EXHIBIT 4.12
E.ON AG
as Issuer and Guarantor
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E.ON INTERNATIONAL FINANCE B.V.
as Issuer
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E.ON UK PLC
as Issuer
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CITIBANK, N.A.
as Fiscal Agent
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THE PAYING AGENTS
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AMENDED AND RESTATED FISCAL AGENCY AGREEMENT
relating to the
EURO 20,000,000,000
MEDIUM TERM NOTE PROGRAMME
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HENGELER ▇▇▇▇▇▇▇
Frankfurt am Main
21 August 2002
Amended and Restated Fiscal Agency Agreement
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TABLE OF CONTENTS
Clause .......................................................................................................Page
1. Amendment and Restatement................................................................................5
2. Definitions and Interpretation...........................................................................5
3. Appointment of Fiscal Agent and Paying Agents............................................................7
4. The Notes................................................................................................8
5. Issuance of Notes........................................................................................9
6. Payments................................................................................................13
7. Miscellaneous Duties of the Fiscal Agent and
the Paying Agents.......................................................................................15
8. Replacement Notes ......................................................................................18
9. Appointment and Duties of the Calculation Agent.........................................................20
10. Early Redemption of Notes...............................................................................20
11. Fees and Expenses.......................................................................................21
12. Terms of Appointment....................................................................................22
13. Changes in Agents.......................................................................................23
14. Merger and Consolidation................................................................................25
15. Notification of Changes to Agents.......................................................................25
16. Communication between the Parties.......................................................................26
17. Currency Indemnity......................................................................................26
18. Notices and Communications..............................................................................26
19. Governing Law, Place of Jurisdiction and Process Agent..................................................28
20. Severability and Partial Invalidity.....................................................................28
21. Amendment...............................................................................................29
22. Counterparts............................................................................................29
SIGNATURES.....................................................................................................30
SCHEDULE 1
Part I
German language form of Global Note....................................................................32
Part II
English language form of Global Note...................................................................45
SCHEDULE 2
Part I
German language form of Collective Note................................................................52
Part II
English language form of Collective Note...............................................................55
SCHEDULE 3
Part I
German language form of Definitive Note................................................................58
English language form of Definitive Note...............................................................60
Part II
German language form of Coupon.........................................................................62
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English language form of Coupon.......................................................................65
Part III
German language form of Receipt.......................................................................68
English language form of Receipt......................................................................69
SCHEDULE 4
Calculation Agent Appointment Letter .................................................................70
SCHEDULE 5
The Specified Offices of the Fiscal Agent and the Paying Agents.......................................73
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THIS AMENDED AND RESTATED FISCAL AGENCY AGREEMENT is made on 21 August 2002
BETWEEN
(1) E.ON AG ("E.ON AG" or, in the case of issues of Notes by E.ON
International Finance B.V. or E.ON UK plc, the "GUARANTOR");
(2) E.ON INTERNATIONAL FINANCE B.V. ("E.ON FINANCE");
(3) E.ON UK PLC ("E.ON UK");
(4) CITIBANK, N.A. (the "FISCAL AGENT", which expression shall include any
successor fiscal agent appointed in accordance with Clause 13); and
(5) BANQUE DE LUXEMBOURG S.A.; and
CITIBANK AG
(together with the Fiscal Agent the "PAYING AGENTS", which expression
shall include any additional or successor paying agent appointed in
accordance with Clause 13 and "PAYING AGENT" shall mean any of the
Paying Agents).
PREAMBLE
(A) E.ON AG and E.ON Finance have established a programme (the "PROGRAMME") for
the issuance of Notes (as defined herein) in connection with which they entered
into a dealer agreement dated 14 November 2000 which was amended and restated on
16 November 2001 and further amended and restated by an Amended and Restated
Dealer Agreement of even date herewith (as further amended, supplemented or
replaced, the "DEALER AGREEMENT") with the financial institutions named therein
(the "DEALERS", which expression shall include any new dealers appointed, and
exclude any institution whose appointment as a dealer has been terminated, in
accordance with the Dealer Agreement).
(B) Notes may be issued on a listed or unlisted basis. E.ON AG, E.ON Finance and
E.ON UK have caused an application to be made to the Luxembourg Stock Exchange
and the Frankfurt Stock Exchange for Notes issued under the Programme to be
listed on the Luxembourg Stock Exchange or the Frankfurt Stock Exchange. In
connection with such application they have procured the preparation of the
Information Memorandum (as defined herein). Notes may be listed on such other
stock exchange or stock exchanges as the relevant Issuer and the relevant
Dealer(s) may agree.
(C) E.ON AG and E.ON Finance entered into a fiscal agency agreement dated 14
November 2000 which was amended and restated on 16 November 2001 (the "AGENCY
AGREEMENT") in relation to the Programme and now the parties hereto wish to
record certain arrangements which they have made in relation to amending and
restating the Agency Agreement.
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IT IS HEREBY AGREED as follows:
1. AMENDMENT AND RESTATEMENT
The parties hereto agree that, with effect from the date hereof, the
Agency Agreement shall for all purposes be amended and restated in the
form of this Agreement. Any Notes issued under the Programme on or
after the date hereof shall be issued pursuant to this Agreement. This
does not affect any Notes issued under the Programme prior to the date
of this Agreement.
2. DEFINITIONS AND INTERPRETATION
(1) In this Agreement:
"AGENTS" means the Fiscal Agent, the Calculation Agent, the Paying
Agents or any of them.
"CALCULATION AGENT" means, in relation to any Series of Notes, the
institution appointed as calculation agent for the purposes of such
Notes and named as such in the relevant Pricing Supplement, in the case
of the Fiscal Agent, pursuant to Clause 9 hereof, in the case of a
Dealer or any other institution, pursuant to Clause 17 of the Dealer
Agreement and, in any case, any successor to such institution in its
capacity as such.
"CBF" means Clearstream Banking AG, Frankfurt am Main.
"CBL" means Clearstream Banking, societe anonyme, Luxembourg.
"CLEARING SYSTEM" has the meaning set forth in Section 1(4) of the
Terms and Conditions.
"COLLECTIVE INTEREST COUPON" means an interest coupon attached to a
Collective Note substantially in the form set out in Schedule 3 hereto.
"COUPON" means an interest coupon substantially in the form set out in
Schedule 3 hereto.
"EUROCLEAR" means Euroclear Bank S.A./N.V. as operator of the Euroclear
System.
"EXCHANGE ACT" means the United States Securities Exchange Act of 1934.
"FRANKFURT BUSINESS DAY" means a day (other than Saturdays and Sundays)
on which commercial banks and foreign exchange markets are open for
business (including dealings in foreign exchange and foreign currency
deposits) in Frankfurt am Main.
"HOLDER" means with respect to Notes deposited with any Clearing System
or other central securities depositary, any holder of a proportionate
co-ownership or
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other beneficial interest or right in the Notes, Coupons and/or
Receipts so deposited, and otherwise the bearer of a Note, Coupon
and/or Receipt.
"INSTALMENT NOTE" means a Note the principal amount of which is
repayable by instalments.
"INTEREST COMMENCEMENT DATE" means, in the case of interest-bearing
Notes, the date specified in the applicable Pricing Supplement from
(and including) which such Notes bear interest, which may or may not be
the Settlement Date.
"ISSUE PRICE" means the price, generally expressed as a percentage of
the principal amount of the Notes, at which the Notes will be issued.
"ISSUERS" means E.ON AG, E.ON Finance and E.ON UK acting together.
"LOCAL TIME" in relation to any payment, means the time in the city 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.
"RECEIPT" means a payment receipt appertaining to an Instalment Note in
definitive form.
"RELEVANT AGREEMENT" means an agreement between the Issuer and any
Dealer(s) for the sale by the Issuer and the purchase by the Dealer(s)
of any Notes.
"RELEVANT DEALER" means, with respect to any Tranche of Notes, the
institution specified as such in the relevant Pricing Supplement.
"SPECIFIED OFFICE" of any Agent means the office specified against its
name in Schedule 5 hereto or, in the case of any Agent not originally
party hereto, specified in its terms of appointment (or, in the case of
a Calculation Agent which is a Dealer, specified for the purposes of
Clause 17 of the Dealer Agreement) or such other office in the same
city as such Agent may specify by notice to the Issuer and the other
parties hereto in accordance with Clause 13(9).
"TERMS AND CONDITIONS" means the Terms and Conditions of the Notes,
substantially in the form set out in the Information Memorandum.
(2) Expressions defined elsewhere in this Agreement shall have the meanings
so indicated. Expressions defined in the Dealer Agreement and the Terms
and Conditions and not otherwise defined in this Agreement shall have
the same meanings in this Agreement, except where the context otherwise
requires.
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(3) All references in this Agreement to costs or charges or expenses shall
include any value added tax or similar tax charged or chargeable in
respect thereof, if applicable.
(4) All references in this Agreement to principal and/or interest or both
with respect to the Notes or to any moneys payable by either Issuer
under this Agreement shall have the meaning set out in Section 4(7) of
the Terms and Conditions.
(5) All references in this Agreement to an agreement, instrument or other
document (including, without limitation, this Agreement, the Dealer
Agreement, the Guarantee, the Procedures Memorandum, the Notes and any
Conditions appertaining thereto) shall be construed as a reference to
that agreement, instrument or document as the same may be amended,
varied or supplemented from time to time.
3. APPOINTMENT OF FISCAL AGENT AND PAYING AGENTS
(1) Each of E.ON AG, E.ON Finance and E.ON UK hereby appoint the Fiscal
Agent, and the Fiscal Agent hereby agrees to act, as agent of each of
E.ON AG, E.ON Finance and E.ON UK in relation to Notes, upon the terms
and subject to the conditions set out below, for the purposes of:
(a) authenticating and delivering Global Notes and Definitive
Notes;
(b) exchanging Temporary Global Notes for (i) Permanent Global
Notes or (ii) Definitive Notes or (iii) Definitive Notes and
Collective Notes, as the case may be, in accordance with the
terms of such Temporary Global Notes and the Conditions;
(c) exchanging Permanent Global Notes for Definitive Notes in
accordance with the terms of such Permanent Global Notes and
the Conditions;
(d) exchanging Collective Notes for Definitive Notes in accordance
with the terms of such Collective Notes and the Conditions;
(e) paying sums due on Global Notes and Definitive Notes, Coupons
and Receipts;
(f) determining the end of the restricted period applicable to
each Tranche;
(g) arranging on behalf of E.ON AG, E.ON Finance and E.ON UK for
notices to be communicated to Holders;
(h) ensuring that, as directed by the Issuer where information is
required to be provided by the Issuer, all necessary action is
taken to comply with any reporting requirements of any
competent authority with respect to any relevant currency as
may be in force from time to time with respect to the Notes to
be issued under the Programme;
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(i) subject to the Procedures Memorandum, submitting to the
relevant stock exchange such number of copies of each Pricing
Supplement which relates to Notes which are to be listed as it
may reasonably require;
(j) acting as Calculation Agent with respect to Notes where named
as such in the relevant Pricing Supplement and agreed between
the Issuer and the Fiscal Agent; and
(k) performing all other obligations and duties imposed upon it by
the Conditions and this Agreement.
(2) Each of E.ON AG, E.ON Finance and E.ON UK hereby appoint the Paying
Agents, and each of the Paying Agents hereby agrees to act, as paying
agent of the Issuer and (if E.ON Finance or E.ON UK is the Issuer) the
Guarantor in relation to Notes, upon the terms and subject to the
conditions set out below, for the purposes of paying sums due on Notes,
Coupons and Receipts and, if applicable, the Guarantee, and of
performing all other obligations and duties imposed upon it by the
Conditions and this Agreement.
4. THE NOTES
(1) Each Global Note shall:
(a) be printed or typewritten in substantially the form (duly
completed) set out in the relevant Schedule hereto (or in such
other form as the Issuer, the Fiscal Agent and the Relevant
Dealer shall have agreed);
(b) have attached thereto the Conditions which may consist of
Integrated Conditions or the Long-form Conditions;
(c) be executed manually by two authorised signatories of the
Issuer;
(d) be authenticated manually by or on behalf of the Fiscal Agent;
and
(e) bear a unique serial number.
(2) Each Definitive Note shall:
(a) be in substantially the form (duly completed) set out in the
relevant Schedule hereto (or in such other form as the Issuer,
the Fiscal Agent and the Relevant Dealer shall have agreed);
(b) unless the contrary is specified in the relevant Pricing
Supplement, be in the format from time to time specified by
the International Primary Market Association or any successor
body thereto;
(c) have a unique serial number printed thereon;
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(d) if so specified in the relevant Pricing Supplement, have
Coupons attached thereto at the time of its initial delivery;
(e) in the case of an Instalment Note, if so specified in the
relevant Pricing Supplement, have a Receipt attached thereto
at the time of its initial delivery;
(f) have the Conditions endorsed thereon or attached thereto which
may consist of Integrated Conditions or Long-form Conditions;
(g) be executed manually or in facsimile by two authorised
signatories of the Issuer (and, in the case of E.ON Finance,
such authorised signatures shall be Managing Directors);
(h) be authenticated manually by or on behalf of the Fiscal Agent;
(i) be printed in accordance with the requirements of any Clearing
System by which such Notes are intended to be accepted;
(j) be printed in accordance with the requirements of any stock
exchange, on which such Notes may be listed; and
(k) be printed in accordance with, and otherwise satisfy, any
other applicable legal and/or regulatory requirements.
(3) Any facsimile signature affixed to a Definitive Note may be that of a
person who is at the Issue Date of the relevant Tranche an authorised
signatory for such purpose of the Issuer (and, in the case of E.ON
Finance, a Managing Director) notwithstanding that such person may for
any reason (including death) have ceased to be such an authorised
signatory at the time at which such Definitive Note may be delivered.
(4) Execution in facsimile of any Definitive Notes and any photostatic
copying or other duplication of master Global Notes (in unauthenticated
form, but executed manually on behalf of the relevant Issuer as stated
above) shall be binding upon such Issuer in the same manner as if such
Definitive Notes or such Global Notes were signed manually by such
authorised signatories.
(5) Each of E.ON AG, E.ON Finance and E.ON UK shall promptly notify in
writing the Fiscal Agent of any change in the names of the person or
persons whose signatures are to be used.
5. ISSUANCE OF NOTES
(1) Upon the conclusion of any Relevant Agreement, the Issuer shall, as
soon as practicable but in any event, not later than 2.00 p.m.
(Frankfurt time) on the third Frankfurt business day prior to the
proposed Issue Date:
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(a) confirm to the Fiscal Agent by telefax or any electronic
information system agreed between the Fiscal Agent and the
Issuer all such information as the Fiscal Agent may reasonably
require to carry out its functions under this Agreement and
such details as are necessary to enable it to authenticate and
deliver the Global Note;
(b) (if no standard payment instructions have been given to the
Fiscal Agent) designate by tested telex or SWIFT the account
of the Issuer to which payment of the proceeds of issue should
be made;
(c) deliver to the Fiscal Agent a copy, duly executed, of the
Pricing Supplement; and
(d) deliver to the Fiscal Agent the completed Global Note (in
unauthenticated form but executed on behalf of the Issuer) in
relation to the relevant Tranche, with the Conditions
attached.
(2) On or before 10.00 a.m. (Frankfurt time) on the Frankfurt business day
prior to the Issue Date in relation to each Tranche or such other time
as may be agreed between the Fiscal Agent and the relevant Clearing
System, the Fiscal Agent shall authenticate and deliver the relevant
Global Note to, or to a depositary for, the relevant Clearing System
(which, in the case of CBL and Euroclear, shall be a depositary common
to both of them). The Fiscal Agent shall give instructions to the
relevant Clearing System to credit Notes represented by a Global Note
to the Fiscal Agent's distribution account and to hold each such Note
to the order of the Issuer pending delivery to the Relevant Dealer(s)
on a delivery against payment basis (or on such other basis as shall
have been agreed between the Issuer and the Relevant Dealer and
notified to the Fiscal Agent) in accordance with the normal procedures
of the relevant Clearing System and, following payment, to credit the
Notes represented by such Global Note to such securities account(s) as
shall have been notified to the Fiscal Agent by the Relevant Dealer(s).
The Fiscal Agent shall on the Issue Date with respect to the relevant
Tranche and against receipt of funds from the Relevant Dealer(s)
transfer the proceeds of issue to the Issuer to the account notified in
accordance with sub-clause (1) above.
(3) Where the Fiscal Agent acts as receiving bank for the Issuer with
respect to the proceeds of issue of Notes being issued, if on the
relevant Issue Date the Fiscal Agent does not receive the full proceeds
of issue with respect to any Note (the "DEFAULTED NOTE") and, as a
result, the Defaulted Note remains in the Fiscal Agent's distribution
account with the Clearing System after such Issue Date, the Fiscal
Agent shall:
(i) continue to hold the Defaulted Note to the order of the
Issuer;
(ii) notify the Issuer forthwith of the non-receipt of the proceeds
of issue with respect to the Defaulted Note; and,
subsequently,
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(iii) notify the Issuer forthwith upon receipt of the full proceeds
of issue with respect to such Defaulted Note.
(4) The Issuer shall, in relation to each Tranche of Notes which is
initially represented by a TEFRA C Global Note or a Short Global Note,
deliver to the Fiscal Agent not less than fourteen Frankfurt business
days before such Temporary Global Note becomes exchangeable therefor,
the Definitive Notes or, if so specified in the applicable Pricing
Supplement, a combination of Definitive Notes and one or more
Collective Notes. Such Definitive Notes and Collective Note(s) shall be
delivered to the Fiscal Agent in unauthenticated form, but executed by
the Issuer and otherwise complete. The Fiscal Agent shall authenticate
and deliver such Definitive Notes and Collective Notes, as the case may
be, in accordance with the terms hereof and of such TEFRA C Global Note
or Short Global Note.
(5) The Issuer shall, in relation to each Tranche of Notes which is
initially represented by a TEFRA D Global Note, deliver to the Fiscal
Agent not less than fourteen (five, in the case of an exchange for a
Permanent Global Note) Frankfurt business days before such TEFRA D
Global Note becomes exchangeable therefor, the Permanent Global Note in
relation thereto or, as the case may be, the Definitive Notes or, if so
specified in the applicable Pricing Supplement, a combination of
Definitive Notes and one or more Collective Notes. Such Global Notes,
Definitive Notes and Collective Notes shall be delivered to the Fiscal
Agent in unauthenticated form, but executed by the Issuer and otherwise
complete. The Fiscal Agent shall authenticate and deliver such Global
Notes, Definitive Notes or Collective Notes, as the case may be, in
accordance with the terms hereof and of such TEFRA D Global Note.
(6) Where any Definitive Notes are to be delivered in exchange for a
Temporary Global Note, the Fiscal Agent shall ensure that (i) in the
case of Definitive Notes with Coupons attached, such Definitive Notes
shall have attached thereto only such Coupons as shall ensure that
neither loss nor gain of interest shall accrue to the bearer thereof;
(ii) in the case of Instalment Notes with Receipts, such Notes shall
have attached thereto only such Receipts with respect to instalment
amounts as shall not then have been paid; and (iii) in the case of
Instalment Notes without Receipts, any instalment amounts that shall
have then been paid shall be noted on the grid endorsed on such Notes.
(7) The Fiscal Agent shall hold in safe custody all unauthenticated Global
Notes and Definitive Notes (including any Coupons attached thereto)
delivered to it in accordance with this Clause 5 and Clause 8 and shall
ensure that the same are authenticated and delivered only in accordance
with the terms hereof and, if applicable, the relevant Global Note. The
Issuer shall ensure that each of the Fiscal Agent holds sufficient
Notes, Receipts or Coupons to fulfil its respective obligations under
this Clause 5 and Clause 8. The Fiscal Agent undertakes to notify the
Issuer if it holds insufficient Notes, Coupons or Receipts for such
purposes.
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(8) The Fiscal Agent is authorised by each Issuer to authenticate such
Global Notes or Definitive Notes as may be required to be authenticated
hereunder by the signature of any person duly authorised for the
purpose by the Fiscal Agent.
(9) In the event that a person who has signed on behalf of the Issuer any
Note not yet issued but held by the Fiscal Agent in accordance with
clause 5(7) ceases to be authorised as described in clause 5(4) or
5(5), the Fiscal Agent shall (unless the Issuer gives written notice to
the Fiscal Agent that Notes signed by that person do not constitute
valid and binding obligations of the Issuer or otherwise until
replacements have been provided to the Fiscal Agent) continue to have
authority to issue any such Notes, and the Issuer hereby warrants to
the Fiscal Agent that such Notes shall, unless notified as aforesaid,
be valid and binding obligations of the Issuer. Promptly upon such
person ceasing to be authorised, the Issuer shall provide the Fiscal
Agent with replacement Notes and upon receipt of such replacement Notes
the Fiscal Agent shall cancel and destroy the Notes held by it which
are signed by such person and shall provide to the Issuer a
confirmation of destruction in respect thereof specifying the Notes so
cancelled and destroyed.
(10) On each occasion on which a portion of a Temporary Global Note is
exchanged for a portion of a Permanent Global Note, Collective Note or,
as the case may be, for Definitive Notes (or any combination thereof,
all as permitted by the Conditions), the Fiscal Agent shall note or
procure that there is noted on the Schedule to the relevant Global Note
the aggregate principal amount thereof so exchanged and the remaining
principal amount of the relevant Global Note (which shall be the
previous principal amount thereof less (or, in the case of a Permanent
Global Note or a Collective Note the aggregate principal amount of
which is to be written up plus) the aggregate principal amount so
exchanged) and shall procure the signature of such notation on its
behalf. The Fiscal Agent shall cancel or procure the cancellation of
each relevant Global Note, against surrender of which it has made full
exchange for a further Global Note or Definitive Notes (or any
combination thereof permitted by the Conditions).
(11) Subject to the procedures set out in the Procedures Memorandum, for the
purposes of this Clause 5 each of the Fiscal Agent is entitled to treat
a telephone or telefax communication from a person purporting to be
(and who the Fiscal Agent believes in good faith to be) the authorised
representative of the Issuer named in the list referred to in, or
notified pursuant to, Clause 12(7) as sufficient instructions and
authority of the Issuer for the Fiscal Agent to act in accordance with
this Clause 5. Any telephone communication shall be followed as soon as
practicable by a telefax confirmation of such communication.
(12) If the Fiscal Agent, in its discretion, pays an amount (the "ADVANCE")
to the Issuer on the basis that a payment (the "PAYMENT") has been or
will be, received from a Dealer and if the Payment is not received by
the Fiscal Agent on the date the Fiscal Agent pays the Issuer, the
Issuer (failing which the Guarantor, if E.ON Finance or E.ON UK is the
Issuer) shall repay to the Fiscal Agent the Advance and shall pay
interest on the Advance (or the unpaid portion thereof) from (and
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including) the date such Advance is made to (but excluding) the earlier
of repayment in full of the Advance and receipt in full by the Fiscal
Agent of the Payment from the Dealer (at a rate quoted at that time by
the Fiscal Agent as its cost of funding the Advance).
6. PAYMENTS
(1) The Issuer (failing which the Guarantor, if E.ON Finance or E.ON UK is
the Issuer) shall, before 10.00 a.m. (local time in the relevant
financial centre of the payment currency), on each date on which any
payment with respect to any Note becomes due, transfer to such account
as the Fiscal Agent shall specify such amount in the currency in which
the relevant payment falls to be made as shall be sufficient for the
purposes of such funds being settled through such payment system as the
Fiscal Agent and the Issuer may agree. The Fiscal Agent shall not be
liable to account for interest on money paid to it by the Issuer. Money
held by the Fiscal Agent need not to be segregated except as required
by law.
(2) The Issuer (failing which the Guarantor, if E.ON Finance or E.ON UK is
the Issuer) shall ensure that no later than 10.00 a.m. (Frankfurt time)
on the second Frankfurt business day immediately preceding the date on
which any payment is to be made to the Fiscal Agent pursuant to
sub-clause (1), the Fiscal Agent shall receive an irrevocable payment
confirmation from the paying bank of the Issuer.
(3) The Fiscal Agent shall ensure that payments of both principal and
interest with respect to a Temporary Global Note will be made only to
the extent that certification of non-U.S. beneficial ownership as
required by U.S. securities laws and U.S. Treasury regulations (in the
form set out in the Temporary Global Note) has been received from the
relevant Clearing System in accordance with the terms thereof.
(4) Subject to the receipt by the Fiscal Agent of the payment confirmation
as provided in sub-clause (2) above, the Fiscal Agent or the relevant
Paying Agent shall pay or cause to be paid all amounts due with respect
to the Notes on behalf of the Issuer and (if E.ON Finance or E.ON UK is
the Issuer) the Guarantor in the manner provided in the Conditions. If
any payment provided for in sub-clause (1) is made late but otherwise
in accordance with the provisions of this Agreement, the Fiscal Agent
and/or each Paying Agent shall nevertheless make payments with respect
to the Notes as aforesaid following receipt by it of such payment. The
Fiscal Agent shall, as soon as reasonably possible and no later than
1.00 p.m. (Frankfurt time) on the business day following the due date,
notify the Issuer if it has not received such payment from the Issuer.
(5) If the Fiscal Agent has reason to believe that the amounts to be
received by the Fiscal Agent pursuant to sub-clause (1) will be, or the
amounts actually received by it pursuant thereto are, insufficient to
satisfy all claims with respect to all payments then falling due with
respect to the Notes, neither the Fiscal Agent nor any Paying Agent
shall be obliged to pay any such claims until the Fiscal Agent, has
received the full amount of all such payments.
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(6) The Fiscal Agent shall not be obliged to repay any moneys paid to it by
an Issuer with respect to any Note or the Guarantor with respect to the
Guarantee unless or until claims against the Issuer or the Guarantor
with respect to the relevant Notes or the Guarantee are prescribed or
the obligation to make the relevant payment ceases in accordance with
the Conditions or the terms of the Guarantee. In such event it shall
upon the request of the Issuer repay, as soon as practicable, to the
Issuer or the Guarantor, as the case may be, such portion of such
amount as relates to such claim or payment by paying the same by credit
transfer to such account with such bank as the Issuer or the Guarantor
may by notice to the Fiscal Agent have specified for this purpose.
(7) If the Fiscal Agent pays any amounts to the Holders or to any Paying
Agent at a time when it has not received payment in full with respect
to the relevant Notes in accordance with sub-clause (1) (the excess of
the amounts so paid over the amounts so received being the
"SHORTFALL"), the Issuer (failing which the Guarantor, if E.ON Finance
or E.ON UK is the Issuer) shall, in addition to paying amounts due
under sub-clause (1), pay to the Fiscal Agent on demand interest (at a
rate which represents the Fiscal Agent's cost of funding the Shortfall)
on the Shortfall (or the unreimbursed portion thereof) until the
receipt in full by the Fiscal Agent of the Shortfall.
(8) The Fiscal Agent shall on demand reimburse each Paying Agent for
payments with respect to Notes properly made by such Paying Agent in
accordance with this Agreement and the Conditions unless the Fiscal
Agent has notified the Paying Agent, prior to the opening of business
in the location of the office of the Paying Agent through which payment
with respect to the Notes can be made on the due date of a payment with
respect to the Notes, that the Fiscal Agent does not expect to receive
sufficient funds to make payment of all amounts falling due with
respect to such Notes.
(9) Where Notes are represented by a Global Note, all payments due with
respect to such Notes shall be made to, or to the order of, the holder
of the Global Note, subject to and in accordance with the provisions of
the Global Note and the Conditions.
(10) If the amount of principal and/or interest then due for payment is not
paid in full (otherwise than by reason of a deduction required by law
to be made therefrom), the Fiscal Agent to which a Note is presented
for the purpose of making such payment shall make a record of such
Shortfall on the Note and such record shall, in the absence of manifest
error, be prima facie evidence that the payment in question has not to
that extent been made.
Amended and Restated Fiscal Agency Agreement
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7. MISCELLANEOUS DUTIES OF THE FISCAL AGENT AND THE PAYING AGENTS
DETERMINATION OF EXCHANGE DATE AND END OF RESTRICTED PERIOD
(1) If the Notes of the relevant Tranche are initially represented by a
TEFRA D Global Note then the following provisions shall apply:
(a) The Fiscal Agent shall determine the Exchange Date for such
TEFRA D Global Note in accordance with the terms thereof.
Forthwith upon determining the Exchange Date with respect to
any Tranche, the Fiscal Agent shall notify such determination
to the Issuer, the Guarantor (if E.ON Finance or E.ON UK is
the Issuer) the Relevant Dealer and the Clearing System.
(b) In the case of a Tranche with respect to which there is only
one Dealer, the Fiscal Agent will determine the end of the
restricted period with respect to such Tranche as being the
fortieth day following the date certified by the Relevant
Dealer to the Fiscal Agent as being the date as of which
distribution of the Notes of that Tranche was completed.
(c) In the case of a Tranche with respect to which there is more
than one Dealer but which is not issued on a syndicated basis,
the Fiscal Agent will determine the end of the restricted
period with respect to such Tranche as being the fortieth day
following the latest of the dates certified by all the
Relevant Dealers to the Fiscal Agent as being the respective
dates as of which distribution of the Notes of that Tranche
purchased by each such Dealer was completed.
(d) In the case of a Tranche issued on a syndicated basis, the
Fiscal Agent will determine the end of the restricted period
with respect to such Tranche as being the fortieth day
following the date certified by the Lead Manager to the Fiscal
Agent as being the date as of which distribution of the Notes
of that Tranche was completed.
(e) Forthwith upon determining the end of the restricted period
with respect to any Tranche, the Fiscal Agent shall notify
such determination to the Issuer, the Guarantor (if E.ON
Finance or E.ON UK is the Issuer), the Clearing System and the
Relevant Dealer(s) (in the case of a non-syndicated issue) or
the Lead Manager (in the case of a syndicated issue).
LISTING
(2) Where the Notes of the relevant Tranche are to be listed on any stock
exchange and where the rules of such stock exchange require submission
of the Pricing Supplement for the listing of such Notes only, the
Fiscal Agent shall on behalf of the Issuer deliver a copy of the
Pricing Supplement in relation to such Tranche and, where Integrated
Conditions are specified in such Pricing Supplement, such Conditions to
such stock exchange or the relevant listing agent as agreed
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between the Issuer and the relevant Dealer and notified to the Fiscal
Agent as soon as practicable but in any event, subject to the timely
receipt thereof, not later than the time required by such stock
exchange for submission of Pricing Supplements. The Issuer shall advise
the Fiscal Agent of the time required by any such stock exchange (other
than the Luxembourg Stock Exchange) for submission of the Pricing
Supplement.
(3) The Fiscal Agent shall not have any responsibility with respect to the
listing of Notes to be issued under the Programme on any German stock
exchange. If with respect to any Tranche of Notes, the applicable
Pricing Supplement provides for the listing of such Tranche on a German
stock exchange, the relevant Dealer shall attend to obtaining such
listing.
NOTICES
(4) Upon the receipt by the Fiscal Agent of a demand or notice from any
Holder in accordance with the Conditions the Fiscal Agent shall forward
a copy thereof to the Issuer and (if E.ON Finance or E.ON UK is the
Issuer) the Guarantor.
(5) On behalf of and at the request and expense of the Issuer the Fiscal
Agent shall cause to be published, or delivered to Holders, all notices
required to be given by the Issuer or the Guarantor (if E.ON Finance or
E.ON UK is the Issuer) to the Holders in accordance with the
Conditions.
NOTICE OF WITHHOLDING OR DEDUCTION
(6) If the Issuer is, with respect to any payment, required to withhold or
deduct any amount for or on account of taxes or duties of whatever
nature as specifically contemplated under the Conditions, the Issuer
and/or the Guarantor (if E.ON Finance or E.ON UK is the Issuer) shall
give notice thereof to the Fiscal Agent as soon as it becomes aware of
the requirement to make such withholding or deduction and shall give to
the Fiscal Agent such information as either of them shall require to
enable it to comply with such requirement.
DOCUMENTS AVAILABLE FOR INSPECTION
(7) The executed Guarantee shall be deposited with the Fiscal Agent and
shall be held in safe custody by it on behalf of the Holders at its
specified office for the time being. The Fiscal Agent shall upon
request issue a certified copy of the Guarantee to a Holder for the
purposes set out in Clause 10 of each of the Guarantee.
(8) The Paying Agents shall hold available for inspection at their
specified offices during normal business hours copies of all documents
required to be so available as provided in the Information Memorandum,
or in relation to any Notes, the Conditions or Pricing Supplement with
respect to such Notes, or as may be required by the rules of any stock
exchange on which the Notes may be listed.
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(9) For the above purposes, the Issuers shall furnish to the Fiscal Agent
for distribution among the Paying Agents sufficient copies of each of
the relevant documents.
INDEMNITY
(10) Each of the Agents shall severally indemnify E.ON AG, E.ON Finance and
E.ON UK against any claim, demand, action, liability, loss or expense
(including legal fees and any applicable value added tax) which either
of them may incur, as a result or arising out of any negligent or
wilful breach by such Agent of its obligations under this Agreement.
The indemnification shall continue after the expiry or termination of
this Agreement provided that the negligent or wilful breach by such
Agent of its obligations under this Agreement occurred before the
expiry or termination of this Agreement.
CANCELLATION OF NOTES, COUPONS AND RECEIPTS
(11) All Notes which are redeemed and all Coupons and Receipts which are
paid shall be cancelled by the Fiscal Agent or Paying Agent by which
they are redeemed, paid or exchanged. In addition, all Notes which are
purchased by or on behalf of the Issuer and surrendered to a Paying
Agent for cancellation, together (in the case of Definitive Notes) with
all unmatured Coupons (if any) attached thereto or surrendered
therewith, shall be cancelled by the Paying Agent to which they are
surrendered. Each of the other Paying Agents shall give to the Fiscal
Agent details of all payments made by it and shall deliver all
cancelled Notes, Coupons and Receipts to the Fiscal Agent.
(12) A certificate stating:
(a) the aggregate principal amount of Notes which have been
redeemed and the aggregate amount paid in respect thereof;
(b) the certificate numbers of Notes cancelled together with
details of all unmatured Coupons (if any) attached thereto or
delivered therewith;
(c) the aggregate amount paid with respect to interest on the
Notes;
(d) the total number by maturity date of Coupons so cancelled; and
(e) the serial numbers of such Notes,
shall be given to the Issuer by the Fiscal Agent as soon as reasonably
practicable and in any event within three months after the date of such
repayment or, as the case may be, payment or exchange.
(13) The Fiscal Agent shall destroy all cancelled Notes, Coupons and
Receipts and, forthwith upon destruction, furnish the Issuer with a
certificate of the serial numbers of the Notes and the number by
maturity date of Coupons or Receipts so destroyed.
Amended and Restated Fiscal Agency Agreement
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(14) Without prejudice to the obligations of the Fiscal Agent pursuant to
sub-clause (12), the Fiscal Agent shall keep a full and complete record
of all Notes, Coupons and Receipts (other than serial numbers of
Coupons) and of their redemption, purchase by or on behalf of the
Issuer and cancellation, payment or exchange (as the case may be) and
of all replacement Notes, Coupons or Receipts issued in substitution
for mutilated, defaced, destroyed, lost or stolen Notes, Coupons or
Receipts. The Fiscal Agent shall with respect to the Coupons of each
maturity retain until the expiry of ten years from the relevant date
with respect to such Coupons either all paid or exchanged Coupons of
that maturity or a list of the serial numbers of Coupons of that
maturity still remaining unpaid or unexchanged. The Fiscal Agent shall
at all reasonable times make such record available to the Issuer, the
Guarantor (if E.ON Finance or E.ON UK is the Issuer) and any persons
authorised by either of them for inspection and for the taking of
copies thereof or extracts therefrom.
(15) All records and certificates made or given pursuant to this Clause and
Clause 8 shall make a distinction between Notes, Coupons and Receipts
of each Series.
CHANGE IN THE IDENTITY OF DEALERS
(16) Each Issuer undertakes to notify the Fiscal Agent of any changes in the
identity of the Dealers appointed generally with respect to the
Programme and the Fiscal Agent agrees to notify the other Paying Agents
thereof.
REPAYMENT
(17) If the presentation period with respect to Notes or Coupons as
specified in Clause 8 of the Conditions of the Notes shall have lapsed
and provided that there is no outstanding bona fide and proper claim
with respect to any payment with respect to the Notes, the Fiscal Agent
shall on demand pay to the Issuer or the Guarantor, as the case may be,
sums equivalent to any amounts paid to it by the Issuer or the
Guarantor, as the case may be, for the purposes of such payments.
8. REPLACEMENT NOTES
(1) Each Issuer will cause a sufficient quantity of additional forms of
Definitive Notes, Coupons and Receipts to be available, upon request,
to the Fiscal Agent for the purpose of issuing replacement Notes,
Coupons or Receipts as provided below. In connection with a specific
replacement transaction, the Issuer shall upon request deliver to the
Fiscal Agent sufficient Global Notes for such purpose.
(2) Subject to compliance with all applicable laws and regulations, the
Fiscal Agent shall, subject to and in accordance with the Conditions
and the following provisions of this Clause, cause to be delivered any
replacement Notes, Coupons or Receipts which the Issuer may determine
to issue in place of Notes, Coupons or Receipts which have been lost,
stolen, mutilated, defaced or destroyed.
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(3) In the case of a mutilated or defaced Note, the Fiscal Agent shall
ensure that (unless otherwise covered by such indemnity as the Issuer
may require) any replacement Note will only have attached to it Coupons
and Receipts corresponding to those (if any) attached to the mutilated
or defaced Note which is presented for replacement.
(4) The Fiscal Agent shall not issue any replacement Note, Coupon or
Receipt unless and until the claimant therefor shall have:
(a) paid such costs and expenses as may be incurred in connection
therewith;
(b) furnished it with such evidence and indemnity as the Issuer
may reasonably require; and
(c) in the case of any mutilated or defaced Note, Coupon or
Receipt surrendered it to the Fiscal Agent.
(5) The Fiscal Agent shall cancel any mutilated or defaced Notes, Coupons
or Receipts with respect to which replacement Notes, Coupons or
Receipts have been issued pursuant to this Clause and shall furnish the
Issuer with a certificate stating the serial numbers of the Notes,
Coupons or Receipts so cancelled and, unless otherwise instructed by
the Issuer in writing, shall destroy such cancelled Notes, Coupons or
Receipts and furnish the Issuer with a destruction certificate
containing the information specified in Clause 7(13).
(6) The Fiscal Agent shall, on issuing any replacement Note, Coupon or
Receipt, forthwith inform the Issuer and the other Paying Agents of the
serial number of such replacement Note, Coupon or Receipt issued and
(if known) of the serial number of the Note, Coupon or Receipt in place
of which such replacement Note, Coupon or Receipt has been issued.
Whenever replacement Coupons or Receipts are issued pursuant to the
provisions of this Clause, the Fiscal Agent shall also notify the other
Paying Agents of the maturity dates of the lost, stolen, mutilated,
defaced or destroyed Coupons or Receipts and of the replacement Coupons
or Receipts issued.
(7) The Fiscal Agent shall keep a full and complete record of all
replacement Notes, Coupons or Receipts issued and shall make such
record available at all reasonable times to the Issuer, the Guarantor
(if E.ON Finance or E.ON UK is the Issuer) and any persons authorised
by either of them for inspection and for the taking of copies thereof
or extracts therefrom.
(8) Whenever any Note, Coupon or Receipt for which a replacement Note,
Coupon or Receipt has been issued and with respect to which the serial
number is known is presented to the Fiscal Agent or any of the other
Paying Agents for payment, the Fiscal Agent or, as the case may be, the
relevant other Paying Agent shall immediately send notice thereof to
the Issuer and the other Paying Agents and act upon the Issuer's
instructions.
Amended and Restated Fiscal Agency Agreement
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9. APPOINTMENT AND DUTIES OF THE CALCULATION AGENT
(1) The Fiscal Agent may be appointed as Calculation Agent with respect to
any Series of Notes by agreement with the Issuer. The Fiscal Agent
shall be deemed to having agreed to act as Calculation Agent with
respect to a Series if it shall have been named as Calculation Agent in
the relevant Pricing Supplement no later than five Frankfurt business
days before the Issue Date or, if earlier, the first date on which it
is required to make any calculation or determination and shall not have
notified the Issuer that it does not wish to be so appointed within
three Frankfurt business days of receipt by it of the relevant Pricing
Supplement.
(2) If the Fiscal Agent has agreed, or is deemed to have agreed to act as
Calculation Agent, it shall perform all matters expressed to be
performed by it in, and otherwise comply with, the Conditions and the
provisions of this Agreement and, in connection therewith, shall take
all such action as may be incidental thereto.
(3) The Calculation Agent shall with respect to each Series of Notes in
relation to which it is appointed as such:
(a) obtain such quotes and rates and/or make such determinations,
calculations, adjustments, notifications and publications as
may be required to be made by it by the Conditions at the
times and otherwise in accordance with the Conditions; and
(b) maintain a record of all quotations obtained by it and of all
amounts, rates and other items determined or calculated by it
and make such record available for inspection at all
reasonable times during normal business hours by the relevant
Issuer and the Paying Agents.
10. EARLY REDEMPTION OF NOTES
(1) If the Issuer decides to redeem any Notes for the time being
outstanding prior to their Maturity Date in accordance with the
Conditions, it shall give notice of such decision to the Fiscal Agent
not less than 14 Frankfurt business days before the date on which it
will give notice to the Holders in accordance with the Conditions of
such redemption in order to enable the Fiscal Agent to undertake its
obligations herein and in the Conditions.
(2) If only some of the Notes are to be redeemed on such date, the Fiscal
Agent shall take the required steps for identifying the Notes to be
redeemed in accordance with the Conditions.
(3) The Fiscal Agent shall publish the notice required in connection with
any such redemption. Such notice shall specify the matters relevant
with respect to such redemption in accordance with the provisions of
the Conditions. The Fiscal Agent will also notify the other Paying
Agents of any date fixed for redemption of any Notes.
Amended and Restated Fiscal Agency Agreement
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(4) Each Paying Agent will keep a stock of redemption notices (in such form
as may be agreed between the Issuer and the Fiscal Agent) and will make
such notices available on demand to Holders of Notes, the Conditions of
which provide for redemption at the option of Holders. The Paying Agent
shall, upon receipt of any such redemption notice, notify forthwith the
Issuer thereof. Upon receipt of any Note deposited in the exercise of
such option in accordance with the Conditions, the Paying Agent with
which such Note is deposited shall hold such Note (together with any
Coupon relating to it deposited with it) on behalf of the depositing
Holder (but shall not, save as provided below, release it) until the
due date for redemption of the relevant Note consequent upon the
exercise of such option, when, subject as provided below, it shall
present such Note (and any such Coupon) to itself for payment of the
amount due thereon together with any interest due on such date in
accordance with the Conditions and shall pay such moneys in accordance
with the directions of the Holder contained in the relevant redemption
notice. lf, prior to such due date for its redemption, such Note
becomes immediately due and payable or if upon due presentation payment
of such redemption moneys is improperly withheld or refused, the Paying
Agent concerned shall post such Note (together with any such Coupon) by
uninsured post to the relevant Holder unless the Holder has otherwise
requested and paid the costs of such insurance to the relevant Paying
Agent at the time of depositing the Notes at such address as may have
been given by the Holder in the relevant redemption notice. At the end
of each period for the exercise of such option, each Paying Agent shall
promptly notify the Fiscal Agent of the principal amount of the Notes
with respect to which such option has been exercised with it together
with their serial numbers and the Fiscal Agent shall promptly notify
such details to the Issuer.
11. FEES AND EXPENSES
(1) The Issuers shall pay to the Fiscal Agent for its own account and for
the account of the Paying Agents and, in case the Fiscal Agent acts as
Calculation Agent, the Calculation Agent, such fees as may have been
agreed between them and the Fiscal Agent with respect to the services
of such Agents hereunder. The Issuer (failing which the Guarantor, if
E.ON Finance or E.ON UK is the Issuer) shall pay to any Calculation
Agent such fees as may have been agreed between the Issuer and the
Guarantor (if E.ON Finance or E.ON UK is the Issuer) and such
Calculation Agent with respect to its services hereunder.
(2) The Issuers shall reimburse each Agent for all reasonable expenses
(including legal fees and any applicable value added tax) properly
incurred in connection with its services hereunder.
(3) The Issuers shall pay all stamp, documentary, registration taxes or
duties and other taxes and duties (including any interest and penalties
thereon or in connection therewith) which may be payable upon or in
connection with the execution and delivery of this Agreement and any
letters of appointment under which any Agent is appointed as agent
hereunder. The Issuers shall indemnify each Agent against any claim,
demand, action, liability, loss or expense (including legal fees and
any applicable value added tax) which it may incur or
Amended and Restated Fiscal Agency Agreement
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which may be made against it as a result or arising out of any failure
to pay any such taxes or duties or delay in paying any of the same.
12. TERMS OF APPOINTMENT
(1) Each of the Agents and (in the case of (b), (d), (e) and (f)) each
Calculation Agent may, in connection with its services hereunder:
(a) except as ordered by a court of competent jurisdiction or as
required by law, treat the bearer of any Note or Coupon as the
owner thereof and make payments thereon accordingly;
(b) assume that the terms of each Note, Coupon or Receipt as
issued are correct;
(c) refer any question relating to the ownership of any Note,
Coupon or Receipt or the adequacy or sufficiency of any
evidence supplied in connection with the replacement of any
Note, Coupon or Receipt to the Issuer for determination by
such Issuer and rely upon any determination so made;
(d) rely upon the terms of any notice, communication or other
document reasonably believed by it to be genuine;
(e) engage and pay for the advice or services of any lawyers or
other experts whose advice or services may to it seem
necessary and rely upon any advice so obtained. Such Agent
shall be protected and shall incur no liability as against
E.ON AG, E.ON Finance or E.ON UK with respect to any action
taken, or suffered to be taken, in accordance with such advice
and in good faith; and
(f) treat itself as being released from any obligation to take any
action hereunder which it reasonably expects will result in
any expense or liability to it, the payment of which within a
reasonable time is not, in its reasonable opinion, assured to
it.
(2) In acting hereunder and in connection with the Notes, the Agents shall
act solely as agents of E.ON AG, E.ON Finance and E.ON UK and will not
thereby assume any obligations towards or relationship of agency or
trust for or with any of the Holders.
(3) In acting hereunder and in connection with the Notes, the Agents shall
not be liable for the legality, validity or enforceability of any Note,
Coupon or Receipt.
(4) Each Agent may purchase, hold and dispose of Notes, Coupons or Receipts
and may enter into any transaction (including, among other
transactions, any depositary, trust or agency transaction) with any
Holder or with any other party hereto in the same manner as if it had
not been appointed as the agent of E.ON AG, E.ON Finance and E.ON UK.
Amended and Restated Fiscal Agency Agreement
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(5) The Issuers shall indemnify each Agent against any claim, demand,
action, liability, loss or expense (including legal fees and any
applicable value added tax) which such Agent may reasonably incur,
otherwise than as a result of or arising out of any negligent or wilful
breach by such Agent of its obligations under this Agreement. The
indemnification shall continue after the expiry or termination of this
Agreement provided that the event which led to that claim, demand,
action, liability, loss or expense occurred before the expiry or
termination of this Agreement.
(6) The obligations of the Agents hereunder shall be several, and not
joint. The Agents shall only be obliged to perform those duties set out
in this Agreement, the Procedures Memorandum and the Notes.
(7) Each of the Issuers shall provide the Fiscal Agent with a list of
persons authorised to execute documents and take action on its behalf
in connection with this Agreement, such list to be signed by two duly
authorised signatories of E.ON AG, E.ON Finance and E.ON UK,
respectively. E.ON AG, E.ON Finance and E.ON UK shall notify the Fiscal
Agent if any of such persons ceases to be so authorised or if any
additional person becomes so authorised by notice signed by two duly
authorised signatories of E.ON AG, E.ON Finance and E.ON UK, as the
case may be.
13. CHANGES IN AGENTS
(1) The Fiscal Agent may (subject as provided in sub-clause (3) below) at
any time resign as Fiscal Agent by giving at least 30 days' written
notice to E.ON AG, E.ON Finance and E.ON UK of such intention on its
part, specifying the date on which its desired resignation shall become
effective, provided that no such notice may expire with respect to any
Series less than 10 days before or after any due date for payments with
respect to any Notes or Coupons of such Series.
(2) The Fiscal Agent may (subject as provided in sub-clause (3) below) be
removed at any time by E.ON AG, E.ON Finance and E.ON UK on at least 30
days' notice by the filing with it of an instrument in writing signed
on behalf of E.ON AG, E.ON Finance and E.ON UK specifying such removal
and the date when it shall become effective.
(3) Any resignation under sub-clause (1) or removal under sub-clauses (2)
or (4) shall only take effect upon the appointment by E.ON AG, E.ON
Finance and E.ON UK as hereinafter provided, of a successor Fiscal
Agent and (other than in cases of insolvency of the Fiscal Agent) on
the expiry of the notice to be given under Clause 15. E.ON AG, E.ON
Finance and E.ON UK agree with the Fiscal Agent that if, by the day
falling ten days before the expiry of any notice under sub-clause (1),
E.ON AG, E.ON Finance and E.ON UK have not appointed a successor Fiscal
Agent, then the Fiscal Agent shall be entitled, on behalf of E.ON AG,
E.ON Finance and E.ON UK, to appoint as a successor Fiscal Agent in its
place a reputable financial institution of good standing which E.ON AG,
E.ON
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Finance and E.ON UK shall approve (such approval not to be unreasonably
withheld or delayed).
(4) In case at any time the Fiscal Agent resigns, or is removed, or becomes
incapable of acting or is adjudged bankrupt or insolvent, or files a
voluntary petition in bankruptcy or makes an assignment for the benefit
of its creditors or consents to the appointment of an administrator,
liquidator or administrative or other receiver of all or a substantial
part of its property, or admits in writing its inability to pay or meet
its debts as they mature or suspends payment thereof, or if any order
of any court is entered approving any petition filed by or against it
under the provisions of any applicable bankruptcy or insolvency law a
successor Fiscal Agent, which shall be a reputable financial
institution of good standing may be appointed by E.ON AG, E.ON Finance
and E.ON UK by an instrument in writing filed with the successor Fiscal
Agent. Upon the appointment as aforesaid of a successor Fiscal Agent
and acceptance by the latter of such appointment and (other than in
case of insolvency of the Fiscal Agent when it shall be of immediate
effect) upon expiry of the notice to be given under Clause 15, the
Fiscal Agent so superseded shall cease to be the Fiscal Agent
hereunder.
(5) Subject to the applicable provisions of the Conditions, E.ON AG, E.ON
Finance and E.ON UK may, after prior consultation with the Fiscal
Agent, terminate the appointment of any Paying Agent or Calculation
Agent at any time and/or appoint one or more further Paying Agents or
Calculation Agent by giving to the Fiscal Agent, and to the relevant
Paying Agent at least 30 days' notice in writing to that effect (other
than in the case of insolvency of the Paying Agent or Calculation
Agent).
(6) Subject to the applicable provisions of the Conditions, any Paying
Agent or Calculation Agent may resign its appointment hereunder at any
time by giving E.ON AG, E.ON Finance, E.ON UK and the Fiscal Agent at
least 30 days' written notice to that effect, provided that no such
notice may expire with respect to any Series less than 10 days before
or after any due date for payments with respect to any Notes or Coupons
of such Series.
(7) Upon its resignation or removal becoming effective, the Fiscal Agent:
(a) shall forthwith transfer all moneys held by it hereunder and,
if applicable, the documents and records referred to in
Clauses 7(7), (8), (9), (14) and 8(7) and all Notes, Coupons
or Receipts surrendered and not yet destroyed to the successor
Fiscal Agent hereunder; and
(b) shall be entitled to the payment by E.ON AG, E.ON Finance and
E.ON UK of its fees and expenses for the services therefore
rendered hereunder in accordance with the terms of Clause 11.
(8) Upon its appointment becoming effective, a successor Fiscal Agent or
Calculation Agent and any new Paying Agent shall, without further act,
become vested with all the rights, duties and obligations of its
predecessor or, as the case
Amended and Restated Fiscal Agency Agreement
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may be, a Paying Agent with like effect as if originally named as
Fiscal Agent or (as the case may be) a Paying Agent or Calculation
Agent hereunder.
(9) lf the Fiscal Agent or any Paying Agent or Calculation Agent determines
to change its specified office it shall (after having, in any such case
other than a change of specified office within the same city, obtained
the prior written approval of E.ON AG, E.ON Finance and E.ON UK
thereto) give to E.ON AG, E.ON Finance and E.ON UK and (if applicable)
the Fiscal Agent written notice of such determination giving the
address of the new specified office which shall be in the same city and
stating the date on which such change is to take effect, which shall
not be less than 30 days thereafter. The Fiscal Agent (on behalf of the
Issuer (failing which the Guarantor, if E.ON Finance or E.ON UK is the
Issuer)) shall within 15 days of receipt of such notice (unless the
appointment of the Fiscal Agent or the Paying Agent or Calculation
Agent, as the case may be, is to terminate pursuant to the above
sub-clauses on or prior to the date of such change) give or cause to be
given not more than 30 days' nor less than 15 days' notice thereof to
the Holders in accordance with the Conditions.
14. MERGER AND CONSOLIDATION
Any corporation into which the Fiscal Agent, Paying Agent or
Calculation Agent may be merged or converted, or any corporation with
which the Fiscal Agent, Paying Agent or Calculation Agent may be
consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Fiscal Agent, Paying Agent or Calculation
Agent shall be a party, or any corporation to which the Fiscal Agent,
Paying Agent or Calculation Agent shall sell or otherwise transfer all
or substantially all the assets of the Fiscal Agent, Paying Agent or
Calculation Agent shall, on the date when such merger, conversion,
consolidation or transfer becomes effective and to the extent permitted
by any applicable laws, become the successor Fiscal Agent, Paying Agent
or Calculation Agent under this Agreement without the execution or
filing of any paper or any further act on the part of the parties
hereto, unless otherwise required by E.ON AG, E.ON Finance or E.ON UK
and after the said effective date all references in this Agreement to
the Fiscal Agent, Paying Agent or Calculation Agent shall be deemed to
be references to such corporation. Written notice of any such merger,
conversion, consolidation or transfer shall be given to E.ON AG, E.ON
Finance and E.ON UK by the Fiscal Agent, Paying Agent or Calculation
Agent concerned.
15. NOTIFICATION OF CHANGES TO AGENTS
Following receipt of notice of resignation from the Fiscal Agent,
Paying Agent or Calculation Agent and forthwith upon appointing a
successor Fiscal Agent, Paying Agent or Calculation Agent or on giving
notice to terminate the appointment of any Fiscal Agent, Paying Agent
or Calculation Agent, the Fiscal Agent shall give or cause to be given
not more than 30 days' nor less than 15 days' notice thereof to the
Holders in accordance with the Conditions. Such notice shall be on
behalf and at the expense of the Issuer unless the resignation from or
termination of the appointment is solely attributable to the party
giving notice in which case such party shall bear the costs.
Amended and Restated Fiscal Agency Agreement
- 26 -
16. COMMUNICATION BETWEEN THE PARTIES
A copy of all communications relating to the subject matter of this
Agreement between the Issuer or (if E.ON Finance or E.ON UK is the
Issuer) the Guarantor and the Holders on the one hand and any of the
Paying Agents (other than the Fiscal Agent or the Calculation Agent) on
the other hand shall be sent by the Paying Agent or the Calculation
Agent to the Fiscal Agent.
17. CURRENCY INDEMNITY
If, under any applicable law and whether pursuant to a judgment being
made or registered against the Issuer and/or the Guarantor (if E.ON
Finance or E.ON UK is the Issuer) or in the liquidation, insolvency or
analogous process of the Issuer and/or the Guarantor (if E.ON Finance
or E.ON UK is the Issuer) or for any other reason, any payment by the
Issuer and/or the Guarantor under or in connection with this Agreement
is made or falls to be satisfied in a currency (the "OTHER CURRENCY")
other than that in which the relevant payment is expressed to be due
(the "REQUIRED CURRENCY") under this Agreement, then, to the extent
that the payment (when converted into the required currency at the rate
of exchange on the date of payment or, if it is not practicable for the
Fiscal Agent, Paying Agent or Calculation Agent to purchase the
required currency with the other currency on the date of payment, at
the rate of exchange as soon thereafter as it is practicable for it to
do so or, in the case of a liquidation, insolvency or analogous process
at the rate of exchange on the latest date permitted by applicable law
for the determination of liabilities in such liquidation, insolvency or
analogous process) actually received by the Fiscal Agent, Paying Agent
or Calculation Agent falls short of the amount due under the terms of
this Agreement, each Issuer undertakes that it shall, as a separate and
independent obligation, indemnify and hold harmless the Fiscal Agent,
Paying Agent or Calculation Agent against the amount of such shortfall.
For the purpose of this clause, "RATE OF EXCHANGE" means the rate at
which the Fiscal Agent, Paying Agent or Calculation Agent is able on
the relevant date to purchase the required currency with the other
currency and shall take into account any premium and other costs of
exchange.
18. NOTICES AND COMMUNICATIONS
(1) All notices and communications under this Agreement shall be by letter
or telefax, posted or delivered by hand, or (but only where
specifically provided in the Procedures Memorandum) by telephone. Each
notice or communication shall be given as follows:
(a) if to E.ON AG, at:
E.ON ▇▇
▇.▇▇ ▇▇▇▇▇ ▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇ ▇▇▇ ▇▇▇▇-▇▇▇
Telefax: ▇▇▇ ▇▇▇ ▇▇▇▇-▇▇▇
Attention: Geschaftsbuchhaltung: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Amended and Restated Fiscal Agency Agreement
- 27 -
(b) if to E.ON Finance, at:
E.ON International Finance ▇.▇.
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Telefax: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇
with a copy thereof to E.ON AG at the address, telefax number
or telephone number specified in paragraph (a) above.
(c) if to E.ON UK, at:
E.ON UK plc
City Point
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telefax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
with a copy thereof to E.ON AG at the address, telefax number
or telephone number specified in paragraph (a) above.
(d) if to the Fiscal Agent or a Paying Agent or to the Calculation
Agent where the Fiscal Agent is the Calculation Agent, at:
Citibank, N.A.
▇.▇. ▇▇▇ ▇▇▇▇▇
▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telephone: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Telefax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇/7/8/9
Attention: Agency & Trust Services
(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 Issuer)
Amended and Restated Fiscal Agency Agreement
- 28 -
(e) if to the Calculation Agent where the Fiscal Agent is not the
Calculation Agent to it at the address, telefax number or
telephone number, specified by notice to the other parties
hereto at or about the time of its appointment as agent of the
Issuer.
or, in any case, to such other address, telefax number or telephone
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.
(2) Every notice or communication sent in accordance with sub-clause (1)
shall be effective as follows:
(a) LETTER OR TELEFAX: if sent by letter or telefax, upon receipt
by the addressee;
(b) TELEPHONE: if made on the telephone, upon being made.
In the case of (a) or (b) above, any such notice or communication which
would otherwise take effect after 4.00 p.m. in the place of the
addressee on any particular day shall not take effect until 10.00 a.m.
on the immediately succeeding business day in the place of the
addressee.
19. GOVERNING LAW, PLACE OF JURISDICTION AND PROCESS AGENT
(1) This Agreement shall be governed by, and construed in accordance with,
German law.
(2) Any action or other legal proceedings ("PROCEEDINGS") arising out of or
in connection with this Agreement shall be brought in the District
Court (Landgericht) in Dusseldorf.
Nothing contained herein shall limit the right of any party hereto to
take Proceedings against any other party hereto in any other court of
competent jurisdiction.
(3) E.ON Finance and E.ON UK hereby appoint E.ON AG, with current address
at ▇.▇▇ ▇▇▇▇▇ ▇, ▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, as its agent for service of
process in any Proceedings brought, or to be brought, in any court in
the Federal Republic of Germany. E.ON Finance and E.ON UK agree that,
in the event of E.ON AG ceasing so to act, it will appoint another
person as its agent for service of process in the Federal Republic of
Germany with respect to any Proceedings.
Nothing herein shall affect the right to serve process in any other
manner permitted by law.
20. SEVERABILITY AND PARTIAL INVALIDITY
Should any provision of this Agreement be or become invalid in whole or
in part, the other provisions shall remain in force. The invalid
provision shall be deemed
Amended and Restated Fiscal Agency Agreement
- 29 -
substituted by a valid provision which accomplishes as far as legally
possible the economic purposes of the invalid provision.
21. AMENDMENT
This Agreement may be amended by agreement in writing among the parties
hereto without the consent of the Holders.
22. COUNTERPARTS
This Agreement may be signed in any number of counterparts, all of
which, taken together, shall constitute one and the same agreement
Amended and Restated Fiscal Agency Agreement
- 30 -
IN WITNESS WHEREOF, the parties hereto have executed this Fiscal Agency
Agreement as of the date first written above.
E.ON AG
-------------------- --------------------
E.ON INTERNATIONAL FINANCE B.V.
-------------------- --------------------
E.ON UK PLC
-------------------- --------------------
CITIBANK, N.A.
as Fiscal Agent
-------------------- --------------------
BANQUE DE LUXEMBOURG S.A.
as Paying Agent
-------------------- --------------------
CITIBANK AG
as Paying Agent
-------------------- --------------------
Amended and Restated Fiscal Agency Agreement
- 31 -
Without prejudice to the foregoing execution of the Agreement by the parties
thereto, Banque de Luxembourg S.A. expressly and specifically confirms its
agreement with the provisions of Clause 19(2) of this Agreement for the purposes
of article 63.2 of EC Regulation n degrees 44/2001 of 22nd December, 2000 on
jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters.
BANQUE DE LUXEMBOURG S.A.
-------------------- --------------------
Amended and Restated Fiscal Agency Agreement
- 32 -
SCHEDULE 1
PART I
German language form of Global Note
--------------------------------------------------------------------------------
Serien Nr. -
Common Code Nr. - WKN -
ISIN Nr. - [Sonstige Wertpapier-▇▇▇▇-▇▇. -]
[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.](1)
[E.ON AG,
Dusseldorf, Bundesrepublik Deutschland](2)
[E.ON INTERNATIONAL FINANCE B.V.
Amsterdam, Niederlande](2)
[E.ON UK PLC
eingetragen mit beschrankter Haftung in England and Wales](2)
[Vorlaufige] [▇▇▇▇▇-] Globalurkunde
[unter der unbedingten und unwiderruflichen Garantie der
E.ON AG](2)
uber
[WAHRUNG UND NENNBETRAG DER EMISSION]
SCHULDVERSCHREIBUNGEN fallig
[FALLIGKEITSJAHR]
Diese [Vorlaufige] [▇▇▇▇▇-] Globalurkunde verbrieft eine ordnungsgemass
genehmigte Emission von [WAHRUNG UND NENNBETRAG DER EMISSION]
Schuldverschreibungen, fallig [FALLIGKEITSJAHR] (die "SCHULDVERSCHREIBUNGEN")
der [E.ON AG] [E.ON International Finance B.V.] [E.ON UK plc] (die
"EMITTENTIN"). Bezugnahmen in dieser Urkunde auf die "Bedingungen" verstehen
sich auf die [IM FALLE NICHT-KONSOLIDIERTER BEDINGUNGEN: Emissionsbedingungen in
der durch das Konditionenblatt fur die Schuldverschreibungen (das
"KONDITIONENBLATT") vervollstandigten, geanderten, erganzten oder ersetzten
Form. Die Emissionsbedingungen und das Konditionenblatt sind dieser Urkunde
beigefugt] [IM FALLE KONSOLIDIERTER BEDINGUNGEN: Bedingungen, die dieser Urkunde
beigefugt sind]. Die
-------------------
(1) Dieser Absatz ist entbehrlich, wenn die Schuldverschreibungen eine
ursprungliche Laufzeit von einem Jahr oder weniger haben.
(2) Streichen soweit nicht anwendbar.
Amended and Restated Fiscal Agency Agreement
- 33 -
Bedingungen sind Teil dieser [Vorlaufigen] [▇▇▇▇▇-] Globalurkunde. Die in den
Bedingungen definierten Begriffe haben, soweit hierin verwendet, in dieser
Urkunde die gleiche Bedeutung.
Die Emittentin verpflichtet sich, dem Inhaber dieser Urkunde die auf die durch
diese [Vorlaufige] [▇▇▇▇▇-] Globalurkunde verbrieften Schuldverschreibungen
zahlbaren Betrage gemass den Bedingungen zu zahlen.
Bei jeder Ruckzahlung oder jedem Kauf und jeder Entwertung von
Schuldverschreibungen, die durch diese [Vorlaufige] [▇▇▇▇▇-] Globalurkunde
verbrieft werden, werden die Einzelheiten der Ruckzahlung oder des Kaufs und der
Entwertung von der oder fur die Emittentin in Anhang A zu dieser Urkunde
vermerkt. Der entsprechende Vermerk im Anhang A zu dieser Urkunde, in dem die
Ruckzahlung oder der Kauf und die Entwertung vermerkt werden, ist von der oder
fur die Emittentin zu unterzeichnen. Nach der Ruckzahlung oder dem Kauf und der
Entwertung ist der Nennbetrag dieser [Vorlaufigen] [▇▇▇▇▇-] Globalurkunde um den
Nennbetrag der zuruckgezahlten oder gekauften und entwerteten
Schuldverschreibungen reduziert. Der Nennbetrag dieser [Vorlaufigen] [▇▇▇▇▇-]
Globalurkunde nach der Ruckzahlung oder dem Kauf und der Entwertung ist dann der
jeweils letzte in der betreffenden Spalte in Teil I oder II des Anhangs A zu
dieser Urkunde vermerkte Nennbetrag.
[Diese Globalurkunde wird gemass Section 1 der Bedingungen ausgetauscht. Bei
vollstandigem Austausch ist diese Globalurkunde der Emissionsstelle
auszuhandigen.](3)
Diese [Vorlaufige] [▇▇▇▇▇-] Globalurkunde unterliegt deutschem Recht.
Diese [Vorlaufige] [▇▇▇▇▇-] Globalurkunde ist nur gultig, wenn sie die
Kontrollunterschrift der Emissionsstelle oder ihres Beauftragten tragt.
[Dusseldorf] [Amsterdam] [London], den [Datum]
[E.ON AG] [E.ON INTERNATIONAL FINANCE B.V.] [E.ON UK PLC]
------------------------- -------------------------
UNTERSCHRIFTSBERECHTIGTER UNTERSCHRIFTSBERECHTIGTER
Kontrollunterschrift
-----------------------
UNTERSCHRIFTSBERECHTIGTER
Amended and Restated Fiscal Agency Agreement
- 34 -
[IM FALLE NICHT-KONSOLIDIERTER BEDINGUNGEN:
Die Emissionsbedingungen und das Konditionenblatt sind als Anlage beizufugen.]
[IM FALLE KONSOLIDIERTER BEDINGUNGEN:
Die Bedingungen sind als Anlage beizufugen.]
Amended and Restated Fiscal Agency Agreement
- 35 -
ANHANG A
Teil I
Tilgungen
Tilgungstag Gesamtbetrag Gezahlter Verbleibender Bestatigung der
des zahlbaren Kapital- Nennbetrag Zahlung durch oder
Kapitalbetrages betrag dieser Global- fur die Emittentin
urkunde nach
Zahlung
--------------------------------------------------------------------------------
Amended and Restated Fiscal Agency Agreement
- 36 -
Teil II
Kauf und Entwertung
Tag des Kaufs Betrag des Kaufs Verbleibender Nennbe- Bestatigung des Kaufs
und der und der trag dieser Globalur- und der Entwertung
Entwertung Entwertung ▇▇▇▇▇ nach Kauf und durch oder fur die
Entwertung Emittentin
--------------------------------------------------------------------------------
Amended and Restated Fiscal Agency Agreement
- 37 -
[IM FALLE VON EMISSIONEN VON SCHULDVERSCHREIBUNGEN, AUF DIE DIE TEFRA D RULES
ANWENDUNG FINDEN, WIRD DER VORLAUFIGEN GLOBALURKUNDE DAS FOLGENDE MUSTER
BEIGEFUGT:
ANHANG B
ERFASSUNG DER VORGENOMMENEN AUSTAUSCHE
Datum Nennbetrag, der gegen Verbleibender Vermerk
Dauerglobalurkunde(en) Nennbetrag nach namens der
ausgetauscht wurde erfolgtem Austausch Emittentin
---------- -------------------- -------------------- -----------
---------- -------------------- -------------------- -----------
---------- -------------------- -------------------- -----------
---------- -------------------- -------------------- -----------
---------- -------------------- -------------------- -----------
---------- -------------------- -------------------- -----------
---------- -------------------- -------------------- -----------
---------- -------------------- -------------------- -----------
---------- -------------------- -------------------- -----------
Amended and Restated Fiscal Agency Agreement
- 38 -
[IM FALLE EINER EMISSION VON SCHULDVERSCHREIBUNGEN, AUF DIE DIE TEFRA D RULES
ANWENDUNG FINDEN, WERDEN DIE FOLGENDEN MUSTER DER BESTATIGUNG ODER ANDERE
UBLICHERWEISE VERWENDETE MUSTER DER VORLAUFIGEN GLOBALURKUNDE BEIGEFUGT.]
ANLAGE I
[Form of certificate to be given in relation to exchanges of this Temporary
Global Note for the Permanent Global Note or Definitive Notes:]
--------------------------------------------------------------------------------
[E.ON AG]
[E.ON INTERNATIONAL FINANCE B.V.]
[E.ON UK PLC]
[AGGREGATE PRINCIPAL AMOUNT AND TITLE OF NOTES]
(THE "SECURITIES")
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organisations
appearing in our records as persons being entitled to a portion of the 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 or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("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 (as such terms "acquired through" and "holding
through" are described in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(6)) 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.
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.
Amended and Restated Fiscal Agency Agreement
- 39 -
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: [ ]*
[CLEARSTREAM BANKING AG/EUROCLEAR BANK S.A./N.V. AS OPERATOR OF THE EUROCLEAR
SYSTEM/CLEARSTREAM BANKING SOCIETE ANONYME/OTHER CLEARING SYSTEM]
----------------------
[authorised signature]
---------------------
* To be dated not earlier than the Exchange Date.
Amended and Restated Fiscal Agency Agreement
- 40 -
ANLAGE II
[Form of certificate to be given in relation to payments of interest falling due
before the Exchange Date:]
--------------------------------------------------------------------------------
[E.ON AG]
[E.ON INTERNATIONAL FINANCE B.V.]
[E.ON UK PLC]
[AGGREGATE PRINCIPAL AMOUNT AND TITLE OF NOTES]
(THE "SECURITIES")
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organisations
appearing in our records as persons being entitled to a portion of the 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 or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("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 (as such terms "acquired through" and "holding
through" are described in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(6)) 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.
As used herein, "UNITED STATES" means the United States of America (including
the States and the District of Columbia); and its "POSSESSIONS" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We 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
Amended and Restated Fiscal Agency Agreement
- 41 -
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: [ ]*
[CLEARSTREAM BANKING AG/EUROCLEAR BANK S.A./N.V. AS OPERATOR OF THE EUROCLEAR
SYSTEM/CLEARSTREAM BANKING SOCIETE ANONYME/OTHER CLEARING SYSTEM]
----------------------
[authorised signature]
---------------------
* To be dated not earlier than the relevant interest payment date.
Amended and Restated Fiscal Agency Agreement
- 42 -
ANLAGE III
[Form of account holders certification referred to in the preceding
certificates:]
[E.ON AG]
[E.ON INTERNATIONAL FINANCE B.V.]
[E.ON UK PLC]
[AGGREGATE PRINCIPAL AMOUNT AND TITLE OF NOTES]
(THE "SECURITIES")
This is to certify that as of the date hereof, and except as set forth below,
the above-captioned Securities held by you for our account (i) are owned by
persons that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to the United States Federal income taxation regardless of its source
("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 the Securities
through and are holding through on the date hereof (as such terms "acquired
through" and "holding through" are described in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(6)) 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 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 Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, "UNITED STATES" means the United States of America (including
the States and the District of Columbia); and its "POSSESSIONS" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the Securities held by
you for our account in accordance with your 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 with respect to which we are not able to certify and as to
which we understand
Amended and Restated Fiscal Agency Agreement
- 43 -
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, 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: [ ]*
[ACCOUNT HOLDER] as or as agent for the beneficial owner of the Notes.
----------------------
[authorised signature]
-----------------------
* To be dated not earlier than fifteen days before the Exchange Date or,
as the case may be, the relevant interest payment date.
Amended and Restated Fiscal Agency Agreement
- 44 -
SCHEDULE 1
PART II
English language form of Global Note
Series No. -
Common Code No. - WKN -
ISIN No. - [Other Security Identification No. -]
[Any United States person who holds this obligation will be subject to
limitations under the United States income tax laws including limitations
provided in sections 165(j) and 1287(a) of the Internal Revenue Code.](1)
[E.ON AG
with statutory seat at Dusseldorf, Federal Republic of Germany](2)
[E.ON INTERNATIONAL FINANCE B.V.
with statutory seat at Amsterdam, The Netherlands](2)
[E.ON UK PLC
incorporated with limited liability in England and Wales](2)
[Temporary] [Permanent] Global Note
[unconditionally and irrevocably guaranteed by
E.ON AG](2)
representing
[CURRENCY AND PRINCIPAL AMOUNT OF ISSUE]
NOTES due
[YEAR OF MATURITY]
This certificate constitutes a [Temporary] [Permanent] Global Note with respect
to a duly authorised issue of [CURRENCY AND PRINCIPAL AMOUNT OF ISSUE] Notes due
[YEAR OF MATURITY] (the "NOTES") of [E.ON AG] [E.ON International Finance B.V.]
[E.ON UK plc] (the "ISSUER"). References herein to the "CONDITIONS" shall be to
the [IN THE CASE OF LONG-FORM CONDITIONS: Terms and Conditions of the Notes as
completed, modified, supplemented or replaced by the pricing supplement relating
to the Notes (the "PRICING SUPPLEMENT"), both as annexed hereto] [IN THE CASE OF
INTEGRATED CONDITIONS: Terms and Conditions of the Notes as annexed hereto]. The
Conditions form part of this
---------------------
(1) This legend is not required in case of Notes with a maturity of one
year or less.
(2) Delete as applicable
Amended and Restated Fiscal Agency Agreement
- 45 -
[Temporary] [Permanent] Global Note. Expressions defined in the Conditions shall
bear the same meanings when used in this [Temporary] [Permanent] Global Note.
The Issuer agrees to pay to the bearer hereof the amounts payable with respect
to the Notes represented by this [Temporary] [Permanent] Global Note in
accordance with the Conditions.
On any redemption with respect to, or purchase and cancellation of, any of the
Notes represented by this [Temporary] [Permanent] Global Note details of such
redemption or purchase and cancellation (as the case may be) shall be entered by
or on behalf of the Issuer in Annex A hereto and the relevant space in Annex A
hereto recording any such redemption or purchase and cancellation (as the case
may be) shall be signed by or on behalf of the Issuer. Upon any such redemption
or purchase and cancellation, the nominal amount of this [Temporary] [Permanent]
Global Note shall be reduced by the nominal amount of Notes so redeemed or
purchased and cancelled. The nominal amount of this [Temporary] [Permanent]
Global Note following any such redemption or purchase and cancellation as
aforesaid shall be the nominal amount most recently entered in the relevant
column in Part I or II of Annex A hereto.
[This Global Note shall be exchanged in accordance with Section 1 of the
Conditions. On an entire exchange of this Global Note, this Global Note shall be
surrendered to the Fiscal Agent.](3)
This [Temporary] [Permanent] Global Note is governed by, and shall be construed
in accordance with, German law.
This [Temporary] [Permanent] Global Note shall not be valid unless authenticated
by or on behalf of the Fiscal Agent.
[Dusseldorf] [Amsterdam] [London], [Date]
[E.ON AG] [E.ON INTERNATIONAL FINANCE B.V.] [E.ON UK PLC]
----------------------- -----------------------
AUTHORISED SIGNATORY AUTHORISED SIGNATORY
Amended and Restated Fiscal Agency Agreement
- 46 -
Control signature
on -
---------------------
AUTHORISED SIGNATORY
Amended and Restated Fiscal Agency Agreement
- 47 -
[IN THE CASE OF LONG-FORM CONDITIONS:
The Terms and Conditions of the Notes and the Pricing Supplement are to be added
by attachment hereafter.]
[IN THE CASE OF INTEGRATED CONDITIONS: The Conditions are to be added by
attachment hereafter.]
Amended and Restated Fiscal Agency Agreement
- 48 -
ANNEX A
Part I
Redemptions
Date of re- Total nominal Nominal Remaining Confirmation of
demption amount of this amount re- nominal redemption by
Global Note to deemed amount of this or on behalf of
be redeemed Global Note the Issuer
following such
redemption
--------------------------------------------------------------------------------
Amended and Restated Fiscal Agency Agreement
- 49 -
Part II
Purchases and Cancellations
Date of purchase Part of nominal Remaining nominal Confirmation of
and cancellation amount of this amount of this purchase and can-
Global Note pur- Global Note follow- cellation by or on
chased and can- ing such purchase behalf of the Issuer
celled and cancellation
--------------------------------------------------------------------------------
Amended and Restated Fiscal Agency Agreement
- 50 -
[IN THE CASE OF TEFRA D GLOBAL NOTES THE FOLLOWING FORM WILL BE ATTACHED TO THE
TEMPORARY GLOBAL NOTE:
ANNEX B
EXCHANGES
Date Principal amount exchanged for Remaining principal amount Notation made on
Permanent Global Note(s) following such exchange behalf of the Issuer
------------------ ---------------------------------- ----------------------------------- ---------------------
------------------ ---------------------------------- ----------------------------------- ---------------------
------------------ ---------------------------------- ----------------------------------- ---------------------
------------------ ---------------------------------- ----------------------------------- ---------------------
------------------ ---------------------------------- ----------------------------------- ---------------------
------------------ ---------------------------------- ----------------------------------- ---------------------
------------------ ---------------------------------- ----------------------------------- ---------------------
------------------ ---------------------------------- ----------------------------------- ---------------------
------------------ ---------------------------------- ----------------------------------- ---------------------
Amended and Restated Fiscal Agency Agreement
- 51 -
[IN THE CASE OF TEFRA D GLOBAL NOTES, THE FOLLOWING FORMS OF CERTIFICATION (OR
SUCH OTHER FORM AS SHALL CUSTOMARILY BE USED) WILL BE ATTACHED TO THE TEMPORARY
GLOBAL NOTE.]
EXHIBIT I
[INSERT CERTIFICATE TO BE GIVEN IN RELATION TO EXCHANGES OF THIS TEMPORARY
GLOBAL NOTE FOR THE PERMANENT GLOBAL NOTE OR DEFINITIVE NOTES - SEE
EXHIBIT I (ANLAGE I) TO GERMAN LANGUAGE FORM OF GLOBAL NOTE]
EXHIBIT II
[INSERT CERTIFICATE TO BE GIVEN IN RELATION TO PAYMENTS OF INTEREST FALLING DUE
BEFORE THE EXCHANGE DATE - SEE EXHIBIT II (ANLAGE II) TO
GERMAN LANGUAGE FORM OF GLOBAL NOTE]
EXHIBIT III
[INSERT ACCOUNT HOLDER'S CERTIFICATION REFERRED TO IN THE PRECEDING
CERTIFICATES - SEE EXHIBIT III (ANLAGE III) TO GERMAN LANGUAGE FORM OF
GLOBAL NOTE]
Amended and Restated Fiscal Agency Agreement
- 52 -
SCHEDULE 2
PART I
German language form of Collective Note
-------------------------------------------------------------------
Kupontag WKN o
ISIN o
[BEZEICHNUNG DER SCHULDVERSCHREIBUNGEN] fallig [FALLIGKEITSTAG]
der
[E.ON AG,
Dusseldorf, Bundesrepublik Deutschland]
[E.ON INTERNATIONAL FINANCE B.V.,
Amsterdam, Niederlande],
[E.ON UK PLC,
eingetragen mit beschrankter Haftung in England und Wales]
[FESTGELEGTE WAHRUNG] o Nr. o - o
Nr. o - o
Nr. o - o
Inhaber-Sammelschuldverschreibung
uber
o Schuldverschreibungen zu je [ ]
und o Schuldverschreibungen zu je [ ]
und o Schuldverschreibungen zu je [ ]
im Gesamtnennbetrag von [ ]
der [BESCHREIBUNG DER SCHULDVERSCHREIBUNGEN] im Gesammtnennbetrag von
[GESAMTNENNBETRAG EINFUGEN]
eingeteilt in
o Schuldverschreibungen zu je o
Nr. o - o,
o Schuldverschreibungen zu je o
Nr. o - o,
o Schuldverschreibungen o
Nr. o - o,
[E.ON AG] [E.ON International Finance B.V.] [E.ON UK plc] schuldet dem Inhaber
dieser Sammelschuldverschreibung
[GESAMTBETRAG DER SAMMELGLOBALURKUNDE EINFUGEN]
Die Emittentin verpflichtet sich, dem Inhaber dieser Sammelschuldverschreibung
die auf diese Sammelschuldverschreibung zahlbaren Betrage gemass den fur
diese
Amended and Restated Fiscal Agency Agreement
- 53 -
Schuldverschreibungen geltenden und dieser Urkunde beigefugten "BEDINGUNGEN" zu
zahlen.
[Dusseldorf] [Amsterdam] [London], am [Datum]
[E.ON AG]
[E.ON INTERNATIONAL FINANCE B.V.]
[E.ON UK PLC]
------------ ------------
Kontrollunterschrift
--------------------
[Any United States person (as defined in the United States internal revenue
code) 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.]*
----------------------
* Dieser Absatz ist entbehrlich, wenn die Schuldverschreibungen eine
ursprungliche Laufzeit von einem Jahr oder weniger haben.
Amended and Restated Fiscal Agency Agreement
- 54 -
German language form of Global Coupon
-----------------------------------------------------------------------------
1. Inhaber-Sammelzinsschein zur Inhaber- Sammelzinsschein 1
Sammelschuldverschreibung uber [ ] der Nr. o - o
[Beschreibung der Schuldverschreibungen] [Nr. o - o]
zahlbar mit [ ] am [FALLIGKEITSTAG] [o] [Nr. o - o]
bei den gemass den Anleihebedingungen
festgelegten Zahlstellen. Im Falle des
Abhandenkommens oder der Vernichtung von - WKN o
Zinsscheinen ist ein Anspruch gemass - ISIN o
Section 804 Absatz 1 Satz 1 BGB [FESTGELEGTE WAHRUNG] o
ausgeschlossen. Datum, [o]
[Dusseldorf] [Amsterdam] [London], den [Datum]
[E.ON AG]
[E.ON INTERNATIONAL FINANCE B.V.]
[E.ON UK PLC]
-------------------- ---------------------
[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.]*
--------------------
* Dieser Absatz ist entbehrlich, wenn die Schuldverschreibung eine
ursprungliche Laufzeit von einem Jahr oder weniger hat.
Amended and Restated Fiscal Agency Agreement
- 55 -
SCHEDULE 2
PART II
English language form of
Collective Note
[Not to be executed]
----------------------------------------------------------------------------
[Coupon date] WKN o
ISIN o
[TITLE OF NOTES] due [MATURITY DATE]
of
[E.ON AG,
with statutory seat at Dusseldorf, Federal Republic of Germany]
[E.ON INTERNATIONAL FINANCE B.V.,
with statutory seat at Amsterdam, The Netherlands],
[E.ON UK PLC,
incorporated with limited liability in England and Wales]
[SPECIFIED CURRENCY] o No. o - o
No. o - o
No. o - o
GLOBAL BEARER NOTE
for
o Notes of [ ] each
and o Notes of [ ] each
and o Notes of [ ] each
in the total nominal amount of [ ]
of the [DESCRIPTION OF NOTES] in the aggregate principal amount of [INSERT
AGGREGATE PRINCIPAL AMOUNT]
divided into
o Notes of o each
Nos. o - o,
o Notes of o each
Nos. o - o,
o Notes of o
Nos. o - o,
Amended and Restated Fiscal Agency Agreement
- 56 -
[E.ON AG] [E.ON International Finance B.V.] [E.ON UK plc] owes the bearer hereof
[insert aggregate amount of the Collective Note]
The Issuer agrees to pay to the bearer hereof the amounts payable with respect
to this Global Bearer Note in accordance with the "TERMS AND CONDITIONS"
applicable to the Notes and attached hereto.
[Dusseldorf] [Amsterdam] [London], on [Date]
[E.ON AG]
[E.ON INTERNATIONAL FINANCE B.V.]
[E.ON UK PLC]
------------ ------------
Control Signature
------------
[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.]*
------------------
* This legend is not required if the Notes have an initial maturity of
one year or less.
Amended and Restated Fiscal Agency Agreement
- 57 -
English language form of Global Coupon
---------------------------------------------------------------------------
1. Global Bearer Coupon attached to the Global Bearer Note for [ ] of the Coupon No. 1
[DESCRIPTION OF NOTES] of [MATURITY DATE] payable on [INTEREST PAYMENT DATE] No. o - o
[o] in the amount of [ ] at the paying agents determined in accordance with [No. o - o]
the Terms and Conditions of the Notes. In the case of loss or destruction of [No. o - o]
coupons, any right according to Section 804(1), sentence 1, of the BGB
(German Civil Code) is excluded.
WKN o
ISIN o
[SPECIFIED
CURRENCY] o
Date, [o]
[Dusseldorf] [Amsterdam] [London], [Date]
[E.ON AG]
[E.ON INTERNATIONAL FINANCE B.V.]
[E.ON UK PLC]
-----------------------
[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.]*
-----------------------
* This legend is not required if the Notes have an initial maturity of
one year or less.
Amended and Restated Fiscal Agency Agreement
- 58 -
SCHEDULE 3
PART I
German language form of Definitive Note
-------------------------------------------------------------------
Serien Nr. o
Common Code Nr. o WKN o
ISIN Nr. o [Sonstige Wertpapier-▇▇▇▇-Nummer o]
Stuckelung: o
[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.](1)
[Ausser bei Transaktionen zwischen naturlichen Personen, die nicht der
Ausubung eines Geschaftes oder einer beruflichen Tatigkeit dienen, ist jede
Transaktion dieser Schuldverschreibung, die mit der Auslieferung effektiver
▇▇▇▇▇▇ innerhalb, von oder in die Niederlande verbunden ist, durch die
Vermittlung der Emittentin oder einer Institution, die an der Euronext Amsterdam
N.V. zugelassenen ist (an einem oder mehreren Markten oder Systemen, die von
Euronext Amsterdam N.V. (toegelaten instelling) gehalten oder betrieben werden)
auszufuhren und auf einem Orderzettel, den Namen und die Adresse jeder der an
der Transaktion beteiligten Parteien, die Art der Transaktion sowie die
Einzelheiten und Seriennummer dieser Schuldverschreibung zu dokumentieren.](2)
[E.ON AG
Dusseldorf, Bundesrepublik Deutschland](3)
[E.ON INTERNATIONAL FINANCE B.V.
Amsterdam, Niederlande](3)
[E.ON UK PLC
eingetragen mit beschrankter Haftung in England und Wales](3)
[unter der unbedingten und unwiderruflichen Garantie der
E.ON AG](3)
INHABER-SCHULDVERSCHREIBUNG
-----------------------
(1) Dieser Absatz ist entbehrlich, wenn die Schuldverschreibung eine
ursprungliche Laufzeit von einem Jahr oder weniger hat.
Amended and Restated Fiscal Agency Agreement
- 59 -
uber
[WAHRUNG UND NENNBETRAG DER SCHULDVERSCHREIBUNG]
der Emission von
[WAHRUNG UND NENNBETRAG DER EMISSION]
Schuldverschreibungen fallig
[FALLIGKEITSJAHR]
Diese Urkunde ist eine Inhaberteilschuldverschreibung uber [WAHRUNG UND
STUCKELUNG] einer ordnungsgemass genehmigten Emission von Schuldverschreibungen
der [E.ON AG] [E.ON International Finance B.V.] [E.ON UK plc] (die
"EMITTENTIN"). Bezugnahmen in dieser Urkunde auf die "BEDINGUNGEN" verstehen
sich auf die [IM FALLE NICHT-KONSOLIDIERTER BEDINGUNGEN: Emissionsbedingungen in
der durch das Konditionenblatt (das "KONDITIONENBLATT") vervollstandigten,
geanderten, erganzten oder ersetzten Form. Die Emissionsbedingungen und das
Konditionenblatt sind auf der Ruckseite dieser Urkunde wiedergegeben] [IM FALLE
KONSOLIDIERTER BEDINGUNGEN: Bedingungen, die auf der Ruckseite dieser Urkunde
wiedergegeben sind]. Die Bedingungen sind Teil dieser Urkunde. Die in den
Bedingungen definierten Begriffe haben, soweit hierin verwendet, in dieser
Urkunde die gleiche Bedeutung.
Die Emittentin verpflichtet sich, dem Inhaber dieser Schuldverschreibung die auf
diese Schuldverschreibung zahlbaren Betrage gemass den Bedingungen zu zahlen.
Diese Schuldverschreibung unterliegt deutschem Recht.
Diese Schuldverschreibung ist nur gultig, wenn sie die Kontrollunterschrift der
Emissionsstelle oder ihres Beauftragten tragt.
[Dusseldorf] [Amsterdam] [London], [Datum]
[E.ON AG]
[E.ON INTERNATIONAL FINANCE B.V.]
[E.ON UK PLC]
------------------------- -------------------------
UNTERSCHRIFTSBERECHTIGTER UNTERSCHRIFTSBERECHTIGTER
Kontrollunterschrift
------------------------
UNTERSCHRIFTSBERECHTIGTER
Amended and Restated Fiscal Agency Agreement
- 60 -
SCHEDULE 3
Part I
English language form of Definitive Note
-------------------------------------------------------------------
Series No. o
Common Code No. o WKN o
ISIN No. o [Other Security Identification No. o]
Denomination: o
[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.](1)
[Unless between individuals not acting in the conduct of a business or
profession, each transaction regarding this Note which involves the physical
delivery thereof within, from or into The Netherlands, must be effected through
the mediation of the Issuer or an admitted institution of Euronext Amsterdam
N.V. admitted in a function on one or more markets or systems held or operated
by Euronext Amsterdam N.V. (toegelaten instelling), and must be recorded in a
transaction note which includes the name and address of each party to the
transaction, the nature of the transaction and the details and serial number of
this Note.](2)
[E.ON AG
with statutory seat at Dusseldorf, Federal Republic of Germany](3)
[E.ON INTERNATIONAL FINANCE B.V.
with statutory seat at Amsterdam, The Netherlands](3)
[E.ON UK PLC
incorporated with limited liability in England and Wales](3)
[unconditionally and irrevocably guaranteed by
E.ON AG](3)
DEFINITIVE NOTE
representing
------------------------
(1) This legend is not required in case of Notes with a maturity of one
year or less.
(3) Delete as applicable.
Amended and Restated Fiscal Agency Agreement
- 61 -
[CURRENCY AND PRINCIPAL AMOUNT OF NOTE]
of the Issue of
[CURRENCY AND PRINCIPAL AMOUNT OF ISSUE]
NOTES Due
[YEAR OF MATURITY]
This Note is a [CURRENCY AND DENOMINATION] definitive Note with respect to a
duly authorised issue of Notes of [E.ON AG] [E.ON International Finance B.V.]
[E.ON UK plc] (the "ISSUER"). References herein to the "CONDITIONS" shall be to
the [IN THE CASE OF LONG-FORM CONDITIONS: Terms and Conditions of the Notes as
completed, modified and supplemented or replaced by the pricing supplement (the
"PRICING SUPPLEMENT") both endorsed hereon] [IN THE CASE OF INTEGRATED
CONDITIONS: Terms and Conditions of the Notes as endorsed hereon]. The
Conditions form part of this Note. Expressions defined in the Conditions shall
bear the same meanings when used in this Note.
The Issuer agrees to pay to the bearer hereof the amounts payable with respect
to this Note in accordance with the Conditions.
This Note is governed by, and shall be construed in accordance with, German law.
This Note shall not be valid unless authenticated by or on behalf of the Fiscal
Agent.
[Dusseldorf] [Amsterdam] [London], [Date]
[E.ON AG]
[E.ON INTERNATIONAL FINANCE B.V.]
[E.ON UK PLC]
------------------- -------------------
AUTHORISED SIGNATORY AUTHORISED SIGNATORY
Control signature
on o
--------------------
AUTHORISED SIGNATORY
Amended and Restated Fiscal Agency Agreement
- 62 -
SCHEDULE 3
PART II
German language form of Coupon
(Vorderseite des Zinsscheines)
-------------------------------------------------------------------
[E.ON AG]
[E.ON INTERNATIONAL FINANCE B.V.]
[E.ON UK PLC]
Zinsschein zu
[WAHRUNG UND NENNBETRAG DER SCHULDVERSCHREIBUNG]
Inhaber-Schuldverschreibung
der Emission von
[WAHRUNG UND NENNBETRAG DER EMISSION]
Schuldverschreibungen fallig
[FALLIGKEITSJAHR]
Serie Nr. [............]
TEIL A
[FUR FESTVERZINSLICHE SCHULDVERSCHREIBUNGEN:
Dieser Zinsschein ist an den Inhaber zahlbar, Zinsschein uber
selbstandig ubertragbar und unterliegt den [ ]
Bedingungen der genannten Schuldverschreibungen. fallig am
[ ]]
TEIL B
Amended and Restated Fiscal Agency Agreement
- ▇▇ -
[▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇:
ENTWEDER:
Zinsschein fur den gemass den Bedingungen der Zinsschein fallig im
genannten Schuldverschreibungen falligen Betrag am Z
inszahlungstermin. [ ]
Dieser Zinsschein ist an den Inhaber zahlbar, selbstandig ubertragbar und
unterliegt den Bedingungen der genannten Schuldverschreibungen, nach deren
Massgabe er vor seinem Falligkeitsdatum seine Gultigkeit verlieren kann.
ODER:
im Falle einer variabel verzinslichen Schuldverschreibung
mit festem Zinszahlungstermin:
Dieser Zinsschein ist an den Inhaber zahlbar, selbstandig Zinsschein
ubertragbar und unterliegt den Bedingungen der genannten fallig am
Schuldverschreibungen, nach deren Ma(beta)gabe er vor [ ]]
seinem Falligkeitsdatum seine Gultigkeit verlieren kann.
[ ], im [ ] [Pragestempel]
Gezeichnet: ___________________
[E.ON AG]
[E.ON INTERNATIONAL FINANCE B.V.]
[E.ON UK PLC]
[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.](1)
--------------------------
(1) Dieser Absatz ist entbehrlich, wenn die Schuldverschreibung eine
ursprungliche Laufzeit von einem Jahr oder weniger hat.
Amended and Restated Fiscal Agency Agreement
- 64 -
(Ruckseite des Zinsscheines)
-------------------------------------------------------------------
EMISSIONSSTELLE
Citibank, N.A.
▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
ZAHLSTELLEN
Banque de Luxembourg S.A.
▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, N.A.
▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Citibank AG
Neue ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
und/oder die andere oder kunftige Emissionsstelle und andere oder weitere
Zahlstellen und/oder bezeichnete Geschaftsstellen, die etwa von Zeit zu Zeit
ordnungsgemass durch die Emittentin bestellt und den Inhabern der
Schuldverschreibungen bekanntgegeben sind.
Amended and Restated Fiscal Agency Agreement
- 65 -
SCHEDULE 3
Part II
English language form of Coupon
(Face of Coupon)
-------------------------------------------------------------------
[E.ON AG]
[E.ON INTERNATIONAL FINANCE B.V.]
[E.ON UK PLC]
Coupon appertaining to
[CURRENCY AND PRINCIPAL AMOUNT OF NOTE]
Definitive Note
of the Issue of
[CURRENCY AND PRINCIPAL AMOUNT OF ISSUE]
Notes Due
[YEAR OF MATURITY]
Series No.[ ]
PART A
[FOR FIXED RATE NOTES:
This Coupon is payable to bearer, separately negotiable Coupon for
and subject to the Terms and Conditions of the said Notes. [ ]
due on
[ ]]
Amended and Restated Fiscal Agency Agreement
- 66 -
PART B
[FOR FLOATING RATE NOTES:
EITHER:
Coupon for the amount due in accordance with the Coupon due
Terms and Conditions of the said Notes on the in [ ]
Interest Payment Date.
This Coupon is payable to bearer, separately negotiable and subject to the Terms
and Conditions of the said Notes under which it may become void before its due
date.
OR, in the case of a Floating Rate Note with fixed Interest Payment Dates:
This Coupon is payable to bearer, separately negotiable Coupon
and subject to the Terms and Conditions of the said
Notes under which it may become void before its due date. due on
[ ]]
[ ], in [ ] [Seal]
[E.ON AG]
[E.ON INTERNATIONAL FINANCE B.V.]
[E.ON UK PLC]
----------------------------
[Any United States person who holds this obligation will be subject to
limitations under the United States tax laws including the limitations provided
in sections 165(j) and 1287(a) of the Internal Revenue Code.](1)
-------------------------
(1) This legend is not required in case of Notes with a maturity of one
year or less.
Amended and Restated Fiscal Agency Agreement
- 67 -
(Reverse of Coupon)
-------------------------------------------------------------------
FISCAL AGENT
Citibank, N.A.
▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
PAYING AGENTS
Banque de Luxembourg S.A.
▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, N.A.
▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Citibank AG
Neue ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
and/or such other or future Fiscal Agent and other or further Paying Agents
and/or specified offices as may from time to time be duly appointed by the
Issuer and notice of which has been given to the Holders.
Amended and Restated Fiscal Agency Agreement
- 68 -
SCHEDULE 3
PART III
German language form of Receipt
-------------------------------------------------------------------
[E.ON AG]
[E.ON INTERNATIONAL FINANCE B.V.]
[E.ON UK PLC]
[BETRAG UND BEZEICHNUNG DER SCHULDVERSCHREIBUNG]
Serien Nr. [ ]
Fortlaufende Nummer der Schuldverschreibung: [ ]
Tranche Nr. [ ]
Quittungsformular uber die Summe von [ ] in Hohe der Teilzahlung des zahlbaren
Kapitals nach Massgabe der auf der Ruckseite der Schuldverschreibung
wiedergegebenen Bedingungen, zu der dieses Quittungsformular am [ ] gehort.
Dieses Quittungsformular ist vorbehaltlich der und in Ubereinstimmung mit den
auf diese Schuldverschreibung, zu der dieses Quittungsformular gehort,
anwendbaren Bedingungen ausgegeben, die fur den Inhaber dieses
Quittungsformulars verbindlich sind, ungeachtet dessen, ob es jeweils dieser
Schuldverschreibung beigefugt ist.
Dieses Quittungsformular ist zusammen mit der Schuldverschreibung, zu der es
gehort, gemass den Bedingungen zur Zahlung vorzulegen.
Dieses Quittungsformular ist kein Eigentumsnachweis und auch unter keinen
Umstanden als ein solcher anzusehen. Falls es von der Schuldverschreibung, zu
der es gehort, getrennt wird, stellt es keine Verpflichtung der Emittentin dar.
Dementsprechend berechtigt die Vorlage dieser Schuldverschreibung ohne dieses
Quittungsformular oder die Vorlage dieses Quittungsformulars ohne diese
Schuldverschreibung den Inhaber nicht zum Erhalt einer Zahlung in bezug auf die
betreffende Teilzahlung an Kapital.
Falls die Schuldverschreibung, zu der dieses Quittungsformular gehort, vor dem
Falligkeitstermin der Teilzahlung an Kapital, auf die sich dieses
Quittungsformular bezieht, fallig und zahlbar wird, wird dieses
Quittungsformular ungultig, und es erfolgt darauf keine Zahlung mehr.
Amended and Restated Fiscal Agency Agreement
- 69 -
SCHEDULE 3
PART III
English language form of Receipt
-------------------------------------------------------------------
[E.ON AG]
[E.ON INTERNATIONAL FINANCE B.V.]
[E.ON UK PLC]
[AMOUNT AND TITLE OF NOTE]
Series No: [ ]
Serial Number of Instrument: [ ]
Tranche No: [ ]
Receipt for the sum of [ ] being the instalment of principal payable in
accordance with the Terms and Conditions endorsed on the Note to which this
Receipt appertains on [ ].
This Receipt is issued to and in accordance with the Terms and Conditions
applicable to the Note to which this Receipt appertains which shall be binding
on the Holder of this Receipt whether or not it is for the time being attached
to such Note.
This Receipt must be presented for payment together with the Note to which it
appertains in accordance with the Terms and Conditions.
This Receipt is not and shall not in any circumstances be deemed to be a
document of title. If separated from the Note to which it appertains it will not
represent any obligation of the Issuer. Accordingly, the presentation of such
Note without this Receipt or the presentation of this Receipt without such Note
will not entitle the Holder to any payment with respect to the relevant
instalment of principal.
If the Note to which this Receipt appertains shall have become due and payable
before the due date for payment of the instalment of principal relating to this
Receipt, this Receipt shall become void and no payment shall be made with
respect to it.
Amended and Restated Fiscal Agency Agreement
- 70 -
SCHEDULE 4
[ON LETTERHEAD OF THE ISSUER]
CALCULATION AGENT APPOINTMENT LETTER
[for use if the Calculation Agent is not a Dealer]
[DATE]
[NAME OF CALCULATION AGENT]
[ADDRESS]
[E.ON AG]
[E.ON INTERNATIONAL FINANCE B.V.]
[E.ON UK PLC]
EURO 20,000,000,000 MEDIUM TERM NOTE PROGRAMME
Dear Sirs,
We refer to the Amended and Restated Agency Agreement dated 21 August 2002
entered into with respect to the above Medium Term Note Programme (such
agreement, as modified or amended from time to time, the "AGENCY AGREEMENT")
between [E.ON AG] [E.ON International Finance B.V.] [E.ON UK plc] and Citibank,
N.A., as fiscal agent and certain other financial institutions named therein, a
copy of which has been supplied to you by us.
Expressions defined in the Agency Agreement shall have the same meanings when
used herein.
[IF A THIRD PARTY IS APPOINTED FOR ONE SERIES OF NOTES ONLY, INSERT: We hereby
appoint you as Calculation Agent at your specified office detailed in the
Confirmation as our agent in relation to [SPECIFY RELEVANT SERIES OF NOTES] (the
"NOTES") upon the terms of the Agency Agreement for the purposes specified in
the Agency Agreement and in the Terms and Conditions and all matters incidental
thereto.]
[IF A THIRD PARTY IS APPOINTED FOR MORE THAN ONE SERIES OF NOTES, INSERT: We
hereby appoint you as Calculation Agent at your specified office detailed in the
Confirmation set out below as our agent in relation to each Series of Notes with
respect to which you are named as Calculation Agent in the relevant Pricing
Supplement upon the terms of the Agency Agreement and (in relation to each such
Series of Notes) in the Terms and Conditions and all matters incidental
thereto.]
Amended and Restated Fiscal Agency Agreement
- 71 -
[We hereby agree that, notwithstanding the provisions of the Agency Agreement or
the Terms and Conditions, your appointment as Calculation Agent may only be
revoked in accordance with the terms and conditions thereof if you have been
negligent in the exercise of your obligations thereunder or have failed to
exercise or perform your obligations thereunder].
Please complete and return to us the Confirmation on the copy of this letter
duly signed by an authorised signatory confirming your acceptance of this
appointment.
This letter is governed by, and construed in accordance with, German law and the
provisions of Clause 20 and 21 of the Agency Agreement shall apply to this
letter as if set out herein in full.
Yours faithfully
[NAME OF ISSUER]
Amended and Restated Fiscal Agency Agreement
- 72 -
CONFIRMATION
[IF A THIRD PARTY IS APPOINTED FOR ONE SERIES OF NOTES ONLY, INSERT: We hereby
accept our appointment as Calculation Agent of the Issuer in relation to the
Notes, and shall perform all matters expressed to be performed by the
Calculation Agent in, and shall otherwise comply with, the Terms and Conditions
and the provisions of the Agency Agreement and, in connection therewith, shall
take all such action as may be incidental thereto.]
[IF A THIRD PARTY IS APPOINTED FOR MORE THAN ONE SERIES OF NOTES, INSERT: We
hereby accept our appointment as Calculation Agent of the Issuer in relation to
each Series of Notes with respect to which we are named as Calculation Agent in
the relevant Pricing Supplement, and shall perform all matters expressed to be
performed by the Calculation Agent in, and shall otherwise comply with (in
relation to each such Series of Notes) the Terms and Conditions and the
provisions of the Agency Agreement and, in connection therewith, shall take all
such action as may be incidental thereto.]
For the purposes of [the Notes] [each such Series of Notes] and the Agency
Agreement our specified office and communication details are as follows:
Address: [ ]
Fax: [ ]
Attention: [ ]
[CALCULATION AGENT]
-------------------- --------------------
Date:
[ ]
-------------------- --------------------
Amended and Restated Fiscal Agency Agreement
- 73 -
SCHEDULE 5
The Specified Offices of the Fiscal Agent and Paying Agent
FISCAL AGENT
Citibank, N.A.
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▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
PAYING AGENT
Banque de Luxembourg S.A.
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, N.A.
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▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Citibank AG
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
