AMENDED AND RESTATED PAYING AND CONVERSION AGENCY AGREEMENT CHINA ARCHITECTURAL ENGINEERING, INC. US$20,000,000 12% CONVERTIBLE BONDS DUE 2011 September 29, 2008
Execution
Copy
AMENDED
AND RESTATED PAYING AND CONVERSION AGENCY AGREEMENT
US$20,000,000
12% CONVERTIBLE BONDS DUE 2011
September
29, 2008
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Page
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1.
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DEFINITIONS
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1
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2.
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APPOINTMENTS
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2
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3.
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AUTHENTICATION;
TRANSFER OF GLOBAL CERTIFICATE
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2
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4.
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PAYMENT
BY THE ISSUER
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3
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5.
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PAYMENT
BY THE AGENTS
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4
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6.
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CONVERSION
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6
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7.
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EARLY
REDEMPTION
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10
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8.
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CANCELLATION
OF BONDS
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12
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9.
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ISSUE
OF REPLACEMENT CERTIFICATES
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13
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10.
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DUTIES
OF THE TRANSFER AGENTS IN RESPECT OF TRANSFERS
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14
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11.
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DUTIES
OF THE REGISTRAR
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15
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12.
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DOCUMENTS
AND CERTIFICATES FOR THE REGISTRAR
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15
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13.
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INFORMATION
AND REGULATIONS CONCERNING THE BONDS
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16
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14.
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REMUNERATION
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16
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15.
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FUNDS
HELD BY PRINCIPAL AGENT
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17
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16.
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MISCELLANEOUS
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18
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17.
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CHANGES
IN AGENTS
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21
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18.
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NOTICES
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23
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19.
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GOVERNING
LAW AND JURISDICTION
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25
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20.
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COUNTERPARTS
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26
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21.
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TERMINATION
OF THIS AGREEMENT
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26
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22.
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CONTRACTS
(RIGHTS OF THIRD PARTIES) ACT 1999
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26
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23.
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INVALIDITY
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26
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EXHIBIT
A CONVERSION NOTICE
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29
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EXHIBIT
B CONVERSION AGENT NOTIFICATION
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32
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EXHIBIT
C NOTIFICATION FROM ISSUER
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34
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EXHIBIT
D REGULATIONS CONCERNING THE TRANSFER AND REGISTRATION OF
BONDS
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36
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EXHIBIT
E FORM OF BONDHOLDER REDEMPTION NOTICE
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38
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EXHIBIT
F FORM OF BONDHOLDER’S TAX ELECTION NOTICE
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40
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Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
i
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THIS
AMENDED AND RESTATED PAYING AND CONVERSION AGENCY AGREEMENT
(this
“Agreement”)
is
made on September 29, 2008
AMONG:
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(1)
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CHINA
ARCHITECTURAL ENGINEERING, INC.,
a
company incorporated under the laws of the State of Delaware whose
registered office is at c/o Corporation Service Company, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (the “Issuer”);
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(2)
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THE
BANK OF NEW YORK MELLON, LONDON BRANCH
at
its specified office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇
as principal paying, conversion and transfer agent (the “Paying
Agent”,
“Conversion
Agent”,
“Transfer
Agent”,
as applicable, and collectively, the “Principal
Agent”
which expression shall, unless the context otherwise requires, include
its
successors as such principal paying, conversion and transfer agent,
which
expression shall, unless the context otherwise requires, include
any
future agent appointed in accordance with this Agreement);
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(3)
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THE
BANK OF NEW YORK MELLON
at
its specified office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ as registrar (the “Registrar”,
which expression shall, unless the context otherwise requires, include
its
successors as such registrar); and
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(4)
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THE
BANK OF NEW YORK MELLON, LONDON BRANCH
at
its specified office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇, as trustee for the persons for the time being holding the
Bonds
referred to below (the “Trustee”,
which expression shall include its successors as such trustee or
any joint
trustee).
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WHEREAS:
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(A)
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The
Issuer has agreed to issue US$20,000,000 12% Convertible Bonds Due
2011 of
the Issuer (the “Bonds”)
which will be convertible at the option of the holder thereof into
fully
paid shares of common stock of par value of US$0.001 each (the
“Shares”)
that will be listed on the American Stock Exchange (the “AMEX”).
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(B)
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The
Bonds are to be constituted by a trust deed dated April 15, 2008
and made
between the Issuer and the Trustee, as restated and amended on September
17, 2008 (the “Trust
Deed”).
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(C)
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The
Bonds will be issued in registered form in the denomination of US$1,000
each.
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NOW
IT IS HEREBY AGREED
as
follows:
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1.
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Definitions
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Terms
defined or construed in the terms and conditions of the Bonds (the “Conditions”)
or the
Trust Deed shall, unless the context otherwise requires, have the same meanings
when used herein. In the event of inconsistencies between any term in the
Conditions or the Trust Deed and that stated herein, the term in the Conditions
or the Trust Deed shall prevail. In addition:
“Agents”
means
the Principal Agent, the Registrar and the other paying, conversion and transfer
agents referred to above;
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
1
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“Alternative
Clearing System”
means
a
clearing system as shall have been designated by the Issuer and approved by
the
Trustee;
“Business
Day”
means
a
day (other than a Saturday, Sunday or a public holiday) on which commercial
banks and foreign exchange markets are open for business in New York, England
and the city in which the specified office of the Principal Agent is
located;
“Register”
has
the
meaning set out in Clause 11.1; and
any
“successor”
to
an
Agent means a successor to that Agent appointed at its specified office in
accordance with the terms of this Agreement.
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2.
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Appointments
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The
Issuer appoints the Agents as its agents in respect of the Bonds in accordance
with the provisions of the Conditions and this Agreement at their respective
offices referred to in this Agreement and the Agents accept such appointments.
Subject as provided in Clause 17, references to the Agents are to them acting
solely through their respective specified offices. The obligations and duties
of
the Agents under this Agreement are several and not joint.
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3.
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Authentication;
Transfer of Global
Certificate
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3.1
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The
Global Certificate
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Immediately
before issuance, the Issuer shall deliver to the Registrar a duly executed
Global Certificate representing the Bonds. The Registrar (or its agent on its
behalf) shall authenticate the Global Certificate upon the written order of
the
Issuer and arrange for its delivery to a common depositary for Euroclear and
Clearstream.
Title
to
the Bonds evidenced by the Global Certificate may be registered in the name
of,
and the Global Certificate may be deposited with, such Alternative Clearing
System other than Euroclear or Clearstream (or a nominee thereof) as the Issuer
may from time to time designate with the prior written approval of the Trustee,
and shall bear such legend as may be appropriate.
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3.2
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Transfers
of Interests in the Global
Certificate
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Any
transfer or exchange of an interest in the Bonds evidenced by the Global
Certificate shall be effected in accordance with the rules and procedures of
Euroclear or Clearstream, or any relevant Alternative Clearing System, as
applicable.
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3.3
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Exchange
of Interests in the Global Certificate for Definitive
Certificates
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(a)
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Definitive
Certificates in respect of interests in any Bonds will not be issued
in
exchange for interests in the Bonds evidenced by the Global Certificate
except in the circumstances provided in Clause 3.3(b), provided that,
in
the event that the Issuer designates an Alternative Clearing System
and
such designation is approved in writing by the Trustee, title to
all or
some of the Bonds may be transferred to an Alternative Clearing System
or
its nominee and definitive Certificates may be issued to evidence
such
transfer.
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Amended
and Restated
Paying
and Conversion
Agency
Agreement
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2
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(b)
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In
the event that either Euroclear or Clearstream (or any Alternative
Clearing System on behalf of which the Bonds evidenced by the Global
Certificate may be held) is closed for business for a continuous
period of
fourteen (14) days (other than by reason of holidays, statutory or
otherwise) or announces an intention permanently to cease business
or does
in fact do so, the Issuer will cause sufficient definitive Certificates
to
be executed and delivered to the Registrar in sufficient quantities
as
advised by the Registrar and the Registrar will authenticate the
same for
despatch to individual Bondholders in accordance with the Conditions,
Clause 3.3(c) and Exhibit D hereto.
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(c)
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Upon
one (1) of the events set forth in Clause 3.3(b) occurring, a holder
of
Bonds represented by the Global Certificate will provide the Registrar
with a written order containing instructions and such other information
as
the Issuer and the Registrar may require to complete, execute and
deliver
such definitive Certificates.
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(d)
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Upon
receipt of the Certificates referred to in Clause 3.3(b) and the
written
order referred to in Clause 3.3(c), the Registrar shall arrange for
the
execution and delivery to or upon the order of the person or persons
named
in such order of an individual definitive Certificate representing
Bonds
registered in the name or names requested by such person or persons
and
the Registrar shall alter the entries in the Register in respect
of the
Bonds accordingly. Payment will only be made to the person whose
name
appears on the Register.
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3.4
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Transfer
or Exchange of Definitive
Certificates
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Subject
to the provisions of this Clause 3 and Exhibit D, the holder of Bonds
represented by definitive Certificates may transfer or exchange such Bonds.
Subject to compliance with such provisions, the relevant Transfer Agent and
the
Registrar shall register the transfer of Bonds represented by definitive
Certificates in accordance with Clauses 10 and 11 below.
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3.5
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Proxies
and Authorisations
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Subject
to the provisions of this Agreement, the registered holder of Bonds represented
by the Global Certificate may grant proxies and otherwise authorise any person,
including participants in Euroclear and Clearstream and persons that may hold
interests through such participants, to take any action that a holder is
entitled to take under this Agreement or the Bonds.
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3.6
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No
Transfer Periods
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Notwithstanding
anything herein to the contrary, no Bondholder may require the transfer of
a
Bond during the periods set forth in Condition 4(E).
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4.
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Payment
by the Issuer
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4.1
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Payment
to the Principal Agent
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In
order
to provide for the payment of the principal, premium, interest and/or default
interest (if any) in respect of the Bonds as the same shall become due, the
Issuer shall, by 12:00 noon (New York time), unconditionally pay or procure
to
be paid, to the Principal Agent:
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
3
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(a)
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on
maturity or early redemption of any Bonds in an account specified
by the
Principal Agent for value at least one (1) Business Day prior to
the
redemption date thereof (or, in the case of the Bonds becoming due
and
payable pursuant to Condition 12, forthwith upon being required by
the
Trustee so to make such payment), an amount sufficient (together
with any
funds then held by the Principal Agent which are available for such
purpose) to pay the amount due on redemption of all Bonds so to be
redeemed (or the amount due pursuant to Condition 12);
and
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(b)
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for
value at least one (1) Business Day before each due date for the
payment
of interest or any other sums payable in respect of the Bonds in
accordance with the Conditions, other than sums referred to in sub-Clause
4.1(a) above, an amount sufficient (together with any funds then
held by
the Principal Agent which are available for such purpose) to pay
the
interest or any other sums payable then becoming due on the outstanding
Bonds.
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Except
as
set forth in Section 24.18 of the Trust Deed when upon the occurrence of any
default the Trustee may require any Paying Agent to pay all money hold by it
to
the Trustee, all amounts deposited with the Trustee or any Paying Agent for
the
payment of Bonds to the Bondholders but which have not been so paid due to
the
subsequent conversion of such Bonds or otherwise shall be immediately returned
to the Issuer upon the Issuer’s written request, provided that no interest shall
accrue on such amounts and be payable to the Issuer by the Trustee or any Paying
Agent.
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4.2
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Notification
of Payment
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The
Issuer shall procure that on or before 12:00 noon (New York time) on the second
Business Day prior to each due date for payment of principal, premium, interest
and/or default interest in respect of the Bonds, the bank through which such
payment is to be made will send to the Principal Agent confirmation that it
has
received from the Issuer an irrevocable instruction to make the relevant payment
(by SWIFT).
In
this
Clause 4, the date on which a payment in respect of the Bonds becomes due means
the first date on which the holder of a Bond could claim the relevant payment
by
transfer to an account under the Conditions, but disregarding the necessity
for
it to be a Business Day in any particular place of presentation.
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4.3
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Notification
in the Event of
Non-Payment
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The
Principal Agent shall forthwith notify (in writing and by facsimile
transmission) the Trustee, the other Agents and the Issuer if it has not, by
10:00 a.m. (New York time) on the due date for payment of principal, premium,
interest and/or default interest (if any) on the Bonds or any of them, received
unconditionally in the manner provided in this Clause 4 the full amount of
the
moneys payable on such due date on or in respect of all such Bonds, as the
case
may be.
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5.
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Payment
by the Agents
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5.1
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Payment
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Unless
the Paying Agents receive a notification from the Principal Agent under Clause
4.3, they will, subject to and in accordance with the Conditions, pay or cause
to be paid on behalf of the Issuer on and after each due date therefor the
amounts due in respect of the Bonds and will be entitled to claim any amounts
so
paid from the Principal Agent. If any payment provided for in Clause 4.1 is
made
late but otherwise in accordance with this Agreement, the Paying Agents will
nevertheless make such payments in respect of the Bonds. However, unless and
until the full amount of any such payment has been made to the Principal Agent,
none of the Paying Agents will be bound to make such payments until either
the
Principal Agent has received the full amount of moneys then due and payable
in
respect of the Bonds or other arrangements satisfactory to the Principal Agent
have been made. If payment of any amount is made to the Principal Agent later
than the due date for payment of such amount to the Bondholders, the Principal
Agent shall as soon as practicable after receipt thereof give notice to the
Bondholders in accordance with Condition 19 that such payment has been made.
All
payments to be made by the Paying Agents hereunder shall be made without
charging any commission or fee to the Bondholders. Nothing contained herein
shall require a Paying Agent to make a payment unless and until the Paying
Agent
has received immediately available funds sufficient to make said
payment.
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
4
-
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5.2
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Reimbursements
of Agents
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The
Principal Agent will on demand promptly reimburse each Paying Agent for payments
in respect of the Bonds made by it in accordance with the Conditions and this
Agreement. The Issuer shall on demand by the Principal Agent reimburse the
Principal Agent for the relevant amount and pay interest to the Principal Agent
on such amount that is outstanding from the date on which it is paid out by
that
Paying Agent to the date of reimbursement by the Issuer at the rate per annum
then prevailing at the date of such funding equal to the cost to the relevant
Paying Agent of funding the amount paid out plus two percent (2%) per annum
as
certified by the Principal Agent.
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5.3
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Method
of Payment to Principal
Agent
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All
sums
payable to the Principal Agent ▇▇▇▇▇▇▇▇▇ will be paid in United States dollars
and in immediately available or same day funds to such account, with such bank
in New York City as the Principal Agent may from time to time notify in advance
to the Issuer in writing.
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5.4
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Surrender
of Certificates to Paying
Agents
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The
Paying Agents shall accept surrender of Certificates from Bondholders as a
condition precedent to payment of principal and premium (if any) in accordance
with the Conditions. At close of business on the second business day (as defined
in Condition 8(F)) before the due date for payment in respect of Bonds, and,
if
Certificates are surrendered later than that, on any business day (as defined
in
Condition 8(F)) thereafter on which Certificates are surrendered, each Paying
Agent to whom Certificates have been surrendered will notify the Registrar
and
the Principal Agent of the identifying numbers of Certificates surrendered
to it
at that time. Each Paying Agent will cancel Certificates surrendered to it
and
forward the cancelled Certificates to the Principal Agent for
destruction.
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5.5
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Fees
and Expenses of the Agents
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The
Principal Agent will account to each of the other Agents for their fees and
expenses in respect of the services performed by them under this Agreement
promptly after receipt thereof from the Issuer and the Issuer shall have no
responsibility for the apportionment of any such payments.
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
5
-
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5.6
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Agents
of the Trustee
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The
Principal Agent, the Registrar or the other Agents shall, on demand by the
Trustee by notice in writing given to them at any time after any Event of
Default or Potential Event of Default has occurred, until notified by the
Trustee to the contrary, so far as permitted by applicable law:
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(a)
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act
thereafter as agents of the Trustee under the Trust Deed and the
Bonds on
the terms of this Agreement (with consequential amendments as necessary
and except that the Trustee’s liability for the indemnification,
remuneration and all other expenses of the Agents and the Registrar
will
be limited to the amounts for the time being held by the Trustee
in
respect of the Bonds on the terms of the Trust Deed) and thereafter
hold
all Certificates and all moneys, documents and records held by them
in
respect of the Bonds to the order of the Trustee;
and/or
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(b)
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deliver
up all Certificates and all moneys, documents and records held by
them in
respect of the Bonds to the Trustee or as the Trustee shall direct
in such
notice or subsequently, provided that this Clause 5.6(b) shall not
apply
to any documents or records which the Principal Agent, the Registrar
or
the relevant Agent is obliged not to release by any law or regulation
to
which it is subject.
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5.7
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Notices
of Change of the Trustee
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The
Issuer shall forthwith give notice to the Principal Agent of any change in
the
person or persons who act as the Trustee under the Trust Deed.
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6.
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Conversion
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6.1
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Conversion
Duties of Conversion
Agents
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The
Conversion Agent shall during normal business hours (local time in the place
where the specified office of the relevant Conversion Agent is located) (a)
accept deposit on behalf of the Issuer of (i) any Certificates in respect of
Bonds which the holder(s) thereof desires to convert (and in respect of which
Bond a Conversion Notice is deposited with that Conversion Agent prior to the
Conversion Date) together with a Conversion Notice (in duplicate) duly completed
and signed (where necessary) or (ii) in the case of Bonds represented by the
Global Certificate, a Conversion Notice duly completed and signed only (which
may, in such case, be delivered by facsimile transmission), together, in each
case of (i) and (ii), with any amount payable by the relevant holder under
Condition 6(B)(ii); and (b) the Issuer shall pay all stamp, issue, documentary,
transfer, registration, excise or other taxes or duties (if any) specified
in
the Trust Deed or the Bonds to be payable by the Issuer. The Conversion Agent
shall be entitled to assume, without duty to enquire, each converting Bondholder
has, as a condition precedent to exercising its Conversion Right, paid all
stamp, issue, registration, and similar taxes or duties or transfer costs (if
any) (other than any amounts payable by the Issuer in accordance with the
Conditions) which it is required to pay in accordance with the Conditions
(including without limitation, Condition 6(B)(ii)). Once deposited, a Conversion
Notice may not be withdrawn without the written consent of the Issuer (with
a
copy of such consent together with the relevant Conversion Notice sent to the
relevant Conversion Agent at the same time).
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
6
-
|
6.2
|
Global
Certificate
|
Conversion
Rights attaching to the Bonds represented by the Global Certificate shall be
exercised in the manner set out herein and in the Conditions, provided
that:
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(a)
|
the
Global Certificate need not be deposited with the Conversion Agent
together with the relevant Conversion
Notice;
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(b)
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the
Conversion Notice for Bonds represented by the Global Certificate
may be
completed and deposited by or on behalf of an account holder of
Clearstream or Euroclear or an Alternative Clearing System in which
the
Bond to be converted is held at such time, which has an interest
in such
Bonds;
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(c)
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Bonds
which have been converted will be rendered void forthwith and the
Global
Certificate shall be annotated accordingly without cancellation of
the
Global Certificate; and
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(d)
|
the
holding of an interest in Bonds by an account holder of Clearstream
or
Euroclear or an Alternative Clearing System in which the Bonds are
held at
such time in respect of which the Conversion Rights are exercised
will be
confirmed by the relevant clearing system with the Conversion
Agent.
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6.3
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Certificates
Held by Conversion Agents
|
On
deposit of a Certificate and a Conversion Notice (in duplicate) in accordance
with Clause 6.1, the Certificate and the Conversion Notice so deposited shall
be
deemed to be held by the Conversion Agent as the agent of the Issuer. The
Conversion Agent shall cancel forthwith upon the Conversion Date the
Certificates representing the Bonds and (unless the Conversion Agent is also
the
Principal Agent) despatch such cancelled Certificates promptly to or to the
order of the Principal Agent or its designated agent, together with a
certificate stating the identifying numbers of the Bonds in respect of which
the
relevant Certificates have been delivered and the identifying numbers of the
relevant Certificates.
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6.4
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Notification
by Conversion Agents
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(a)
|
Immediately
following deposit of a Certificate (if applicable) and Conversion
Notice
in accordance with Clause 6.1 and payment of any required amount
by
Bondholders in accordance with Condition 6(B)(ii), the Conversion
Agent
with which they were deposited shall verify that the Conversion Right
is
exercisable and that the Conversion Notice (in duplicate) has been
duly
completed in relation to the Bonds, which are the subject of the
purported
conversion, in accordance with its terms and purports to have been
signed
by or on behalf of the Bondholder named therein and that the Conversion
Notice is accompanied by all Certificates (if applicable) to which
it
relates. Following receipt of the Conversion Notices in accordance
with
this Clause 6.4, and notwithstanding the provisions of Clause 6.4(c)(iii)
below, the Principal Agent will send by post to the Issuer the Conversion
Notice (if applicable) as soon as reasonably practicable following
any
such request by the Issuer. For the avoidance of doubt, the Conversion
Agent should have no responsibility in respect of a Conversion Notice
which is not duly completed and signed in accordance with Clause
6.1.
|
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
7
-
|
(b)
|
As
soon as reasonably practicable following receipt of the Conversion
Notice
by a Conversion Agent other than the Principal Agent and the fulfilment
of
the conditions in Clause 6.4(a), such Conversion Agent
shall:
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(i)
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send
by facsimile transmission a copy of such Conversion Notice to the
Principal Agent and the Issuer; and
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(ii)
|
cancel
forthwith upon the Conversion Date all Certificates delivered with
such
Conversion Notice and despatch such cancelled Certificates promptly
(together with a certificate stating the certificate numbers of the
Bonds
so delivered), to or to the order of the Principal Agent or its designated
agent, who shall destroy such cancelled
Certificates.
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(c)
|
Upon
receipt of the Conversion Notice and in any event no later than five
(5)
Business Days following such receipt by the Principal Agent (either
as a
result of deposit of the Conversion Notice by a converting Bondholder
with
the Principal Agent in its capacity as Conversion Agent or as a result
of
receipt of the facsimile of such Conversion Notice pursuant to Clause
6.4(b)(i) above) and fulfilment of the conditions in Clause 6.4(a),
the
Principal Agent in its capacity as Conversion Agent
shall:
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(i)
|
notify
the Issuer in the manner specified in Exhibit B hereto (a “Conversion
Agent Notification”)
by facsimile transmission, of the following (together with a copy
of the
Conversion Notice(s)):
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(A)
|
the
total number, the aggregate principal amount and identifying number
of all
Bonds deposited on the same occasion by the same Bondholder which
are to
be converted, the number of Shares issuable upon conversion and the
name
and address of such Bondholder;
|
|
(B)
|
the
name and address of the person in whose name the Shares issuable
upon
conversion are to be registered;
and
|
|
(C)
|
the
Conversion Date and the Conversion Price in respect of such
conversion;
|
|
(ii)
|
(where
the Conversion Agent with which the Certificate is deposited is itself
the
Principal Agent) cancel forthwith upon the Conversion Date all
Certificates delivered with such Conversion Notice and procure the
destruction of such cancelled Certificates, unless notified otherwise
by
the Issuer at least five (5) Business Days prior to such Conversion
Date;
|
|
(iii)
|
despatch
as soon as practicable and in any event within five (5) days after
the
Conversion Date the Conversion Notice (if applicable) to the Issuer;
and
|
|
(iv)
|
without
any further notice or confirmation from the Issuer, and in any event
no
later than the Conversion Date, instruct the Registrar to remove
the name
of the relevant Bondholder from the Register or reduce the corresponding
principal amount of Bonds registered as being represented by the
Global
Certificate, where appropriate.
|
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
8
-
|
(d)
|
Where
a Conversion Notice is received which requires the Shares (or other
securities, property or cash) issuable on conversion of the Bonds
to which
it relates to be dealt with in different ways for specified principal
amounts (which must be US$1,000) of Bonds, the Principal Agent receiving
the Conversion Notice may, and if requested by the Bondholder depositing
the Conversion Notice, shall, treat each specified principal amount
of
Bonds as if it were subject to its own Conversion Notice and prepare
and
send the details referred to in Clause 6.4(c) separately for each
such
specified principal amount (and, for the avoidance of doubt so they
are
not aggregated for the purpose of calculating the number of Shares,
or
amount of other property, issuable on
conversion).
|
|
6.5
|
Delivery
by the Issuer
|
|
(a)
|
Within
ten (10) Business Days after the receipt of the relevant Conversion
Agent
Notification, the Issuer will forthwith send notification (in the
manner
specified in Exhibit C hereto) by facsimile to the Conversion Agent
which
has initially received the relevant Conversion Notice (and will send
a
copy to the Principal Agent (if it is not the Agent which received
the
relevant Conversion Notice) and the Registrar), in the case of a
Bond in
respect of which the Conversion Right has been exercised and in respect
of
which a Conversion Notice was deposited, confirming that delivery,
despatch or payment in accordance with such Conversion Notice (or
otherwise in accordance with the converting Bondholder’s instructions) of
the certificate or certificates for the relevant Shares and/or securities,
property or cash required to be delivered and/or paid upon conversion
has
been or will be made.
|
|
(b)
|
In
addition, upon delivery and despatch of the certificate(s) for the
relevant Shares issued on conversion or delivery of the relevant
Shares to
the converting Bondholder, the Issuer shall send confirmation by
facsimile
to the Conversion Agent which has sent the relevant Conversion Notice
(and
will send a copy to the Principal Agent and the Registrar) that the
converting Bondholder or other person nominated in the Conversion
Notice
has been registered as the owner of the relevant Shares issued on
conversion.
|
|
(c)
|
Promptly
upon receipt of the confirmation referred to in Clause 6.5(b) of
registration in the register of shareholders or notification that
cash has
been paid upon conversion (but not before), the Registrar shall remove
the
name of the relevant Bondholder from the Register, or reduce the
number of
Bonds of which it is registered as owner, as
appropriate.
|
|
6.6
|
Issuer
to Provide Conversion Notice and Particulars of Adjustment to Conversion
Price
|
As
soon
as is practicable following a request from time to time, the Issuer will provide
the Conversion Agents with copies of the form of Conversion Notice and shall,
whenever the Conversion Price is adjusted pursuant to the Trust Deed and the
Conditions, as soon as practicable, notify each of the Trustee and the
Conversion Agents of particulars of the event giving rise to the adjustment,
the
Conversion Price after such adjustment, the date on which such adjustment takes
effect and such other particulars and information as the Trustee may reasonably
require. If required by any Bondholder, the Conversion Agents shall make
Conversion Notices in the current form available to Bondholders. For the
avoidance of doubt, no Agent has any duty to determine whether any event
requiring any adjustment to the Conversion Price has occurred or is existing,
or
whether any such adjustment has been correctly made and no Agent has an
obligation to calculate any Conversion Price or any adjustment to the Conversion
Price.
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
9
-
|
6.7
|
Notification
of Closure of Register of
Shareholders
|
The
Issuer shall as soon as is practicable after becoming aware that the Issuer’s
register of shareholders is to be closed, give notice to the Trustee and the
Agents of any dates upon which such register of shareholders is to be closed.
Such notice shall give particulars of the reason for such closure and the
expected date when the register will be re-opened.
|
6.8
|
Identification
Codes
|
Each
Conversion Notice deposited with a Conversion Agent and each facsimile
transmission sent and letter delivered in respect of a Conversion Notice
pursuant to the foregoing provisions of this Clause by any Conversion Agent
shall indicate the identification code designated below for that Conversion
Agent, followed by the words “China
Architectural Engineering, Inc. 12% Convertible Bonds due 2011
(US$)”,
and
shall bear the lowest number previously unused by that Conversion Agent in
the
sequence of whole numerals starting from one and continuing in uninterrupted
sequence upwards, for identification. All confirmatory or subsequent
communications (regardless of the identity of the sender or the recipient
thereof) with regard to the conversion, receipt, delivery and/or payment of
Shares and/or any other securities, property and cash relating to such
Conversion Notice shall bear the same identifying number as well as the
identification code of the relevant Conversion Agent.
The
identification codes of the Conversion Agent shall be as follows:
BNYLDN1
Thus,
by
way of example, the reference to be used for the fifth Conversion Notice
deposited with the Principal Agent and for each facsimile transmission and
letter relating thereto would be “BNYLDN1/ China Architectural Engineering, Inc.
12% Convertible Bonds due 2011/0005”.
|
6.9
|
Fees
and Expenses of Conversion
|
The
Issuer shall pay all stamp, issue, registration, excise, and similar taxes
and
duties and transfer costs (if any) payable with respect to the deposit of Bonds
for conversion and the issue and delivery of Shares following such deposit
(other than those taxes and duties payable by the converting Bondholder as
expressly provided in Clause 6.1 or the Conditions), all expenses arising in
the
United States or England on the issue of Shares on conversion of Bonds and
all
charges of the Conversion Agents in connection thereon.
|
6.10
|
Taxes
and Duties
|
Neither
the Conversion Agent nor the Issuer is under any obligation to determine whether
a Bondholder is liable to pay any taxes or duties, including stamp, issue,
registration or similar taxes and duties upon exercise by such Bondholder of
the
Conversion Right. The Agents shall be entitled to rely without further enquiry
and without liability on any information provided by such Bondholder in the
Conversion Notice as to any such amounts payable and as to the details of the
relevant tax authorities to which the Conversion Agent must pay monies received
in settlement of the taxes and duties payable pursuant to Condition
6(B)(ii).
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
10
-
|
7.
|
Early
Redemption
|
|
7.1
|
Notice
of Redemption
|
If
the
Issuer intends to redeem all or any of the Bonds under Condition 9(B) or
Condition 9(C) it shall, at least five (5) Business Days before the latest
date
for the publication of the notice of redemption required to be given to
Bondholders in accordance with Condition 19, give prompt notice in writing
of
its intention to the Principal Agent and the Trustee stating the date on which
such Bonds are to be redeemed and the Early Redemption Amount.
|
7.2
|
Redemption
Notice
|
On
behalf
of and at the request and expense of the Issuer, the Principal Agent shall
publish the notice in accordance with Condition 19, in the form approved by
the
Issuer, required in connection with such redemption. Such notice shall specify
the details in accordance with Condition 9(I). The Principal Agent shall
forthwith notify the other Paying Agents of the contents of such
notice.
|
7.3
|
Bondholders’
Tax Option
|
Each
Paying Agent will keep a stock of notices (the “Bondholder’s
Tax Election Notices”)
each
in a form similar to that set out in the Exhibit F and will make them available
on demand to Bondholders. The Paying Agent with which a Bond is deposited
pursuant to Condition 9(C) shall hold such Bond on behalf of the depositing
Bondholder (but shall not, save as provided below, release it) until the
proposed Tax Redemption Date of the Bonds pursuant to Condition 9(C)(i). On
that
date, subject as provided below, the relevant Paying Agent shall return such
Bond to the depositing Bondholder and (in the case of the Global Certificate)
endorse the relevant Schedule to such Certificate appropriately. If the
deposited Bond (or Bonds) becomes (or become) immediately due and payable before
that date, the Paying Agent concerned shall mail such Certificate by uninsured
post to, and at the risk of, the relevant holder.
|
7.4
|
Redemption
at the Option of the Bondholders and Redemption for Non-Listing or
Change
of Control
|
Each
Paying Agent will keep a stock of notices (“Bondholder
Redemption Notices”)
in a
form similar to that set out in Exhibit E and will make them available on demand
to Bondholders. The Paying Agent with which a Certificate is deposited pursuant
to Condition 9(D), Condition 9(E) or Condition 9(F) shall hold such Certificate
on behalf of the depositing Bondholder (but shall not, save as provided below,
release it) until the due date for redemption of the Bonds in respect of which
it is issued pursuant to Condition 9(D), Condition 9(E) or Condition 9(F),
as
the case may be. On that date, subject as provided below, the relevant Paying
Agent shall surrender such Certificate to itself and treat it as if surrendered
by the holder in accordance with the Conditions and (in the case of the Global
Certificate) endorse the Schedule to such Certificate with the principal amount
of Bonds to be redeemed and the principal amount of Bonds remaining after such
redemption. If the Bond (or Bonds) represented by the deposited Certificate
becomes (or become) immediately due and payable before that date, the Paying
Agent concerned shall mail such Certificate by uninsured post to, and at the
risk of, the relevant Bondholder at the address shown for the Bondholder on
the
register of Bondholders as supplied by the Registrar. At the end of the period
for exercising the option in Condition 9(D), Condition 9(E) or Condition 9(F),
as the case may be, each Paying Agent shall promptly notify the Principal Agent
of the principal amount of Bonds in respect of which Bondholder Redemption
Notices have been deposited with it and will forward such Bondholder Redemption
Notices to the Principal Agent. The Principal Agent shall promptly notify such
information and details of the principal amount of Bonds represented by the
Global Certificate in respect of which the option in Condition 9(D), Condition
9(E) or Condition 9(F), as the case may be, has been exercised to the Issuer
and
the Trustee. A Bondholder Redemption Notice, once delivered, shall be
irrevocable.
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
11
-
|
7.5
|
Effect
of Notice of Redemption
|
Once
a
notice of redemption is provided in accordance with Condition 19 and/or a
Bondholder Redemption Notice is duly completed, signed and deposited with any
Paying Agents in accordance with Condition 9(D), Condition 9(E) or Condition
9(F), Bonds called/put for redemption become due and payable on the date fixed
for redemption of the Bonds or the Relevant Event Redemption Date, as the case
may be, at the Early Redemption Amount or 116.61% of the principal amount of
the
Bonds, as the case may be, stated in the relevant notice. Upon surrender of
any
Certificate in respect of such Bond for redemption in accordance with said
notice, such Bond shall be paid by the Issuer at the Early Redemption Amount
or
116.61% of the principal amount of the Bonds, as the case may be, in accordance
with the Conditions.
|
7.6
|
Deposit
of Redemption Price
|
For
value
on the Business Day prior to the relevant redemption date, the Issuer shall
deposit with the Principal Agent money sufficient to pay the redemption price
of
all Bonds to be redeemed on that date other than any Bonds called for redemption
on that date which have been converted prior to the date of such deposit. The
Principal Agent shall as soon as practicable return to the Issuer upon its
written request any money (without interest thereon) not required for that
purpose because of conversion of any Bonds called for redemption.
|
8.
|
Cancellation
of Bonds
|
|
8.1
|
Cancellation
by Agents
|
All
Bonds
which are redeemed, converted or purchased by the Issuer or any of its
Subsidiaries shall be cancelled by the removal of the relevant Bondholder’s name
from the Register by the Registrar and cancellation of the corresponding
Certificates (or appropriate amendment of the Global Certificate if the Bonds
are represented thereby) by the Agent to which they were surrendered or with
which they were deposited.
|
8.2
|
Cancelled
Certificates
|
Each
Agent shall (unless it is itself the Principal Agent) give all relevant details
for the purposes of Clause 8.3 to, and shall forward Certificates cancelled
by
it promptly to, the Principal Agent or, as the case may be, its designated
agent.
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
12
-
|
8.3
|
Certification
of Payment Details
|
Subject
to receipt of the information described in Clause 8.2, the Principal Agent
shall
as soon as reasonably practicable, upon a request in writing from any of the
Issuer, the Trustee and the Registrar, furnish the Issuer and the Trustee and
the Registrar with a certificate signed by its duly authorised officer (whose
name and specimen signature have previously been provided to the Issuer) stating
(as applicable) (a) the aggregate amounts paid in respect of Bonds redeemed
or
paid and cancelled, (b) the aggregate principal amount of Bonds converted and
cancelled and (c) the identifying numbers of such Bonds and (d) that such Bonds
have been cancelled. Such certification may be accepted by the Trustee as
conclusive evidence of repayment or discharge pro
tanto of
the
Bonds, of payment of interest thereon (if any) or (as the case may be) of the
issue of replacement Certificates.
|
8.4
|
Cancelled
Certificates
|
Unless
otherwise instructed by the Issuer, the Principal Agent or its designated agent
shall destroy the cancelled Certificates in its possession or held to its order
and furnish to the Issuer and the Trustee upon request, a certificate of such
destruction duly signed by its authorised officer.
|
8.5
|
Records
|
Subject
to receipt of the relevant information, the Principal Agent shall keep a full
and complete record of all Bonds and of their redemption, conversion, payment,
cancellation, despatch to the Issuer and replacement (as appropriate) and shall
make such record available at all reasonable times during office hours to the
Issuer, the Trustee and the other Agents. Notwithstanding the foregoing, the
Principal Agent shall not be required to keep a record of the
Register.
|
8.6
|
Identifying
Numbers
|
The
Registrar shall notify the Principal Agent of the identifying numbers of the
Bonds and the definitive Certificates which are issued and the same shall form
the basis of the records to be kept by the Principal Agent.
|
9.
|
Issue
of Replacement
Certificates
|
|
9.1
|
Stocks
of Certificates
|
From
time
to time after such time (if ever) as Bonds may be transferred into a name other
than that of the holder of the Global Certificate, the Issuer will cause a
sufficient quantity of additional blank Certificates (other than the Global
Certificate) to be available, upon request, to the Registrar at its specified
office for the purpose of delivering replacement Certificates as provided below.
The Issuer will promptly notify the Trustee and the Registrar (and the Paying
Agent, if applicable) if the authorised officer of the Issuer whose facsimile
signature appears on such stocks of replacement Certificates ceases to be so
authorised. In such circumstances the Issuer will promptly, properly and validly
appoint a replacement authorised officer and upon the request of the Registrar
or the Trustee promptly deliver to the Registrar such number of replacement
Certificates as it may reasonably request, duly signed manually or in facsimile
by such replacement authorised officer. Upon receipt of such replacement
Certificates, the Registrar or its agent will be deemed to have been authorised
by the Issuer to destroy any previous replacement Certificates and will notify
the Issuer of such destruction.
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
13
-
|
9.2
|
Replacement
|
The
Registrar will, subject to and in accordance with Condition 17 and the following
provisions of this Clause, authenticate and deliver or cause to be authenticated
and delivered (directly or, if applicable, through the relevant Agent) any
replacement Certificates which the Issuer may determine to issue or deliver
in
place of Certificates which have been mutilated, defaced, lost, stolen or
destroyed. The Registrar will inform the Issuer upon receiving any request
from
a Bondholder (directly or, if applicable, through the relevant Agent) for the
issue of a replacement Certificate.
|
9.3
|
Conditions
of Replacement
|
The
Registrar will verify with the relevant Agent, in the case of an allegedly
lost,
stolen or destroyed Certificate in respect of which the identifying number
is
known or believed to be known, that the Bond in respect of which such
Certificate is issued has not been redeemed or converted or purchased by the
Issuer and cancelled and the Registrar shall not deliver or cause to be
delivered any replacement Certificate unless and until the applicant therefor
shall have:
|
(a)
|
paid
such costs, taxes and duties as may be incurred in connection
therewith;
|
|
(b)
|
furnished
the Registrar (directly or, if applicable, through the relevant Agent)
with such evidence (including evidence as to the identifying number
of the
Certificate in question if known) and indemnity as the Issuer and
the
Registrar may reasonably require;
and
|
|
(c)
|
surrendered
to the Registrar (directly or, if applicable, through the relevant
Agent)
any mutilated or defaced Certificate to be
replaced.
|
|
9.4
|
Cancellation
of Replaced Certificates
|
The
Registrar shall cancel or procure the cancellation of any mutilated or defaced
Certificates surrendered to it for replacement. Unless otherwise instructed
by
the Issuer, the Registrar shall destroy or procure the destruction of such
cancelled Certificates and upon request by the Issuer or the Trustee, furnish
the Issuer, the Trustee and the Principal Agent with a certificate confirming
such destruction and containing the information specified in Clause
8.3.
|
9.5
|
Notification
|
The
Registrar shall, on delivering (either directly or, if applicable, through
the
relevant Agent) any replacement Certificate, forthwith inform the Issuer and
each of the other Agents, of the identifying number of such replacement
Certificate and (if known) of the identifying number of the definitive
Certificate and the relevant Bonds in place of which such replacement
Certificate has been delivered.
|
9.6
|
Records
|
The
Registrar shall keep a full and complete record of all replacement Certificates
delivered (either directly or, if applicable, through the relevant Agent) and
shall make such record available during office hours at all reasonable times
to
the Issuer, the Trustee and the Principal Agent.
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
14
-
|
9.7
|
Notice
of Presentation of Replaced
Certificates
|
Whenever
any Certificates alleged to have been lost, stolen or destroyed in replacement
for which a new Certificate has been issued shall be surrendered or delivered
to
an Agent prior to payment or for conversion, the Agent shall immediately send
notice thereof to the Issuer, the Registrar and the Principal
Agent.
|
10.
|
Duties
of the Transfer Agents in respect of
Transfers
|
If
and to
the extent specified by the Conditions and in accordance therewith and the
terms
of this Agreement or if otherwise requested by the Issuer, each Transfer Agent
will:
|
(a)
|
receive
requests for the transfer of Bonds, inform the Registrar, forward
the
deposited Certificate(s) to the Registrar and assist in the issue
of a new
Certificate in accordance with the Regulations referred to in Clause
13
and in particular forthwith notify the Registrar of (i) the name
and
address of the holder of the Bond, (ii) the identifying number of
the
relevant Certificate and the relevant Bonds, (iii) (where not all
Bonds in
respect of which a Certificate was issued are to be transferred)
the
number of Bonds transferred and their identifying numbers, and (iv)
the
name, address and account for payments (if any) of the transferee
to be
entered on the Register;
|
|
(b)
|
keep
the Registrar informed of all transfers;
and
|
|
(c)
|
carry
out such other acts as may be necessary to give effect to the Conditions
and the other provisions of this
Agreement.
|
|
11.
|
Duties
of the Registrar
|
|
11.1
|
The
Register
|
The
Registrar shall maintain a register (the “Register”)
outside the United Kingdom in accordance with the Conditions and the Regulations
referred to in Clause 13. The Register shall:
|
(a)
|
show
the amount of Bonds and the date of issue and all subsequent transfers
and
changes of ownership in respect thereof and the names and addresses
of the
holders of Bonds;
|
|
(b)
|
at
all reasonable times during office hours be made available to the
Issuer,
the Trustee, the other Agents or any person authorised by any of
them for
inspection and for the taking of copies thereof or extracts therefrom
and
the Registrar shall deliver to such persons all such lists of holders
of
Bonds, their addresses, registered accounts, holdings and other details
as
they may request; and
|
|
(c)
|
include
a record of the identifying number allocated to each Bond and the
identifying number allocated to each definitive Certificate which
is
issued. Each Certificate will carry the identifying number of the
Bond or
Bonds in respect of which it is issued, as well as its own identifying
number.
|
The
Registrar will maintain proper records in relation to the title to any of the
Bonds including all forms of transfer, probates, letters of administration
and
powers of attorney. The provisions set forth in Exhibit D hereto shall apply
in
relation to the maintenance of the Register and the transfer of Bonds. The
Registrar will enter in the Register the details of all redemptions or
conversions or purchases and cancellation of Bonds notified to it as aforesaid
and the Registrar will comply with the proper and reasonable requests of the
Issuer with respect to the maintenance of the Register and will provide to
the
Issuer, the Trustee and other Agents such information with respect thereto
as
may be requested by the Issuer or may be reasonably required by the Trustee
or
the other Agents for the proper performance of their respective
duties.
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
15
-
|
11.2
|
Transfers
|
The
Registrar will receive requests for the transfer of Bonds and will also receive
Certificates deposited with a Transfer Agent for transfer, effect the necessary
entries, authenticate and issue new Certificates in accordance with the
Regulations referred to in Clause 13 and deliver the new Certificate(s) to
the
relevant Agent.
|
11.3
|
Replacement
|
The
Registrar will also have certain duties in connection with the replacement
of
Certificates, which duties are set out in Clause 9.
|
12.
|
Documents
and certificates for the
Registrar
|
|
12.1
|
Supply
of Certificates
|
From
time
to time after such time (if ever) as Bonds may be transferred to a name other
than that of the holder of the Global Certificate, the Issuer will deliver
to
the Registrar and each Transfer Agent in reasonably sufficient time for the
performance of its duties hereunder:
|
(a)
|
a
supply of blank definitive Certificates sufficient to meet the Registrar
and each Transfer Agent’s anticipated requirements as specified by the
Registrar for Certificates upon effecting the transfers required
by the
holder of the Global Certificate;
and
|
|
(b)
|
from
time to time, so long as any Bond is outstanding, sufficient additional
blank definitive Certificates as may be required by the Registrar
for the
performance of the Registrar’s and each Transfer Agent’s
duties.
|
|
12.2
|
Safekeeping
of Certificates
|
Each
Transfer Agent and the Registrar shall maintain in safekeeping all Certificates
and blank Certificates delivered to and held by it and shall ensure that
Certificates are issued only in accordance with the Conditions (including the
provisions of the Global Certificate) and the provisions of this
Agreement.
|
12.3
|
Information
|
Within
seven (7) days of any request therefor by the Issuer or any Agent, so long
as
any of the Bonds are outstanding, each Transfer Agent and the Registrar shall
certify to the Issuer and the relevant Agent the number of blank Certificates
held by it hereunder.
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
16
-
|
13.
|
Information
and regulations concerning the
Bonds
|
|
13.1
|
Provision
of Information
|
Each
Agent will give to the other Agents such further information with regard to
their activities hereunder as may reasonably be required by them for the proper
carrying out of their respective duties.
|
13.2
|
Regulations
|
The
Issuer may, subject to the Conditions, from time to time with the approval
of
the Registrar and the Trustee promulgate regulations (the “Regulations”)
concerning the carrying out of transfers of Bonds and the forms and evidence
to
be provided. All such transfers will be made subject to the Regulations. The
initial Regulations are set out in Exhibit D. The Registrar shall, at the
expense of the Issuer, provide copies of the current Regulations to Bondholders
(free of charge) upon request in accordance with Condition 4(F).
|
14.
|
Remuneration
|
|
14.1
|
Fees
|
The
Issuer will, in respect of the services to be performed by the Principal Agent
and the Registrar and the other Agents under this Agreement, the Conditions
and
the Trust Deed, pay to the Principal Agent the commissions, fees and expenses
as
separately agreed in writing with the Principal Agent. The Principal Agent’s
receipt of such money shall be a complete discharge of the Issuer’s obligation
to pay the same and the Issuer need not concern itself with the apportionment
of
such moneys as between the Principal Agent, the Registrar and the other
Agents.
|
14.2
|
Costs
|
The
Issuer will pay to the Principal Agent all out-of-pocket expenses (including,
without limitation, advertising and insurance expenses and the fees and expenses
of legal advisers) properly incurred by any Agent and the Registrar in
connection with its services performed under this Agreement, the Conditions
and
the Trust Deed promptly upon receipt from the Principal Agent of notification
of
the amount of such expenses together with the relevant invoices and/or
receipts.
|
14.3
|
Distribution
to Agents
|
The
Principal Agent will be responsible for distributing the remuneration of the
Agents and the Registrar and their relevant costs and expenses promptly upon
receipt of the moneys therefor from the Issuer. The Issuer need not be concerned
with the appointment of such moneys as between the Agents.
|
14.4
|
Stamp
Duties
|
The
Issuer will pay or reimburse all stamp, registration and other similar taxes,
fees or duties, if any, to which this Agreement may be subject on execution,
issue, payment or enforcement.
Amended
and Restated
Paying
and Conversion
Agency
Agreement
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|
14.5
|
Obligations
to Survive
|
Any
outstanding obligations of the Issuer to the Agents and the Registrar under
this
Clause 14 shall survive the termination of this Agreement, the Conditions and
the Trust Deed and the resignation or removal of any of the Agents or the
Registrar.
|
15.
|
Funds
held by Principal Agent
|
|
15.1
|
Repayment
|
Any
sums
paid by, or by arrangement with, the Issuer to the Principal Agent pursuant
to
the terms of this Agreement shall not be required to be repaid to the Issuer
unless and until the Bonds in respect of which such sums were paid shall have
been converted or redeemed or purchased and cancelled or claims in respect
of
such sums shall have become prescribed under Condition 14, but in any of these
events the Principal Agent shall (provided that all other amounts due under
this
Agreement shall have been duly paid), save as mentioned below, forthwith repay
to the Issuer upon its written request sums (without interest) equivalent to
the
amounts which would otherwise have been payable on the relevant Bonds together
with any fees previously paid (except for any commissions, fees and expenses
paid by the Issuer pursuant to Clause 14) to the Principal Agent in respect
of
such Bonds.
|
15.2
|
Use
of Moneys
|
The
Principal Agent shall be entitled to deal with moneys paid to it by the Issuer
for the purposes of this Agreement in the same manner as other moneys paid
to a
banker by its customers and shall not be liable to account to the Issuer for
any
interest thereon, save as otherwise agreed between the Issuer and the Principal
Agent. No Agent shall exercise any right of set-off or lien or similar claim
over moneys paid to it or by it under this Agreement. Unless required by law,
moneys held by the Principal Agent need not be segregated.
|
16.
|
Miscellaneous
|
|
16.1
|
Publication
of Notices
|
On
behalf
and at the written request and expense of the Issuer, the Principal Agent will
as soon as practicable cause to be published any notices required to be given
by
the Issuer or the Trustee in accordance with the Trust Deed or any of the
Conditions, save as set out herein. The Issuer shall provide the Principal
Agent
with signed copies of any notices to be published at least five (5) Business
Days prior to the date of publication save and except any announcements, notices
or circulars to be published pursuant to the requirements of the Securities
and
Exchange Commission, AMEX or an Alternative Stock Exchange whereupon such
announcements, notices or circulars shall be given by the Issuer to the
Principal Agent as soon as reasonably practicable after its
publication.
|
16.2
|
Notices
to the Trustee
|
Upon
each
occasion that the Issuer gives to the Trustee any notice in connection with
the
Bonds, the Issuer shall at the same time give a similar notice to the Principal
Agent.
Amended
and Restated
Paying
and Conversion
Agency
Agreement
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18
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|
16.3
|
Voting
|
Each
of
the Agents shall perform the functions described as being performed by it in
Schedule 3 to the Trust Deed and shall keep a full and complete record of forms
of proxy issued by it.
|
16.4
|
No
Implicit Duties
|
The
Agents shall be obliged to perform such duties, and only such duties, as are
herein and in the Conditions specifically set forth, and no implied duties
or
obligations shall be read into this Agreement or the Conditions against any
of
them.
|
16.5
|
No
Agency or Trust
|
In
acting
hereunder and in connection with the Bonds, the Agents shall act solely as
agents of the Issuer (or, where a notice given by the Trustee pursuant to Clause
5.6 shall not have been withdrawn, the Trustee) and will not thereby assume
any
obligations towards, or relationship of agency or trust for, any of the
Bondholders, except as may be required by Section 24.18 of the Trust
Deed.
|
16.6
|
Taking
of Advice
|
Any
of
the Agents may consult with legal or other professional advisers satisfactory
to
it, and the opinion of such advisers shall be full and complete protection
in
respect of any action taken, omitted or suffered hereunder in good faith and
in
accordance with the opinion of such advisers.
|
16.7
|
Liability
|
Save
for
any action taken, suffered or omitted as a result of the Agents’ wilful default,
gross negligence or fraud, the Agents shall be protected and shall incur no
liability for or in respect of any action taken, omitted or suffered in reliance
upon any instruction, request or order from the Issuer or the Trustee, or any
Bond, Certificate, form of transfer, Conversion Notice, resolution, direction,
consent, certificate, affidavit, statement, facsimile transmission, electronic
message or other paper or document reasonably believed by it to be genuine
and
to have been delivered, signed or sent by the proper party or parties. The
Agents shall be under no duty to inquire into or investigate the validity,
accuracy or content of any document. The Agents shall not be under any
obligation to take any action hereunder which may involve it in any expense
or
liability, the payment of which within a reasonable time is not, in its opinion,
assured to it, or would be contrary to applicable law or
regulation.
|
16.8
|
Indemnity
by the Issuer
|
The
Issuer will indemnify each of the Agents against any losses, liabilities, costs,
claims, actions, demands, damages or expenses which it may incur or which may
be
made against it as a result of or in connection with its appointment or the
exercise or non-exercise by it of its powers, discretions and duties, except
those may result from its own fraud, wilful misconduct or gross negligence
or
that of its directors, officers, employees or agents. Each Agent shall, to
the
extent permitted by laws, notify the Issuer promptly of any third party claim
for which it may seek an indemnity from the Issuer and such Agent shall use
its
reasonable endeavours to co-operate with the Issuer in its defence of such
claim. Except in the case of fraud, wilful misconduct or gross negligence on
its
part, no Agent shall be liable either for any act or omission under this
Agreement, or if any Bond, Certificate, form of transfer or Conversion Notice
shall be lost, stolen, destroyed or damaged. Notwithstanding the foregoing,
under no circumstances will the Agents be liable to the Issuer or any other
party to this Agreement for any consequential loss (being loss of business,
goodwill, opportunity or profit) or any special or punitive damages of any
kind
whatsoever; in each case however caused or arising and whether or not
foreseeable, even if advised of the possibility of such loss or damage. The
provisions of this Clause 16.8 shall survive the resignation or removal of
any
Agent or the Registrar and the termination of this Agreement.
Amended
and Restated
Paying
and Conversion
Agency
Agreement
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16.9
|
Entitlement
to Treat Holder as Owner
|
Except
as
ordered by a court of competent jurisdiction or may be required by law, each
of
the Agents shall (whether or not the relevant Bond is overdue and regardless
of
any notice of ownership, trust or any interest, or writing on, or the loss
or
theft of, the Certificate issued in respect of it) be entitled to treat the
registered holder of any Bond as the absolute owner for all
purposes.
|
16.10
|
Copies
of Documents
|
So
long
as any of the Bonds remains outstanding, the Issuer shall provide the Agents
with a sufficient number of copies of the Trust Deed and of each of the
documents which are sent to the Trustee or which are required to be made
available by stock exchange regulations relating to the Bonds, to be available
and, subject to being provided with such copies, each of the Agents will procure
that such copies shall be available at its specified office during normal office
hours for examination by Bondholders and that copies thereof will be furnished
to Bondholders upon request at their own expenses.
|
16.11
|
Acquisition
of Bonds
|
Any
Agent, their affiliates and each of their respective officers, directors and
employees, may become the owner of, or acquire any interest in, any Bonds or
Shares with the same rights that it or they would have if it were not appointed
hereunder, and may engage or be interested in any financial or other transaction
with the Issuer and may act on, or as depositary, trustee or agent for, any
committee or body of holders of Bonds or other obligations of the Issuer as
freely as if it were not appointed hereunder.
|
16.12
|
Merger
|
Any
corporation into which any Agent may be merged or converted or any corporation
with which any Agent may be consolidated or any corporation resulting from
any
merger, conversion or consolidation to which any Agent shall be a party or
any
corporation succeeding to all or substantially all of the corporate trust
business of any Agent shall, to the extent permitted by applicable law, be
the
successor Agent under this Agreement without the execution or filing of any
paper or any further act on the part of any of the parties hereto. Notice of
any
such merger, conversion or consolidation shall forthwith be given to the Issuer,
the Trustee and the Bondholders.
|
16.13
|
Illegality
|
In
the
event that the Agents shall be uncertain as to its duties or rights hereunder
or
shall receive instructions, claims or demands from the Issuer, in its opinion,
conflict with any of the provisions of this Agreement, it shall be entitled
to
refrain from taking any action until it is directed in writing by a final order
or judgment of a court of competent jurisdictions.
Amended
and Restated
Paying
and Conversion
Agency
Agreement
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20
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|
16.14
|
Instruction
in Writing
|
Notwithstanding
anything to the contrary contained in this Agreement, none of the Agents shall
be obliged to act or omit to act in accordance with any instruction, direction
or request delivered to them by the Issuer unless such instruction, direction
or
request is delivered to such Agents in writing.
|
16.15
|
No
Liability for Interest
|
The
Agents shall not be under any liability for interest on any moneys at any time
received by it pursuant to any of the provisions of this Agreement or of the
Bonds and applied by it in accordance with the provisions hereof, except as
otherwise provided hereunder or agreed in writing.
|
16.16
|
Delegations
|
The
Agents may execute any of its powers and perform any of its duties hereunder
directly or through delegates or attorneys and may consult with counsel,
accountants and other skilled persons to be selected and retained by it. The
Agents shall not be liable for the acts of such delegates or attorneys, or
for
anything done, suffered or omitted by it in accordance with the advice or
opinion of any such counsel, accountants or other skilled persons.
|
16.17
|
Expert
Advice
|
The
Agents shall engage and consult, at the expense of the Issuer with any legal
adviser and professional adviser selected by it and rely upon any advice so
obtained and each of the Agents and each of their respective directors,
officers, employees and duly appointed agents shall be protected and shall
not
be liable in respect of any action taken, or omitted to be done or suffered
to
be taken, in accordance with such advice.
|
16.18
|
Force
Majeure
|
Notwithstanding
anything to the contrary in this Agreement, no Agent shall in any event be
liable for any failure or delay in the performance of its obligations hereunder
if it is prevented from so performing its obligations by any circumstances
beyond the control of such Agent, including without limitation, existing or
future law or regulation, any existing or future act of governmental authority,
Act of God, flood, war whether declared or undeclared, terrorism, riot,
rebellion, civil commotion, strike, lockout, other industrial action, general
failure of electricity or other supply, aircraft collision, technical failure,
accidental or mechanical or electrical breakdown, computer failure or failure
of
any money transmission system.
|
16.19
|
Amendments
and/or Modifications
|
This
Agreement may be amended by all of the parties, without the consent of any
Bondholder, either (a) for the purpose of curing any ambiguity or of curing,
correcting or supplementing any defective provision contained in this Agreement
or (b) in any manner which the parties may mutually deem necessary or desirable
and which shall not be inconsistent with the Conditions and shall not be
materially prejudicial to the interests of the Bondholders.
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
21
-
|
16.20
|
Anti-Money
Laundering and Terrorism
|
The
Agents may take and instruct any delegate to take any action which is in its
sole discretion considers appropriate so as to comply with any applicable law,
regulation, request of a public or regulatory authority or any Group policy
which relates to the prevention of fraud, money laundering, terrorism or other
criminal activities or the provision of financial and other services to
sanctioned persons or entities. Such action may include, but is not limited
to,
the interception and investigation of transactions on the Issuer’s accounts
(particularly those involving the international transfer of funds) including
the
source of the intended recipient of fund paid into or out of the Issuer’s
accounts. In certain circumstances, such action may delay or prevent the
processing of the Issuer’s instructions, the settlement of transactions over the
Issuer’s accounts or the Agent’s performance of its obligations under this
Agreement. Where possible, the Agents will endeavour to notify the Issuer of
the
existence of such circumstances. Neither the Agent nor any delegate will be
liable for any loss (whether direct or consequential and including, without
limitation, loss of profit or interest) caused in whole or in part by any
actions which are taken by the Agent or any delegate pursuant to this Clause
16.
For the purposes of this Clause 16.20, the Group means the Issuer, its
Subsidiaries and associated companies.
|
17.
|
Changes
in Agents
|
|
17.1
|
Appointment
and Termination of
Appointment
|
The
Issuer may appoint further or other Agents. The Issuer may also terminate the
appointment of any Agent at any time subject to the prior written approval
of
the Trustee (which approval shall not be unreasonably withheld or delayed).
Such
termination shall be effective by giving:
|
(a)
|
to
the Trustee;
|
|
(b)
|
in
the case of any Agent other than the Principal Agent, to the Principal
Agent; and
|
|
(c)
|
to
the Agent whose appointment is to be
terminated,
|
at
least
thirty (30) days’ written notice to that effect. However, no such notice
relating to the termination of the appointment of the Principal Agent or the
Registrar shall take effect until a new Principal Agent or, as the case may
be,
Registrar approved in writing by the Trustee has been appointed on terms
approved (such approval shall not be unreasonably withheld or delayed) in
writing by the Trustee. The Issuer shall procure that there are at all times
(a)
a Principal Agent, (b) (if requested by the Trustee) a Paying Agent with a
specified office in an European Union member state that will not be obliged
to
withhold or deduct tax pursuant to European Council Directive 2003/48/EC or
any
law implementing or complying with, or introduced in order to conform to, such
Directive and (c) a Registrar which will maintain a register of Bondholders
outside the United Kingdom. The termination of the appointment of any Agent
shall not take effect (i) until notice thereof has given to the Bondholders
in
accordance with Condition 19 and (ii) within the period commencing forty-five
(45) days immediately preceding any due date for a payment in respect of the
Bonds and ending fifteen (15) days after such date.
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
22
-
|
17.2
|
Resignation
|
Any
Agent
may resign from its appointment hereunder at any time by giving to the person(s)
referred to in Clauses 17.1(a) and 17.1(b) and the Issuer at least thirty (30)
days’ written notice to that effect, provided that (a) in the case of the
resignation of the Principal Agent or the Registrar, no such resignation shall
take effect until a new Principal Agent or, as the case may be, Registrar
approved (such approval not to be unreasonably withheld or delayed) in writing
by the Trustee has been appointed by the Issuer on terms approved (such approval
not to be unreasonably withheld or delayed) in writing by the Trustee, (b)
no
such resignation shall take effect unless upon the expiry of the notice period
there are Agents as required by Clause 17.1 and the Conditions, (c) no such
resignation shall take effect until notice thereof shall have been given to
the
Bondholders in accordance with Condition 19 and (d) no such notice shall be
given so as to expire within a period commencing thirty (30) days immediately
preceding any due date for a payment in respect of the Bonds and ending fifteen
(15) days after such date. Notwithstanding the foregoing, the Issuer agrees
with
each Agent that if, by the day falling seven (7) Business Days before the expiry
of any notice referred to above, the Issuer has not appointed a replacement
Agent, then the relevant Agent shall be entitled, on behalf and at the expense
of the Issuer, to appoint in its place any reputable financial institution
of
good standing on terms approved by the Trustee (such approval shall not be
unreasonably withheld or delayed).
Notwithstanding
any other provision of this Clause 17, the appointment of any Agent shall
forthwith terminate if such Agent becomes incapable of acting, is adjudged
bankrupt or insolvent, files a voluntary petition in bankruptcy, makes an
assignment for the benefit of its creditors, consents to the appointment of
a
receiver, administrator or other similar official of all or a substantial part
of its property or assets or admits in writing its inability to pay or meet
its
debts as they mature or suspends payment thereof, or if a resolution is passed
or an order made for the winding up or dissolution of such Agent or any
analogous event occurs under any applicable law.
|
17.3
|
Delivery
of Records by Principal Agent on
Termination
|
If
the
appointment of the Principal Agent ▇▇▇▇▇▇▇▇▇ is terminated or the Principal
Agent resigns from its appointment hereunder, the Principal Agent shall (subject
to payment of all outstanding fees and expenses), on the date on which such
termination or resignation takes effect, pay to the successor Principal Agent
the amounts held by it in respect of Bonds, the Certificates relating thereto
which have not been presented for payment and any other amounts held by it
in
respect of the Bonds and shall deliver to the successor Principal Agent the
Bonds surrendered to it but not yet destroyed, Conversion Notices held by it,
all records concerning the Bonds and the Certificates maintained by the
Principal Agent pursuant to this Agreement, but shall have no other duties
or
responsibilities to provide services as Principal Agent hereunder. The Principal
Agent shall be entitled to the payment by the Issuer of its remuneration for
the
services previously tendered hereunder in accordance with the terms of Clause
14
and to the reimbursement of all reasonable expenses (including legal fees)
incurred in connection therewith.
|
17.4
|
Delivery
of Records by Registrar on
Termination
|
If
the
appointment of the Registrar is terminated or the Registrar resigns its
appointment hereunder, the Registrar shall (subject to payment of all
outstanding fees and expenses), on the date on which such termination or
resignation takes effect, deliver to the successor Registrar, the Register,
all
Certificates and blank Certificates held by it and all other records concerning
the Bonds maintained by it pursuant to this Agreement, but shall have no other
duties or responsibilities to provide services as Registrar
hereunder.
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
23
-
|
17.5
|
Delivery
of Records by Agents on
Termination
|
If
the
appointment of any Agent is terminated or any Agent or the Registrar resigns
its
appointment hereunder, such Agent or the Registrar shall subject to payment
of
all outstanding fees and expenses, on the date on which such termination or
resignation takes effect, deliver to any successor Agent or the Registrar or,
if
none, the Principal Agent any records or other documents concerning the Bonds
maintained by it pursuant to this Agreement, but shall have no other duties
or
responsibilities hereunder.
|
17.6
|
Change
of Office
|
If
any
Agent shall change its specified office, it shall give to the Issuer, the
Principal Agent and the Trustee not less than thirty (30) days’ prior written
notice to that effect specifying the address of the new specified office. As
soon as practicable thereafter, the Principal Agent shall give to the
Bondholders, on behalf of and at the expense of the Issuer, written notice
of
such change and the address of the new specified office in accordance with
Condition 19.
|
18.
|
Notices
|
Any
communication to be made under or in connection with this Agreement shall be
by
letter sent by pre-paid registered post or courier or facsimile
transmission:
|
to
the Issuer:
|
▇▇▇
▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇
▇▇▇▇▇
|
| Telephone no. | : ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇ | |
| Fax no. | : ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇ | |
|
Attention
|
: ▇▇▇ ▇▇
▇▇▇
|
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
24
-
|
to
the Trustee:
|
The
Bank of New York Mellon, London Branch
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
| Fax no.: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ | ||
|
Attention:
Global Corporate Trust
|
||
| With a copy to: | ||
|
|
The
Bank of New York Mellon
Level
12, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇
▇▇▇▇▇’▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇
▇▇▇▇
|
|
| Fax no.: ▇▇▇ ▇▇▇▇ ▇▇▇▇ | ||
| Attention: Corporate Trust | ||
|
to
the Registrar:
|
The
Bank of New York Mellon
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
|
|
| Fax no.: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇/5803 | ||
| Attention: Global Corporate Trust | ||
|
With
a copy to:
|
||
|
The
Bank of New York Mellon
Level
12, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇
▇▇▇▇▇’▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇
▇▇▇▇
|
||
|
Fax
no.: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Attention:
Corporate Trust
|
||
|
and,
in the case of any of the
Paying
Agents, to the Principal
Paying
Agent care of:
|
The
Bank of New York Mellon, London Branch
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
|
|
||
|
Fax
no.: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Attention:
Global Corporate Trust
With
a copy to:
The
Bank of New York Mellon
Level
▇▇, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇
▇▇▇▇▇’▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇
▇▇▇▇
Fax
no.: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Attention:
Corporate Trust
|
||
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
25
-
Any
notice or demand sent by post as provided in this Clause shall be deemed (unless
any relevant part of the postal service is affected by industrial action) to
have been given, made or served three (3) business days (in the case of inland
post) or seven (7) business days (in the case of overseas post) after despatch
and any notice sent by fax as provided in this Clause shall be deemed to have
been given, made or served twenty-four (24) hours after despatch and receipt
of
confirmation of error-free transmission (if received during business hours
and,
if not, on the next Business Day in the place of receipt). Subject thereto,
neither the non-receipt of, nor the time of receiving, any such confirmation
of
a notice given by fax as is referred to above shall invalidate or affect such
notice or the time at which it is deemed as provided above to have been
given.
Any
of
the parties named above may change its address for the purpose of this Clause
by
giving written notice of such change to each of the other parties to this
Agreement.
|
19.
|
Governing
Law And Jurisdiction
|
|
19.1
|
The
provisions of this Agreement are governed by, and shall be construed
in
accordance with, English law.
|
|
19.2
|
Subject
to sub-clause 19.4 below, the Issuer irrevocably agrees for the benefit
of
the Agents and the Trustee that the courts of England are to have
exclusive jurisdiction to settle any dispute which may arise out
of or in
connection with this Agreement and accordingly submit to the exclusive
jurisdiction of the English courts.
|
|
19.3
|
The
Issuer waives any objection to the courts of England on the grounds
that
they are an inconvenient or inappropriate
forum.
|
|
19.4
|
The
Agents may take any suit, action or proceeding arising out of or
in
connection with this Agreement (together referred to as “Proceedings”)
against the Issuer in any other court of competent jurisdiction and
concurrent Proceedings in any number of
jurisdictions.
|
|
19.5
|
The
Issuer irrevocably and unconditionally appoints The London Law
Agency at
its registered office for the time being as its agent for service
of
process in England in respect of any Proceedings and undertakes that
in
the event of it ceasing so to act it will appoint such other person
as the
Trustee may approve as its agent for that
purpose.
|
|
19.6
|
The
Issuer:
|
|
(a)
|
agrees
to procure that, so long as any of the Bonds remain liable to
prescription, there shall be in force an appointment of such a person
approved by the Trustee with an office in London with authority to
accept
service as aforesaid;
|
|
(b)
|
agrees
that failure by any such person to give notice of such service of
process
to the Issuer shall not impair the validity of such service or of
any
judgement based thereon; and
|
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
26
-
|
(c)
|
agrees
that nothing in this Agreement shall affect the right to serve process
in
any other manner permitted by law.
|
|
20.
|
Counterparts
|
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one (1)
instrument.
|
21.
|
Termination
of this Agreement
|
This
Agreement shall terminate forthwith when none of the Bonds remain
outstanding.
|
22.
|
Contracts
(Rights of Third Parties) Act
1999
|
A
person
who is not a party to this Agreement has no rights under the Contracts (Rights
of Third Parties) Act 1999 to enforce any term of these presents, but this
does
not affect any right or remedy of a third party which exists or is available
apart from that Act.
|
23.
|
Invalidity
|
If
any
provision in this Agreement shall be held to be illegal, invalid or
unenforceable, in whole or in part, under any enactment or rule of law, such
provision or part shall to that extent be deemed not to form part of this
Agreement but the legality, validity and enforceability of the remainder of
this
Agreement shall not be affected.
[Remainder
of the page intentionally left blank]
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
27
-
IN
WITNESS WHEREOF
the
parties hereto have executed this Amended and Restated Paying and Conversion
Agency Agreement on the date first above written.
The
Issuer
By:
/s/
▇▇▇ ▇▇▇
▇▇
Name:
▇▇▇
▇▇▇
▇▇
Title:
Chairman
The
Paying Agent, the Conversion Agent and the Transfer Agent
THE
BANK OF NEW YORK MELLON, LONDON BRANCH
By:
/s/
▇▇▇
▇▇▇
Name:
▇▇▇
▇▇▇
Title:
Vice
President
The
Registrar
THE
BANK OF NEW YORK MELLON
By:
/s/
▇▇▇
▇▇▇
Name:
▇▇▇
▇▇▇
Title:
Vice
President
The
Trustee
THE
BANK OF NEW YORK MELLON, LONDON BRANCH
By:
/s/
▇▇▇
▇▇▇
Name:
▇▇▇
▇▇▇
Title:
Vice
President
Amended
and Restated
Paying
and Conversion
Agency
Agreement
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28
-
EXHIBIT
A
CONVERSION
NOTICE
US$20,000,000
12% CONVERTIBLE BONDS DUE 2011
(Please
read the notes overleaf before completing this Notice.)
| Name: ____________________________________________ | Date: _____________________________________ |
| Address: __________________________________________ | Tel No: ____________________________________ |
| *Euroclear/Clearstream Account No.: _____________________ | Fax No: ____________________________________ |
(*delete
as appropriate)
Signature1
:
________________________________
|
To:
|
The
Bank of New York Mellon, London Branch as Principal
Agent
|
|
Fax:
▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
|
|
Attn:
▇▇▇ ▇▇▇▇▇▇▇▇ / ▇▇▇▇ ▇▇▇▇▇▇
|
|
Cc:
|
The
Bank of New York Mellon, Hong Kong
Branch
|
|
Fax:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
|
|
Attn:
Global Corporate Trust
|
|
Cc:
|
China
Architectural Engineering, Inc. (the “Issuer”)
|
I/We,
being the holders of the Bonds specified below, hereby irrevocably elect to
convert such Bonds into fully-paid shares of common stock (the “Shares”)
with a
par value of US$0.001 each of the Issuer in accordance with the terms and
conditions of the Bonds. I/We hereby confirm I/We have paid that all stamp,
issue, documentary, transfer, registration, exercise or other taxes or duties
(if any) (other than any amounts payable by the Issuer in accordance with the
Conditions) which I/We am/are required to pay in accordance with the Conditions
(including without limitation, Condition 6(B)(ii)).
1
Total
principal amount, number and identifying numbers of Bonds to be
converted:
Total
principal amount:
______________________________________________________________________________
Total
number of Bonds:
______________________________________________________________________________
Identifying
numbers of Bonds (if relevant)*:
_______________________________________________________________
|
1
|
Where
the Bonds to be converted are evidenced by the Global Certificate,
the
Conversion Notice need not be signed. In such a case, delivery
of the
Conversion Notice will constitute confirmation by the beneficial
owner of
the Bonds to be converted that the information in the Conversion
Notice is
true and accurate on delivery. If applicable, a corporation should
sign
under hand by an authorised official who must state his/her capacity
and
print the name of the relevant
corporation.
|
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
29
-
Identifying
numbers of Certificates deposited in respect of Bonds to be converted (if
relevant)*: .
____________________________________________________________________________________
N.B.
If
necessary, the identifying numbers of Bonds and Certificates can be attached
separately.
*
Not
required for Bonds represented by a Global Certificate
|
2
|
Name(s)
and address(es) of person(s) in whose name(s) the Shares required
to be
delivered on conversion are to be
registered:
|
Name:
___________________________________________________________________________________________
Address:
_________________________________________________________________________________________
Telephone
Number:
_________________________________________________________________________________
Fax
Number:
_______________________________________________________________________________________
|
3
|
I/We
hereby request that the certificates for the Shares together with
any
other securities, property or cash, including any United States dollar
cheque in respect of payment of an Equivalent Amount pursuant to
Condition
6(B)(iii) required to be delivered upon conversion, be despatched
(at
my/our risk and expense) to the person whose name, contact person,
telephone numbers, fax number and address is given below and in the
manner
specified below:
|
| Name: | ______________________ | |
| Contact Person: | ______________________ | |
| Address: | ______________________ | |
| ______________________ | ||
| ______________________ | ||
| Account No.: | ______________________ | |
| Account Name: | ______________________ | |
| Telephone Number/Fax Number: | ______________________ | |
| Manner of despatch: | ______________________ | |
| The Certificate in respect of the Bonds converted hereby accompanies this Conversion Notice.* | ||
| Name: | ______________________ | |
| Address: | ______________________ | |
| ______________________ | ||
| ______________________ | ||
*
Not
required for ▇▇▇▇▇ represented by the Global Certificate.
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
30
-
|
4
|
The
Issuer has notified the Conversion Agents that the Issuer’s register of
shareholders will be closed on the following
dates:
|
______________________________
______________________________
N.B.
|
(i)
|
This
Conversion Notice will be void unless the introductory details and
Sections 1 to 4 are completed.
|
|
(ii)
|
Your
attention is drawn to Condition 6(B)(ii) of the Bonds with respect
to the
conditions precedent which must be fulfilled before the Bonds specified
above will be treated as effectively eligible for
conversion.
|
|
(iii)
|
Despatch
of share certificates or other securities or property will be made
at the
risk and expense of the converting Bondholder and the converting
Bondholder will be required to submit any necessary documents required
in
order to effect despatch in the manner
specified.
|
|
(iv)
|
If
a retroactive adjustment contemplated by the terms and conditions
of the
Bonds is required in respect of a conversion of Bonds, certificates
for
the additional Shares deliverable pursuant to such retroactive adjustment
(together with any other securities, property or cash) will be delivered
or despatched in the same manner as the Shares, other securities,
property
and cash or, as the case may be, Equivalent Amount previously issued
pursuant to the relevant Conversion
Notice.
|
For
Agent’s use only:
| 1 | (A) | Bond conversion identification reference: |
| (B) | Deposit Date: _____________ |
| (C) | Conversion Date: __________ |
|
2
|
(A)
|
Aggregate
principal amount of Bonds in respect of which Certificates have been
deposited for conversion:
|
| (B) | Conversion Price on Conversion Date: |
| (C) | Number of Shares issuable: |
|
3
|
(if
applicable) amount of cash payment due to converting Bondholder under
Condition 6(A)(ii) in respect of fractions of Shares:
_________
|
_________________________
The
Conversion Agent must complete items 1, 2 and (if applicable) 3.
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
31
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EXHIBIT
B
CONVERSION
AGENT NOTIFICATION
Form
of
notification to be sent by facsimile transmission by an Agent to the Issuer,
and, if different, the Principal Agent - see Clause 6.4(c)(i).
US$20,000,000
12% CONVERTIBLE BONDS DUE 2011
|
To:
|
China
Architectural Engineering, Inc. (the “Issuer”)
(Attention: ▇▇▇ ▇▇ ▇▇▇)
|
|
To:
|
Principal
Agent (Attention: Global Corporate
Trust)
|
Bonds
conversion identification reference: ......../ China Architectural Engineering,
Inc. 12% Convertible Bonds due 2011/.........
(A)
(B)
(C)
(D)
(E)
(F)
(G)
(H)
Regards
[name
of agent]
[Identifying
symbol and number]
Explanation
Against
the letters (A) to (H) inclusive will be inserted the following information
with
respect to the relevant Conversion Notice:
| (A) | = | name and address of converting holder of the Bonds or accountholder of Euroclear or Clearstream or other clearing system in which the Bond is held at such time; |
| (B) | = | total number of Bonds in respect of which a Certificate has been deposited by the same holder of the Bonds; |
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
32
-
| (C) | = | identifying numbers of the Bonds; |
| (D) | = | number of Shares (excluding fractions) issuable to such holder of the Bonds; |
| (E) | = | name(s) and address(es) of person(s) in whose name(s) the Shares issuable upon conversion are to be registered; |
| (F) | = | (if applicable) amount of cash payment due to converting holder of the Bonds in respect of fractions of Shares; |
| (G) | = | the Deposit Date, the Conversion Date and the Conversion Price in respect of the conversion; and |
| (H) | = | name and address of person to whom, and the manner in which, share certificates, in which case a duly completed Delivery Instruction is attached hereto, etc. and, if applicable, a cheque in respect of an Equivalent Amount pursuant to Condition 6(B)(iii) are to be despatched. |
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
33
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EXHIBIT
C
NOTIFICATION
FROM ISSUER
Form
of
notification to be sent by facsimile transmission by the Issuer to the Agent
which has sent the relevant Conversion Notice - see Clause 6.5.
CHINA
ARCHITECTURAL ENGINEERING, INC.
US$20,000,000
12% CONVERTIBLE BONDS DUE 2011
| To: |
The
Bank of New York Mellon, London Branch
as
Agent
|
||||
| Cc: | [ | ] | |||
| Fax: [ | ] | ||||
| To: | [ | ] | (attention: | [ | ]) |
| [ | ] | (attention: | [ | ]) | |
Bond
conversion identification reference
| (A) | |||||
| (B) | (i) | ||||
| (ii) | |||||
| (iii) |
(C)
(D)
Regards
China
Architectural Engineering, Inc.
Explanation
Against
the letters (A) to (D) inclusive will be inserted the following information
with
respect to the delivery of Shares upon conversion:
| (A) | = | the identification code and number of the Agent who forwarded the copy of the Conversion Notice in respect of the Bonds that have been converted; |
| (B) | = | (i) the number of Shares delivered upon conversion; |
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
34
-
| (ii) the amount of cash paid under Condition 6(A)(ii) in respect of fractions of Shares; and; | ||
| (iii) the amount of any other cash (including any Equivalent Amount) received upon conversion. | ||
| (C) | = | the date on which the certificate or certificates for Shares and any securities, property or cash were made available for collection; |
| (D) | = | if applicable, the name and address of the person to whom or to whose order the certificate or certificates for Shares and/or cash. if any, were despatched and the address to which and the manner in which they were despatched. |
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
35
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EXHIBIT
D
REGULATIONS
CONCERNING THE TRANSFER AND REGISTRATION OF BONDS
CHINA
ARCHITECTURAL ENGINEERING, INC.
US$20,000,000
12% CONVERTIBLE BONDS DUE 2011
|
1.
|
Each
Bond shall be in the denomination of US$1,000. Certificates, each
evidencing entitlement to one (1) or more Bonds, shall be issued
in
accordance with the Conditions.
|
|
2.
|
The
Bonds are transferable by execution of the form of transfer on each
Certificate endorsed under the hand of the transferor or, where the
transferor is a corporation, under its common seal or under the hand
of
two (2) of its officers duly authorised in writing. In this Exhibit,
“transferor”
shall, where the context permits or requires, include joint transferors
and be construed accordingly.
|
|
3.
|
The
Certificate issued in respect of the Bond to be transferred must
be
delivered for registration to the office of a Transfer Agent or the
Registrar accompanied by such other evidence (including certificates
and/or legal opinions) as the Transfer Agent or the Registrar may
reasonably require to prove the title of the transferor or his right
to
transfer the Bond and his identity and, if the form of transfer is
executed by some other person on his behalf or in the case of the
execution of a form of transfer on behalf of a corporation by its
officers, the authority of that person or those persons to do so.
The
signature of the person effecting a transfer of a Bond shall conform
to
any list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in
such
other manner as the Agent or Registrar may
require.
|
|
4.
|
The
executors or administrators of a deceased holder of Bonds (not being
one
(1) of several joint holders) and, in the case of the death of one
(1) or
more of joint holders, the survivor or survivors of such joint holders,
shall be the only persons recognised by the Issuer as having any
title to
such Bonds.
|
|
5.
|
Any
person becoming entitled to Bonds in consequence of the death or
bankruptcy of the holder of such Bonds may, upon producing such evidence
that he holds the position in respect of which he proposes to act
under
this paragraph or of his title as the Transfer Agent or the Registrar
shall require (including certificates and/or legal opinions), be
registered himself as the holder of such Bonds or, subject to the
preceding paragraphs as to transfer, may transfer such Bonds. The
Issuer
and the Agents or Registrar may retain any amount payable upon the
Bonds
to which any person is so entitled until such person shall be so
registered or shall duly transfer the
Bonds.
|
|
6.
|
Unless
otherwise requested by him and agreed by the Issuer, a holder of
Bonds
shall be entitled to receive only one (1) Certificate in respect
of his
holding.
|
|
7.
|
The
joint holders of a Bond shall be entitled to one (1) Certificate
only in
respect of their joint holding which shall, except where they otherwise
direct, be delivered to the joint holder whose name appears first
in the
Register in respect of the joint
holding.
|
|
8.
|
The
Issuer, the Registrar and the Transfer Agents shall make no charge
to the
holders for the registration of any holding of Bonds or any transfer
of
Bonds or for the issue of any Certificates or for the delivery of
Certificates at the specified office of the Agent to whom the request
for
registration, transfer or delivery was delivered or by uninsured
post to
the address specified by the holder. If any holder entitled to receive
a
Certificate wishes to have it delivered to him otherwise than at
the
specified office of such Agent or the Registrar, such delivery shall
be
made upon his written request to such Agent or the Registrar, at
his risk
and (except where sent by uninsured post to the address specified
by the
holder) at his expense.
|
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
36
-
|
9.
|
Each
Transfer Agent will within five (5) Business Days of a request to
effect a
transfer of a Bond (or within twenty-one (21) days if the transfer
is of a
Bond represented by the Global Certificate) deliver at its specified
office to the transferee or despatch by mail (at the risk of the
transferee) to such address as the transferee may request, a new
Certificate in respect of the Bond or Bonds transferred. In the case
of a
transfer, conversion or redemption of fewer than all the Bonds in
respect
of which a Certificate is issued, a new Certificate in respect of
the
Bonds not transferred, converted or redeemed will be so delivered
to the
holder to its address appearing on the register of holders of
Bonds.
|
|
10.
|
Notwithstanding
any other provisions of this Agreement, the Registrar shall register
the
transfer of any Bond only upon presentation of an executed and duly
completed form of transfer substantially in the form set forth in
the Form
of Certificate for Definitive Bonds in Schedule 1 to the Trust Deed
or the
Form of Global Certificate in Schedule 2 to the Trust Deed together
with
any other documents thereby
required.
|
|
11.
|
The
Registrar and Transfer Agents may promulgate any other regulations
that
they may deem necessary for the registration and transfer of the
Bonds.
|
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
37
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EXHIBIT
E
FORM
OF BONDHOLDER REDEMPTION NOTICE
CHINA
ARCHITECTURAL ENGINEERING, INC.
US$20,000,000
12% CONVERTIBLE BONDS DUE 2011
[In
the
case of facsimile transmission
| To: | [l] | |
| Cc: | [ | ] |
| Fax: [ | ] |
By
depositing this duly completed Bondholder Redemption Notice with a Paying Agent
for the Bonds the undersigned holder of such of the Bonds as are represented
by
the Certificate surrendered with this Bondholder Redemption Notice and referred
to below irrevocably exercises its option to have such Bonds redeemed on
[ ]
under
Condition [9(D) / 9(E) / 9(F)] *
of the
Bonds.
This
Bondholder Redemption Notice relates to Certificates representing Bonds in
the
aggregate principal amount of US$____________ The identifying numbers of such
Certificates are as follows:
If
any
Certificate issued in respect of the Bonds referred to above is to be returned
(Note 1) to the undersigned under Clause 7.4 of the Paying and Conversion Agency
Agreement entered into by the Issuer in respect of the Bonds, it will be
returned by post to the address of the Bondholder appearing on the register
of
Bondholders.
Payment
in respect of the above-mentioned Bonds will be made in accordance with the
Conditions of the Bonds.
Dated:
Signature:
Name:
_______________________
*
Delete as
applicable.
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
38
-
[To
be completed by recipient Agent]
Received
by: ___________________________________
[Signature
and stamp of Agent]
At
its
office at: __________________________________
On:
___________________________________________
Notes:
|
(1)
|
Certificates
so returned will be sent by post, uninsured and at the risk of the
Bondholder.
|
|
(2)
|
This
Bondholder Redemption Notice is not valid unless all of the paragraphs
requiring completion are duly
completed.
|
|
(3)
|
The
Agent with whom Certificates are deposited will not in any circumstances
be liable to the depositing Bondholder or any other person for any
loss or
damage arising from any act, default or omission of such Agent in
relation
to such Certificates or any of them unless the loss or damage was
caused
by the fraud or gross negligence of such Agent or its directors,
officers
or employees or agents.
|
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
39
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EXHIBIT
F
FORM
OF BONDHOLDER’S TAX ELECTION NOTICE
CHINA
ARCHITECTURAL ENGINEERING, INC.
US$20,000,000
12% CONVERTIBLE BONDS DUE 2011
By
depositing this duly completed Bondholder’s Tax Election Notice with a Paying
Agent for the Bonds the undersigned holder of such of the Bonds as are
surrendered with this Notice and referred to below irrevocably exercises its
option under Condition 9(C) of the Bonds not to have such Bonds redeemed on
the
Tax Redemption Date under Condition 9(C)(i) of the Bonds.
This
Notice relates to Bonds in the aggregate principal amount of US$____________
The
identifying numbers of such Certificates are as follows:
If
any
Certificate issued in respect of the Bonds
referred to above is to be returned(1)
to the
undersigned under Clause 7.3 in Exhibit F of the Paying and Conversion Agency
Agreement entered into by the Issuer in respect of the Bonds, it will be
returned by post to the address of the Bondholder appearing on the register
of
Bondholders.
Payment
in respect of the above-mentioned Bonds will be made in accordance with the
Conditions of the Bonds.
Dated: Signature:
Name:
[To
be
completed by recipient Agent]
Received
by: ___________________________________
[Signature
and stamp of Agent]
At
its
office at: __________________________________
On:
___________________________________________
Notes:
|
(1)
|
Certificates
so returned will be sent by post, uninsured and at the risk of the
Bondholder.
|
|
(2)
|
This
Bondholder’s Tax Election Notice is not valid unless all of the paragraphs
requiring completion are duly
completed.
|
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
40
-
|
(3)
|
The
Agent with whom Certificates are deposited will not in any circumstances
be liable to the depositing Bondholder or any other person for any
loss or
damage arising from any act, default or omission of such Agent in
relation
to such Certificates or any of them unless the loss or damage was
caused
by the fraud or negligence of such Agent or its directors, officers
or
employees or agents.
|
Amended
and Restated
Paying
and Conversion
Agency
Agreement
-
41
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