are open for business (including dealings in foreign
exchange and foreign currency deposits) in the place where the specified
office of the Fiscal Agent or, as the case may be, the Registrar is
located;
a "CLAUSE" is, unless the context indicates otherwise, to a clause in a
section hereof;
"CLEARSTREAM, LUXEMBOURG" means Clearstream Banking, societe anonyme;
a "CONDITION" is to the terms and conditions of the Instruments as
appearing in the Information Memorandum or, in relation to any Tranche
or Series of Instruments, such terms and conditions as the same may be
amended or supplemented or replaced as described in the relevant Pricing
Supplement or Pricing Supplements and any reference to a numbered
"Condition" is to the correspondingly numbered provision thereof and
"TERMS AND CONDITIONS" should be construed accordingly;
a "COUPON" is to an interest coupon and where the context permits, a
Talon, in each case appertaining to a Definitive Instrument;
"EUROCLEAR" is to Euroclear Bank S.A./N.V., as operator of the Euroclear
System;
"EVENT OF DEFAULT" is to any of the circumstances or events set out in
Condition 7 (as the same may be modified by the relevant Pricing
Supplement in relation to any Tranche of Instruments);
the "EXCHANGE ACT" is to the United States Securities Exchange Act of
1934;
the "EXCHANGE DATE" means the date which is 40 days after the completion
of the distribution of the Instruments comprising the relevant Tranche,
as specified in the relevant Pricing Supplement;
"INFORMATION MEMORANDUM" means the information memorandum the
preparation of which has been procured by the Issuers in connection with
the application for Instruments issued by it to be listed on the
Luxembourg Stock Exchange, together with any information incorporated
therein by reference, as the same may be amended, supplemented, updated
and/or substituted from time to time and any further information
memorandum prepared in connection with the listing of such Instruments
on any other stock exchange (as such further information memorandum may
be amended, supplemented, updated and/or substituted from time to time);
"INSTALMENT INSTRUMENT" means an Instrument the principal amount of
which is repayable by instalments;
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"ISSUE DATE" means, in relation to any Tranche of Instruments, the date
of issue of such Instruments;
"LOCAL TIME" in relation to any payment is to the time in the city or
town in which the relevant bank or the relevant branch or office thereof
is located and any reference to "LOCAL BANKING DAYS" in relation thereto
is to days (other than Saturdays and Sundays) on which commercial banks
are open for business (including dealings in foreign exchange and
foreign currency deposits) in such city or town;
"LUXEMBOURG BANKING DAY" is to a day (other than Saturdays and Sundays)
on which commercial banks are open for business (including dealings in
foreign exchange and foreign currency deposits) in Luxembourg;
"OUTSTANDING" means, in relation to the Instruments of any Issuer, all
the Instruments of such Issuer and any coupons relating thereto other
than:
(i) those which have been redeemed in full or purchased and
cancelled pursuant to Condition 6;
(ii) those in respect of which the date for redemption in full
(including, but not limited to, the due date for payment of the
final instalment in respect of an Instalment Instrument) has
occurred and the redemption moneys therefor (including all
interest accrued thereon to such date for redemption) have been
duly paid to the Fiscal Agent or (in the case of Registered
Instruments) the Registrar in the manner provided for in this
Fiscal Agency Agreement (and, where appropriate, notice to that
effect has been given in accordance with Condition 14) and
remain available for payment in accordance with the Conditions;
(iii) any Bearer Instrument which has been exchanged for a Registered
Instrument;
(iv) those which have become void under Condition 10 or Condition
9A.06;
(v) (for the purpose only of ascertaining the amount outstanding and
without prejudice to their status for any other purpose) those
Instruments which are alleged to have been lost, stolen or
destroyed and in respect of which replacement Instruments have
been issued pursuant to Condition 12;
(vi) those Instruments which have been mutilated or defaced and which
have been surrendered or cancelled and in respect of which
replacement Instruments have been issued pursuant to Condition
12;
(vii) any Temporary Global Instrument to the extent that it has been
exchanged for Definitive Instruments or a Permanent Global
Instrument; and
(viii) any Permanent Global Instrument to the extent that it has been
exchanged for Definitive Instruments.
Provided that for the purposes of the Fifth Schedule those Instruments
which are beneficially held by, or are held on behalf of, the relevant
Issuer or any affiliated
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company of such Issuer or
ABB Ltd or any subsidiary of
ABB Ltd and not
cancelled shall (unless and until ceasing to be so held) be deemed not
to remain outstanding;
"PRINCIPAL AMOUNT OUTSTANDING" means, on any date, the principal amount
of that Instrument on its date of issue (i) less, in respect of any
Instrument any amount of principal in respect of that Instrument that
has become due and payable and either has been paid to the relevant
holder or in respect of which the Relevant Date (as defined in Condition
8) shall have occurred, and (ii) less, in respect of any partly paid
Instrument, any amount that shall not have been paid up in full;
"REGISTRAR" is to the Principal Registrar or, as the case may be, the
Alternative Registrar as specified in the relevant Pricing Supplement
relating to Registered Instruments;
"REGULATIONS" is to the regulations concerning the transfer of
Registered Instruments or for the exchange of Bearer Instruments for
Registered Instruments as may from time to time be promulgated by the
relevant Issuer. The initial such regulations are set out in the Seventh
Schedule;
"RELEVANT DEALER" means, in respect of any Tranche of Instruments, the
institution specified as such in the relevant Pricing Supplement or, if
there is only one Dealer in respect of such Tranche of Instruments, such
Dealer;
the "SPECIFIED OFFICE" of any Paying Agent or any Registrar is to the
office specified against its name in the Eighth Schedule or such other
office in the same city or town as such Paying Agent or, as the case may
be, such Registrar may specify by notice to the Issuer and the other
parties hereto in accordance with Clause 14.7;
a "SCHEDULE" is, unless the context indicates otherwise, to a schedule
hereto;
a "SECTION" is, unless the context indicates otherwise, to a section
hereof;
the "SECURITIES ACT" is to the United States Securities Act of 1933;
a "TALON" is to a talon exchangeable for further Coupons; and
a "TRANCHE" is to an issue of Instruments which are identical in all
respects (save that they may be denominated in different amounts and may
comprise Instruments in bearer form and Instruments in registered form),
which are intended to be issued on the same closing date.
1.2 Terms used, but not defined, herein shall have the meanings ascribed to
them as set out in the terms and conditions of the relevant Instruments.
1.3 Section and Schedule headings are for ease of reference only and shall
not affect the construction or interpretation of this Agreement.
1.4 In this Agreement, any reference to payments of principal, redemption
amount or interest includes any additional amounts payable in relation
thereto under Condition 8.
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2. APPOINTMENT OF THE PAYING AGENTS AND THE REGISTRARS
2.1 Each of the Issuers appoint each of the Paying Agents and each of the
Registrars at their respective specified offices as their agent in
relation to the Instruments of such Issuer for the purposes specified in
this Agreement and on the terms and conditions applicable thereto and
all matters incidental thereto. Except where the context otherwise
requires references to the Paying Agents and the Registrars are to them
acting solely through such respective specified offices. The obligations
of the Paying Agents and the Registrars hereunder are several and not
joint.
2.2 Each of the Paying Agents and each of the Registrars accepts its
appointment as agent of each Issuer in relation to the Instruments and
shall perform all matters expressed to be performed by it in, and
otherwise comply with, the terms and conditions applicable thereto and
the provisions of this Agreement and, in connection therewith, shall
take all such action as may be incidental thereto.
3. THE INSTRUMENTS
3.1 Instruments may be issued in series (each a "SERIES") and each Series
may comprise one or more Tranches of Instruments. Each Tranche will be
the subject of a pricing supplement (each a "PRICING SUPPLEMENT")
prepared by or on behalf of the relevant Issuer or, as the case may be,
the relevant Dealer, attached to or incorporated by reference into each
Instrument of such Tranche and in the case of a Tranche in relation to
which application has been made for listing on the Luxembourg Stock
Exchange, lodged with the Luxembourg Stock Exchange.
3.2 Instruments may be issued in bearer form or in registered form, as
specified in the relevant Pricing Supplement.
3.3 Instruments in bearer form ("BEARER INSTRUMENTS") will initially be
represented by a temporary global instrument, without interest coupons
(a "TEMPORARY GLOBAL INSTRUMENT"), in bearer form which shall be
exchangeable in accordance with its terms on and from the Exchange Date
applicable to the Instruments represented by such Temporary Global
Instrument and upon due certification as described therein, for a
permanent global instrument (a "PERMANENT GLOBAL INSTRUMENT")
representing such Bearer Instruments or, if so specified in the relevant
Pricing Supplement, for definitive instruments ("DEFINITIVE
INSTRUMENTS"). In the case of a Series comprising both Bearer
Instruments and Instruments in registered form ("REGISTERED
INSTRUMENTS") the Temporary Global Instrument may be exchanged for
Registered Instruments in accordance with its terms and, in the case of
a Series comprising both Bearer Instruments and Registered Instruments
issued by AFI, only on and from the Exchange Date applicable to the
Instruments represented by such Temporary Global Instrument and upon due
certification as described therein. Each Permanent Global Instrument
will only be exchangeable in accordance with its terms for Definitive
Instruments and/or (in the case of a Series comprising both Bearer
Instruments and Registered Instruments) Registered Instruments.
3.4 Each Temporary Global Instrument shall:
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(a) be printed, lithographed or typewritten in substantially the
form (duly completed) set out in the First Schedule but with
such modifications, amendments and additions as the Fiscal
Agent, the relevant Dealer and the relevant Issuer shall have
agreed to be necessary;
(b) have attached thereto or incorporated by reference therein the
terms and conditions applicable thereto;
(c) be executed manually by two directors (or, as the case may be)
managing directors of, or by a duly authorised attorney on
behalf of, the relevant Issuer and shall be authenticated
manually by or on behalf of the Fiscal Agent; and
(d) bear a unique serial number.
3.5 Each Permanent Global Instrument shall:
(a) be printed, lithographed or typewritten in substantially the
form (duly completed) set out in the Second Schedule but with
such modifications, amendments and additions as the Fiscal
Agent, the relevant Dealer and the relevant Issuer shall have
agreed to be necessary;
(b) have attached thereto or incorporated by reference therein the
terms and conditions applicable thereto;
(c) be executed manually by two directors (or, as the case may be)
managing directors of, or by a duly authorised attorney on
behalf of, the relevant Issuer and shall be authenticated
manually by or on behalf of the Fiscal Agent; and
(d) bear a unique serial number.
3.6 Each Definitive Instrument shall:
(a) be in substantially the form (duly completed) set out in the
Third Schedule but with such modifications, amendments and
additions as the Fiscal Agent, the relevant Dealer and the
relevant Issuer shall have agreed to be necessary;
(b) unless the contrary is specified in the relevant Pricing
Supplement, be in the format from time to time specified by the
International Securities Markets Association or any successor
body thereto;
(c) have a unique serial number printed thereon;
(d) if so specified in the relevant Pricing Supplement, have
attached thereto at the time of its initial delivery Coupons;
(e) if so specified in the relevant Pricing Supplement, have
attached thereto at the time of its initial delivery a Talon;
(f) have endorsed thereon, attached thereto or incorporated by
reference therein the terms and conditions applicable thereto;
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(g) be executed manually or in facsimile by two directors (or, as
the case may be) managing directors of the relevant Issuer and
authenticated manually by or on behalf of the Fiscal Agent;
(h) be printed in accordance with the requirements of any clearing
system by which such Instruments are intended to be accepted;
and
(i) be printed in accordance with the requirements of any stock
exchange on which such Instruments may be listed.
3.7 Each Registered Instrument shall:
(a) be printed, lithographed or typewritten in substantially the
form (duly completed) set out in the Fourth Schedule but with
such modifications, amendments and additions as the Registrar,
the relevant Dealer and the relevant Issuer shall have agreed to
be necessary;
(b) have endorsed thereon, attached thereto or incorporated by
reference therein the terms and conditions applicable thereto;
and
(c) be executed manually by two directors (or, as the case may be)
managing directors of, or by a duly authorised attorney on
behalf of the relevant Issuer or shall be executed in facsimile
by two directors (or, as the case may be) managing directors of
the relevant Issuer and, in any case, shall be authenticated
manually by or on behalf of the Registrar.
3.8 Any Issuer may adopt and use the signature of any person who at the date
of signing a Temporary Global Instrument, Permanent Global Instrument or
Registered Instrument is an authorised signatory for such purpose of the
relevant Issuer notwithstanding that such person may for any reason
(including death) have ceased to be such an authorised signatory at the
time of the creation and issue of the relevant Tranche or the issue and
delivery of the relevant Instruments.
3.9 Any facsimile signature affixed to an Instrument may be that of a person
who is at the time of the creation and issue of the relevant Tranche an
authorised signatory for such purpose of the relevant Issuer
notwithstanding that such person may for any reason (including death)
have ceased to be such an authorised signatory at the time at which the
relevant Instrument may be delivered.
3.10 Execution in facsimile of any Instruments and any photostatic copying or
other duplication of master Global Instruments (in unauthenticated form,
but executed manually on behalf of the relevant Issuer as stated above)
shall be binding upon the relevant Issuer in the same manner as if such
Notes were signed manually by such signatories.
4. ISSUANCE OF INSTRUMENTS
4.1 Upon the conclusion of any agreement between the relevant Issuer and any
Dealer(s) for the sale by such Issuer and the purchase by such Dealer(s)
of any Instruments the Issuer
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shall, as soon as practicable but in any event not later than 3.00 p.m.
(Luxembourg time) four Luxembourg Banking Days, prior to the proposed
issue date therefor:
(a) confirm by tested telex or tested fax, to the Fiscal Agent or,
if such Instruments are to be Registered Instruments, the
Registrar (copied to the Fiscal Agent) all such information as
the Fiscal Agent or, as the case may be, the Registrar may
reasonably require to carry out its functions under this
Agreement and in particular, if a Temporary Global Instrument or
Registered Instruments from the stock provided for in Clause 4.2
is/are to be used, such details as are necessary to enable it to
complete such Temporary Global Instrument or Registered
Instruments, the settlement and payment procedures applicable to
the relevant Tranche of Instruments and the account of the
relevant Issuer to which payment should be made;
(b) deliver a duly executed copy of the Pricing Supplement in
relation to the relevant Tranche to the Fiscal Agent or, as the
case may be, the Registrar (copied to the Fiscal Agent); and
(c) unless a Temporary Global Instrument or a Registered Instrument
from the stock provided for in Clause 4.2 is to be used and the
relevant Issuer shall have provided such document to the Fiscal
Agent or, as the case may be, the Registrar pursuant to Clause
4.2, ensure that there is delivered to the Fiscal Agent a
Temporary Global Instrument (in unauthenticated form but
executed on behalf of the relevant Issuer and otherwise
complete) or, as the case may be, to the Registrar Registered
Instruments (in unauthenticated form and with the names of the
registered holders left blank but executed on behalf of the
Issuer and otherwise complete) in relation to the relevant
Tranche.
4.2 Each Issuer may, at its option, deliver from time to time to the Fiscal
Agent a stock of PRO FORMA Temporary Global Instruments and Permanent
Global Instruments (in unauthenticated form but executed on behalf of
the relevant Issuer) and/or, to the Registrar, a stock of PRO FORMA
Registered Instruments (in unauthenticated form but executed on behalf
of the relevant Issuer). Any such stock of Instruments shall be held in
safe custody by the Fiscal Agent or, as the case may be, the Registrar
upon trust for the relevant Issuer for use only in accordance with the
written instructions of such Issuer. The Fiscal Agent or, as the case
may be, the Registrar shall return the stock of Instruments to the
relevant Issuer forthwith upon written request by such Issuer.
4.3 The Fiscal Agent or, as the case may be, the Registrar shall, on behalf
of the relevant Issuer, where the relevant Instruments are to be listed
on the Luxembourg Stock Exchange, deliver a copy of the Pricing
Supplement in relation to the relevant Tranche to the Luxembourg Stock
Exchange as soon as practicable but in any event not later than 2.00
p.m. (local time) two Luxembourg Banking Days prior to the proposed
issue date therefor.
4.4 The provisions of this Clause 4.4 shall apply to each Tranche of
Instruments unless otherwise agreed between the relevant Issuer, the
Relevant Dealer and the Fiscal Agent or (in the case of Registered
Instruments) the Registrar. On or before 10.00 a.m. (local time) two
Banking Days prior to the issue date in relation to each Tranche, the
Fiscal
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Agent or, as the case may be, the Registrar shall authenticate and
deliver to the relevant depositary for Euroclear and/or Clearstream,
Luxembourg and/or any other relevant clearing system the relevant
Temporary Global Instrument or, as the case may be, Registered
Instruments together with instructions to Euroclear or Clearstream,
Luxembourg or such other clearing system to credit the Instruments
represented by such Temporary Global Instrument or the Registered
Instruments to such securities account(s) on a delivery against payment
basis (or on such other basis as shall have been agreed between the
relevant Issuer and the Relevant Dealer and notified to the Fiscal
Agent) as shall have been notified to the Fiscal Agent by the relevant
Issuer.
The Fiscal Agent shall give instructions to Euroclear and/or
Clearstream, Luxembourg and/or any other relevant clearing system to
credit Instruments represented by a Temporary Global Instrument or, as
the case may be, Registered Instruments registered in the name of the
relevant depositary, to the Fiscal Agent's distribution account. Unless
otherwise agreed in respect of any Tranche of Instruments by the
relevant Issuer and the Relevant Dealer and notified to the Fiscal Agent
each Instrument which is so credited to the Fiscal Agent's distribution
account with Euroclear or Clearstream, Luxembourg or such other clearing
system following the delivery of a Temporary Global Instrument or
Registered Instrument to the relevant depositary shall be held to the
order of the relevant Issuer pending delivery to the relevant Dealer(s)
on a delivery against payment basis in accordance with the normal
procedures of Euroclear or Clearstream, Luxembourg or such other
clearing system, as the case may be. The Fiscal Agent shall on the issue
date in respect of the relevant Tranche and against receipt of funds
from the relevant Dealer(s) transfer (with same value date) the proceeds
of issue to the relevant Issuer to the account notified in accordance
with Clause 4.1 above.
4.5 If the Fiscal Agent or, as the case may be, the Registrar should pay an
amount (an "ADVANCE") to an Issuer in the belief that a payment has been
or will be received from a Dealer and if such payment is not received by
the Fiscal Agent or, as the case may be, the Registrar on the date that
the Fiscal Agent or, as the case may be, the Registrar pays the relevant
Issuer, such Issuer shall forthwith repay the advance (unless prior to
such repayment the payment is received from the Dealer) and shall pay
interest on such amount which shall accrue (as well after as before
judgment) on the basis of a year of 360 days (365 days (or 366 days, in
the case of a leap year) in the case of an advance paid in sterling) and
the actual number of days elapsed from the date of payment of such
advance until the earlier of (i) repayment of the advance or (ii)
receipt by the Fiscal Agent or, as the case may be, the Registrar of the
payment from the Dealer, and at the rate per annum which is the
aggregate of one per cent. per annum and the rate per annum specified by
the Fiscal Agent or, as the case may be, the Registrar as reflecting its
cost of funds for the time being in relation to the unpaid amount.
4.6 Unless a Permanent Global Instrument from the stock provided for in
Clause 4.2 is to be used and the relevant Issuer has provided such
document to the Fiscal Agent pursuant to Clause 4.2, the relevant Issuer
shall, in relation to each Tranche of Bearer Instruments, ensure that
there is delivered to the Fiscal Agent not less than four Luxembourg
Banking Days before the Exchange Date for the relevant Temporary Global
Instrument, the Permanent Global Instrument (in unauthenticated form but
executed by such Issuer and otherwise complete) in relation thereto or,
as the case may be, the Definitive Instruments
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(in unauthenticated form but executed by such Issuer and otherwise
complete) in relation thereto. If, in the case of a Series comprising
both Bearer Instruments and Registered Instruments, the Temporary Global
Instrument is exchangeable for Definitive Instruments and/or Registered
Instruments, (unless a Registered Instrument from the stock provided for
in Clause 4.2 is to be used and the relevant Issuer shall have provided
such document to the Registrar pursuant to Clause 4.2) the Issuer shall
ensure that there is delivered to the Registrar, sufficient Registered
Instruments to enable the Registrar to effect exchanges of interests in
the Temporary Global Instrument for Registered Instruments in accordance
with the terms of the Temporary Global Instrument. The Fiscal Agent or,
as the case may be, the Registrar, shall authenticate and deliver such
Permanent Global Instrument or, as the case may be, Definitive
Instruments and/or Registered Instruments in accordance with the terms
hereof and of the relevant Temporary Global Instrument.
4.7 The relevant Issuer shall, in relation to each Tranche of Bearer
Instruments which is represented by a Permanent Global Instrument in
relation to which an exchange notice has been given in accordance with
the terms of such Permanent Global Instrument, ensure that there is
delivered to the Fiscal Agent not less than ten Luxembourg Banking Days
before the day on which the relevant notice period expires the
Definitive Instruments (in unauthenticated form but executed by such
Issuer and otherwise complete) in relation thereto. If, in the case of a
Series comprising both Bearer Instruments and Registered Instruments,
the Permanent Global Instrument is exchangeable for Definitive
Instruments and/or Registered Instruments, (unless a Registered
Instrument from the stock provided for in Clause 4.2 is to be used and
the relevant Issuer shall have provided such document to the Registrar
pursuant to Clause 4.2) the Issuer shall ensure that there is delivered
to the Registrar, sufficient Registered Instruments to enable the
Registrar to effect exchanges of interests in the Permanent Global
Instrument for Registered Instruments in accordance with the terms of
the Permanent Global Instrument. The Fiscal Agent or, as the case may
be, the Registrar, shall authenticate and deliver such Definitive
Instruments and/or Registered Instruments in accordance with the terms
hereof and of the relevant Permanent Global Instrument.
4.8 Where any Definitive Instruments with Coupons attached are to be
delivered in exchange (not earlier than the Exchange Date) for a
Temporary Global Instrument or a Permanent Global Instrument, the Fiscal
Agent shall ensure that such Definitive Instruments shall have attached
thereto only such Coupons as shall ensure that neither loss nor gain of
interest shall accrue to the bearer thereof.
4.9 The Fiscal Agent or, as the case may be, the Registrar shall hold in
safe custody and in trust for the account of, and to the order of, the
relevant Issuer all unauthenticated Temporary Global Instruments,
Permanent Global Instruments, Definitive Instruments or, as the case may
be, Registered Instruments delivered to it in accordance with this
Section 4, Section 5 or Section 11 and shall ensure that the same are
authenticated and delivered only in accordance with the terms hereof
and, if applicable, the relevant Temporary Global Instrument or
Permanent Global Instrument.
4.10 The Fiscal Agent and the Registrar are authorised by the relevant Issuer
to authenticate such Temporary Global Instruments, Permanent Global
Instruments, Definitive
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Instruments or, as the case may be, Registered Instruments as may be
required to be authenticated hereunder by the signature of any of their
respective officers or any other person duly authorised for the purpose
by the Fiscal Agent or, as the case may be, the Registrar.
4.11 On each occasion on which a portion of a Temporary Global Instrument or
a Permanent Global Instrument is exchanged for a portion of a Permanent
Global Instrument or, as the case may be, for Definitive Instruments
and/or Registered Instruments, the Fiscal Agent shall note or procure
that there is noted on the Schedule to, or in the absence of a Schedule,
on the face of, the Temporary Global Instrument or, as the case may be,
Permanent Global Instrument the aggregate principal amount thereof so
exchanged and the remaining principal amount of the Temporary Global
Instrument or, as the case may be, Permanent Global Instrument (which
shall be the previous principal amount thereof less (or, in the case of
a Permanent Global Instrument in respect of an exchange of a portion of
a Temporary Global Instrument for a Permanent Global Instrument, plus)
the aggregate principal amount so exchanged) and shall procure the
signature of such notation on its behalf. The Fiscal Agent shall
forthwith cancel or procure the cancellation of each Temporary Global
Instrument or, as the case may be, Permanent Global Instrument against
surrender of which it has made full exchange for a Permanent Global
Instrument or Definitive Instruments and/or Registered Instruments.
4.12 The relevant Issuer shall, in relation to each series of Definitive
Instruments to which a Talon is attached upon the initial delivery
thereof, on each occasion on which a Talon becomes exchangeable for
further Coupons, not less than five Luxembourg Banking Days before the
date on which the final Coupon comprised in any Coupon sheet (which
includes a Talon) matures ("TALON EXCHANGE DATE"), ensure that there is
delivered to the Fiscal Agent such number of Coupon sheets as may be
required in order to enable the Paying Agents to fulfil their obligation
under Clause 4.13 hereof.
4.13 The Paying Agent shall on or after the Talon Exchange Date in respect of
such Talon deliver a Coupon sheet against the presentation and surrender
of such Talon provided that if any Talon is presented and surrendered
for exchange to any Paying Agent and the Replacement Agent (as defined
in Clause 5.1) has delivered a replacement therefor the Paying Agent
shall forthwith notify the Fiscal Agent which shall immediately inform
the relevant Issuer of such presentation and surrender and the Paying
Agent shall not exchange against the same unless and until it is so
instructed in writing by the Fiscal Agent. The Paying Agent which makes
an exchange as set out in this Clause 4.13 shall cancel each Talon
surrendered to it and in respect of which a Coupon sheet shall have been
delivered and shall (if such Paying Agent is not the Fiscal Agent)
forthwith deliver the cancelled Talon to the Fiscal Agent.
4.14 Each of the Issuers undertakes to notify the Fiscal Agent of any changes
in the identity of the Dealers and the Fiscal Agent agrees to notify the
other Paying Agents and Registrars thereof as soon as reasonably
practicable thereafter.
5. REPLACEMENT INSTRUMENTS
5.1 The Fiscal Agent or, as the case may be, the Registrar (in such capacity
"REPLACEMENT AGENT") shall in accordance with the instructions of the
relevant Issuer and the terms and
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conditions (subject to the provisions of Clause 5.2 below) authenticate
and deliver a Temporary Global Instrument, Permanent Global Instrument,
Definitive Instrument, Coupon or, as the case may be, Registered
Instrument as a replacement for any of the same which has been mutilated
or defaced or which has or has been alleged to have been destroyed,
stolen or lost Provided that no Temporary Global Instrument, Permanent
Global Instrument, Definitive Instrument, Coupon or Registered
Instrument shall be delivered as a replacement for any of the same which
has been mutilated or defaced otherwise than against surrender of the
same and any replacement Definitive Instrument shall have the same
number of Coupons and, if applicable, a Talon as are attached to the
mutilated or defaced Definitive Instrument so replaced.
5.2 The Replacement Agent shall not issue any replacement Temporary Global
Instrument, Permanent Global Instrument, Definitive Instrument, Coupon
or, as the case may be, Registered Instrument unless the claimant shall
have:
(i) paid such costs as may be incurred; and
(ii) furnished (in the case of destroyed, lost or stolen Instruments)
such evidence, security, indemnity and otherwise as the relevant
Issuer may require.
5.3 Each replacement Temporary Global Instrument, Permanent Global
Instrument, Definitive Instrument, Coupon or Registered Instrument
delivered hereunder shall bear a unique serial number.
5.4 The Replacement Agent shall cancel each mutilated or defaced Temporary
Global Instrument, Permanent Global Instrument, Definitive Instrument,
Coupon or Registered Instrument surrendered to it and in respect of
which a replacement has been delivered.
5.5 The Replacement Agent shall forthwith notify the relevant Issuer, and
(in the case of Bearer Instruments) the other Paying Agents of the
delivery by it in accordance herewith of any replacement Temporary
Global Instrument, Permanent Global Instrument, Definitive Instrument,
Coupon or Registered Instrument, specifying the serial number thereof
and the serial number (if any and if known) of the Instrument which it
replaces and confirming (if such be the case) that the Instrument which
it replaces has been cancelled.
5.6 Each of the Issuers shall ensure that the Replacement Agent has
available to it supplies of such Temporary Global Instruments, Permanent
Global Instruments, Definitive Instruments, Coupons and Registered
Instruments, as the case may be, as shall be necessary to effect the
delivery of replacement Instruments under this Section 5.
5.7 Each of the Fiscal Agent, the Registrar and the Replacement Agent
undertake to notify the relevant Issuer if its holds insufficient
Instruments or Coupons to fulfil its respective obligations under
Section 4 and this Section 5.
5.8 Unless the relevant Issuer instructs otherwise, the Replacement Agent
shall destroy each mutilated or defaced Temporary Global Instrument,
Permanent Global Instrument, Definitive Instrument, Coupon or Registered
Instrument surrendered to and cancelled by it and in respect of which a
replacement has been delivered and shall as soon as possible but not
later than three months after such destruction furnish such Issuer with
a
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certificate as to such destruction and specifying the serial numbers of
the Temporary Global Instrument, Permanent Global Instrument, Definitive
Instruments and Registered Instruments in numerical sequence and the
total number by maturity date of Coupons (and distinguishing any Talon
in respect thereof) so destroyed.
6. PAYMENTS TO THE FISCAL AGENT OR THE REGISTRAR
6.1 In order to provide for the payment of interest and principal or, as the
case may be, any other redemption amount payable in respect of the
Instruments of each Series as the same shall become due and payable the
relevant Issuer shall pay to the Fiscal Agent or, as the case may be,
the Registrar on or before the date on which such payment becomes due an
amount equal to the amount of principal, redemption amount or, as the
case may be, interest then becoming due in respect of such Instruments.
6.2 Each amount payable by the relevant Issuer under Clause 6.1 shall be
paid unconditionally by credit transfer in the currency in which the
Instruments of the relevant Series are denominated or, if different,
payable and in immediately available, freely transferable funds not
later than 10.00 a.m. (local time) on the relevant day to such account
with such bank as the Fiscal Agent or, as the case may be, the Registrar
may by notice to such Issuer have specified for the purpose. If the due
date for payment in respect of any Instruments is not, in respect of
such Instruments, a Relevant Financial Centre Day (as defined in
Condition 9B.02 of the terms and conditions of the relevant Instruments)
then payment will be made on the next following Relevant Financial
Centre Day (or, in the case of Instruments denominated or, if different,
payable in Euro on the next following day which is a TARGET Business Day
(as defined in Condition 5B.04 of the terms and conditions of the
Instruments). The Fiscal Agent or, as the case may be, the Registrar
shall give not less than 14 nor more than 21 days' notice to the
relevant Issuer of the due date for, and amount of, each payment in
respect of the Instruments. The relevant Issuer shall, before 10.00 a.m.
(local time) at least two Luxembourg Banking Days before the due date of
each payment by it under Clause 6.1, confirm to the Fiscal Agent or, as
the case may be, the Registrar by tested telex or tested fax that it has
given irrevocable instructions for the transfer of the relevant funds to
the Fiscal Agent or, as the case may be, the Registrar and the name and
the account of the bank through which such payment is being made.
6.3 The Fiscal Agent and each Registrar shall be entitled to deal with each
amount paid to it hereunder in the same manner as other amounts paid to
it as a banker by its customers Provided that:
(a) it shall not against the relevant Issuer exercise any lien,
right of set-off or similar claim in respect thereof; and
(b) it shall not be liable to any person for interest thereon.
6.4 All moneys paid to the Fiscal Agent by the relevant Issuer in respect of
any Instrument shall be held by the Fiscal Agent from the moment when
such moneys are received until the time of actual payment thereof, upon
trust to apply the same in accordance with Section 7, and the Fiscal
Agent shall not be obliged to repay any such amount unless or until
claims against such Issuer in respect of the relevant Instruments are
prescribed or
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the relevant payment becomes void or ceases in accordance with the terms
and conditions, in which event it shall forthwith repay to the relevant
Issuer such portion of such amount as relates to such payment by paying
the same by credit transfer to such account with such bank as the
relevant Issuer may by notice to the Fiscal Agent have specified for the
purpose.
6.5 (a) The Fiscal Agent or, as the case may be, the Registrar shall
forthwith notify the Paying Agents and the relevant Issuer by
telex or fax or cable if, by 10.00 a.m. (local time) on the due
date for any payment to it under Clause 6.1, it has not received
confirmation that such Issuer has given irrevocable instructions
for payment to be made as referred to in Clause 6.2.
(b) The Fiscal Agent or, as the case may be, the Registrar shall
forthwith (and in any event within one Relevant Financial Centre
Day in respect of the relevant Instruments) notify the relevant
Issuer if it has not received from such Issuer in the manner
provided herein full payment on the due date of any amount with
respect to the Instruments.
(c) If the Fiscal Agent or, as the case may be, the Registrar has
not received the full amount payable by the due date but
receives such amount later it shall:
(i) forthwith so notify the other Paying Agents; and
(ii) forthwith give notice to the holders of the Instruments in
accordance with Condition 14 that it has received such
full amount.
6.6 All moneys paid to the Registrar by the relevant Issuer in respect of
any Instrument shall be held by the Registrar from the moment when such
moneys are received until the time of actual payment thereof, upon trust
to apply the same in accordance with Section 8, and the Registrar shall
not be obliged to repay any such amount unless or until the claims
against such Issuer in respect of the relevant Registered Instruments
are prescribed or the relevant payment becomes void or ceases in
accordance with the terms and conditions, in which event it shall
forthwith repay to the relevant Issuer such portion of such amount as
relates to such claims in respect of the relevant Registered Instruments
by paying the same by credit transfer to such account with such bank as
the relevant Issuer may by notice to the Registrar have specified for
the purpose.
7. PAYMENTS TO HOLDERS OF BEARER INSTRUMENTS
7.1 Each Paying Agent shall make payments of interest, principal or, as the
case may be, redemption amount in respect of Bearer Instruments in
accordance with the terms and conditions applicable thereto (and, in the
case of a Temporary Global Instrument or a Permanent Global Instrument,
the terms thereof) Provided that:
(a) if any Temporary Global Instrument, Permanent Global Instrument,
Definitive Instrument or Coupon is presented or surrendered for
payment to any Paying Agent and such Paying Agent has delivered
a replacement therefor or has been notified that the same has
been replaced, such Paying Agent shall forthwith notify the
Fiscal Agent (which shall immediately notify the relevant
Issuer) of such presentation or surrender and shall not make
payment against the same
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until it is so instructed in writing by such Issuer and has
received the amount to be so paid;
(b) if any Temporary Global Instrument or Permanent Global
Instrument is presented or surrendered for payment to any Paying
Agent other than the Fiscal Agent, such Paying Agent shall
(without prejudice to Clause 7.3) forthwith notify the Fiscal
Agent of that fact;
(c) unless and until the full amount of any payment has been
transferred to the Fiscal Agent, none of the Paying Agents shall
be bound to make payments on behalf of the relevant Issuer in
respect of the Instruments;
(d) in the absence of contrary notification from the Fiscal Agent on
the due date for any payment in respect of the Instruments of
any Series, the Paying Agents shall assume that the Fiscal Agent
has received the full amount so due in respect of such
Instruments and shall be entitled:
(i) to pay maturing Instruments and Coupons in accordance with
the terms and conditions; and
(ii) to claim any amounts so paid by it from the Fiscal Agent;
(e) each Paying Agent shall (in the case of the Temporary Global
Instrument or Permanent Global Instrument, in accordance with
the directions of the Fiscal Agent) cancel or procure the
cancellation of each Temporary Global Instrument, Permanent
Global Instrument, Definitive Instrument (in the case of early
redemption, together with such unmatured Coupons or unexchanged
Talons as are attached to or are surrendered with it at the time
of such redemption), or, as the case may be, Coupon against
surrender of which it has made full payment and shall (if such
Paying Agent is not the Fiscal Agent) forthwith deliver or
procure the delivery of each Temporary Global Instrument,
Permanent Global Instrument, Definitive Instrument (together
with as aforesaid) or Coupon so cancelled by it to the Fiscal
Agent together with all relevant details; and
(f) in the case of payment of interest, principal or, as the case
may be, redemption amount against presentation of a Temporary
Global Instrument or a Permanent Global Instrument or in the
case of payment of an instalment in respect of an Instalment
Instrument against presentation of a Definitive Instrument, the
relevant Paying Agent shall (in the case of the Temporary Global
Instrument or Permanent Global Instrument, in accordance with
the directions of the Fiscal Agent) note or procure that there
is noted on the Schedule thereto, or in the absence of a
Schedule, on the face thereof, the amount of such payment and,
in the case of payment of principal or redemption amount, the
remaining principal amount of the relevant Instrument (which
shall be the previous principal amount less the amount of
principal or, as the case may be, the principal amount in
respect of which redemption amount has then been paid) and shall
procure the signature of such notation on its behalf.
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7.2 None of the Paying Agents shall exercise any lien, right of set-off or
similar claim against any person to whom it makes any payment under
Clause 7.1 in respect thereof, nor shall any commission or expense be
charged by it to any such person in respect thereof.
7.3 If a Paying Agent other than the Fiscal Agent makes any payment in
accordance with Clause 7.1:
(a) it shall notify the Fiscal Agent of the amount so paid by it,
the serial number of the Temporary Global Instrument, Permanent
Global Instrument, Definitive Instrument or Coupon against
presentation or surrender of which payment of interest,
principal or redemption amount was made and the number of
Coupons by maturity against which payment of interest was made;
and
(b) the Fiscal Agent shall on demand promptly reimburse such Paying
Agent for the amount so properly paid by it by payment out of
the funds received by it under Clause 6.1 of an amount equal to
the amount so paid by it by paying the same by credit transfer
to such account with such bank as such Paying Agent may by
notice to the Fiscal Agent have specified for the purpose.
7.4 If the Fiscal Agent makes any payment in accordance with Clause 7.1 out
of its own funds, it shall be entitled to appropriate for its own
account out of the funds received by it under Clause 6.1 an amount equal
to the amount so paid by it.
7.5 If at any time and for any reason a Paying Agent makes a partial payment
in respect of any Temporary Global Instrument, Permanent Global
Instrument, Definitive Instrument or Coupon surrendered for payment to
it, such Paying Agent shall endorse thereon a statement indicating the
amount and date of such payment.
8. PAYMENTS TO HOLDERS OF REGISTERED INSTRUMENTS
8.1 The Registrar shall make payments of interest, principal or, as the case
may be, redemption amount in respect of Registered Instruments in
accordance with the terms and conditions applicable thereto Provided
that unless and until the full amount of any payment has been
transferred to the Registrar, the Registrar shall not be bound to make
payments on behalf of the Instruments.
8.2 The Registrar shall not exercise any lien, right of set-off or similar
claim against any person to whom it makes any payment under Clause 8.1
in respect thereof, nor shall any commission or expense be charged by it
to any such person in respect thereof.
8.3 If a Registrar makes any payment in accordance with Clause 8.1 out of
its own funds, it shall be entitled to appropriate for its own account
out of the funds received by it under Clause 6.1 an amount equal to the
amount so paid by it.
8.4 If at any time and for any reason a Registrar makes a partial payment in
respect of any Registered Instrument surrendered for payment to it, such
Registrar shall endorse thereon a statement indicating the amount and
date of such payment.
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9. MISCELLANEOUS DUTIES OF THE FISCAL AGENT AND THE PAYING AGENTS
CANCELLATION, DESTRUCTION AND RECORDS
9.1 The Fiscal Agent shall:
(a) maintain a complete record of all Temporary Global Instruments,
Permanent Global Instruments, Definitive Instruments and Coupons
delivered hereunder and of their redemption, payment, exchange,
cancellation, mutilation, defacement, alleged destruction, theft
or loss or replacement Provided that no record need be
maintained of the serial numbers of Coupons save insofar as that
a record shall be maintained of the serial numbers of unmatured
Coupons missing at the time of redemption or other cancellation
of the relevant Definitive Instruments and of any subsequent
payments against such Coupons and shall send forthwith to the
other Paying Agents a list of any unmatured Coupons and/or
unexchanged Talons missing upon redemption of the relevant
Definitive Instrument;
(b) maintain a record of all certifications received by it in
accordance with the provisions of any Temporary Global
Instrument;
(c) upon request by an Issuer, inform such Issuer of the spot rate
of exchange quoted by it for the purchase of the currency in
which the relevant Instruments are denominated against payment
of United States dollars (or such other currency specified by
such Issuer) on the date on which the Relevant Agreement (as
defined in the Dealership Agreement) in respect of such
Instruments was made;
(d) in relation to each series of Instruments the terms and
conditions applicable to which provide that the rate of interest
or redemption amount or any calculation applicable thereto shall
be determined by the Fiscal Agent, determine such rate of
interest or redemption amount or make such calculation from time
to time on the basis therein and take all such actions as may to
it seem reasonably incidental thereto including, without
limitation, the notification of all rates and amounts so
determined and the maintenance of all appropriate records; and
(e) make such records available for inspection at all reasonable
times by the relevant Issuer and the other Paying Agents.
9.2 The Paying Agents shall make available to the Fiscal Agent such
information as may reasonably be required for the maintenance of the
records referred to in Clause 9.1.
9.3 In relation to any Instruments purchased by any Issuer or any of its
affiliated companies, the relevant Issuer may deliver to the Fiscal
Agent Definitive Instruments and unmatured Coupons appertaining thereto
for cancellation or, as the case may be, may procure the delivery to the
Fiscal Agent of a Temporary Global Instrument or a Permanent Global
Instrument with instructions to cancel a specified aggregate principal
amount of Instruments represented thereby (which instructions shall be
accompanied by evidence satisfactory to the Fiscal Agent that the
relevant Issuer is entitled to give such instructions) whereupon the
Fiscal Agent shall cancel such Definitive Instruments and
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Coupons or, as the case may be, note or procure that there is noted on
the Schedule to, or in the absence of a Schedule, on the face of, such
Temporary Global Instrument or Permanent Global Instrument the aggregate
principal amount of Instruments so to be cancelled and the remaining
principal amount thereof (which shall be the previous principal amount
thereof less the aggregate principal amount of the Instruments so
cancelled) and shall procure the signature of such notation on its
behalf.
9.4 As soon as possible (and in any event within three months) after each
interest or other payment date in relation to any Series of Bearer
Instruments, after each date on which Instruments are cancelled in
accordance with Clause 9.3, and after each date on which the Instruments
fall due for redemption, the Fiscal Agent shall notify the relevant
Issuer and the other Paying Agents (on the basis of the information
available to it) of:
(i) the aggregate principal amount paid on, and the serial numbers
of all Instruments redeemed, surrendered and cancelled and the
serial numbers of any Definitive Instruments which have not yet
been surrendered for payment;
(ii) for each date for the payment of interest, the total number of
Coupons paid and the aggregate amount paid thereon;
(iii) the aggregate principal amount and serial numbers of Instruments
purchased and cancelled; and
(iv) the total number by maturity date of unmatured Coupons missing
from Instruments redeemed or purchased and surrendered and the
serial numbers of the Instruments to which such missing
unmatured Coupons appertained.
9.5 The Fiscal Agent shall (unless the relevant Issuer otherwise requests)
destroy each Temporary Global Instrument, Permanent Global Instrument,
Definitive Instrument and Coupon delivered to or cancelled by it in
accordance with Clauses 4.11, 4.13, paragraph (d) of Clause 7.1, Clause
9.14, Clause 11.13 or (where there is no principal amount remaining of
such Temporary Global Instrument or Permanent Global Instrument)
delivered to and cancelled by it in accordance with Clause 9.3, in which
case it shall as soon as possible (and in any event within 3 months of
such destruction) furnish the relevant Issuer with a certificate as to
such destruction and specifying the serial numbers of the Temporary
Global Instrument, Permanent Global Instrument, Definitive Instruments
in numerical sequence and the total number by maturity date of Coupons
(distinguishing Talons) so destroyed.
MEETINGS OF HOLDERS OF INSTRUMENTS
9.6 Each Paying Agent shall, at the request of the holder of any Bearer
Instrument issue voting certificates and block voting instructions in a
form and manner which comply with the provisions of the Fifth Schedule
(except that it shall not be required to issue the same less than
forty-eight hours before the time fixed for any meeting therein provided
for) and will perform the other functions specified in the Fifth
Schedule. The provisions contained in the Fifth Schedule will have full
effect in the like manner as if they had been expressly incorporated
herein in full. Each Paying Agent shall keep a full record of voting
certificates and block voting instructions issued by it and will give to
the relevant
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Issuer not less than twenty-four hours before the time appointed for any
meeting or adjourned meeting full particulars of all voting certificates
and block voting instructions issued by it in respect of such meeting or
adjourned meeting.
DOCUMENTS AND FORMS
9.7 The Issuer shall provide to the Fiscal Agent for distribution among the
Paying Agents:
(a) specimen Instruments;
(b) sufficient copies of all documents required to be available for
issue or inspection as provided in the Information Memorandum
or, in relation to any Instruments, the terms and conditions or
Pricing Supplement in respect of such Instruments; and
(c) in the event that the provisions of such Condition become
relevant in relation to any Instruments, the certificate
contemplated under the Condition headed "Early Redemption for
Taxation Reasons".
9.8 Each Paying Agent shall make available for examination or use during
normal business hours at its specified office such documents as may be
specified as so available at the specified office of such agent in the
Information Memorandum or, in relation to any Instruments, the terms and
conditions or Pricing Supplement in respect of such Instruments, or as
may be required by any stock exchange on which the Instruments may be
listed and, without prejudice to the generality of the foregoing, the
Fiscal Agent and the Paying Agent with its specified office in
Luxembourg shall make available for examination or use during normal
business hours at its specified office copies of the Information
Memorandum and each Pricing Supplement and all other documents listed in
paragraph 8 of the General Information section of the Information
Memorandum and, in the event that the provisions of such Condition
become relevant, the certificate contemplated in the Condition headed
"Early Redemption for Taxation Reasons".
NOTIFICATIONS
9.9 The Fiscal Agent shall make all necessary notifications (including the
submission of documents or reports where required) to and with the Bank
of England and the Ministry of Finance in Japan in connection with
Instruments denominated in Pounds Sterling and Yen respectively and
other similar notifications (including the submission of documents or
reports where required) as may be required in respect of any other
Instruments. Within one week after the end of each calendar month, the
Fiscal Agent shall notify the Bank of England of the principal amount of
each Tranche of Instruments denominated in Sterling (i) outstanding as
at the end of the relevant calendar month and (ii) issued and redeemed
since the previous such notification (or since the date of this
Fiscal
Agency Agreement, as the case may be). Such notification shall be made
even if no such Instruments were outstanding as at such time or issued
or redeemed during such calendar month. Such notification shall be
consistent with the requirements from time to time of the Bank of
England. Within fifteen days after the end of each calendar month, the
Fiscal Agent shall submit a report in Japanese to the Ministry of
Finance in Japan in respect of each Tranche of Instruments denominated
in Yen issued during the relevant
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calendar month. Such report shall be submitted even if no such
Instruments were issued during such calendar month. Such report shall be
consistent with the requirements from time to time of the Ministry of
Finance of Japan.
9.10 The Fiscal Agent agrees with each Issuer that, to the extent that it is
notified by each relevant Dealer that the distribution of the
Instruments of any Tranche is complete it will notify the relevant
Issuer and the relevant Dealers of the completion of distribution of the
Instruments of any Tranche which are sold to or through more than one
Dealer as contemplated in Schedule 1 to the Dealership Agreement.
NOTICES
9.11 Forthwith upon receipt by the Fiscal Agent of any notice or other
communication from or on behalf of the holder of any Instrument in
relation to any Instrument, the Fiscal Agent shall forward a copy of the
notice or communication to the relevant Issuer. Each of the Paying
Agents agrees to notify the Fiscal Agent forthwith in the event that it
receives any such notice or communication.
9.12 The Fiscal Agent shall, upon and in accordance with the instructions of
the relevant Issuer but not otherwise promptly arrange for the
publication of any notices required to be given to the holders of Bearer
Instruments in accordance with the terms and conditions of the relevant
Instruments or required to comply with the requirements of any stock
exchange on which the relevant Instruments may be listed and shall
supply a copy thereof to each other Paying Agent.
INDEMNITY
9.13 Each of the Paying Agents shall severally indemnify the Issuers and each
of them against any direct loss, liability, cost, claims, action, demand
or expense incurred by such Issuer as a result of or arising out of or
in relation to or in connection with any breach by such Paying Agent, or
any person acting on its behalf, of the terms of this Agreement, or as a
result of its wilful misconduct, negligence or bad faith or that of its
agents, officers or employees. The Issuers and each of them shall remain
entitled to the benefit and each of the Paying Agents shall be subject
to the provisions of this Clause 9.13 notwithstanding the provisions of
Clause 14.6.
EXCHANGE OF BEARER INSTRUMENTS FOR REGISTERED INSTRUMENTS
9.14 In relation to any Series comprising Bearer and Registered Instruments,
the Fiscal Agent shall receive requests to effect exchanges of Bearer
Instruments for Registered Instruments together with the relevant Bearer
Instruments, inform the Registrar (specifying (i) the aggregate
principal amount of such Bearer Instruments, (ii) the name(s) and
address(es) to be entered on the Register as the holder(s) of the
Registered Instrument(s) and (iii) the denomination(s) of the Registered
Instrument(s)) and assist in the issue of the Registered Instrument(s)
in accordance with the terms and conditions applicable thereto and in
accordance with the Regulations. The Fiscal Agent shall, on the exchange
date (as defined in Condition 2.06) applicable to such exchange of
Bearer Instruments for Registered Instruments, cancel such Bearer
Instruments.
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10. EARLY REDEMPTION
10.1 If an Issuer intends (other than consequent upon an Event of Default) to
redeem all or any of the Instruments prior to their stated maturity date
it shall not less than 15 days prior to the latest date for the
publication of the notice of redemption required to be given to the
holders of any Instruments, give notice of such intention to the Fiscal
Agent or, in the case of Registered Instruments, the Registrar (copied
to the Fiscal Agent) stating the date on which such Instruments are to
be redeemed.
10.2 In respect of any Instruments to which Condition 6.06 applies or which
carries any other right of redemption at the option of the holders of
such Instruments, the relevant Issuer will provide the Paying Agents or,
in the case of Registered Instruments, the Registrar with copies of the
form of the current redemption notice and the Paying Agents or, as the
case may be, the Registrar will make available forms of the current
redemption notice to holders of Instruments upon request during usual
business hours at their respective specified offices. Upon receipt of
any Instrument deposited in the exercise of such option, the Paying
Agent or, in the case of Registered Instruments, the Registrar with
which such Instrument is deposited shall hold such Instrument (together
with, in the case of a Definitive Instrument, any Coupons relating to it
deposited with it) on behalf of the depositing holder of such Instrument
(but shall not, save as provided below, release it) until the due date
for redemption of the relevant Instrument consequent upon the exercise
of such option, when, subject as provided below, it shall present such
Instrument (and any such Coupons) to itself for payment in accordance
with the terms and conditions of the relevant Instruments and shall pay
such moneys in accordance with the directions of the holder of the
Instrument contained in the relevant redemption notice. If, prior to
such due date for its redemption, such Instrument becomes immediately
due and payable by reason of an Event of Default or if upon due
presentation payment of such redemption moneys is improperly withheld or
refused, the Paying Agent concerned or, as the case may be, the
Registrar shall without prejudice to the exercise of such option mail
such Instrument (together with any such Coupons) by uninsured post to,
and at the risk of, the holder of the relevant Instrument at such
address as may have been given by such holder in the relevant redemption
notice.
10.3 At the end of any applicable period for the exercise of such option or,
as the case may be, not later than 7 days after the latest date for the
exercise of such option in relation to a particular date, in relation to
Bearer Instruments each Paying Agent shall promptly notify the Fiscal
Agent of the principal amount of the Instruments in respect of which
such option has been exercised with it together with their serial
numbers and the Fiscal Agent shall promptly notify such details to the
relevant Issuer.
10.4 At the end of any applicable period for the exercise of such option or,
as the case may be, not later than 7 days after the latest date for the
exercise of such option in relation to a particular date, in relation to
Registered Instruments, the Registrar shall promptly notify the relevant
Issuer of the principal amount of the Instruments in respect of which
such option has been exercised together with their serial numbers.
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11. MISCELLANEOUS DUTIES OF THE REGISTRARS
CANCELLATION AND RECORDS
11.1 Each Registrar shall maintain in relation to each Series of Registered
Instruments in relation to which it is appointed as registrar a register
(each a "Register"), which shall be kept in accordance with the terms
and conditions applicable to such Series of Registered Instruments and
the Regulations. Each Register shall show the aggregate principal amount
and date of issue of each Tranche comprising the relevant Series of
Registered Instruments, the names and addresses of the initial holders
thereof and the dates of all transfers to, and the names and addresses
of, all subsequent holders thereof. The Registrar shall further, in
relation to each Series of Registered Instruments the terms and
conditions applicable to which provide that the rate of interest or
redemption amount or any calculation applicable thereto shall be
determined by such Registrar, determine such rate of interest or
redemption amount or make such calculation from time to time on the
basis therein provided and take all such action as may to it seem
reasonably incidental thereto including, without limitation, the
notification of all rates and amounts so determined and the maintenance
of all appropriate records. The Registrar shall make each Register and
all such records available for inspection at all reasonable times by the
relevant Issuer.
11.2 The Registrar shall by the issue of new Registered Instruments, the
cancellation of old Registered Instruments and the making of entries in
the relevant Register give effect to transfers of Registered Instruments
in accordance with the terms and conditions applicable thereto and in
accordance with the Regulations.
11.3 In relation to any Instruments purchased by any Issuer or any of its
affiliated companies, the relevant Issuer may from time to time deliver
to the Registrar such Registered Instruments of which it is the holder
for cancellation, whereupon such Registrar shall cancel the same and
shall make the corresponding entries in the relevant Register.
11.4 As soon as possible (and in any event within three months) after each
date on which Registered Instruments are cancelled in accordance with
Clause 11.3 or fall due for redemption, the Registrar shall notify the
relevant Issuer of:
(i) the aggregate principal amount paid on, and the serial numbers
of all Registered Instruments redeemed, surrendered and
cancelled and the serial numbers of any Registered Instruments
(and the names and addresses of the holders thereof) which have
not yet been surrendered for payment; and
(ii) the aggregate principal amount and serial numbers of Registered
Instruments purchased and cancelled.
11.5 Each of the Issuers shall ensure that each Registrar has available to it
supplies of such Registered Instruments as shall be necessary in
connection with the transfer of Registered Instruments under this
Section 11.
11.6 The Registrar shall, upon and in accordance with the instructions of the
relevant Issuer but not otherwise, promptly arrange for the despatch of
any notices required to be given to the holders of Registered
Instruments in accordance with the terms and conditions of
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the relevant Instruments or required to comply with the requirements of
any stock exchange on which the relevant Instruments may be listed.
MEETINGS OF HOLDERS OF INSTRUMENTS
11.7 The Registrar shall, at the request of the holder of any Registered
Instrument, issue voting certificates and block voting instructions in a
form and manner which comply with the provisions of the Fifth Schedule
(except that it shall not be required to issue the same less than
forty-eight hours before the time fixed for any meeting therein provided
for) and shall make available at the request of the holder of any
Registered Instrument, forms of proxy in a form and manner which comply
with the provisions of the Fifth Schedule and will comply with the other
functions specified in the Fifth Schedule. The provisions contained in
the Fifth Schedule will have full effect in the like manner as if they
had been expressly incorporated herein in full. The Registrar shall keep
a full record of voting certificates and block voting instructions
issued by it and will give to the relevant Issuer not less than
twenty-four hours before the time appointed for any meeting or adjourned
meeting, full particulars of all voting certificates and block voting
instructions issued by it in respect of such meeting or adjourned
meeting.
DOCUMENTS AND FORMS
11.8 The Issuer shall provide to the Registrar:
(a) specimen Instruments;
(b) sufficient copies of all documents required to be available for
issue or inspection as provided in the Information Memorandum
or, in relation to any Instruments, the terms and conditions or
Pricing Supplement in respect of such Instruments; and
(c) in the event that the provisions of such Condition become
relevant in relation to any Instruments, the certificate
contemplated under the Condition "Early Redemption for Taxation
Reasons".
11.9 The Registrar shall make available for examination or use during normal
business hours at its specified office such documents as may be
specified as so available at the specified office of such agent in the
Information Memorandum or, in relation to any Instruments, the terms and
conditions or Pricing Supplement in respect of such Instruments or as
may be required by any stock exchange on which the Instruments may be
listed and, without prejudice to the generality of the foregoing, shall
make available for examination or use during normal business hours at
its specified office copies of the Information Memorandum and each
Pricing Supplement and all other documents listed in paragraph 8 of the
General Information section of the Information Memorandum and, in the
event that the provisions of such Condition become relevant, the
certificate contemplated in the Condition headed "Early Redemption for
Taxation Reasons".
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PROVISION OF INFORMATION
11.10 The Registrar shall provide the Fiscal Agent with all such information
as the Fiscal Agent may reasonably require in order to perform the
obligations set out in Clause 9.9 hereof.
INDEMNITY
11.11 The Registrar shall severally indemnify the Issuers and each of them
against any direct loss, liability, cost, claims, action, demand or
expense incurred by such Issuer as a result of or arising out of or in
relation to or in connection with any breach by the Registrar, or any
person acting on its behalf, of the terms of this Agreement, or as a
result of its wilful misconduct, negligence or bad faith or that of its
agents, officers or employees. The Issuers and each of them shall remain
entitled to the benefit and the Registrar shall be subject to the
provisions of this Clause 11.11 notwithstanding the provisions of Clause
14.6.
11.12 Forthwith upon receipt by the Registrar of any notice or other
communication from or on behalf of the holder of any Instrument in
relation to any Instrument, the Registrar shall forward a copy of the
notice or communication to the relevant Issuer.
EXCHANGES OF BEARER INSTRUMENTS FOR REGISTERED INSTRUMENTS
11.13 In relation to any Series comprising Bearer and Registered Instruments,
by the receipt of requests for exchanges of Bearer Instruments for
Registered Instruments together with the relevant Bearer Instruments (or
notifications from the Fiscal Agent of receipt thereof by the Fiscal
Agent), the issue of Registered Instruments and the making of entries in
the Register, give effect to exchanges of Bearer Instruments for
Registered Instruments in accordance with the terms and conditions
applicable thereto and in accordance with the Regulations.
The Registrar shall forthwith upon the receipt of a request for the
exchange of Bearer Instruments for Registered Instruments notify the
Fiscal Agent thereof (specifying (i) the serial numbers of the Bearer
Instruments, (ii) the aggregate principal amount of Instruments
involved, and (iii) the exchange date (as defined in Condition 2.06)
applicable thereto) and shall on the exchange date cancel the relevant
Bearer Instruments and forward the same to the Fiscal Agent. The
Registrar shall notify the relevant Issuer promptly of the exchange of
Bearer Instruments for Registered Instruments, specifying the serial
numbers of the Bearer Instruments and of the Registered Instruments
issued in exchange therefor, the aggregate principal amount involved and
the applicable exchange date.
12. COMMISSIONS, FEES AND EXPENSES
12.1 The Fiscal Agent and the relevant Issuer shall separately agree from
time to time as to the amount of any commissions, fees and expense
reimbursements to which the Fiscal Agent, the Paying Agents and the
Registrars will be entitled hereunder, and any and all such agreements
shall be binding on all of the parties hereto.
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12.2 Each of the Issuers (on a several basis where the relevant tax or duty
is attributable to the Instruments issued by it and the related Coupons
but otherwise on a several basis for a proportion thereof which is the
same proportion as the aggregate principal amount of Instruments issued
by such Issuer and outstanding as at the relevant date for payment bears
to the aggregate principal amount of Instruments issued under the
Programme and outstanding as at the relevant date for payment) shall pay
all stamp and other similar taxes and duties, if any, which may be
payable on the execution of this Agreement, on the creation and issue of
the Instruments issued by it and the related Coupons and the delivery of
the Instruments pursuant to the Dealership Agreement.
13. TERMS OF APPOINTMENT
13.1 Each of the Paying Agents and the Registrars may, in connection with its
services hereunder:
(a) (in the case of Bearer Instruments) except as ordered by a court
of competent jurisdiction or as required by law and
notwithstanding any notice to the contrary or any writing
thereon, treat the bearer of any Instrument as the absolute
owner thereof and make payments thereon accordingly;
(b) refer any question relating to the ownership of any Instrument
or Coupon or, without prejudice to Clause 5.2(ii), the adequacy
or sufficiency of any evidence supplied in connection with the
replacement of any Instrument or Coupon to the relevant Issuer
for determination by such Issuer and rely upon any determination
so made; and
(c) after approval by the relevant Issuer such approval not to be
unreasonably withheld, engage and pay for the advice or services
of any leading firm of lawyers, or other leading experts, with
recognised expertise in the relevant field whose advice or
services may to it seem necessary and rely upon any advice so
obtained. Any request for the relevant Issuer's approval of any
such firm or expert must be answered by the Issuer within a
reasonable time following such request, failing which such
approval shall be assumed to have been given.
13.2 None of the Paying Agents or the Registrars shall have any obligations
towards or relationship of agency or trust for or with any holder of the
Instruments or Coupons (except as provided in Clauses 6.4 and 6.6
hereof) and shall be responsible only for performance of the duties and
obligations expressly imposed upon them herein.
13.3 Each Paying Agent and Registrar and their officers, directors and
employees may become the holder of, or acquire any interest in, any
Instruments or Coupons with the same rights that it or they would have
if it were not such agent or agents hereunder, and may engage or be
interested in any transaction with any Issuer and may act on, or as
depositary, trustee or agent for, any committee or body of holders of
Instruments or Coupons or other obligations of any Issuer as freely as
if it were not such agent or agents hereunder.
13.4 Each Issuer shall indemnify each Paying Agent and each Registrar against
any direct loss, liability, claim, action, demand, reasonable cost or
expense which it may properly
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incur or which may be made against it arising out of or in connection
with its appointment or the exercise of its powers and performance of
its duties hereunder in respect of Instruments issued by such Issuer,
except such as may result from its wilful misconduct, negligence or bad
faith or that of its agents, officers or employees. The foregoing
indemnity shall not apply to any expenses of any Paying Agent or
Registrar provided for pursuant to Clause 12.1.
14. CHANGES IN AGENTS
14.1 Any Paying Agent or Registrar may resign its appointment as the agent of
each Issuer in relation to the Instruments of each Issuer upon the
expiration of not less than ninety days' prior written notice to that
effect by such Paying Agent or, as the case may be, the Registrar to
each Issuer (with a copy, if necessary, to the Fiscal Agent) Provided
that:
(a) any such notice which would otherwise expire within fifteen days
before or after the maturity date of any Series of Instruments
or any interest or other payment date in relation to any Series
of Instruments shall be deemed, in relation to such Series only,
to expire on the fifteenth day following such maturity date or,
as the case may be, such interest or other payment date; and
(b) in the case of (i) the Fiscal Agent, (ii) the only remaining
Paying Agent or Registrar with its specified office in
continental Europe (but outside the United Kingdom), (iii) so
long as any Instruments are listed on the Luxembourg Stock
Exchange and/or any other stock exchange, the Paying Agent or
the Registrar with its specified office in Luxembourg and/or in
such other place as may be required by such other stock
exchange, (iv) the Registrar in respect of any Series of
Instruments then outstanding, (v) in the circumstances described
in Condition 9A.04, the Paying Agent with its specified office
in New York City, (vi) the conclusions of the ECOFIN Council
Meeting of 26-27 November 2000 being implemented, the Paying
Agent appointed in an EU member state that is not obliged to
withhold or deduct tax pursuant to any European Directive on the
taxation of savings, implementing such conclusions, or (vii) in
the case of Instruments issued by ACBV, the Paying Agent with
its specified office outside of the European Union, such
resignation shall not be effective until a successor thereto
(which in the case of the Fiscal Agent and the Registrar shall
be a bank or trust company of good standing and authorised to
exercise corporate trust powers) has been appointed by the
relevant Issuer as the agent of such Issuer in relation to the
Instruments of such Issuer and notice of such appointment has
been given in accordance with the terms and conditions, Provided
that such successor, in the case of (ii), shall have its
specified office in continental Europe (but outside the United
Kingdom and, in the case of (iii), shall have its specified
office in Luxembourg and/or in such other place as may be
required by such stock exchange.
14.2 Each of the Issuers may revoke its appointment of any Paying Agent or
Registrar as its agent in relation to the Instruments by not less than
thirty days' notice to that effect to such Paying Agent or, as the case
may be, such Registrar provided, however, that, in the case of (i) the
Fiscal Agent, (ii) the only remaining Paying Agent or Registrar with its
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specified office in continental Europe (but outside the United Kingdom),
(iii) so long as any Instruments are listed on the Luxembourg Stock
Exchange and/or any other stock exchange, the Paying Agent or Registrar
with its specified office in Luxembourg and/or in such other place as
may be required by such other stock exchange, (iv) the Registrar in
respect of any Series of Instruments then outstanding or (v) in the
circumstances described in Condition 9A.04, the Paying Agent with its
specified office in New York City, (vi) the conclusions of the ECOFIN
Council Meeting of 26-27 November 2000 being implemented, the Paying
Agent appointed in an EU member state that is not obliged to withhold or
deduct tax pursuant to any European Directive on the taxation of
savings, implementing such conclusions, or (vii) in the case of
Instruments issued by ACBV, the Paying Agent with its specified office
outside of the European Union, such revocation shall not be effective
until a successor thereto (which in the case of the Fiscal Agent and the
Registrar shall be a bank or trust company of good standing and
authorised to exercise corporate trust powers) has been appointed by the
relevant Issuer as the agent of such Issuer in relation to the
Instruments of such Issuer and notice of such appointment has been given
in accordance with the terms and conditions, Provided that such
successor, in the case of (ii), shall have its specified office in
continental Europe (but outside the United Kingdom and, in the case of
(iii), shall have its specified office in Luxembourg and/or in such
other place as may be required by such stock exchange.
14.3 The appointment of any Paying Agent or Registrar as the agent of each of
the Issuers in relation to the Instruments shall terminate forthwith if
any of the following events or circumstances shall occur or arise,
namely: such Paying Agent or, as the case may be, Registrar becomes
incapable of acting; such Paying Agent or, as the case may be, Registrar
is adjudged bankrupt or insolvent; such Paying Agent or, as the case may
be, Registrar files a voluntary petition in bankruptcy or makes an
assignment for the benefit of its creditors or consents to the
appointment of a receiver, administrator or other similar official of
all or any substantial part of its property or admits in writing its
inability to pay or meet its debts as they mature or suspends payment
thereof; a resolution is passed or an order is made for the winding-up
or dissolution of such Paying Agent or, as the case may be, Registrar; a
receiver, administrator or other similar official of such Paying Agent
or, as the case may be, Registrar or of all or any substantial part of
its property is appointed; an order of any court is entered approving
any petition filed by or against such Paying Agent or, as the case may
be, Registrar under the provisions of any applicable bankruptcy or
insolvency law; or any public officer takes charge or control of such
Paying Agent or, as the case may be, Registrar or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation.
14.4 Each of the Issuers may (and shall where necessary to comply with the
terms and conditions applicable to any Instruments) appoint substitute
or additional agents in relation to the Instruments and shall forthwith
notify the other parties hereto thereof, whereupon the parties hereto
and such substitute or additional agents shall thereafter have the same
rights and obligations among them as would have been the case had they
then entered into an agreement in the form MUTATIS MUTANDIS of this
Agreement.
14.5 Upon any resignation or revocation becoming effective under this Section
14, the relevant Paying Agent or, as the case may be, Registrar shall:
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(a) be released and discharged from its obligations under this
Agreement (save that it shall remain entitled to the benefit of
and subject to and bound by the provisions of Clause 9.13,
11.11, Clause 12.2, Section 13 and this Section 14);
(b) repay to the relevant Issuer such part of any fee paid to it as
referred to in Clause 12.1 as may be agreed between the relevant
Paying Agent or, as the case may be, the Registrar and such
Issuer;
(c) in the case of the Fiscal Agent, deliver to the relevant Issuer
and to the successor Fiscal Agent a copy, certified as true and
up-to-date by an officer of the Fiscal Agent, of the records
maintained by it in accordance with Section 9;
(d) in the case of a Registrar, deliver to the relevant Issuer and
to the successor Registrar a copy, certified as true and
up-to-date by an officer of such Registrar, of each of the
Registers and other records maintained by it in accordance with
Section 11; and
(e) forthwith transfer all moneys and papers (including any unissued
Temporary Global Instruments, Permanent Global Instruments,
Definitive Instruments, Coupons or, as the case may be,
Registered Instruments held by it hereunder) to its successor in
that capacity and, upon appropriate notice, provide reasonable
assistance to such successor for the discharge by it of its
duties and responsibilities hereunder.
14.6 Any corporation into which any Paying Agent or Registrar may be merged
or converted, any corporation with which any Paying Agent or Registrar
may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which any Paying Agent or Registrar shall
be a party, shall, to the extent permitted by applicable law (and
provided, in the case of the Fiscal Agent or any Registrar that such
corporation shall be a bank or trust company of good standing and
authorised to execute corporate trust powers), be the successor to such
Paying Agent or, as the case may be, Registrar as agent of the Issuers
in relation to the Instruments without any further formality, whereupon
the parties hereto and such successor agent shall thereafter have the
same rights and obligations among them as would have been the case had
they then entered into an agreement in the form MUTATIS MUTANDIS of this
Agreement. Notice of any such merger, conversion or consolidation shall
forthwith be given by such successor to each of the Issuers and the
other parties hereto.
14.7 If any Paying Agent or Registrar decides to change its specified office
(which may only be effected within the same city) it shall give notice
to each of the Issuers (with a copy, if necessary, to the Fiscal Agent)
of the address of the new specified office stating the date on which
such change is to take effect, which date shall be not less than thirty
days after the date of such notice. The relevant Paying Agent or
Registrar shall at its own expense not less than fourteen days prior to
the date on which such change is to take effect (unless the appointment
of the relevant Paying Agent or Registrar is to terminate pursuant to
any of the foregoing provisions of this Section 14 on or prior to the
date of such change) publish or cause to be published notice thereof in
accordance with the terms and conditions.
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15. SUBSTITUTION
15.1 As provided in Condition 15 of the terms and conditions of the relevant
Instruments, the Issuer may be replaced, and
ABB Ltd or any direct or
indirect subsidiary of
ABB Ltd may be substituted for the Issuer, as
principal debtor in respect of the Instruments without the consent of
the Holders of the Instruments or Coupons. If the Issuer shall determine
that
ABB Ltd or any such subsidiary shall become the principal debtor
(in such capacity, the "SUBSTITUTED DEBTOR"), the Issuer shall give not
less than 30 nor more than 45 days' notice, in accordance with Condition
14, to the Holders of the Instruments of such event and, immediately on
the expiry of such notice, the Substituted Debtor shall enter into a
Deed of Assumption, substantially in the form set out in the Sixth
Schedule hereto, and become the principal debtor in respect of the
Instruments in place of the Issuer and the Holders of the Instruments
shall thereupon cease to have any rights or claims whatsoever against
the Issuer. However, no such substitution shall take effect (i) if the
Substituted Debtor is any other subsidiary of
ABB Ltd, until such
Substituted Debtor shall have entered into a keep-well agreement with
ABB Ltd substantially in the form of the Keep-Well Agreement (as defined
in the terms and conditions of the relevant Instruments), (ii) until
such Substituted Debtor shall have executed a deed of covenant
substantially in the form of the Deed of Covenant (as defined in the
terms and conditions of the relevant Instruments), (iii) in any case,
until the Substituted Debtor shall have provided to the Fiscal Agent and
(if applicable) the Registrar such documents as may be necessary to make
the Deed of Assumption, the relevant Instruments, the
Fiscal Agency
Agreement, such deed of covenant and any such keep-well agreement the
legal, valid and binding obligations of, as appropriate, the Substituted
Debtor and
ABB Ltd together with legal opinions either unqualified or
subject only to normal, usual or appropriate qualifications and
assumptions to the effect that the Instruments, the
Fiscal Agency
Agreement, the Deed of Assumption, such deed of covenant and any such
keep-well agreement are legal, valid and binding obligations of, as
appropriate, the Substituted Debtor and
ABB Ltd; (iv) the Substituted
Debtor shall have obtained all necessary governmental and regulatory
approvals and consents, if any, in connection with the substitution and
(v) the Substituted Debtor shall have appointed the process agent
appointed by the Issuer in Condition 18.03 of the terms and conditions
of the relevant Instruments as its agent in England to receive service
of process on its behalf in relation to any legal action or proceedings
arising out of or in connection with the relevant Instruments. Upon any
such substitution, the Instruments and Coupons will, if necessary, be
deemed to be modified in all appropriate respects.
15.2 The terms and conditions of the relevant Instruments shall, following
any substitution effected in accordance with this Section, apply to the
Substituted Debtor, amended as set out in the Schedule to the Deed of
Assumption.
16. FURTHER ISSUERS
16.1 Each of the Paying Agents and Registrars hereby agrees to act as the
agent (in the capacity in which it was appointed hereunder) of (i) any
Substituted Debtor as defined in (and where such substitution shall have
taken effect as provided in) Condition 15 of the terms and conditions of
the relevant Instruments or (ii) any New Issuer (as that expression is
defined in Clause 10.2 of the Dealership Agreement) which shall have
become party to the Dealership Agreement and which shall have (a)
executed an
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agreement, in form and substance satisfactory to the Fiscal Agent,
whereby such New Issuer agrees to be bound by the provisions of this
Agreement and (b) provided to the Fiscal Agent such documents as may be
necessary to make this Agreement its legal, valid and binding
obligations (any such Substituted Debtor or New Issuer as described in
(i) or (ii) above is herein referred to as a "FURTHER ISSUER").
16.2 Each of the Paying Agents and the Registrars hereby agrees that any
Issuer in its capacity as such, shall be released from its obligations,
undertakings and covenants under this Agreement upon such Issuer ceasing
to be an Issuer pursuant to and in accordance with Clause 10.1 of the
Dealership Agreement provided always that such release shall not affect
any rights, liabilities or obligations accrued or incurred under this
Agreement prior to the date upon which such release takes effect.
17. NOTICES
All communications hereunder shall be in writing and shall be delivered to or
telexed to or sent by facsimile (confirmed by letter sent by express airmail) to
the following addresses:
(a) if to AIFLTD, to it at:
Address: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Channel Islands
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Business Administration
with a copy to:
ABB World Treasury Center
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇-▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Business Operations
(b) if to AFI, to it at:
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Attention: Secretary
with a copy to:
ABB Treasury Center (USA), Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇ ▇ ▇▇▇ ▇▇▇▇▇▇
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Stamford, Connecticut
06912-0071 U.S.A.
Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Business Administration
(c) if to ACBV, to it at:
Address: ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Attention: Business Administration
with a copy to:
ABB World Treasury Center
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇-▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Business Operations
(d) if to the Fiscal Agent at:
Address: Banque Generale du Luxembourg S.A.
▇▇, ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telex: 3401 BGL lu
Fax: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Attention: Fiscal and Paying Agency Department
(or in the case of a Fiscal Agent not originally a party hereto,
specified by notice to the other parties hereto at or about the
time of its appointment as the agent of the Issuers in relation
to the Instruments).
All communications relating to this Agreement between the Issuer
and any of the Paying Agents or between the Paying Agents
themselves shall be made through the Fiscal Agent;
(e) if to a Registrar to it at the address, fax or telex number
specified against its name in the Eighth Schedule (or, in the
case of a Registrar not originally a party hereto, specified by
notice to the other parties hereto at or about the time of its
appointment as the agent of the Issuers in relation to the
Instruments) for the attention of the person or department
therein specified (or as aforesaid)
or, in any case, to such other address, telex number or fax number or for the
attention of such other person or department as the addressee has by prior
notice to the sender specified for the purpose.
-31-
Any notice sent by letter shall take effect at the time of delivery and any
notice sent by telex shall take effect at the time of despatch provided that the
correct answerback is received and any notice sent by facsimile transmission
shall take effect upon receipt thereof. Where a notice is copied to another
address such notice shall take effect at the time when the first of the notice
or the copy takes effect.
18. LAW AND JURISDICTION
18.1 This Agreement is governed by, and shall be construed in accordance
with, English law.
18.2 Each Issuer hereby agrees for the exclusive benefit of each of the
Paying Agents and the Registrars that the courts of England are to have
jurisdiction to settle any disputes which may arise out of or in
connection with this Agreement and that accordingly any suit, action or
proceedings (together referred to as "PROCEEDINGS") arising out of or in
connection with this Agreement may be brought in such courts. Nothing
contained in this clause shall limit any right to take Proceedings
against any Issuer in any other court of competent jurisdiction, nor
shall the taking of Proceedings in one or more jurisdictions preclude
the taking of Proceedings in any other jurisdiction, whether
concurrently or not.
18.3 Each Issuer hereby appoints ABB Limited of Orion House, ▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇'▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ to accept service of any Proceedings on
its behalf in England. If for any reason such process agent ceases to
act as such or no longer has an address in England, each Issuer agrees
to appoint a substitute process agent and notify the Fiscal Agent of
such appointment and if any Issuer fails to make any such appointment
within twenty-one days, the Fiscal Agent shall be entitled to appoint
such a person by notice to such Issuer.
18.4 Nothing contained herein shall affect the right to serve process in any
other manner permitted by law.
19. MODIFICATION
This Agreement may be amended by the Issuers and the Fiscal Agent, without the
consent of the other Paying Agents or the Registrars or the Holder of any
Instrument or Coupon, for the purposes of curing any ambiguity, or of curing,
correcting or supplementing any defective provision contained herein, or in any
manner which the Issuer and the Fiscal Agent may deem necessary or desirable and
which shall not be inconsistent with the Instruments or Coupons and which will
not, in the opinion of the Issuer and the Fiscal Agent, be materially
prejudicial to the interests of the Holders of the Instruments, the Coupons or
the Paying Agents or the Registrars.
20. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which when so executed shall constitute one
and the same binding agreement between the parties.
21. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to this Agreement has no right under the Contracts
(Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this
Fiscal Agency
Agreement.
-32-
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
-33-
THE FIRST SCHEDULE
FORM OF TEMPORARY GLOBAL INSTRUMENT
[THIS INSTRUMENT CONSTITUTES [COMMERCIAL PAPER]/[A SHORTER/LONGER] TERM DEBT
SECURITY] ISSUED IN ACCORDANCE WITH THE REGULATIONS MADE UNDER SECTION 4 OF THE
BANKING ACT 1987](1)
Series Number: [ ] Serial Number: [ ]
THE SECURITIES REPRESENTED BY THIS TEMPORARY GLOBAL INSTRUMENT HAVE NOT BEEN AND
WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR
TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT IN CERTAIN
TRANSACTIONS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
TERMS USED IN THIS PARAGRAPH HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT.
[ABB INTERNATIONAL FINANCE LIMITED
(INCORPORATED WITH LIMITED LIABILITY IN GUERNSEY)]
[ABB FINANCE INC.
(INCORPORATED IN THE STATE OF DELAWARE WITH LIMITED LIABILITY)]
[ABB CAPITAL B.V.
(INCORPORATED IN THE NETHERLANDS WITH LIMITED LIABILITY AND HAVING ITS
STATUTORY DOMICILE AT AMSTERDAM)]
TEMPORARY GLOBAL INSTRUMENT
representing up to
[AGGREGATE PRINCIPAL AMOUNT OF TRANCHE]
[TITLE OF INSTRUMENTS]
This Temporary Global Instrument is issued in respect of an issue of
[DESCRIPTION OF INSTRUMENTS INCLUDING AGGREGATE PRINCIPAL AMOUNT OF TRANCHE]
(the "INSTRUMENTS") by [ ] (the "ISSUER").
The Issuer for value received promises, all in accordance with the terms and
conditions [attached hereto/set out in the information memorandum prepared by
the Issuer and dated 30 May 2001 and the pricing supplement prepared in relation
to the Instruments ("PRICING SUPPLEMENT")] to pay to the bearer upon
presentation and, if appropriate, surrender hereof on [MATURITY DATE] [by [ ]
[equal] successive [semi-annual/quarterly/other] instalments on the dates
specified in the Pricing Supplement](2) or on such earlier date as the same may
become payable in accordance therewith the principal amount of [AGGREGATE
PRINCIPAL AMOUNT OF TRANCHE] (as reduced from time to time in accordance with
such terms and conditions) or such
----------
(1) Delete if Instrument is not denominated in Sterling and the issue
proceeds are not accepted in the United Kingdom.
(2) Insert only where Instruments are Instalment Instruments.
-34-
lesser amount as is equal to the outstanding principal amount of the Instruments
represented by this Temporary Global Instrument or such other redemption amount
as may be specified therein [and to pay in arrear on the dates specified therein
interest on the principal amount hereof from time to time at the rate or rates
specified therein], all subject to and in accordance with such terms and
conditions.
[The Issuer of this Instrument is [ ], which is not an authorised institution
or a European authorised institution (as such terms are defined in the Banking
▇▇▇ ▇▇▇▇ (Exempt Transactions) Regulations 1997).](3)
Except as specified herein, the bearer of this Temporary Global Instrument is
entitled to the benefit of the terms and conditions referred to above and of the
same obligations on the part of the Issuer as if such bearer were the bearer of
the Instruments represented hereby except that the bearer of this Temporary
Global Instrument shall not prior to the Exchange Date (defined below) be
entitled to receive payment of [the principal of or] interest on the Instruments
except to the extent that, upon due presentation and surrender of this Temporary
Global Instrument for exchange, delivery of the Permanent Global Instrument, or
as the case may be Definitive Instruments or Registered Instruments is
improperly withheld or refused, and all payments under and to the bearer of this
Temporary Global Instrument shall be valid and effective to satisfy and
discharge the corresponding liabilities of the Issuer in respect of the
Instruments.
This Temporary Global Instrument is exchangeable in whole or in part for a
permanent global instrument (the "PERMANENT GLOBAL INSTRUMENT") representing the
Instruments and in substantially the form (subject to completion) set out in the
Second Schedule to a
fiscal agency agreement dated 10 March 1993 and amended and
restated on 30 May 2001 (as further supplemented, amended or replaced, the
"
FISCAL AGENCY AGREEMENT") and made between the Issuer and Banque Generale du
Luxembourg S.A., in its capacity as fiscal agent (the "FISCAL AGENT", which
expression shall include any successor to Banque Generale du Luxembourg S.A. in
its capacity as such), Banque Generale du Luxembourg S.A. as principal registrar
and certain other financial institutions named therein or, if so specified in
the Pricing Supplement, for definitive instruments ("DEFINITIVE INSTRUMENTS") in
substantially the form (subject to completion) set out in the Third Schedule to
the Fiscal Agency Agreement [or for registered instruments ("REGISTERED
INSTRUMENTS") in substantially the form (subject to completion) set out in the
Fourth Schedule to the Fiscal Agency Agreement]. An exchange for a Permanent
Global Instrument or Definitive Instruments [or Registered Instruments](4) will
be made only on or after the date (the "EXCHANGE DATE") which is 40 days after
the later of the date of issue of this Temporary Global Instrument and the
completion (as notified to the Fiscal Agent by the Issuer) of the distribution
of the Instruments represented by this Temporary Global Instrument and upon
presentation or, as the case may be, surrender of this Temporary Global
Instrument to the Fiscal Agent at its specified office in relation to the
Instruments and upon and to the extent only of delivery to the Fiscal Agent of a
certificate or certificates issued by the Euroclear System or Clearstream,
Luxembourg, or by any other relevant clearing system and dated not earlier than
the Exchange Date in substantially the form set out in Annex I hereto or, as the
case
----------
(3) Delete if Instrument is not denominated in Sterling and the issue
proceeds are not accepted in the United Kingdom.
(4) Insert only in the case of a Series comprising both Bearer and
Registered Instruments issued by ABB Finance Inc. if the relevant
Pricing Supplement specifies that Bearer Instruments are exchangeable
for Registered Instruments.
-35-
may be, in the form that is customarily issued in such circumstances by such
other clearing system. [An exchange for Registered Instruments will be made at
any time upon presentation or, as the case may be, surrender of this Temporary
Global Instrument to the Fiscal Agent at its specified office.](5) [Any
Registered Instruments shall be made available in exchange in accordance with
the terms and conditions applicable to the Instruments represented hereby and
the Fiscal Agency Agreement (which shall apply as if the bearer of this
Temporary Global Instrument were the bearer of the Instruments represented
hereby).](6) Payments of interest otherwise falling due before the Exchange Date
will be made only upon presentation of the Temporary Global Instrument to the
Fiscal Agent at its specified office in relation to the Instruments and upon and
to the extent only of delivery to the Fiscal Agent of a certificate or
certificates issued by the Euroclear System or Clearstream, Luxembourg or by any
other relevant clearing system and dated not earlier than the relevant interest
payment date in substantially the form set out in Annex II hereto or, as the
case may be, in the form that is customarily issued in such circumstances by
such other clearing system.
In the event that (i) this Temporary Global Instrument is not duly exchanged,
whether in whole or in part, for a Permanent Global Instrument or, as the case
may be, Definitive Instruments [or Registered Instruments](6) by 6.00 p.m.
(London time) on the thirtieth day after the time at which the preconditions to
such exchange are first satisfied or (ii) any Instrument represented hereby
becomes immediately redeemable following the occurrence of an Event of Default
in relation thereto and is not duly redeemed (and the funds required for such
redemption are not available to the Fiscal Agent for the purposes of effecting
such redemption and remain available for such purpose) by 6.00 p.m. (London
time) on the thirtieth day after the time at which such Instruments become
immediately redeemable, then this Temporary Global Instrument will become void
and the bearer will have no further rights hereunder (but without prejudice to
the rights which such bearer or any other person having an interest in this
Temporary Global Instrument immediately prior to it becoming void may have under
a deed of covenant dated 10 March 1993 and executed by the Issuer in respect of
the Instruments).
[On any occasion on which a payment of interest is made in respect of this
Temporary Global Instrument, the Issuer shall procure that the Paying Agent to
which such Temporary Global Instrument is presented notes the same on the
Schedule hereto.]
On any occasion on which a payment of principal or redemption amount is made in
respect of this Temporary Global Instrument or on which this Temporary Global
Instrument is exchanged in whole or in part as aforesaid or on which Instruments
represented by this Temporary Global Instrument are to be cancelled, the Issuer
shall cause the Paying Agent to which such Temporary Global Instrument is
presented to procure that (i) the aggregate principal amount of the Instruments
in respect of which such payment is made (or, in the case of a partial payment,
the corresponding part thereof) or which are delivered in definitive [or
registered form](4) or which are exchanged for a permanent global instrument or
which are to be cancelled and (ii) the remaining principal amount of this
Temporary Global Instrument (which shall be the previous
----------
(5) Insert only in the case of a Series comprising both Bearer and
Registered Instruments issued by ABB International Finance Limited or
ABB Capital B.V. (and not ABB Finance Inc.) if the relevant Pricing
Supplement specifies that Bearer Instruments are exchangeable for
Registered Instruments.
(6) Insert only in the case of a Series comprising both Bearer and
Registered Instruments if the relevant Pricing Supplement specifies that
Bearer Instruments are exchangeable for Registered Instruments.
-36-
principal amount hereof less the amount referred to at (i) above) are noted on
the Schedule hereto, whereupon the principal amount of this Temporary Global
Instrument shall for all purposes be as most recently so noted.
This Temporary Global Instrument is governed by, and shall be construed in
accordance with, English law.
This Temporary Global Instrument shall not be valid for any purpose until
authenticated for and on behalf of Banque Generale du Luxembourg S.A. as fiscal
agent.
AS WITNESS the manual signature of two duly authorised officers on behalf of the
Issuer.
-37-
THE SCHEDULE
PAYMENTS, DELIVERY OF DEFINITIVE INSTRUMENTS OR REGISTERED INSTRUMENTS,
EXCHANGE FOR PERMANENT GLOBAL INSTRUMENT AND
CANCELLATION OF INSTRUMENTS
--------------------------------------------------------------------------------------------------------------------------
Date of Amount of Amount of Aggregate Aggregate Aggregate Remaining Authorised
payment, interest principal or, principal principal principal principal signature of
delivery or then paid as the case amount of amount of amount of amount of the Fiscal
cancellation may be, Definitive or this Instruments this Agent and/or
redemption Registered Temporary then Temporary the Registrar
amount Instruments Global cancelled Global
then paid then Instrument Instrument
delivered then
exchanged
for the
Permanent
Global
Instrument
--------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-38-
[ ] [ ]
By: [manual signature] By: [manual signature]
(DULY AUTHORISED) (DULY AUTHORISED)
ISSUED in[ ] as of [ ] [ ]
AUTHENTICATED for and on behalf of
BANQUE GENERALE DU LUXEMBOURG S.A.
as fiscal agent
By: [manual signature]
(DULY AUTHORISED)
[ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.](7)
[BY ACCEPTING THIS OBLIGATION, THE HOLDER REPRESENTS AND WARRANTS THAT IT IS NOT
A UNITED STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN SECTION
6049(b)(4) OF THE INTERNAL REVENUE CODE AND THE REGULATIONS THEREUNDER) AND THAT
IT IS NOT ACTING FOR OR ON BEHALF OF A UNITED STATES PERSON (OTHER THAN AN
EXEMPT RECIPIENT DESCRIBED IN SECTION 6049(b)(4) OF THE INTERNAL REVENUE CODE
AND THE REGULATIONS THEREUNDER).](8)
----------
(7) Insert only where either (i) Issuer is AFI and the maturity of the Notes
is more than 183 days or (ii) Issuer is AIFLTD or ACBV and the maturity
of the Notes is more than one year.
(8) Insert only where Issuer is AFI and the maturity of the Notes is 183
days or less.
-39-
ANNEX I
[Form of certificate to be given in relation to exchanges of this Temporary
Global Instrument for a Permanent Global Instrument or Definitive Instruments or
Registered Instruments issued by ABB Finance Inc. This Certificate is not
required for Registered Instruments issued by ABB International Finance Limited
or ABB Capital B.V.:]
[NAME OF ISSUER]
[AGGREGATE PRINCIPAL AMOUNT AND TITLE OF INSTRUMENTS]
(the "SECURITIES")
[This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from
member organisations appearing in our records as persons being entitled
to a portion of the principal amount set forth below (our "MEMBER
ORGANISATIONS") substantially to the effect set forth in the Fiscal
Agency Agreement as of the date hereof, [ ] principal amount of the
above-captioned Securities (i) is owned by persons that are not citizens
or residents of the United States, domestic partnerships, domestic
corporations, estates or trust the income of which is subject to United
States Federal income taxation regardless of its source or trusts (a)
that are subject to the primary supervision of a court within the United
States and the control of one or more United States persons as described
in section 7701(a)(30) of the Code or (b) that have a valid election in
effect under applicable U.S. Treasury regulations to be treated as a
United States person ("UNITED STATES PERSONS"), (ii) is owned by United
States persons that (a) are foreign branches of United States financial
institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v) ("FINANCIAL INSTITUTIONS")) purchasing for their own
account or for resale, or (b) acquired the Securities through and are
holding through on the date hereof foreign branches of United States
financial institutions (and in either case (a) or (b), each such United
States financial institution has agreed, on its own behalf or through
its agent, that we may advise the Issuer or the Issuer's agent that it
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign financial
institutions for purposes of resale during the restricted period (as
defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and to the further effect that United States or foreign financial
institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) have certified that they have not
acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.](7)
This is [also](7) to certify with respect to [ ] principal amount of
the above-captioned Securities, except as set forth below, we have
received in writing, by tested telex or by electronic transmission, from
our Member Organisations entitled to a portion of such principal amount,
certifications with respect to such portion, substantially to the effect
set forth in the Fiscal Agency Agreement.
[As used herein, "UNITED STATES" means the United States of America
(including the States and the District of Columbia); and its possessions
include Puerto Rico, the U.S.
-40-
Virgin Islands, Guam, American Samoa, Wake Island and the Northern
Mariana Islands.](9)
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, exercise of any rights or collection of any
interest) any portion of the Temporary Global security excepted in such
certifications and (ii) that as of the date hereof we have not received
any notification from any of our Member Organisations to the effect that
the statements made by such Member Organisations with respect to any
portion of the part submitted herewith for exchange (or, if relevant,
exercise of any rights or collection of any interest) are no longer true
and cannot be relied upon as at the date hereof.
We understand that this certification is required in connection [with
certain tax laws and, if applicable,](7) certain securities laws of the
United States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorise you to
produce this certification to any interested party in such proceedings.
Date: [ ](10)
[EUROCLEAR BANK S.A./N.V., as operator of the Euroclear
System/Clearstream Banking, societe anonyme ]
By: [authorised signature]
----------
(9) Delete this paragraph or provision in the case of exchanges of the
Temporary Global Instrument for Registered Instruments issued by ABB
Finance Inc.
(10) To be dated not earlier than the Exchange Date.
-41-
ANNEX II
[Form of certificate to be given in relation to payments of interest falling due
before the Exchange Date:]
[NAME OF ISSUER]
[AGGREGATE PRINCIPAL AMOUNT AND TITLE OF INSTRUMENTS]
(the "SECURITIES")
This is to certify that, based solely on certifications we have received
in writing, by tested telex or by electronic transmission from member
organisations appearing in our records as persons being entitled to a
portion of the principal amount set forth below (our "MEMBER
ORGANISATIONS") substantially to the effect set forth in the Fiscal
Agency Agreement as of the date hereof, [ ] principal amount of the
above-captioned Securities (i) is owned by persons that are not citizens
or residents of the United States, domestic partnerships, domestic
corporations, estates or trust the income of which is subject to United
States Federal income taxation regardless of its source or trusts (a)
that are subject to the primary supervision of a court within the United
States and the control of one or more United States persons as described
in section 7701(a)(30) of the Code or (b) that have a valid election in
effect under applicable U.S. Treasury regulations to be treated as a
United States person ("UNITED STATES PERSONS"), (ii) is owned by United
States persons that (a) are foreign branches of United States financial
institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v) ("FINANCIAL INSTITUTIONS")) purchasing for their own
account or for resale, or (b) acquired the Securities through and are
holding through on the date hereof foreign branches of United States
financial institutions (and in either case (a) or (b), each such United
States financial institution has agreed, on its own behalf or through
its agent, that we may advise the Issuer or the Issuer's agent that it
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign financial
institutions for purposes of resale during the restricted period (as
defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and to the further effect that United States or foreign financial
institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) have certified that they have not
acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
This is also to certify with respect to such principal amount of
Securities set forth above that, except as set forth below, we have
received in writing, by tested telex or by electronic transmission, from
our Member Organisations entitled to a portion of such principal amount,
certifications with respect to such portion, substantially to the effect
set forth in the Fiscal Agency Agreement.
As used herein, "UNITED STATES" means the United States of America
(including the States and the District of Columbia); and its possessions
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
-42-
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, exercise of any rights or collection of any
interest) any portion of the Temporary Global security excepted in such
certifications and (ii) that as of the date hereof we have not received
any notification from any of our Member Organisations to the effect that
the statements made by such Member Organisations with respect to any
portion of the part submitted herewith for exchange (or, if relevant,
exercise of any rights or collection of any interest) are no longer true
and cannot be relied upon as at the date hereof.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the
United States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorise you to
produce this certification to any interested party in such proceedings.
Date: [ ] (11)
[EUROCLEAR BANK S.A./N.V., as operator of the Euroclear
System/Clearstream Banking, societe anonyme ]
By: [authorised signature]
----------
(11) To be dated not earlier than the relevant interest payment date.
-43-
ANNEX III
[Form of account-holder's certification referred to in the preceding
certificates:]
[Note: This certificate is not required for Registered Instruments issued by ABB
International Finance Limited or ABB Capital B.V.]
[NAME OF ISSUER]
[AGGREGATE PRINCIPAL AMOUNT AND TITLE OF INSTRUMENTS]
(THE "SECURITIES")
[This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i)
are owned by persons that are not citizens or residents of the United
States, domestic partnerships, domestic corporations, estates or trust
the income of which is subject to the United States Federal income
taxation regardless of its source or trusts (a) that are subject to the
primary supervision of a court within the United States and the control
of one or more United States persons as described in section 7701(a)(30)
of the Code or (b) that have a valid election in effect under applicable
U.S. Treasury regulations to be treated as a United States person
("UNITED STATES PERSONS"), (ii) are owned by United States person(s)
that (a) are foreign branches of a United States financial institution
(as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v))
("FINANCIAL INSTITUTIONS") purchasing for their own account or for
resale, or (b) acquired above-captioned the Securities through and are
holding through on the date hereof foreign branches of United States
financial institutions (and in either case (a) or (b), each such United
States financial institution hereby agrees, on its own behalf or through
its agent, that you may advise the Issuer or the Issuer's agent that it
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as
defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and in addition if the owner of the above-captioned Securities is a
United States or foreign financial institution described in clause (iii)
above (whether or not also described in clause (i) or (ii)) this is
further to certify that such financial institution has not acquired the
above-captioned Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.](12)
[This is [] to certify that, except as set forth below, the
above-captioned Securities are beneficially owned by (a) non-U.S.
person(s) or (b) U.S. person(s) who purchased the Securities in
transactions which did not require registration under the U.S.
Securities Act of 1933, as amended (the "ACT")]. As used in this
paragraph the term "U.S. PERSON" has the meaning given to it by
Regulation S under the Act.](13)
----------
(12) Delete this paragraph or provision in the case of exchanges of the
Temporary Global Instrument for Registered Instruments issued by ABB
Finance Inc.
(13) To be used solely in the case of Instruments issued by ABB Finance Inc.
-44-
[This is also to certify that, except as set further below, the
above-captioned Securities are beneficially owned by (a) non-U.S.
person(s) or (b) U.S. persons resident outside the United States who
purchased the Securities in transactions outside the United States in
accordance with Regulation S under the U.S. Securities Act of 1933, as
amended the ("ACT"). As used in this paragraph the terms "U.S. PERSON"
and "UNITED STATES" have the meanings given to them by Regulation S
under the Act.](14)
[As used herein, "UNITED STATES" means the United States of America
(including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam,
American Samoa, Wake Island and the Northern Mariana Islands.](12)
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
Securities held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on such
date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certification excepts and does not relate to [ ] of such interest
in the above Securities in respect of which we are not able to certify
and as to which we understand exchange and delivery of definitive
Securities (or, if relevant, exercise of any rights or collection of any
interest) cannot be made until we do so certify.
We understand that this certification is required in connection with
[certain tax laws and, if applicable,](12) certain securities laws of
the United States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorise you to
produce this certification to any interested party in such proceedings.
Date: [ ](15)
[ACCOUNT-HOLDER] AS OR AS AGENT FOR THE BENEFICIAL OWNER OF THE
INSTRUMENTS.
By: [authorised signature]
----------
(14) To be used in the case of Instruments issued by ABB International
Finance Limited or ABB Capital B.V.
(15) To be dated not earlier than fifteen days before the Exchange Date or,
as the case may be the relevant interest payment date.
-▇▇-
▇▇▇ ▇▇▇▇▇▇ SCHEDULE
FORM OF PERMANENT GLOBAL INSTRUMENT
THIS INSTRUMENT CONSTITUTES [COMMERCIAL PAPER]/[A SHORTER/LONGER] TERM DEBT
SECURITY] ISSUED IN ACCORDANCE WITH THE REGULATIONS MADE UNDER SECTION 4 OF THE
BANKING ACT 1987](16)
Series Number: [ ] Serial Number: [ ]
THE SECURITIES REPRESENTED BY THIS PERMANENT GLOBAL INSTRUMENT HAVE NOT BEEN AND
WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR
TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT IN CERTAIN
TRANSACTIONS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
TERMS USED IN THIS PARAGRAPH HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT.
[ABB INTERNATIONAL FINANCE LIMITED
(INCORPORATED WITH LIMITED LIABILITY IN GUERNSEY)]
[ABB FINANCE INC.
(INCORPORATED IN THE STATE OF DELAWARE WITH LIMITED LIABILITY)]
[ABB CAPITAL B.V.
(INCORPORATED IN THE NETHERLANDS WITH LIMITED LIABILITY AND HAVING ITS
STATUTORY DOMICILE AT AMSTERDAM)]
PERMANENT GLOBAL INSTRUMENT
representing up to
[AGGREGATE PRINCIPAL AMOUNT OF TRANCHE]
[TITLE OF INSTRUMENTS]
This Permanent Global Instrument is issued in respect of an issue of
[DESCRIPTION OF INSTRUMENTS INCLUDING AGGREGATE PRINCIPAL AMOUNT OF TRANCHE]
(the "INSTRUMENTS") by [ ] (the "ISSUER").
The Issuer for value received promises, all in accordance with the terms and
conditions [attached hereto/set out in the information memorandum prepared by
the Issuer and dated 30 May 2001 and the pricing supplement prepared in relation
to the Instruments ("PRICING SUPPLEMENT")], to pay to the bearer upon
presentation and, if appropriate, surrender hereof on [MATURITY DATE] [by [ ]
[equal] successive [semi-annual/quarterly/other] instalments on the dates
specified in the Pricing Supplement](17) or on such earlier date as the same may
become payable in accordance therewith the principal amount of [AGGREGATE
PRINCIPAL AMOUNT OF TRANCHE] (as reduced from time to time in accordance with
such terms and conditions) or such
----------
(16) Delete if Instrument is not denominated in Sterling and the issue
proceeds are not accepted in the United Kingdom.
(17) Insert only where Instruments are Instalment Instruments.
-46-
lesser amount as is equal to the outstanding principal amount of the Instruments
represented by this Permanent Global Instrument or such other redemption amount
as may be specified therein [and to pay in arrear on the dates specified therein
interest on the principal amount hereof from time to time at the rate or rates
specified therein], all subject to and in accordance with such terms and
conditions.
[The Issuer of this Instrument is [ ], which his not an authorised institution
or a European authorised institution (as such terms are defined in the Banking
▇▇▇ ▇▇▇▇ (Exempt Transactions) Regulations 1997).](18)
The bearer of this Permanent Global Instrument is entitled to the benefit of the
terms and conditions referred to above and the same obligations on the part of
the Issuer as if such bearer were the bearer of the Instruments represented
hereby, and all payments under and to the bearer of this Permanent Global
Instrument shall be valid and effective to satisfy and discharge the
corresponding liabilities of the Issuer in respect of the Instruments.
This Permanent Global Instrument will be exchangeable for definitive Instruments
("DEFINITIVE INSTRUMENTS") in substantially the form (subject to completion) set
out in the Third Schedule to a fiscal agency agreement dated 10 March 1993 and
amended and restated on 30 May 2001 (as further supplemented, amended or
replaced, the "FISCAL AGENCY AGREEMENT") and made between the Issuer and Banque
Generale du Luxembourg S.A. in its capacity as fiscal agent (the "FISCAL AGENT",
which expression shall include any successor to Banque Generale du Luxembourg
S.A. in its capacity as such), Banque Generale du Luxembourg S.A. as principal
registrar and certain other financial institutions [or for registered
instruments ("REGISTERED INSTRUMENTS") in substantially the form (subject to
completion) set out in the Fourth Schedule to the Fiscal Agency Agreement or for
a combination of Definitive Instruments and Registered Instruments](19) (a) if
Euroclear Bank S.A./N.V., as operator of the Euroclear System (the "EUROCLEAR
SYSTEM") or Clearstream Banking, societe anonyme ("CLEARSTREAM, LUXEMBOURG") or
any other relevant clearing system is closed for business for a continuous
period of 14 days (other than by reason of legal holidays) or announces an
intention permanently to cease business; (b) if any of the Instruments
represented hereby becomes due and payable following an Event of Default (as
defined in Condition 7) of the terms and conditions referred to above; or (c) at
the option of the bearer hereof acting on behalf of the relevant beneficial
owners of the interests in this Permanent Global Instrument and at the expense
of such beneficial owners, and, in each case, upon the request of the bearer
hereof on behalf of the relevant beneficial owners of the interests in this
Permanent Global Instrument and at the expense of such beneficial owners. In
order to make such request, the bearer hereof must, not less than forty-five
days before the date upon which the delivery of such Definitive Instruments
[and/or Registered Instruments](17) is required, deposit this Permanent Global
Instrument with the Fiscal Agent at its specified office with the form of
exchange notice endorsed hereon duly completed. On an exchange of the whole of
this Permanent Global Instrument, this Permanent Global Instrument shall be
surrendered to the Fiscal Agent. [Any Registered Instruments shall be made
available in exchange in accordance with the terms and
----------
(18) Delete if Instrument is not denominated in Sterling and the issue
proceeds are not accepted in the United Kingdom.
(19) Insert only in the case of a Series comprising both Bearer and
Registered Instruments if the relevant Pricing Supplement specifies that
Bearer Instruments are exchangeable for Registered Instruments.
-47-
conditions applicable to the Instruments represented hereby and the Fiscal
Agency Agreement (which shall apply as if the bearer of this Permanent Global
Instrument were the bearer of the Instruments represented hereby).](17) Any
Definitive Instruments will be made available for collection by the persons
entitled thereto at the specified office of the Fiscal Agent. If default is made
by the Issuer in the required delivery of such Definitive Instruments [and/or,
as the case may be, Registered Instruments](17) and such default is continuing
at 6.00 p.m. (London time) on the thirtieth day after the day on which the
relevant notice period expires, then this Permanent Global Instrument will
become void and the bearer will have no further rights hereunder (but without
prejudice to the rights which such bearer or any other person(s) having an
interest in this Permanent Global Instrument immediately prior to it becoming
void may have under a deed of covenant dated 10 March 1993 and executed by the
Issuer in respect of the Instruments).
[On any occasion on which a payment of interest is made in respect of this
Permanent Global Instrument, the Issuer shall procure that the Paying Agent to
which this Permanent Global Instrument is presented notes the same on the
Schedule hereto].
On any occasion on which a payment of principal or redemption amount is made in
respect of this Permanent Global Instrument or on which this Permanent Global
Instrument is exchanged as aforesaid or on which any Instruments represented by
this Permanent Global Instrument are to be cancelled, the Issuer shall cause the
Paying Agent to which this Permanent Global Instrument is presented to procure
that (i) the aggregate principal amount of the Instruments in respect of which
such payment is made (or, in the case of a partial payment, the corresponding
part thereof) or which are delivered in definitive [or registered form](17) or
which are to be cancelled and (ii) the remaining principal amount of this
Permanent Global Instrument (which shall be the previous principal amount hereof
less the amount referred to at (i) above) are noted on the Schedule hereto,
whereupon the principal amount of this Permanent Global Instrument shall for all
purposes be as most recently so noted.
Insofar as the Temporary Global Instrument by which the Instruments were
initially represented has been exchanged in part only for this Permanent Global
Instrument and is then to be further exchanged as to the remaining principal
amount or part thereof for this Permanent Global Instrument, then upon
presentation of this Permanent Global Instrument to the Fiscal Agent at its
specified office in relation to the Instruments and to the extent that the
aggregate principal amount of such Temporary Global Instrument is then reduced
by reason of such further exchange, the Issuer shall cause the Fiscal Agent to
procure that (i) the aggregate principal amount of the Instruments in respect of
which such further exchange is then made and (ii) the new principal amount of
this Permanent Global Instrument (which shall be the previous principal amount
hereof plus the amount referred to at (i) above) are noted on the Schedule
hereto, whereupon the principal amount of this Permanent Global Instrument shall
for all purposes be as most recently noted.
This Permanent Global Instrument is governed by, and shall be construed in
accordance with, English law.
This Permanent Global Instrument shall not be valid for any purpose until
authenticated for and on behalf of Banque Generale du Luxembourg S.A. as fiscal
agent.
AS WITNESS the manual signature of two duly authorised officers on behalf of the
Issuer.
-48-
THE SCHEDULE
PAYMENTS, DELIVERY OF DEFINITIVE OR REGISTERED INSTRUMENTS, FURTHER EXCHANGES
OF THE TEMPORARY GLOBAL INSTRUMENT AND CANCELLATION OF INSTRUMENTS
-------------------------------------------------------------------------------------------------------------
Date of Amount of Amount of Aggregate Aggregate Aggregate Current Authorised
payment, interest principal principal principal principal principal signature
delivery, then paid or, as the amount of amount of amount of amount of of the
further case may exchanges Instruments exchanges this Fiscal
exchange of be, for then for Permanent Agent
Temporary redemption Definitive cancelled further Global and/or the
Global amount Instruments exchanges Instrument Registrar
Instrument or then paid or of
cancellation Registered Temporary
Instruments Global
then Instrument
delivered
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-49-
[ ] [ ]
By: [manual signature] By: [manual signature]
(DULY AUTHORISED) (DULY AUTHORISED)
ISSUED in [ ] on [ ] [ ]
AUTHENTICATED for and on behalf of
BANQUE GENERALE DU LUXEMBOURG S.A.
as fiscal agent
By: [manual signature]
(DULY AUTHORISED)
[ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.](20)
[BY ACCEPTING THIS OBLIGATION, THE HOLDER REPRESENTS AND WARRANTS THAT IT IS NOT
A UNITED STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN SECTION
6049(b)(4) OF THE INTERNAL REVENUE CODE AND THE REGULATIONS THEREUNDER) AND THAT
IT IS NOT ACTING FOR OR ON BEHALF OF A UNITED STATES PERSON (OTHER THAN AN
EXEMPT RECIPIENT DESCRIBED IN SECTION 6049(b)(4) OF THE INTERNAL REVENUE CODE
AND THE REGULATIONS THEREUNDER).](21)
----------
(20) Insert only where either (i) Issuer is AFI and the maturity of the Notes
is more than 183 days or (ii) Issuer is AIFLTD or ACBV and the maturity
of the Notes is more than one year.
(21) Insert only where Issuer is AFI and the maturity of the Notes is 183
days or less.
-50-
EXCHANGE NOTICE
________________________, being the bearer of this Permanent Global Instrument
at the time of its deposit with the Fiscal Agent at its specified office for the
purposes of the Instruments, hereby exercises the option set out above to have
this Permanent Global Instrument exchanged in whole or in part for Instruments
in [definitive/registered form/[ ] in aggregate principal amount of Instruments
in definitive form and [ ] in aggregate principal amount of Instruments in
registered form]* and directs that such Instruments in definitive form be made
available for collection by it from the Fiscal Agent's specified office and that
such Instruments in registered form be made available in accordance with the
terms and conditions applicable to the Instruments represented hereby and the
Fiscal Agency Agreement.
---------------------------------
By:
(DULY AUTHORISED)
* Delete and complete, as appropriate
-51-
THE THIRD SCHEDULE
FORM OF DEFINITIVE INSTRUMENT ("ISMA" FORMAT)
[On the face of the Instrument:]
[9999999+AAXXXXXXXXX9+XX+999999]
[DENOMINATION]
[THIS INSTRUMENT CONSTITUTES [COMMERCIAL PAPER]/[A SHORTER/LONGER] TERM DEBT
SECURITY] ISSUED IN ACCORDANCE WITH THE REGULATIONS MADE UNDER SECTION 4 OF THE
BANKING ACT 1987](22)
THIS INSTRUMENT HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS EXCEPT IN CERTAIN TRANSACTIONS EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. TERMS USED IN THIS PARAGRAPH HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
[ABB INTERNATIONAL FINANCE LIMITED
(INCORPORATED WITH LIMITED LIABILITY IN GUERNSEY)]
[ABB FINANCE INC.
(INCORPORATED IN THE STATE OF DELAWARE WITH LIMITED LIABILITY)]
[ABB CAPITAL B.V.
(INCORPORATED IN THE NETHERLANDS WITH LIMITED LIABILITY AND HAVING ITS
STATUTORY DOMICILE AT AMSTERDAM)]
[AGGREGATE PRINCIPAL AMOUNT OF TRANCHE]
[TITLE OF INSTRUMENTS]
[ ] (the "ISSUER") for value received promises, all in accordance with
the terms and conditions [endorsed hereon/attached hereto] [and the pricing
supplement referred to therein and prepared in relation to the Instruments
("PRICING SUPPLEMENT")] to pay to the bearer upon presentation and, if
appropriate, surrender hereof on [MATURITY DATE] [by [ ] [equal] successive
[semi-annual/quarterly/other] instalments on the dates specified in the Pricing
Supplement](23) or on such earlier date as the same may become payable in
accordance therewith the principal amount of:
[DENOMINATION IN WORDS AND NUMERALS]
----------
(22) Delete if Instrument is not denominated in Sterling and the issue
proceeds are not accepted in the United Kingdom.
(23) Insert only where Instruments are Instalment Instruments.
-52-
[(, in the case of payment on such earlier date, as reduced from time to time in
accordance with such terms and conditions)](19) or such other redemption amount
as may be specified therein [and to pay in arrear on the dates specified therein
interest on such principal amount [(as reduced from time to time in accordance
with such terms and conditions)](19) at the rate or rates specified therein, all
subject to and in accordance with such terms and conditions].
[The Issuer of this Instrument is [ ], which is not an authorised institution
or a European authorised institution (as such terms are defined in the Banking
▇▇▇ ▇▇▇▇ (Exempt Transactions) regulations 1997).](24)
[This [TITLE OF INSTRUMENT] shall not/Neither this [TITLE OF INSTRUMENT] nor any
of the interest coupons appertaining hereto shall] be valid for any purpose
until this [TITLE OF INSTRUMENT] has been authenticated for and on behalf of
Banque Generale du Luxembourg S.A. as fiscal agent.
This [TITLE OF INSTRUMENT] is governed by, and shall be construed in accordance
with, English law.
AS WITNESS the facsimile signature of two duly authorised officers on behalf of
the Issuer.
[ ] [ ]
By: [facsimile signature] By: [facsimile signature]
(DULY AUTHORISED) (DULY AUTHORISED)
ISSUED in [ ] as of [ ] [ ]
AUTHENTICATED for and on behalf of
BANQUE GENERALE DU LUXEMBOURG S.A.
as fiscal agent
without recourse, warranty or liability
By: [manual signature]
(DULY AUTHORISED)
[ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.](25)
----------
(24) Delete if Instrument is not denominated in Sterling and the issue
proceeds are not accepted in the United Kingdom.
(25) Insert only where either (i) Issuer is AFI and the maturity of the Notes
is more than 183 days or (ii) Issuer is AIFLTD or ACBV and the maturity
of the Notes is more than one year.
-53-
[BY ACCEPTING THIS OBLIGATION, THE HOLDER REPRESENTS AND WARRANTS THAT IT IS NOT
A UNITED STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN SECTION
6049(b)(4) OF THE INTERNAL REVENUE CODE AND THE REGULATIONS THEREUNDER) AND THAT
IT IS NOT ACTING FOR OR ON BEHALF OF A UNITED STATES PERSON (OTHER THAN AN
EXEMPT RECIPIENT DESCRIBED IN SECTION 6049(b)(4) OF THE INTERNAL REVENUE CODE
AND THE REGULATIONS THEREUNDER).](26)
----------
(26) Insert only where Issuer is AFI and the maturity of the Notes is 183
days or less.
-54-
[On the reverse of the Instruments:]
TERMS AND CONDITIONS
[AS CONTEMPLATED IN THE INFORMATION MEMORANDUM AND AS AMENDED BY THE RELEVANT
PRICING SUPPLEMENT]
[At the foot of the Terms and Conditions:]
FISCAL AGENT
BANQUE GENERALE DU LUXEMBOURG S.A.
▇▇, ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
PAYING AGENT
BANQUE GENERALE DU LUXEMBOURG (SUISSE) S.A.
▇▇ ▇▇▇▇▇▇▇
▇▇-▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
-55-
FORMS OF COUPONS
[On the front of Coupon:]
[Attached to the Instruments (interest-bearing, fixed rate and having Coupons):]
[ISSUER]
[AMOUNT AND TITLE OF INSTRUMENTS]
Coupon for [ ] due on [ ]
Such amount is payable (subject to the terms and conditions [endorsed
on/attached to the [TITLE OF INSTRUMENT] to which this Coupon appertains [and
the pricing supplement referred to therein], which shall be binding on the
holder of this Coupon whether or not it is for the time being attached to such
[TITLE OF INSTRUMENT]) against surrender of this Coupon at the specified office
of the Fiscal Agent or any of the Paying Agents set out on the reverse hereof
(or any other or further fiscal or paying agents and/or specified offices from
time to time designated for the purpose by notice duly given in accordance with
such terms and conditions).
[The attention of Couponholders is drawn to condition 9A.06 of the terms and
conditions. The Instrument to which this Coupon appertains may in certain
circumstances specified in such terms and conditions, fall due for redemption
before the due date in relation to this Coupon. In such event, the Paying Agent
to which such Instrument is presented for redemption may determine, in
accordance with the aforesaid condition 9A.06 that this Coupon is to become
void.]
[ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.](27)
[BY ACCEPTING THIS OBLIGATION, THE HOLDER REPRESENTS AND WARRANTS THAT IT IS NOT
A UNITED STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN SECTION
6049(b)(4) OF THE INTERNAL REVENUE CODE AND THE REGULATIONS THEREUNDER) AND THAT
IT IS NOT ACTING FOR OR ON BEHALF OF A UNITED STATES PERSON (OTHER THAN AN
EXEMPT RECIPIENT DESCRIBED IN SECTION 6049(b)(4) OF THE INTERNAL REVENUE CODE
AND THE REGULATIONS THEREUNDER).](28)
[99+9999999+AAXXXXXXXXX9+XX+999999]
----------
(27) Insert only where either (i) Issuer is AFI and the maturity of the Notes
is more than 183 days or (ii) Issuer is AIFLTD or ACBV and the maturity
of the Notes is more than one year.
-56-
----------
(28) Insert only where Issuer is AFI and the maturity of the Notes is 183
days or less.
-57-
[Attached to the Instrument (interest-bearing, floating rate and having
Coupons):]
[ISSUER]
[AMOUNT AND TITLE OF INSTRUMENTS]
Coupon for the amount of interest due on [ ]
Such amount is payable (subject to the terms and conditions [endorsed
on/attached to] the [TITLE OF INSTRUMENT] to which this Coupon appertains [and
the pricing supplement referred to therein], which shall be binding on the
holder of this Coupon whether or not it is for the time being attached to such
[TITLE OF INSTRUMENT]) against surrender of this Coupon at the specified office
of the Fiscal Agent or any of the Paying Agents set out on the reverse hereof
(or any other or further fiscal or paying agents and/or specified offices from
time to time designated for the purpose by notice duly given in accordance with
such terms and conditions).
The Instrument to which this Coupon appertains may, in certain circumstances
specified in such terms and conditions, fall due for redemption before the due
date in relation to this Coupon. In such event, this Coupon will become void and
no payment will be made in respect hereof.
[ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.](29)
[BY ACCEPTING THIS OBLIGATION, THE HOLDER REPRESENTS AND WARRANTS THAT IT IS NOT
A UNITED STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN SECTION
6049(b)(4) OF THE INTERNAL REVENUE CODE AND THE REGULATIONS THEREUNDER) AND THAT
IT IS NOT ACTING FOR OR ON BEHALF OF A UNITED STATES PERSON (OTHER THAN AN
EXEMPT RECIPIENT DESCRIBED IN SECTION 6049(b)(4) OF THE INTERNAL REVENUE CODE
AND THE REGULATIONS THEREUNDER).](30)
[99+9999999+AAXXXXXXXXX9+XX+999999]
----------
(29) Insert only where either (i) Issuer is AFI and the maturity of the Notes
is more than 183 days or (ii) Issuer is AIFLTD or ACBV and the maturity
of the Notes is more than one year.
(30) Insert only where Issuer is AFI and the maturity of the Notes is 183
days or less.
-58-
[On the reverse of each Coupon:]
FISCAL BANQUE GENERALE DU LUXEMBOURG S.A.
AGENT: ▇▇ ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
PAYING BANQUE GENERALE DU LUXEMBOURG (SUISSE) S.A.
AGENT: ▇▇ ▇▇▇▇▇▇▇
▇▇-▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
-59-
FORM OF TALON
No______________
[ ]
[AMOUNT AND TITLE OF INSTRUMENTS]
TALON FOR FURTHER COUPONS
[ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.](31)
[BY ACCEPTING THIS OBLIGATION, THE HOLDER REPRESENTS AND WARRANTS THAT IT IS NOT
A UNITED STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN SECTION
6049(b)(4) OF THE INTERNAL REVENUE CODE AND THE REGULATIONS THEREUNDER) AND THAT
IT IS NOT ACTING FOR OR ON BEHALF OF A UNITED STATES PERSON (OTHER THAN AN
EXEMPT RECIPIENT DESCRIBED IN SECTION 6049(b)(4) OF THE INTERNAL REVENUE CODE
AND THE REGULATIONS THEREUNDER).](32)
After all the Coupons appertaining to the Instrument to which this Talon
appertains have matured further Coupons [(including, where appropriate, a Talon
for further Coupons)] will be issued at the specified office of the Fiscal Agent
or any of the Paying Agents set out in the reverse hereof (or any other or
further paying agents and/or specified offices from time to time designated by
notice duly given in accordance with the terms and conditions [endorsed
on/attached to] the [TITLE OF INSTRUMENT] to which this Talon appertains [and
the pricing supplement referred to therein] (which shall be binding on the
holder of this Talon whether or not it is for the time being attached to such
[TITLE OF INSTRUMENT])) upon production and surrender of this Talon upon and
subject to such terms and conditions. The initial Paying Agents and their
specified offices are set out on the reverse hereof.
Under the said terms and conditions, such Instrument may, in certain
circumstances, fall due for redemption before the original due date for exchange
of this Talon and in any such event this Talon shall become void and no exchange
shall be made in respect hereof.
[ISSUER]
----------
(31) Insert only where either (i) Issuer is AFI and the maturity of the Notes
is more than 183 days or (ii) Issuer is AIFLTD or ACBV and the maturity
of the Notes is more than one year.
(32) Insert only where Issuer is AFI and the maturity of the Notes is 183
days or less.
-▇▇-
▇▇▇ ▇▇▇▇▇▇ SCHEDULE
FORM OF REGISTERED INSTRUMENT
[THIS INSTRUMENT CONSTITUTES [COMMERCIAL PAPER]/[A SHORTER/LONGER] TERM DEBT
SECURITY] ISSUED IN ACCORDANCE WITH THE REGULATIONS MADE UNDER SECTION 4 OF THE
BANKING ACT 1987](33)
ISIN Number: [ ] Series Number: [ ] Serial Number: [ ]
THIS INSTRUMENT HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT IN CERTAIN TRANSACTIONS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. TERMS USED IN THIS PARAGRAPH HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT.
[ABB INTERNATIONAL FINANCE LIMITED
(INCORPORATED WITH LIMITED LIABILITY IN GUERNSEY)]
[ABB FINANCE INC.
(INCORPORATED IN THE STATE OF DELAWARE WITH LIMITED LIABILITY)]
[ABB CAPITAL B.V.
(INCORPORATED IN THE NETHERLANDS WITH LIMITED LIABILITY AND HAVING ITS
STATUTORY DOMICILE AT AMSTERDAM)]
[AGGREGATE PRINCIPAL AMOUNT OF TRANCHE]
[TITLE OF INSTRUMENTS]
[ ] (the "ISSUER") for value received promises, all in accordance with
the terms and conditions [endorsed hereon/attached hereto] [and the pricing
supplement referred to therein and prepared in relation to the Instruments
("PRICING SUPPLEMENT")], to pay to
_______________________________________ of ________________________________
_________________________________________________________________________
(being the person registered in the register referred to below or, if more than
one person is so registered, the first-named of such persons) on [MATURITY DATE]
[by [ ] [equal] successive [semi-annual/quarterly/other] instalments on the
dates specified in the Pricing Supplement](34) or on such earlier date as the
same may become payable in accordance therewith the principal sum of
______________________________________________ [(, in
the case of payment on such earlier date, as reduced in accordance with such
terms and conditions)](34) or such other redemption amount as may be specified
therein [and to pay in arrear on the dates specified therein interest on such
----------
(33) Delete if Instrument is not denominated in Sterling and the issue
proceeds are not accepted in the United Kingdom.
(34) Insert only where Instruments are Instalment Instruments.
-61-
principal amount [(as reduced in accordance with such terms and conditions)](34)
at the rate or rates specified therein], all subject to and in accordance with
such terms and conditions.
The statements set forth in the legend, if any, set forth above are an integral
part of the terms of this Instrument and by acceptance hereof each holder of
this Instrument agrees to be subject to and bound by the terms and provisions
set forth in such legend, if any.
[The Issuer of this Instrument is [ ], which is not an authorised institution or
a European authorised institution (as such terms are defined in the Banking ▇▇▇
▇▇▇▇ (Exempt Transactions) Regulations 1997).](35)
This Instrument is evidence of entitlement only. Title to the Instrument passes
only on due registration in the Register maintained by [ ](36), as
registrar, and only the duly registered holder or if more than one person is so
registered, the first-named of such persons is entitled to payment in respect of
this Instrument.
This Instrument is governed by, and shall be construed in accordance with,
English law.
This Instrument shall not be valid for any purpose until this Instrument has
been authenticated for and on behalf of [ ],(36) as registrar.
AS WITNESS the facsimile or manual signatures of two duly authorised officers of
the Issuer.
[ ] [ ]
By: [manual/facsimile signature] By: [manual/facsimile signature]
(DULY AUTHORISED) (DULY AUTHORISED)
ISSUED in [ ] as of [ ] [ ]
AUTHENTICATED for and on behalf of
[ ]
as registrar without recourse, warranty or liability
By: [manual signature]
(DULY AUTHORISED)
FORM OF TRANSFER
FOR VALUE RECEIVED _______________________________, being the registered holder
of this [TITLE OF INSTRUMENT], hereby transfers to
___________________________________ of ________________________________________,
____________________________________ in principal amount of this [TITLE OF
----------
(35) Delete if Instrument is not denominated in Sterling and the issue
proceeds are not accepted in the United Kingdom.
(36) Insert name of the relevant Registrar.
-62-
INSTRUMENT] and irrevocably requests and authorises [ ](37), in its
capacity as registrar in relation to the [TITLE OF INSTRUMENTS] (or any
successor to [ ](37), in its capacity as such) to effect the relevant
transfer by means of appropriate entries in the register kept by it.
Dated:
------------------------
------------------------
By: [manual signature] [By: [manual signature
(DULY AUTHORISED) (DULY AUTHORISED)]
NOTES:
THE NAME OF THE PERSON BY OR ON WHOSE BEHALF THIS FORM OF TRANSFER IS SIGNED
MUST CORRESPOND WITH THE NAME OF THE REGISTERED HOLDER AS IT APPEARS ON THE FACE
OF THIS INSTRUMENT.
(i) A representative of such registered holder should state the
capacity in which he signs e.g. executor.
(ii) THE SIGNATURE OF THE PERSON EFFECTING A TRANSFER SHALL CONFORM
TO ANY LIST OF DULY AUTHORISED SPECIMEN SIGNATURES SUPPLIED BY
THE REGISTERED HOLDER OR BE CERTIFIED BY A RECOGNISED BANK,
NOTARY PUBLIC OR IN SUCH OTHER MANNER AS THE REGISTRAR MAY
REQUIRE.
(iii) ANY TRANSFER OF [TITLE OF INSTRUMENTS] SHALL BE IN AN AMOUNT
EQUAL TO THE MINIMUM DENOMINATION AS MAY BE SPECIFIED IN THE
RELEVANT PRICING SUPPLEMENT OR AN INTEGRAL MULTIPLE THEREOF.
----------
(37) Insert name of the relevant Registrar
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THE FIFTH SCHEDULE
PROVISIONS FOR MEETINGS OF HOLDERS OF INSTRUMENTS
1. (A) As used in this Schedule, the following expressions shall have
the following meanings unless the context otherwise requires:
(1) "VOTING CERTIFICATE" shall mean a certificate in the English
language issued by any Paying Agent or, as the case may be, any
Registrar and dated, in which it is stated:
(a) that on the date thereof outstanding Bearer Instruments
of any Series (not being Bearer Instruments in respect
of which a block voting instruction has been issued and
is outstanding in respect of the meeting specified in
such voting certificate or any adjournment thereof)
bearing specified serial numbers have been deposited to
the order of such Paying Agent and that no such Bearer
Instruments will be released until the first to occur
of:
(i) the conclusion of the meeting specified in such
certificate or any adjournment thereof; and
(ii) the surrender of the certificate to such Paying
Agent; or
(b) that on the date thereof Registered Instruments of any
Series (not being Registered Instruments in respect of
which a block voting instruction has been issued and is
outstanding in respect of the meeting specified in such
voting certificate or any adjournment thereof) are
registered in the books and records maintained by the
Registrar in the names of specified registered holders;
and
(c) that until the release of the Bearer Instruments
represented thereby the bearer thereof is entitled to
attend and vote at such meeting or any adjournment
thereof in respect of the Instruments represented by
such certificate; and
(2) "BLOCK VOTING INSTRUCTION" shall mean a document in the English
language issued by any Paying Agent or, as the case may be, any
Registrar and dated, in which:
(a) it is certified that outstanding Bearer Instruments of
any Series (not being Bearer Instruments in respect of
which a voting certificate has been issued and is
outstanding in respect of the meeting specified in such
block voting instruction or any adjournment thereof)
have been deposited to the order of such Paying Agent
and that no such Bearer Instruments will be released
until the first to occur of:
(i) the conclusion of the meeting specified in such
document or any adjournment thereof; and
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(ii) the surrender, not less than 48 hours before the
time for which such meeting or adjournment
thereof is convened, of the receipt for each
such deposited Bearer Instrument which has been
deposited to the order of such Paying Agent,
coupled with notice thereof being given by such
Paying Agent to the relevant Issuer; or
(b) It is certified that Registered Instruments of any
Series (not being Registered Instruments in respect of
which a voting certificate has been issued and is
outstanding in respect of the meeting specified in such
block voting instruction and any adjournment thereof)
are registered in the books and records maintained by
the Registrar in the names of specified registered
holders;
(c) It is certified that each depositor of such Instruments
or registered holder thereof or a duly authorised agent
on his or its behalf has instructed the Paying Agent or,
as the case may be, the Registrar that the vote(s)
attributable to his or its Instruments so deposited or
registered should be cast in a particular way in
relation to the resolution or resolutions to be put to
such meeting or any adjournment thereof and that all
such instructions are, during the period of 48 hours
prior to the time for which such meeting or adjourned
meeting is convened, neither revocable nor subject to
amendment;
(d) the total number, principal amount outstanding, the
serial numbers and series numbers of the Instruments so
deposited or registered are listed, distinguishing with
regard to each such resolution between those in respect
of which instructions have been given as aforesaid that
the votes attributable thereto should be cast in favour
of the resolution and those in respect of which
instructions have been so given that the votes
attributable thereto should be cast against the
resolution; and
(e) any person named in such document (hereinafter called a
"PROXY") is authorised and instructed by the Paying
Agent or, as the case may be, the Registrar to cast the
votes attributable to the Instruments so listed in
accordance with the instructions referred to in (c) and
(d) above as set out in such document.
(B) A registered holder of a Registered Instrument may by an
instrument in writing in the form for the time being available
from the specified office of the Registrar in the English
language (hereinafter called a "FORM OF PROXY") signed by the
holder or its duly appointed attorney or, in the case of a
corporation, executed under its seal or signed on its behalf by
its duly appointed attorney or a duly authorised officer of the
corporation, appoint any person (hereinafter also called a
"PROXY") to attend and act on his or its behalf in connection
with any meeting or proposed meeting of the holders of
Instruments.
(C) Voting certificates, block voting instructions and forms of
proxy shall be valid for so long as the relevant Instruments
have not been released or, in the case of Registered
Instruments, are duly registered in the name(s) of the
registered
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holder(s) certified in the relevant voting certificate or block
voting instruction or, in the case of a form of proxy, in the
name of the appointor but not otherwise and notwithstanding any
other provision of this Schedule and during the validity thereof
the holder of any such voting certificate or, as the case may
be, the proxy shall, for all purposes in connection with any
meeting of holders of Instruments, be deemed to be the holder of
the Instruments of the relevant Series to which such voting
certificate, block voting instructions or form of proxy relates
and, in the case of Bearer Instruments, the Paying Agent to the
order of whom such Instruments have been deposited and, in the
case of Registered Instruments, the registered holder(s) shall
nevertheless be deemed for such purposes not to be the holder of
those Instruments.
2. The relevant Issuer at any time may, and upon a request in writing by
holders of Instruments holding not less than one-tenth of the principal
amount outstanding of the Instruments of any particular Series for the
time being outstanding at any time after such Instruments shall have
become repayable owing to an event of default under the Conditions
applicable to such Instruments shall, convene a meeting of the holders
of Instruments of such Series. Whenever any Issuer wishes or is obliged
to convene any such meeting it shall forthwith give notice in writing to
the Fiscal Agent of the day, time and place thereof and of the nature of
the business to be transacted thereat. Every such meeting or adjournment
thereof shall be held at such time and place as the Fiscal Agent may
approve.
3. At least twenty-one days' notice (exclusive of the day on which the
notice is given and of the day on which the meeting is held) specifying
the day, time and place of meeting shall be given to the holders of the
Instruments of the relevant Series. A copy of the notice shall be given
to the relevant Issuer unless the meeting shall be convened by such
Issuer and a copy shall be given to the Fiscal Agent and, in the case of
Registered Instruments, the Registrar. Such notice shall be given in the
manner provided in the Conditions and shall specify the general nature
of the business to be transacted at the meeting thereby convened but
(except in the case of an Extraordinary Resolution) it shall not be
necessary to specify in such notice the form of any resolution to be
proposed and shall include, INTER ALIA, statements to the effect:
(a) that Bearer Instruments of the relevant Series may be deposited
with (or to the order of) any Paying Agent for the purpose of
obtaining voting certificates or appointing proxies until 48
hours before the time fixed for the meeting but not thereafter;
(b) that (without prejudice to the provisions of paragraph 1(B))
registered holders of Registered Instruments may obtain voting
certificates or appoint proxies not later than (except in the
case of a form of proxy) 48 hours before the time fixed for the
meeting but not thereafter.
4. A person (who may, but need not, be the holder of an Instrument of the
relevant Series) nominated in writing by the Fiscal Agent shall be
entitled to take the chair at every meeting but if no such nomination is
made or if at any meeting the person nominated shall not be present
within fifteen minutes after the time appointed for the holding of
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such meeting the holders of Instruments present may appoint another such
person to be chairman and failing such choice the relevant Issuer may
appoint the chairman. The chairman of a reconvened meeting need not be
the same person who was chairman of the original meeting.
5. At any such meeting any two or more persons present in person holding
Instruments of the relevant Series or voting certificates or being
proxies and holding or representing in the aggregate at least one-third
in principal amount outstanding of the Instruments of the relevant
Series for the time being outstanding shall form a quorum for the
transaction of business Provided that at any meeting at which an
Extraordinary Resolution is to be proposed for the purpose of effecting
any of the modifications specified in the proviso to paragraph 18 hereof
the quorum for such meeting shall be any two or more persons present in
person holding Instruments of the relevant Series or voting certificates
or being proxies and holding or representing in the aggregate at least
75 per cent. in principal amount outstanding of the Instruments of the
relevant Series for the time being outstanding and no business (other
than the choosing of a chairman) shall be transacted at any meeting
unless the requisite quorum be present at the commencement of business.
6. If within an hour from the time appointed for any such meeting a quorum
is not present the meeting shall, if convened upon the requisition of
holders of Instruments, be dissolved. In any other case it shall stand
adjourned for such period, not being less than fourteen days nor more
than forty-two days, as may be decided by the chairman. At such
adjourned meeting two or more persons present in person holding
Instruments of the relevant Series or voting certificates or being
proxies (whatever the principal amount outstanding of the Instruments of
the relevant Series so held or represented by them) shall form a quorum
and shall have the power to pass any resolution and to decide upon all
matters which could properly have been dealt with at the original
meeting had a quorum been present at such meeting Provided that at any
adjourned meeting at which an Extraordinary Resolution is to be proposed
for the purpose of effecting any of the modifications specified in the
proviso to paragraph 18 hereof the quorum for such meeting shall be two
or more persons present holding Instruments of the relevant Series or
voting certificates or being proxies and holding or representing in the
aggregate at least 25 per cent. in principal amount outstanding of the
Instruments of the relevant Series for the time being outstanding.
7. The chairman may with the consent of (and shall if directed by) any
meeting adjourn the same from time to time and from place to place but
no business shall be transacted at any adjourned meeting except business
which might lawfully have been transacted at the meeting from which the
adjournment took place.
8. At least ten days' notice (exclusive of the day on which the notice is
given and the day on which the meeting is held) of any meeting adjourned
through want of a quorum shall be given in the same manner as of an
original meeting and such notice shall state the quorum required at such
adjourned meeting. Subject as aforesaid, it shall not be necessary to
give any notice of an adjourned meeting.
9. Every question submitted to a meeting shall be decided in the first
instance by a show of hands and in case of equality of votes the
chairman shall both on a show of hands and on
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a poll have a casting vote in addition to the vote or votes (if any) to
which he may be entitled as a holder of an Instrument or voting
certificate or being a proxy.
10. At any meeting, unless a poll is (before or on the declaration of the
result of the show of hands) demanded by the chairman or the relevant
Issuer or by one or more persons holding one or more Instruments of the
relevant Series or voting certificates or being proxies and holding or
representing in the aggregate not less than 2 per cent. of the principal
amount outstanding of the Instruments of the relevant Series for the
time being outstanding, a declaration by the chairman that a resolution
has been carried or carried by a particular majority or lost or not
carried by any particular majority shall be conclusive evidence of the
fact without proof of the number or proportion of the votes recorded in
favour of or against such resolution.
11. If at any meeting a poll is so demanded, it shall be taken in such
manner and (subject as hereinafter provided) either at once or after
such an adjournment as the chairman directs and the result of such poll
shall be deemed to be the resolution of the meeting at which the poll
was demanded as at the date of the taking of the poll. The demand for a
poll shall not prevent the continuance of the meeting for the
transaction of any business other than the question on which the poll
has been demanded.
12. Any poll demanded at any meeting on the election of a chairman or on any
question of adjournment shall be taken at the meeting without
adjournment.
13. The Fiscal Agent, the relevant Issuer and, in the case of Registered
Instruments, the Registrar (through their respective representatives)
and their respective advisers shall be entitled to attend and speak at
any meeting of the holders of Instruments. No person shall be entitled
to attend (except as provided above) or to vote at any meeting of the
holders of Instruments or to join with others in requesting the
convening of such a meeting unless he is the holder of an Instrument or
a voting certificate or is a proxy.
14. Subject as provided in paragraph 9 above, at any such meeting (a) on a
show of hands every person who is present (being an individual) in
person or (being a corporation) by a duly authorised representative and
(i) who is a holder of Instruments, and in the case of Bearer
Instruments, produces such Instruments or (ii) who produces a voting
certificate or (iii) is a proxy shall have one vote and (b) on a poll
every person who is so present shall have one vote in respect of each
[ ](38) principal amount outstanding of Instruments of the
relevant Series so produced or represented by the voting certificate so
produced or in respect of which he is a proxy. Without prejudice to the
obligations of the proxies named in any block voting instruction or form
of proxy, any person entitled to more than one vote need not use all his
votes or cast all the votes to which he is entitled in the same way.
15. A proxy named in any block voting instruction or form of proxy need not
be a holder of an Instrument.
----------
(38) The currency and amount of the smallest denomination of Instruments
available in relation to the particular Series shall be deemed to be
inserted here.
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16. Each block voting instruction and each form of proxy, together (if so
required by the relevant Issuer) with proof satisfactory to such Issuer
of its due execution, shall be deposited at such place as such Issuer
shall designate not less than 24 hours before the time appointed for
holding the meeting or adjourned meeting at which the proxy named in the
block voting instruction or form of proxy proposes to vote and in
default the block voting instruction or form of proxy shall not be
treated as valid unless the chairman of the meeting decides otherwise
before such meeting or adjourned meeting proceeds to business. A
certified copy of each such block voting instruction and form of proxy
and satisfactory proof as aforesaid (if applicable) shall, be deposited
with the Issuer at such place as aforesaid before the commencement of
the meeting or adjourned meeting but such Issuer shall not thereby be
obliged to investigate or be concerned with the validity of, or the
authority of the proxy named in, any such block voting instruction or
form of proxy.
17. Without prejudice to paragraph 1, any vote given in accordance with the
terms of a block voting instruction or form of proxy shall be valid
notwithstanding the previous revocation or amendment of the block voting
instruction or form of proxy or of any of the Instrument holders'
instructions pursuant to which it was executed, provided that no
intimation in writing of such revocation or amendment shall have been
received by the relevant Issuer or by the chairman of the meeting, in
each case not less than 24 hours before the commencement of the meeting
or adjourned meeting at which the block voting instruction or form of
proxy is used.
18. A meeting of the holders of Instruments shall, in respect of the
Instruments of the relevant Series and subject to the provisions
contained in the Conditions, in addition to the powers hereinbefore
given, but without prejudice to any powers conferred on other persons by
these presents, have the following powers exercisable by Extraordinary
Resolution only namely:
(a) power with the approval of the relevant Issuer to sanction any
modification, abrogation, variation or compromise of, or
arrangement in respect of, the rights of the holders of
Instruments and/or Coupons in respect of the Instruments of the
relevant Series, against the relevant Issuer, whether such
rights shall arise under the Instruments of that Series, the
Deed of Covenant executed by such Issuer or otherwise;
(b) power to assent to any modification to the provisions contained
herein or of the Instruments or Coupons of the relevant Series
which shall be proposed by the Issuer;
(c) power to sanction any proposal by the relevant Issuer for the
exchange or substitution for the Instruments of the relevant
Series of, or the conversion of those Instruments into, shares,
stock, bonds, debentures, debenture stock or other obligations
or securities of the relevant Issuer or any other body corporate
formed or to be formed otherwise than in accordance with any
provisions of the Conditions applicable to the Instruments of
the relevant Series;
(d) power to assent to any modification of the provisions contained
in the Instruments or the Coupons of the relevant Series, the
Conditions thereof, this
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Schedule, the Fiscal Agency Agreement or the Deed of Covenant
executed by such Issuer which shall be proposed by the relevant
Issuer;
(e) power to waive or authorise any breach or proposed breach by the
relevant Issuer of its obligations under the Conditions
applicable to the Instruments of the relevant Series or any act
or omission which might otherwise constitute an event of default
under the Conditions applicable to the Instruments of the
relevant Series;
(f) power to authorise the Fiscal Agent, the Registrar or any other
person to concur in and execute and do all such deeds,
instruments, acts and things as may be necessary to carry out
and give effect to any Extraordinary Resolution;
(g) power to give any authority, direction or sanction which under
the Conditions applicable to the Instruments of the relevant
Series is required to be given by Extraordinary Resolution;
(h) power to appoint any persons (whether holders of Instruments or
not) as a committee or committees to represent the interests of
the holders of Instruments in respect of the Instruments of the
relevant Series and to confer upon such committee or committees
any powers or discretions which such holders of Instruments
could themselves exercise by Extraordinary Resolution; and
(i) power to approve other security as contemplated by Condition
4.01.
Provided that the special quorum provisions contained in the provisos to
paragraphs 5 and 6 shall apply in relation to any Extraordinary Resolution for
the purpose of making modification of the provisions contained in the
Instruments or the Coupons of any Series or the Conditions applicable thereto
which:
(i) varies the date of maturity or any date of redemption of any of
the Instruments of the relevant Series or any date for payment
of any principal or interest in respect thereof; or
(ii) reduces or cancels the principal amount of the Instruments of
the relevant Series or any amount payable thereon, varies any
provision regarding the calculation of the rate of interest or
any other amount payable thereon or varies the rate of discount,
rate of amortisation or any other rate of return applicable
thereto; or
(iii) modifies the provisions contained in this Schedule concerning
the quorum required at any meeting of holders of Instruments in
respect of the Instruments of the relevant Series or any
adjournment thereof or concerning the majority required to pass
an Extraordinary Resolution; or
(iv) varies the currency in which any payment (or other obligation)
in respect of the Instruments of the relevant Series is to be
made; or
(v) amends this proviso in any manner.
19. An Extraordinary Resolution passed at a meeting of the holders of
Instruments in respect of the Instruments of the relevant Series duly
convened and held in accordance with
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these presents shall be binding upon all the holders of Instruments of
the relevant Series, whether present or not present at such meeting, and
upon all the holders of all Coupons in respect of Instruments of the
relevant Series and each of the holders of Instruments and Coupons
shall, in respect of the Instruments of that Series, be bound to give
effect thereto accordingly. The passing of any such resolution shall be
conclusive evidence that the circumstances of such resolution justify
the passing thereof.
20. The expression "EXTRAORDINARY RESOLUTION" when used in these presents
means a resolution passed at a meeting of the holders of Instruments in
respect of the Instruments of the relevant Series duly convened and held
in accordance with the provisions contained herein by a majority
consisting of not less than three-fourths of the votes cast thereon.
21. Minutes of all resolutions and proceedings at every such meeting as
aforesaid shall be made and duly entered in books to be from time to
time provided for that purpose by the relevant Issuer and any such
minutes as aforesaid, if purporting to be signed by the chairman of the
meeting at which such resolutions were passed or proceedings transacted
or by the chairman of the next succeeding meeting of the holders of
Instruments in respect of the Instruments of the relevant Series, shall
be conclusive evidence of the matters therein contained and, until the
contrary is proved, every such meeting in respect of the proceedings of
which minutes have been made and signed as aforesaid shall be deemed to
have been duly convened and held and all resolutions passed or
proceedings transacted thereat to have been duly passed and transacted.
22. So long as the relevant Instruments are represented by a global
instrument, for the purposes of this Schedule the holder of the global
instrument shall be deemed to be two persons holding or representing
such principal amount of Instruments as are, at the relevant time,
represented by such global instrument.
23. Any Instruments which have been purchased or are held by (or on behalf
of) the relevant Issuer or any affiliate of the Issuer or
ABB Ltd or any
subsidiary of ABB Ltd but which have not been cancelled shall, unless or
until resold, be deemed not to be outstanding for the purposes of this
Schedule.
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THE SIXTH SCHEDULE
FORM OF DEED OF ASSUMPTION
This Deed of Assumption is made on [ ], [ ] between [ ] (the "ISSUER"), a
company incorporated under the laws of [ ] whose registered/principal office
is situated at [ ] and [ ] (the "SUBSTITUTED DEBTOR") a company
incorporated in [ ] whose registered/principal office is situated at [ ].
WHEREAS:
(A) The Issuer has issued [INSERT AGGREGATE PRINCIPAL AMOUNT AND TITLE OF
THE INSTRUMENTS] (the "INSTRUMENTS", each holder of such Instruments
being an "INSTRUMENTHOLDER") [and any interest coupons attached to such
Instruments (the "COUPONS", each holder of such Coupons being a
"COUPONHOLDER")] pursuant to a Fiscal Agency Agreement dated 10 March
1993 and amended and restated on 30 May 2001 (the "FISCAL AGENCY
AGREEMENT") between Banque Generale du Luxembourg S.A. (the "FISCAL
AGENT"), the Issuer, the other companies named therein as issuers and
the paying agents and registrars named therein.
(B) The Issuer proposes, pursuant to Condition 15 of the Terms and
Conditions of the Instruments (the "CONDITIONS") to substitute the
Substituted Debtor as principal debtor in respect of the Instruments.
NOW THIS DEED WITNESSETH AS FOLLOWS:
1. The Substituted Debtor hereby agrees that, with effect from and
including the effective date hereof, it shall be the "Issuer" for all
purposes in respect of the Instruments and the Coupons and accordingly
it shall assume all the obligations and liabilities and shall be
entitled to all the rights and benefits on the part of the Issuer
contained therein.
2. The Substituted Debtor hereby acknowledges and agrees that, with effect
from and including the effective date hereof:
(a) the Issuer is released from all its liabilities, in its capacity
as issuer of the Instruments, in respect of the Instruments; and
(b) the Conditions are amended in accordance with the Schedule
hereto.
3. The Substituted Debtor and the Issuer hereby jointly and severally agree
that the existing [Temporary Global Instrument, Permanent Global
Instrument, Registered Instrument(s) or, as the case may be, Definitive
Instruments] shall continue in full force and effect on the
understanding that, with effect from and including the effective date
hereof:
(a) all references to "[NAME OF ISSUER]" shall be read and construed
as references to the Substituted Debtor; and
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(b) the Conditions shall be amended as set out in the Schedule
hereto, together with any other consequential amendments which
may be appropriate in order to preserve the rights of the
Instrumentholders and (if any) Couponholders.
4. (A) The Substituted Debtor and the Issuer hereby acknowledge and
covenant that the benefit of the undertakings and the covenants binding
upon them contained in this Deed of Assumption shall be for the benefit
of each and every Instrumentholder and (if any) Couponholder whether or
not such Instrumentholder or Couponholder was an initial subscriber of
such Instrument and each Instrumentholder and (if any) Couponholder
shall be entitled severally to enforce the said obligations against the
Substituted Debtor.
(B) This Deed of Assumption shall be deposited with and held by the
Fiscal Agent and the Substituted Debtor, and the Issuer and the
Substituted Debtor hereby acknowledge the right of every
Instrumentholder and Couponholder to production of this Deed of
Assumption and upon request and payment of the expenses incurred in
connection therewith, the production of a copy hereof certified by the
Fiscal Agent to be a true and complete copy.
5. The illegality, invalidity or unenforceability of any provision of this
Deed of Assumption under the law of any jurisdiction shall not affect
its legality, validity or enforceability under the law of any other
jurisdiction nor the legality, validity or enforceability of any other
provision.
6. This Deed of Assumption may only be amended in the same way as the other
Conditions of the Instruments are capable of amendment pursuant to the
Fifth Schedule of the Fiscal Agency Agreement.
7. (A) This Deed of Assumption shall be governed by and construed in
accordance with the laws of England.
(B) The Courts of England are to have jurisdiction to settle any
disputes which may arise out of or in connection with this Deed of
Assumption and accordingly any legal action or proceedings arising out
of or in connection with this Deed of Assumption ("PROCEEDINGS") may be
brought in such courts. Each of the Substituted Debtor and the Issuer
irrevocably submits to the jurisdiction of such courts and waives any
objection to Proceedings in such courts whether on the ground of venue
or on the ground that the Proceedings have been brought in an
inconvenient forum. These submissions are for the benefit of each of the
Instrumentholders and the Couponholders and shall not limit the right of
any of them to take Proceedings in any other court of competent
jurisdiction nor shall the taking of Proceedings in any one or more
jurisdictions preclude the taking of Proceedings in any other
jurisdiction (whether concurrently or not).
(C) Each of the Substituted Debtor and the Issuer irrevocably
appoints ABB Limited at its registered office (presently at Orion House,
▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇'▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇) as its authorised agent for
service of process in England in respect of any Proceedings. If for any
reason such agent shall cease to be such agent for service of process or
shall no longer have a registered office in England, the Substituted
Debtor and the Issuer shall appoint another agent for service of process
in England within twenty-one days and if the Issuer and/or the
Substituted Debtor fails to make any such
-73-
appointment within twenty-one days, the Fiscal Agent shall be entitled
to appoint such a person by notice to the Issuer and/or the Substituted
Debtor.
IN WITNESS whereof this Deed has been executed by and on behalf of the parties
hereto as of the day and year first above written.
EXECUTED as a deed under Seal by )
[THE SUBSTITUTED DEBTOR] )
acting by [ ] and [ ] )
in the presence of: )
Witness:
Name:
Address:
Occupation:
Witness:
Name:
Address:
Occupation:
EXECUTED as a deed under Seal by )
[THE ISSUER] )
acting by [ ] and [ ] )
in the presence of: )
Witness:
Name:
Address:
Occupation:
Witness:
Name:
Address:
Occupation:
THE SCHEDULE
POST-SUBSTITUTION AMENDMENTS TO THE CONDITIONS
OF THE INSTRUMENTS OF THE RELEVANT SERIES
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1. Following any substitution pursuant to Condition 15, the Conditions of
the Instruments of the relevant Series shall apply as if all references
to the "Issuer" therein were to the Substituted Debtor.
2. In the event that ABB Ltd shall become the Substituted Debtor the
Conditions shall apply with the following further amendments:
(i) Conditions 4.02, 4.03 and Condition 7.01(v) shall not apply to
such Instruments;
(ii) the words "___ its obligation set out in Condition 4.02 ___" to
"___ performance or observance of any of its other___" in lines
1 to 5 of Condition 7.01(ii) shall be deleted and replaced by
the word "any";
(iii) Condition 15 shall not apply to such Instruments and, in respect
of such Instruments, shall be deemed to be replaced with the
following:
"the Issuer may be replaced, and any direct or indirect
subsidiary of the Issuer may be substituted for the Issuer, as
principal debtor in respect of the Instruments, without the
consent of the Holders of the Instruments or Coupons. If the
Issuer shall determine that any such subsidiary shall become the
principal debtor (in such capacity, the "SUBSTITUTED DEBTOR"),
the Issuer shall give not less than 30 nor more than 45 days'
notice, in accordance with Condition 14, to the Holders of the
Instruments of such event and, immediately on the expiry of such
notice, the Substituted Debtor shall enter into a Deed of
Assumption, the form of which is set out in the Sixth Schedule
to the Fiscal Agency Agreement and become the principal debtor
in respect of the Instruments in place of the Issuer and the
Holders of the Instruments shall thereupon cease to have any
rights or claims whatsoever against the Issuer. However, no such
substitution shall take effect (i) until such Substituted Debtor
shall have entered into a keep-well agreement with ABB Ltd
substantially in the form of other keep-well agreements entered
into by ABB Ltd with certain of its direct or indirect
subsidiaries, (ii) until such Substituted Debtor shall have
executed a deed of covenant substantially in the form of the
Deed of Covenant, (iii) in any case, until the Substituted
Debtor shall have provided such documents as may be necessary to
make the Deed of Assumption, the Instruments, the Fiscal Agency
Agreement, such deed of covenant and such keep-well agreement
the legal, valid and binding obligations of, as appropriate, the
Substituted Debtor and ABB Ltd together with legal opinions,
either unqualified or subject only to normal, usual or
appropriate qualifications and assumptions to the effect that
the Deed of Assumption, the Instruments, the Fiscal Agency
Agreement, such deed of covenant and such keep-well agreement
are legal, valid and binding obligations of, as appropriate, ABB
Ltd and the Substituted Debtor, (iv) the Substituted Debtor
shall have obtained all necessary governmental and regulatory
approvals and consents, if any, for the substitution, and (v)
the Substituted Debtor shall have appointed the process agent
appointed by the Issuer in Condition 18.3 as its agent in
England to receive service of process on its behalf in relation
to any legal action or proceedings arising out of or in
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connection with the Instruments and the Coupons. Upon any such
substitution, the Instruments and Coupons will, if necessary, be
deemed to be modified in all appropriate respects."
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THE SEVENTH SCHEDULE
REGULATIONS CONCERNING TRANSFERS OF REGISTERED INSTRUMENTS AND
EXCHANGES OF BEARER INSTRUMENTS FOR REGISTERED INSTRUMENTS
1. Each Registered Instrument shall be in a principal amount equal to the
minimum denomination specified in the relevant Pricing Supplement or an
integral multiple thereof.
2. The Registered Instruments are transferable in a principal amount equal
to the minimum denomination specified in the relevant Pricing Supplement
or an integral multiple thereof by execution of the form of transfer
endorsed under the hand of the transferor or of a duly appointed
attorney on its behalf or, where the transferor is a corporation, under
its seal or signed on its behalf by its duly appointed attorney or a
duly authorised officer or officers of the corporation. In this Schedule
"transferor" shall where the context permits or requires include joint
transferors and be construed accordingly.
3. The Registered Instrument to be transferred must be delivered for
registration to the specified office of the Registrar accompanied by
such other evidence (including legal opinions) as the Registrar may
reasonably require to prove the title of the transferor or his right to
transfer the Registered Instrument and his identity and, if the form of
transfer is executed by some other person on his behalf or in the case
of the execution of a form of transfer on behalf of a corporation by an
officer or officers or an attorney, the authority of that person or
those persons to do so. The signature of the person effecting a transfer
of a Registered Instrument shall conform to any list of duly authorised
specimen signatures supplied by the registered holder or be certified by
a recognised bank, notary public or in such other manner as the
Registrar may require.
4. The executors or administrators of a deceased holder of a Registered
Instrument (not being one of several joint holders) and in the case of
the death of one or more of joint holders the survivor or survivors of
such joint holders shall be the only persons recognised by the relevant
Issuer as having any title to such Registered Instruments.
5. Any person becoming entitled to Registered Instruments in consequence of
the death or bankruptcy of the holder of such Registered Instruments
may, upon producing such evidence that he holds the position in respect
of which he proposes to act under this paragraph or of his title as the
Issuer shall require (including legal opinions), be registered himself
as the holder of such Registered Instruments or, subject to the
preceding paragraphs as to transfer, may transfer such Registered
Instruments. The relevant Issuer and the Registrar may retain any amount
payable upon the Registered Instruments to which any person is so
entitled until such person shall be so registered or shall duly transfer
the Registered Instruments.
6. Unless otherwise requested by him and agreed by the relevant Issuer, the
holder of Registered Instruments or the holder of Bearer Instruments,
the subject of a request for an exchange for Registered Instruments
shall be entitled to receive only one Registered Instrument in respect
of his holding or in respect of the Bearer Instruments, the subject of a
particular request for an exchange.
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7. The joint holders of a Registered Instrument shall be entitled to one
Registered Instrument only in respect of their joint holding which
shall, except where they otherwise direct, be delivered to the joint
holder whose name appears first in the Register in respect of the joint
holding.
8. Where there is more than one transferee (to hold other than as joint
holders), separate forms of transfer (obtainable from the specified
office of the Registrar) must be completed in respect of each new
holding.
9. Where a holder of a Registered Instrument has transferred part only of
his holding comprised therein there shall be delivered to him a
Registered Instrument in respect of the balance of such holding.
10. The relevant Issuer, the Registrar and the Fiscal Agent shall, save in
the case of the issue of replacement Registered Instruments, make no
charge to the holders for the registration of any holding of Registered
Instruments or any transfer of Registered Instruments or in respect of
any exchange of Bearer Instruments for Registered Instruments or for the
issue of any Registered Instruments or for the delivery of Registered
Instruments at the specified office of the Registrar.
11. Subject always to the terms and conditions applicable to the Instruments
of the relevant Series, the Registrar will within three Relevant Banking
Days of the transfer date or the exchange date applicable to a transfer
of Registered Instruments or an exchange of Bearer Instruments for
Registered Instruments make available at its specified office a new
Registered Instrument in respect of the Registered Instrument
transferred or in respect of Bearer Instruments the subject of a request
for an exchange for Registered Instruments. In the case of a transfer of
part only of a Registered Instrument, a new Registered Instrument in
respect of the balance of the Registered Instrument transferred will be
so delivered to the transferor.
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THE EIGHTH SCHEDULE
THE SPECIFIED OFFICES OF THE PAYING AGENTS AND THE REGISTRARS
The Fiscal Agent and Principal Registrar:
Banque Generale du Luxembourg S.A.
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Attention: Fiscal and Paying Agency Department
The other Paying Agent:
Banque Generale du Luxembourg (Suisse) S.A.
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The Alternative Registrar:
The Chase Manhattan Bank
15th Floor
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Attention: Manager, Global Trust Services
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SIGNATURES
ABB INTERNATIONAL FINANCE LIMITED
By: By:
ABB FINANCE INC.
By: By:
ABB CAPITAL B.V.
By: By:
BANQUE GENERALE DU LUXEMBOURG S.A.
as Fiscal Agent and
Principal Registrar
By: By:
BANQUE GENERALE DU LUXEMBOURG (SUISSE) S.A.
as Paying Agent
By: By:
THE CHASE MANHATTAN BANK
as Alternative Registrar
By:
For the purposes of Article 1 of the Protocol annexed to the Convention on
Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters
signed at Brussels on 27 September 1968, the undersigned expressly and
specifically agrees in the terms of Clause 18.2.
BANQUE GENERALE DU LUXEMBOURG S.A.
By: By:
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