EXHIBIT 4.1
AGENCY AGREEMENT
DATED 28 NOVEMBER, 2005
KELLOGG EUROPE COMPANY LIMITED
(EURO) 550,000,000
GUARANTEED FLOATING RATE NOTES DUE 2007
▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇ LLP
LONDON
CONTENTS
CLAUSE PAGE
1. Interpretation..............................................................................................
2. Definitions.................................................................................................
3. Appointment of Agents.......................................................................................
4. Authentication and Delivery of Notes........................................................................
5. Payment to the Fiscal Agent.................................................................................
6. Notification of Non-payment by the Issuer or the Guarantor..................................................
7. Duties of the Paying Agents.................................................................................
8. Reimbursement of the Paying Agents..........................................................................
9. Determination and Notification of Rates of Interest, Coupon Amounts and Interest Payment Dates..............
10. Notice of any Withholding or Deduction......................................................................
11. Duties of the Fiscal Agent in connection with Optional Redemption and Redemption for Taxation Reasons.......
12. Receipt and Publication of Notices..........................................................................
13. Cancellation of Notes and Coupons...........................................................................
14. Issue of Replacement Notes and Coupons......................................................................
15. Records and Certificates....................................................................................
16. Copies of this Agreement and the Deed Poll Available for Inspection.........................................
17. Commissions and Expenses....................................................................................
18. Indemnity...................................................................................................
19. Repayment by Fiscal Agent...................................................................................
20. Conditions of Appointment...................................................................................
21. Communication with Agents...................................................................................
22. Termination of Appointment..................................................................................
23. Meetings of Noteholders.....................................................................................
24. Notices.....................................................................................................
25. Taxes and Stamp Duties......................................................................................
26. Counterparts................................................................................................
27. Descriptive Headings........................................................................................
28. Governing law and Submission to Jurisdiction................................................................
29. Amendments..................................................................................................
30. Third Party Rights..........................................................................................
SCHEDULE
1. Part 1 - Form of the Temporary Global Note..................................................................
2. Part 1 - Form of Definitive Note and Coupon.................................................................
Part 2 - Conditions of the Notes............................................................................
3. Form of Guarantee...........................................................................................
4. Provisions for meetings of Noteholders......................................................................
THIS AGREEMENT is dated 28 November, 2005 and made
BETWEEN:
(1) ▇▇▇▇▇▇▇ EUROPE COMPANY LIMITED (the ISSUER);
(2) ▇▇▇▇▇▇▇ COMPANY (the GUARANTOR);
(3) HSBC BANK PLC (the FISCAL AGENT and AGENT BANK); and
(4) HSBC INSTITUTIONAL TRUST SERVICES (IRELAND) LIMITED (as PAYING AGENT)
WHEREAS:
(A) The Issuer has agreed to issue (euro)550,000,000 Guaranteed Floating Rate
Notes due 2007 (the NOTES, which expression shall include, unless the
context otherwise requires, any further Notes issued pursuant to Condition
14 and forming a single series with the Notes).
(B) The Notes will be issued in bearer form in the denomination of
(euro)50,000 each with interest coupons (COUPONS) attached.
(C) The Notes will initially be represented by a temporary Global Note (the
TEMPORARY GLOBAL NOTE) in or substantially in the form set out in Part 1
of Schedule 1 which will be exchanged in accordance with its terms for a
permanent Global Note (the PERMANENT GLOBAL NOTE and, together with the
Temporary Global Note, the GLOBAL NOTES) in or substantially in the form
set out in Part 2 of Schedule 1.
(D) The definitive Notes and Coupons will be in or substantially in the
respective forms set out in Part 1 of Schedule 2. The Conditions of the
Notes (the CONDITIONS) will be in or substantially in the form set out in
Part 2 of Schedule 2.
(E) Payments in respect of the Notes will be unconditionally and irrevocably
guaranteed by the Guarantor as provided in a deed poll (the GUARANTEE)
entered into by the Guarantor substantially in the form set out in
Schedule 3.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 Words and expressions defined in the Conditions and not otherwise defined
in this Agreement shall have the same meanings when used in this
Agreement.
1.2 References in this Agreement to principal and/or interest shall include
any additional amounts payable pursuant to Condition 8.
2. DEFINITIONS
2.1 As used in this Agreement and in the Conditions:
AUTHORISED SIGNATORY means any person who (i) is a Director or officer of
the Issuer or the Guarantor (as the case may be) or (ii) has been notified
by the Issuer or the Guarantor (as the case may be) in writing to the
Fiscal Agent as being duly authorised to sign documents and to
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do other acts and things on behalf of the Issuer or the Guarantor (as the
case may be) for the purposes of this Agreement;
FISCAL AGENT, PAYING AGENTS and AGENT BANK mean and include each Fiscal
Agent, Paying Agent and Agent Bank from time to time appointed to exercise
the powers and undertake the duties conferred and imposed upon it by this
Agreement and notified to the Noteholders under clause 22;
OUTSTANDING means in relation to the Notes all the Notes issued other
than:
(a) those Notes which have been redeemed and cancelled pursuant to
Condition 7 or otherwise pursuant to the Conditions;
(b) those Notes in respect of which the date for redemption under the
Conditions has occurred and the redemption moneys wherefore
(including all interest payable thereon) have been duly paid to the
Fiscal Agent in the manner provided in clause 5 (and, where
appropriate, notice to that effect has been given to the Noteholders
under Condition 12) and remain available for payment against
presentation of the relevant Notes and/or Coupons;
(c) those Notes which have been purchased and cancelled under Condition
7;
(d) those Notes which have become void under Condition 9;
(e) those mutilated or defaced Notes which have been surrendered and
cancelled and in respect of which replacements have been issued
pursuant to Condition 11;
(f) (for the purpose only of ascertaining the principal amount of the
Notes outstanding and without prejudice to the status for any other
purpose of the relevant Notes) those Notes which are alleged to have
been lost, stolen or destroyed and in respect of which replacements
have been issued pursuant to Condition 11; and
(g) the Temporary Global Note to the extent that it has been duly
exchanged for the Permanent Global Note and the Permanent Global
Note to the extent that it has been exchanged for the relative Notes
in definitive form in each case pursuant to their respective
provisions,
provided that for each of the following purposes, namely:
(i) the right to attend and vote at any meeting of the Noteholders or
any of them; and
(ii) the determination of how many and which Notes are for the time being
outstanding for the purposes of paragraphs 4, 7 and 9 of Schedule 4,
those Notes (if any) which are for the time being held by any person
(including but not limited to, the Issuer, the Guarantor or any of the
Guarantor's other Subsidiaries) for the benefit of the Issuer, the
Guarantor or any of the Guarantor's other Subsidiaries shall (unless and
until ceasing to be so held) be deemed not to remain outstanding;
SPECIFIED OFFICE means the offices specified in clause 24 or any other
specified offices as may from time to time be duly notified pursuant to
clause 24; and
TAXES means any present or future taxes, duties, assessments or
governmental charges of whatever nature.
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2.2 (a) In this Agreement, unless the contrary intention appears, a
reference to:
(i) an AMENDMENT includes a supplement, restatement or novation
and AMENDED is to be construed accordingly;
(ii) a PERSON includes any individual, company, unincorporated
association, government, state agency, international
organisation or other entity;
(iii) a provision of a law is a reference to that provision as
extended, amended or re-enacted;
(iv) a clause or schedule is a reference to a clause of, or a
schedule to, this Agreement;
(v) a person includes its successors and assigns;
(vi) a document is a reference to that document as amended from
time to time; and
(vii) a time of day is a reference to London time;
(b) The headings in this Agreement do not affect its interpretation;
(c) All references in this Agreement to costs or charges or expenses
shall include any value added tax or similar tax charged or
chargeable in respect thereof; and
(d) All references in this Agreement to Notes shall, unless the context
otherwise requires, include any Global Note representing the Notes.
3. APPOINTMENT OF AGENTS
3.1 The Issuer and the Guarantor appoint, on the terms and subject to the
conditions of this Agreement:
(a) the Fiscal Agent as fiscal and principal paying agent in respect of
the Notes;
(b) HSBC Institutional Trust Services (Ireland) Limited as paying agent
(together with the Fiscal Agent, the PAYING AGENTS) for the payment
of principal of, and interest on, the Notes; and
(c) the Agent Bank as agent bank for the purpose of determining the
interest payable in respect of the Notes,
in each case acting at its specified office.
3.2 The Fiscal Agent, the other Paying Agents and the Agent Bank are together
referred to as the AGENTS.
4. AUTHENTICATION AND DELIVERY OF NOTES
4.1 The Issuer undertakes that the Permanent Global Note (duly executed on
behalf of the Issuer ) will be available to be exchanged for interests in
the Temporary Global Note in accordance with the terms of the Temporary
Global Note.
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4.2 If a Global Note is to be exchanged in accordance with its terms for
definitive Notes, the Issuer undertakes that it will deliver to, or to the
order of, the Fiscal Agent, as soon as reasonable practicable and in any
event not later than 15 days before the relevant exchange is due to take
place, definitive Notes (with Coupons attached) in an aggregate principal
amount of (euro)550,000,000 or such lesser amount as is the principal
amount of Notes represented by the Global Note to be issued in exchange
for the Global Note. Each definitive Note and Coupon so delivered shall be
duly executed on behalf of the Issuer.
4.3 The Issuer authorises and instructs the Fiscal Agent to authenticate the
Global Notes and any definitive Notes delivered pursuant to subclause 4.2.
4.4 The Issuer authorises and instructs the Fiscal Agent to cause interests in
the Temporary Global Note to be exchanged for interests in the Permanent
Global Note and interests in a Global Note to be exchanged for definitive
Notes in accordance with their respective terms. Following the exchange of
the last interest in a Global Note, the Fiscal Agent shall cause the
Global Note to be cancelled and delivered to the Issuer or as it may
direct.
4.5 The Fiscal Agent shall cause all Notes delivered to and held by it under
this Agreement to be maintained in safe custody and shall ensure that
interests in the Temporary Global Note are only exchanged for interests in
the Permanent Global Note in accordance with the terms of the Temporary
Global Note and this Agreement and that the definitive Notes are issued
only in accordance with the terms of the Global Notes and this Agreement.
4.6 So long as any of the Notes is outstanding the Fiscal Agent shall, within
seven days of any request by the Issuer or the Guarantor, certify to the
Issuer or, as the case may be, the Guarantor the number of definitive
Notes held by it under this Agreement.
5. PAYMENT TO THE FISCAL AGENT
5.1 The Issuer or, failing the Issuer, the Guarantor shall, not later than
10.00 a.m. (London time) on each date on which any payment of principal
and/or interest in respect of any of the Notes becomes due under the
Condition, transfer to an account specified by the Fiscal Agent such
amount of euros as shall be sufficient for the purposes of the payment of
principal and/or interest in immediately available funds.
5.2 The Issuer or, as the case may be, the Guarantor shall ensure that, not
later than the second day on which banks are open for business in London
immediately preceding the date on which any payment is to be made to the
Fiscal Agent pursuant to subclause 5.1, the Fiscal Agent shall receive a
copy of an irrevocable payment instruction to the bank through which the
payment is to be made.
6. NOTIFICATION OF NON-PAYMENT BY THE ISSUER OR THE GUARANTOR
The Fiscal Agent shall notify by SWIFT or facsimile each of the other
Paying Agents forthwith:
(a) if it has not by the relevant date specified in subclause 5.1
received unconditionally the full amount in euros required for the
payment; and
(b) if it receives unconditionally the full amount of any sum due in
respect of the Notes or Coupons after such date.
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The Fiscal Agent shall, at the expense and request of the Issuer or the
Guarantor, forthwith upon receipt of any amount as described in
subparagraph (b), cause notice of that receipt to be published under
Condition 12.
7. DUTIES OF THE PAYING AGENTS
7.1 Subject to the payments to the Fiscal Agent provided for by clause 5 being
duly made, the Paying Agents shall act as paying agents of the Issuer
and/or the Guarantor in respect of the Notes and pay or cause to be paid
on behalf of the Issuer and/or the Guarantor, on and after each date on
which any payment becomes due and payable, the amounts of principal and/or
interest then payable on surrender or, in the case of a Global Note,
endorsement, of Notes or Coupons under the Conditions and this Agreement.
If any payment provided for by clause 5 is made late but otherwise under
the terms of this Agreement the Paying Agents shall nevertheless act as
paying agents following receipt by them of payment.
7.2 If default is made by the Issuer and the Guarantor in respect of any
payment, unless and until the full amount of the payment has been made
under the terms of this Agreement (except as to the time of making the
same) or other arrangements satisfactory to the Fiscal Agent have been
made, neither the Fiscal Agent nor any of the other Paying Agents shall be
bound to act as paying agents.
7.3 Without prejudice to subclauses 7.1 and 7.2, if the Fiscal Agent pays any
amounts to the holders of Notes or Coupons or to any other Paying Agent at
a time when it has not received payment in full in respect of the Notes in
accordance with subclause 5.1 (the excess of the amounts so paid over the
amounts so received being the SHORTFALL), the Issuer (failing which the
Guarantor) will, in addition to paying amounts due under subclause 5.1,
pay to the Fiscal Agent on demand interest (at a rate which represents the
Fiscal Agent's cost of funding the Shortfall) on the Shortfall (or the
unreimbursed portion thereof) until the receipt in full by the Fiscal
Agent of the Shortfall.
7.4 Whilst any Notes are represented by a Global Note, all payments due in
respect of the Notes shall be made to, or to the order of, the holder of
the Global Note, subject to and in accordance with the provisions of the
Global Note. On the occasion of each payment, the Paying Agent to which
the Global Note was presented for the purpose of making the payment shall
cause the appropriate Schedule to the relevant Global Note to be annotated
so as to evidence the amounts and dates of the payments of principal
and/or interest as applicable.
7.5 If on presentation of a Note or Coupon the amount payable in respect of
the Note or Coupon is not paid in full (otherwise than as a result of
withholding or deduction for or on account of any Taxes as permitted by
the Conditions) the Paying Agent to whom the Note or Coupon is presented
shall procure that the Note or Coupon is enfaced with a memorandum of the
amount paid and the date of payment.
8. REIMBURSEMENT OF THE PAYING AGENTS
The Fiscal Agent shall charge the account referred to in clause 5 for all
payments made by it under this Agreement and will credit or transfer to
the respective accounts of the other Paying Agents the amount of all
payments made by them under the Conditions immediately upon notification
from them, subject in each case to any applicable laws or regulations.
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9. DETERMINATION AND NOTIFICATION OF RATES OF INTEREST, COUPON AMOUNTS AND
INTEREST PAYMENT DATES
9.1 The Agent Bank shall determine the Rate of Interest applicable to each
Interest Period and the Coupon Amount payable in respect thereof subject
to and in accordance with the Conditions.
9.2 The Agent Bank shall not be responsible to the Issuer, the Guarantor or
any third party for any failure of the Reference Banks to fulfil their
duties or meet their obligations as Reference Banks or (except in the
event of negligence, wilful default or bad faith) as a result of the Agent
Bank having acted on any certificate given by any Reference Bank which
subsequently may be found to be incorrect.
9.3 The Agent Bank shall notify the Issuer, the Guarantor, the Fiscal Agent
and (so long as the Notes are listed thereon) any stock exchange or other
relevant authority by facsimile of each Rate of Interest, Coupon Amount
and relative Interest Payment Date as soon as practicable after the
determination thereof, and in any event no later than the first day of
each Interest Period and the Fiscal Agent shall promptly notify the other
Paying Agents thereof.
9.4 The Agent Bank shall cause each Rate of Interest, Coupon Amount and
Interest Payment Date to be published in accordance with Condition 12 as
soon as possible after their determination but in no event later than the
second Business Day thereafter (as defined in Condition 5).
9.5 If the Agent Bank does not at any material time for any reason determine
and/or publish the Rate of Interest or Coupon Amount in respect of any
Interest Period as provided in this clause 9 it shall forthwith notify the
Issuer, the Guarantor, and the Fiscal Agent of such fact.
10. NOTICE OF ANY WITHHOLDING OR DEDUCTION
If the Issuer or the Guarantor is, in respect of any payment in respect of
the Notes, compelled to withhold or deduct any amount for or on account of
any Taxes as contemplated by Condition 8, the Issuer or, as the case may
be, the Guarantor shall give notice to the Fiscal Agent as soon as it
becomes aware of the requirement to make the withholding or deduction and
shall give to the Fiscal Agent such information as the Fiscal Agent shall
require to enable it to comply with the requirement.
11. DUTIES OF THE FISCAL AGENT IN CONNECTION WITH OPTIONAL REDEMPTION AND
REDEMPTION FOR TAXATION REASONS
If the Issuer decides to redeem all the Notes for the time being
outstanding under Condition 7, it shall give notice of the decision to the
Fiscal Agent, the Agent Bank and the Noteholders in accordance with the
Conditions.
12. RECEIPT AND PUBLICATION OF NOTICES
12.1 Forthwith upon the receipt by the Fiscal Agent of a demand or notice from
any Noteholder or Couponholder under Condition 10 the Fiscal Agent shall
forward a copy of the demand or notice to the Issuer and to the Guarantor.
12.2 On behalf of and at the request and expense of the Issuer or the
Guarantor, the Fiscal Agent shall cause to be published all notices
required to be given by the Issuer and/or the Guarantor under the
Conditions.
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13. CANCELLATION OF NOTES AND COUPONS
13.1 All Notes which are surrendered in connection with redemption, (together
with all unmatured Coupons attached to or delivered with Notes) and all
Coupons which are paid shall be cancelled by the Paying Agent to which
they are surrendered. Each of the Paying Agents shall give to the Fiscal
Agent details of all payments made by it and shall deliver all cancelled
Notes and Coupons to the Fiscal Agent (or as the Fiscal Agent may
specify). Where Notes are purchased by or on behalf of the Issuer, the
Guarantor or any of the Guarantor's other Subsidiaries, the Issuer or, as
the case may be, the Guarantor, shall procure that the Notes (together
with all unmatured Coupons appertaining to the Notes) are promptly
cancelled and delivered to the Fiscal Agent or its authorised agent.
13.2 The Fiscal Agent or its authorised agent shall (unless otherwise
instructed by the Issuer in writing and save as provided in subclause
15.1) destroy all cancelled Notes and Coupons and furnish the Issuer and
the Guarantor with a certificate of destruction containing written
particulars of the serial numbers of the Notes and the number by maturity
date of Coupons so destroyed.
14. ISSUE OF REPLACEMENT NOTES AND COUPONS
14.1 The Issuer shall cause a sufficient quantity of additional forms of Notes
and Coupons to be available, upon request, to the Fiscal Agent at its
specified office for the purpose of issuing replacement Notes or Coupons
as provided below.
14.2 The Fiscal Agent shall, subject to and in accordance with Condition 11 and
the following provisions of this clause, cause to be authenticated (in the
case only of replacement Notes) and delivered any replacement Notes or
Coupons which the Issuer may determine to issue in place of Notes or
Coupons which have been lost, stolen, mutilated, defaced or destroyed.
14.3 In the case of a mutilated or defaced Note, the Fiscal Agent shall ensure
that (unless otherwise covered by such indemnity as the Issuer may
require) any replacement Note only has attached to it Coupons
corresponding to those attached to the mutilated or defaced Note which is
presented for replacement.
14.4 The Fiscal Agent shall obtain verification, in the case of an allegedly
lost, stolen or destroyed Note or Coupon in respect of which the serial
number is known, that the Note or Coupon has not previously been redeemed
or paid. The Fiscal Agent shall not issue a replacement Note or Coupon
unless and until the applicant has:
(a) paid such expenses and costs as may be incurred in connection with
the replacement;
(b) furnished it with such evidence and indemnity as the Issuer may
reasonably require; and
(c) in the case of a mutilated or defaced Note or Coupon, surrendered it
to the Fiscal Agent.
14.5 The Fiscal Agent shall cancel mutilated or defaced Notes or Coupons in
respect of which replacement Notes or Coupons have been issued pursuant to
this clause. The Fiscal Agent shall furnish the Issuer and the Guarantor
with a certificate stating the serial numbers of the Notes or Coupons
received by it and cancelled pursuant to this clause and shall, unless
otherwise requested by the Issuer or the Guarantor, destroy all those
Notes and Coupons and furnish the Issuer and the Guarantor with a
destruction certificate containing the information specified in subclause
13.2.
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14.6 The Fiscal Agent shall, on issuing any replacement Note or Coupon,
forthwith inform the Issuer and the other Paying Agents of the serial
number of the replacement Note or Coupon issued and (if known) of the
serial number of the Note or Coupon in place of which the replacement Note
or Coupon has been issued. Whenever replacement Coupons are issued under
this clause, the Fiscal Agent shall also notify the other Paying Agents of
the maturity dates of the lost, stolen, mutilated, defaced or destroyed
Coupons and of the replacement Coupons issued.
14.7 Whenever a Note or Coupon for which a replacement Note or Coupon has been
issued and the serial number of which is known is presented to a Paying
Agent for payment, the relevant Paying Agent shall immediately send notice
to the Issuer and the Fiscal Agent.
15. RECORDS AND CERTIFICATES
15.1 The Fiscal Agent shall keep a full and complete record of all Notes and
Coupons (other than serial numbers of Coupons) and of their redemption
and/or purchase by or on behalf of the Issuer, the Guarantor or any of the
Guarantor's other Subsidiaries, cancellation or payment (as the case may
be) and of all replacement Notes or Coupons issued in substitution for
lost, stolen, mutilated, defaced or destroyed Notes or Coupons. The Fiscal
Agent shall at all reasonable times make the records and Coupons (if any)
available to the Issuer and the Guarantor.
15.2 The Fiscal Agent shall give to the Issuer and the Guarantor, as soon as
possible and in any event within four months after the date of redemption,
purchase, payment or replacement of a Note or Coupon (as the case may be),
a certificate stating (a) the aggregate principal amount of Notes which
have been redeemed and the aggregate amount in respect of Coupons which
have been paid, (b) the serial numbers of those Notes in definitive form,
(c) the total number by maturity date of those Coupons, (d) the aggregate
principal amounts of Notes (if any) which have been purchased by or on
behalf of the Issuer, the Guarantor or any of the Guarantor's other
Subsidiaries and cancelled (subject to delivery of the Notes to the Fiscal
Agent) and the serial numbers of such Notes in definitive form and the
total number by maturity date of the Coupons attached to or surrendered
with the purchased Notes.
16. COPIES OF THIS AGREEMENT AND THE GUARANTEE AVAILABLE FOR INSPECTION
16.1 The Guarantee shall be deposited with the Fiscal Agent and shall be held
in safe custody by the Fiscal Agent on behalf of the Noteholders and
Couponholders.
16.2 The Agents shall hold copies of this Agreement, together with copies of
the Guarantee, and any other documents expressed to be held by them in the
Offering Circular dated 24 November, 2005 issued by the Issuer in relation
to the Notes available for inspection by Noteholders and Couponholders.
For this purpose, the Issuer and the Guarantor shall furnish the Agents
with sufficient copies of each of such documents.
17. COMMISSIONS AND EXPENSES
17.1 The Issuer or, failing the Issuer, the Guarantor shall pay to the Fiscal
Agent such commissions in respect of the services of the Agents under this
Agreement as shall be agreed between the Issuer, the Guarantor and the
Fiscal Agent. Neither the Issuer nor the Guarantor shall be concerned with
the apportionment of payment among the Agents.
17.2 The Issuer or, failing the Issuer, the Guarantor shall also pay to the
Fiscal Agent an amount equal to any value added tax which may be payable
in respect of the commissions together
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with all reasonable expenses incurred by the Agents in connection with
their services under this Agreement.
17.3 The Fiscal Agent shall arrange for payment of the commissions due to the
other Agents and arrange for the reimbursement of their expenses promptly
after receipt of the relevant moneys from the Issuer or the Guarantor.
17.4 At the request of the Fiscal Agent, the parties to this Agreement may from
time to time during the continuance of this Agreement review the
commissions agreed initially pursuant to subclause 17.1 with a view to
determining whether the parties can mutually agree upon any changes to the
commissions.
18. INDEMNITY
18.1 The Issuer or, failing the Issuer, the Guarantor undertakes to indemnify
each of the Agents against all losses, liabilities, costs, claims,
actions, damages, expenses or demands which any of them may incur or which
may be made against any of them as a result of or in connection with the
appointment of or the exercise of the powers and duties by any Agent under
this Agreement except as may result from its own wilful default,
negligence or bad faith or that of its directors, officers or employees or
any of them.
18.2 Each of the Agents severally undertakes to indemnify the Issuer and the
Guarantor against all losses, liabilities, costs, claims, actions,
damages, expenses or demands which any of them may incur or which may be
made against any of them as a result of its wilful default, negligence or
bad faith or that of its directors, officers or employees.
18.3 The indemnities set out above shall survive any termination of this
Agreement.
19. REPAYMENT BY FISCAL AGENT
Sums paid by or by arrangement with the Issuer or the Guarantor to the
Fiscal Agent pursuant to the terms of this Agreement shall not be required
to be repaid to the Issuer or the Guarantor unless and until any Note or
Coupon becomes void under the provisions of Condition 9 but in that event
the Fiscal Agent shall forthwith repay to the Issuer or, if so directed by
the Issuer, to the Guarantor sums equivalent to the amounts which would
otherwise have been payable in respect of the relevant Note or Coupon.
20. CONDITIONS OF APPOINTMENT
20.1 Subject as provided in subclause 20.3, the Fiscal Agent shall be entitled
to deal with money paid to it by the Issuer or the Guarantor for the
purposes of this Agreement in the same manner as other money paid to a
banker by its customers and shall not be liable to account to the Issuer
or the Guarantor for any interest or other amounts in respect of the
money. No money held by any Paying Agent need be segregated except as
required by law.
20.2 In acting under this Agreement and in connection with the Notes and the
Coupons the Agents shall act solely as agents of the Issuer and the
Guarantor and will not assume any obligations towards or relationship of
agency or trust for or with any of the owners or holders of the Notes or
the Coupons.
20.3 No Paying Agent shall exercise any right of set-off or lien against the
Issuer, the Guarantor or any holders of Notes or Coupons in respect of any
moneys payable to or by it under the terms of this Agreement.
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20.4 Except as otherwise permitted in the Conditions or as ordered by a court
of competent jurisdiction or required by law or otherwise instructed by
the Issuer or the Guarantor, each of the Agents shall be entitled to treat
the holder of any Note or Coupon as the absolute owner for all purposes
(whether or not the Note or Coupon shall be overdue and notwithstanding
any notice of ownership or other writing on the Note or Coupon or any
notice of previous loss or theft of the Note or Coupon).
20.5 The Agents shall be obliged to perform such duties and only such duties as
are set out in this Agreement and the Notes and no implied duties or
obligations shall be read into this Agreement or the Notes against the
Agents other than the duty to act honestly and in good faith and to
exercise the diligence of a reasonably prudent agent in comparable
circumstances.
20.6 The Fiscal Agent may consult with legal and other professional advisers
and the opinion of the advisers shall be full and complete protection in
respect of action taken, omitted or suffered under this Agreement in good
faith and in accordance with the opinion of the advisers.
20.7 Each of the Agents shall be protected and shall incur no liability for or
in respect of action taken, omitted or suffered in reliance upon any
instruction, request or order from the Issuer or the Guarantor or any
document which it reasonably believes to be genuine and to have been
delivered by the proper party or parties or upon written instructions from
the Issuer or the Guarantor.
20.8 Any of the Agents, their officers, directors or employees may become the
owner of, or acquire any interest in, Notes or Coupons with the same
rights that it or he would have if the Agent concerned were not appointed
under this Agreement, and may engage or be interested in any financial or
other transaction with the Issuer or the Guarantor, and may act on, or as
depositary, trustee or agent for, any committee or body of holders of
Notes or Coupons or other obligations of the Issuer or the Guarantor, as
freely as if the Agent were not appointed under this Agreement.
20.9 The Fiscal Agent shall not be under any obligation to take any action
under this Agreement which it expects will result in any expense or
liability accruing to it, the payment of which within a reasonable time is
not, in its opinion, assured to it.
20.10 The obligations of the Agents hereunder are several and not joint.
21. COMMUNICATION WITH AGENTS
A copy of all communications relating to the subject matter of this
Agreement between the Issuer or the Guarantor and any of the Agents other
than the Fiscal Agent shall be sent to the Fiscal Agent.
22. TERMINATION OF APPOINTMENT
22.1 The Issuer and the Guarantor may terminate the appointment of any Agent at
any time and/or appoint additional or other Agents by giving to the Agent
whose appointment is concerned and, where appropriate, the Fiscal Agent at
least 90 days' prior written notice to that effect, provided that, so long
as any of the Notes is outstanding:
(a) the notice shall not expire less than 45 days before any due date
for the payment of interest; and
10
(b) notice shall be given under Condition 12 at least 30 days before the
removal or appointment of a Paying Agent.
22.2 Notwithstanding the provisions of subclause 22.1, if at any time:
(a) an Agent becomes incapable of acting, or is adjudged bankrupt or
insolvent, or files a voluntary petition in bankruptcy or makes an
assignment for the benefit of its creditors or consents to the
appointment of an administrator, liquidator or administrative or
other receiver of all or any substantial part of its property, or if
an administrator, liquidator or administrative or other receiver of
it or of all or a substantial part of its property is appointed, or
it admits in writing its inability to pay or meet its debts as they
may mature or suspends payment of its debts, or if an order of any
court is entered approving any petition filed by or against it under
the provisions of any applicable bankruptcy or insolvency law or if
a public officer takes charge or control of the Agent or of its
property or affairs for the purpose of rehabilitation,
administration or liquidation; or
(b) in the case of the Agent Bank, it fails to determine the Rate of
Interest, and/or Coupon Amount in respect of any Interest Period as
provided in the Conditions and this Agreement,
the Issuer and the Guarantor may forthwith without notice terminate the
appointment of the Agent, in which event (save with respect to the
termination of the appointment of the Agent Bank) notice shall be given to
the Noteholders under Condition 12 as soon as is practicable.
22.3 The termination of the appointment of an Agent under this Agreement shall
not entitle the Agent to any amount by way of compensation but shall be
without prejudice to any amount then accrued due.
22.4 All or any of the Agents may resign their respective appointments under
this Agreement at any time by giving to the Issuer, the Guarantor and,
where appropriate, the Fiscal Agent at least 90 days' prior written notice
to that effect provided that, so long as any of the Notes is outstanding,
the notice shall not expire less than 45 days before any due date for the
payment of interest. Following receipt of a notice of resignation from a
Paying Agent, the Issuer or, failing the Issuer, the Guarantor shall
promptly, and in any event not less than 30 days before the resignation
takes effect, give notice to the Noteholders under Condition 12. If the
Fiscal Agent shall resign or be removed pursuant to subclauses 22.1 or
22.2 above or in accordance with this subclause 22.4, the Issuer and the
Guarantor shall promptly and in any event within 30 days appoint a
successor (being a leading bank acting through its office in London). If
the Issuer and the Guarantor fail to appoint a successor within such
period, the Fiscal Agent may select a leading bank acting through its
office in London to act as Fiscal Agent hereunder and the Issuer and the
Guarantor shall appoint that bank as the successor Fiscal Agent.
22.5 Notwithstanding the provisions of subclauses 22.1, 22.2 and 22.4, so long
as any of the Notes is outstanding, the termination of the appointment of
an Agent (whether by the Issuer and the Guarantor or by the resignation of
the Agent) shall not be effective unless upon the expiry of the relevant
notice there is:
(a) a Fiscal Agent;
(b) at least one Paying Agent (which may be the Fiscal Agent) having its
specified office in a European city which so long as the Notes are
admitted to official listing on the Irish Stock Exchange, shall be
Dublin or such other place as the Irish Financial Supervisory and
Regulatory Authority may approve;
11
(c) a Paying Agent in a Member State of the European Union that is not
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
(d) an Agent Bank.
22.6 Any successor Agent shall execute and deliver to its predecessor, the
Issuer, the Guarantor and, where appropriate, the Fiscal Agent an
instrument accepting the appointment under this Agreement, and the
successor Agent, without any further act, deed or conveyance, shall become
vested with all the authority, rights, powers, trusts, immunities, duties
and obligations of the predecessor with like effect as if originally named
as an Agent.
22.7 If the appointment of a Paying Agent under this Agreement is terminated
(whether by the Issuer and the Guarantor or by the resignation of the
Paying Agent), the Paying Agent shall on the date on which the termination
takes effect deliver to its successor Paying Agent (or, if none, the
Fiscal Agent) all Notes and Coupons surrendered to it but not yet
destroyed and all records concerning the Notes and Coupons maintained by
it (except such documents and records as it is obliged by law or
regulation to retain or not to release) and pay to its successor Paying
Agent (or, if none, to the Fiscal Agent) the amounts (if any) held by it
in respect of Notes or Coupons which have become due and payable but which
have not been presented for payment, but shall have no other duties or
responsibilities under this Agreement.
22.8 If the Fiscal Agent or any of the other Paying Agents shall change its
specified office, it shall give to the Issuer, the Guarantor and, where
appropriate, the Fiscal Agent not less than 45 days' prior written notice
to that effect giving the address of the new specified office. As soon as
practicable thereafter and in any event at least 30 days before the
change, the Fiscal Agent shall give to the NOTEHOLDERS on behalf of and at
the expense of the Issuer or, failing the Issuer, the Guarantor notice of
the change and the address of the new specified office under Condition 12.
22.9 A corporation into which any Agent for the time being may be merged or
converted or a corporation with which the Agent may be consolidated or a
corporation resulting from a merger, conversion or consolidation to which
the Agent shall be a party 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
to this Agreement. Notice of any merger, conversion or consolidation shall
forthwith be given to the Issuer, the Guarantor and, where appropriate,
the Fiscal Agent.
23. MEETINGS OF NOTEHOLDERS
23.1 The provisions of Schedule 4 shall apply to meetings of the Noteholders
and shall have effect in the same manner as if set out in this Agreement
provided that, so long as any of the Notes are represented by a Global
Note, the expression Noteholders shall include the persons for the time
being shown in the records of Euroclear Bank S.A./N.V., as operator of the
Euroclear System (EUROCLEAR) and/or Clearstream Banking, societe anonyme
(CLEARSTREAM, LUXEMBOURG), as the holders of a particular principal amount
of such Notes (each an ACCOUNTHOLDER) (in which regard a certificate or
other document issued by Euroclear or Clearstream, Luxembourg as to the
principal amount of such Notes standing to the account of any person shall
be conclusive and binding) for all purposes other than with respect to the
payment of principal and interest on such Notes, the right to which shall
be vested as against the Issuer solely in the bearer of each Global Note
in accordance with and subject to its terms, and the expressions HOLDER
and HOLDERS shall be construed accordingly and the expression NOTES shall
mean units of (euro)50,000 principal amount of Notes.
12
23.2 Without prejudice to subclause 23.1, each of the Paying Agents shall, on
the request of any holder of Notes, issue voting certificates and block
voting instructions (as defined in Schedule 4) together, if so required by
the Issuer, with reasonable proof satisfactory to the Issuer of their due
execution on behalf of the Paying Agent under the provisions of Schedule 4
and shall forthwith give notice to the Issuer under Schedule 4 of any
revocation or amendment of a voting certificate or block voting
instruction. Each Paying Agent shall keep a full and complete record of
all voting certificates and block voting instructions issued by it and
shall, not less than 24 hours before the time appointed for holding any
meeting or adjourned meeting, deposit at such place as the Fiscal Agent
shall designate or approve, full particulars of all voting certificates
and block voting instructions issued by it in respect of any meeting or
adjourned meeting.
24. NOTICES
Any notice required to be given under this Agreement to any of the parties
shall be delivered in person, sent by pre-paid post (first class if
inland, first class airmail if overseas) or by facsimile addressed to:
The Issuer: ▇▇▇▇▇▇▇ EUROPE COMPANY LIMITED
Facsimile No: ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Secretary
The Guarantor: ▇▇▇▇▇▇▇ COMPANY
Facsimile No: 1 269 961 3494
Attention: Treasurer
The Fiscal Agent and HSBC BANK PLC
Agent Bank:
Facsimile No: ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇
Attention: The Manager, Operations, Bond
Paying Agency, Corporate
Trust and Loan Agency
The Paying Agent: HSBC INSTITUTIONAL TRUST SERVICES (IRELAND) LIMITED
Facsimile No: ▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
or such other address of which notice in writing has been given to the
other parties to this Agreement under the provisions of this clause.
Any such notice shall take effect, if delivered in person, at the time of
delivery, if sent by post, three days in the case of inland post or seven
days in the case of overseas post after despatch, and, in the case of
SWIFT or facsimile, 24 hours after the time of despatch, provided that in
the case of a notice given by SWIFT or facsimile transmission such notice
shall forthwith be confirmed by post. The failure of the addressee to
receive such confirmation shall not invalidate the relevant notice given
by facsimile.
13
25. TAXES AND STAMP DUTIES
The Issuer or, failing the Issuer, the Guarantor agrees to pay any and all
stamp and other documentary taxes or duties which may be payable in
connection with the execution, delivery, performance and enforcement of
this Agreement by any Agent.
26. COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which, taken together, shall constitute one and the same agreement and any
party may enter into this Agreement by executing a counterpart.
27. DESCRIPTIVE HEADINGS
The descriptive headings in this Agreement are for convenience of
reference only and shall not define or limit the provisions of this
Agreement.
28. GOVERNING LAW AND SUBMISSION TO JURISDICTION
28.1 The provisions of this Agreement are governed by, and shall be construed
in accordance with, English law.
28.2 Subject to subclause 28.4 below, each of the Issuer and the Guarantor
irrevocably agrees for the benefit of the Agents 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.
28.3 Each of the Issuer and the Guarantor waives any objection to the courts of
England on the grounds that they are an inconvenient or inappropriate
forum.
28.4 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 or the Guarantor in any other court of competent
jurisdiction and concurrent Proceedings in any number of jurisdictions.
28.5 Each of the Issuer and the Guarantor irrevocably and unconditionally
appoints Kellogg Marketing & Sales Co. (UK) Limited 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 with an office in
London as its agent for that purpose.
28.6 Each of the Issuer and the Guarantor:
(a) agrees to procure that, so long as any of the Notes remain liable to
prescription, there shall be in force an appointment of such a
person 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 relevant Agent shall not impair the
validity of such service or of any judgment based thereon; and
(c) agrees that nothing in this Agreement shall affect the right to
serve process in any other manner permitted by law.
14
29. AMENDMENTS
This Agreement may be amended by all of the parties, without the consent
of any Noteholder or Couponholder, either for the purpose of curing any
ambiguity or of curing, correcting or supplementing any manifest or proven
error or any other defective provision contained in this Agreement.
30. THIRD PARTY RIGHTS
No rights are conferred on any person under the Contracts (Rights of Third
Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this Agreement, but this does not
affect any right or remedy of any person which exists apart from that Act.
SIGNED by each of the parties (or their duly authorised representatives) on the
date which appears first on page 1.
15
SCHEDULE 1
PART 1
FORM OF THE TEMPORARY GLOBAL NOTE
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(J) AND 1287(A) OF THE INTERNAL REVENUE CODE.
▇▇▇▇▇▇▇ EUROPE COMPANY LIMITED
TEMPORARY GLOBAL NOTE
(EURO)550,000,000
GUARANTEED FLOATING RATE NOTES DUE 2007
UNCONDITIONALLY AND IRREVOCABLY GUARANTEED BY
▇▇▇▇▇▇▇ COMPANY
This temporary Global Note is issued in respect of the (euro)550,000,000
Guaranteed Floating Rate Notes due 2007 (the NOTES) of Kellogg Europe Company
Limited (the ISSUER). The Notes are issued subject to and with the benefit of an
Agency Agreement (the AGENCY AGREEMENT) dated 28 November, 2005, between, among
others, the Issuer, ▇▇▇▇▇▇▇ Company (the GUARANTOR) and HSBC Bank plc as Fiscal
Agent (the FISCAL AGENT) and the Conditions of the Notes (the CONDITIONS) set
out in Part 2 of Schedule 2 to the Agency Agreement. Payments in respect of the
Notes are unconditionally and irrevocably guaranteed by the Guarantor as
provided in a Guarantee dated 28 November, 2005 entered into by the Guarantor by
way of deed poll.
1. PROMISE TO PAY
Subject as provided in this temporary Global Note, the Issuer, for value
received, promises to pay the bearer upon presentation and surrender of
this temporary Global Note the sum of (euro)550,000,000 or such lesser sum
as is equal to the principal amount of the Notes represented by this
temporary Global Note as shown by the latest entry in Part 1 or Part 2 of
the Schedule to this temporary Global Note or such other amounts as are
expressed to be payable in respect of the Notes represented by this
temporary Global Note on early redemption of the Notes on the Interest
Payment Date (as defined in the Conditions) falling in May 2007 or on such
earlier date as the principal or other amounts in respect of this
temporary Global Note may become due under the Conditions and to pay
interest on the principal sum for the time being outstanding at the rate
determined under the Conditions payable quarterly in arrear on each
Interest Payment Date until payment of the principal sum has been made or
duly provided for in full together with any other amounts as may be
payable, all subject to and under the Conditions.
2. EXCHANGE FOR PERMANENT GLOBAL NOTE AND PURCHASES
The permanent Global Note to be issued on exchange for interests in this
temporary Global Note will be substantially in the form set out in Part 2
of Schedule 1 to the Agency Agreement.
16
Subject as provided below, the permanent Global Note will only have an
entry made to represent definitive Notes after the date which is 40 days
after the closing date for the Notes (the EXCHANGE DATE).
Interests in this temporary Global Note may be exchanged for interests in
a duly executed and authenticated permanent Global Note without charge and
the Fiscal Agent or such other person as the Fiscal Agent may direct (the
EXCHANGE AGENT) shall make the appropriate entry on Part 1 of the Schedule
to the permanent Global Note, in full or partial exchange for this
temporary Global Note, in order that the permanent Global Note represents
an aggregate principal amount of Notes equal to the principal amount of
this temporary Global Note submitted for exchange. Notwithstanding the
foregoing, no such entry shall be made on the permanent Global Note unless
there shall have been presented to the Exchange Agent a certificate in
respect of the principal amount of Notes submitted for exchange from
Euroclear Bank S.A./N.V., as operator of the Euroclear System (EUROCLEAR)
or Clearstream Banking, societe anonyme (CLEARSTREAM, LUXEMBOURG)
substantially in the form of the certificate attached as Exhibit A.
Notwithstanding the foregoing, where this temporary Global Note has been
exchanged in part for the permanent Global Note pursuant to the foregoing
and definitive Notes have been issued in exchange for the total amount of
Notes represented by the permanent Global Note pursuant to its terms, then
interests in this temporary Global Note will no longer be exchangeable for
interests in the permanent Global Note but will be exchangeable, in full
or partial exchange, for duly executed and authenticated definitive Notes,
without charge, in the denomination of (euro)50,000 each with interest
coupons attached, such definitive Notes to be substantially in the form
set out in Part 1 of Schedule 2 to the Agency Agreement. Notwithstanding
the foregoing, definitive Notes shall not be so issued and delivered
unless there shall have been presented to the Exchange Agent a certificate
in respect of the principal amount of Notes submitted for exchange from
Euroclear or Clearstream, Luxembourg substantially in the form of the
certificate attached as Exhibit A.
Any person who would, but for the provisions of this temporary Global Note
and of the Agency Agreement, otherwise be entitled to receive either (a)
an interest in the permanent Global Note or (b) definitive Notes shall not
be entitled to require the exchange of an appropriate part of this
temporary Global Note for an interest in the permanent Global Note or
definitive Notes unless and until he shall have delivered or caused to be
delivered to Euroclear or Clearstream, Luxembourg certificate in
substantially the form of the certificate attached as Exhibit B (copies of
which form of certificate will be available at the offices of Euroclear in
Brussels and Clearstream, Luxembourg in Luxembourg and the specified
offices of each Paying Agent named in the Agency Agreement).
Presentation of this temporary Global Note for exchange shall be made by
the bearer hereof on any day (other than a Saturday or Sunday) on which
banks are open for general business in London at the office of the Fiscal
Agent. The aggregate principal amount of interests in the permanent Global
Note or, as the case may be, definitive Notes issued upon an exchange of
this temporary Global Note will, subject to the terms hereof, be equal to
the aggregate principal amount of this temporary Global Note submitted by
the bearer for exchange (to the extent that such principal amount does not
exceed the aggregate principal amount of this temporary Global Note.
Upon (a) any exchange of a part of this temporary Global Note for an
interest in the permanent Global Note or for a definitive Note, (b)
receipt of instructions from Euroclear or Clearstream, Luxembourg that,
following the purchase by or on behalf of the Issuer, the Guarantor or any
of the Guarantor's other subsidiaries of a part of this temporary Global
Note,
17
part is to be cancelled or (c) any redemption of a part of this temporary
Global Note, the portion of the principal amount of this temporary Global
Note so exchanged, cancelled or redeemed shall be entered by or on behalf
of the Fiscal Agent on Part 1 or, as the case may be, Part 2 of the
Schedule to this temporary Global Note, whereupon the principal amount of
this temporary Global Note shall be reduced for all purposes by the amount
so exchanged, cancelled or redeemed and entered. On an exchange in whole
of this temporary Global Note, this temporary Global Note shall be
surrendered to the Fiscal Agent.
3. BENEFITS
Until the entire principal amount of this temporary Global Note has been
extinguished in exchange for the permanent Global Note and/or definitive
Notes, the bearer of this temporary Global Note shall in all respects be
entitled to the same benefits as if he were the bearer of the definitive
Notes referred to above, except that the bearer of this temporary Global
Note shall only be entitled to receive any payment on this temporary
Global Note on presentation of certificates as provided below.
Accordingly, except as ordered by a court of competent jurisdiction or as
required by law or applicable regulation, the Issuer and any Paying Agent
may deem and treat the holder of this temporary Global Note as the
absolute owner of this temporary Global Note for all purposes. All
payments of any amounts payable and paid to such holder shall, to the
extent of the sums so paid, discharge the liability for the moneys payable
on this temporary Global Note and on the relevant definitive Notes and/or
Coupons.
4. PAYMENTS
Payments due in respect of Notes for the time being represented by this
temporary Global Note shall be made to the bearer only upon presentation
by Euroclear or, as the case may be, Clearstream, Luxembourg to the Fiscal
Agent at its specified office of a certificate, substantially in the form
of the certificate attached as Exhibit A, to the effect that Euroclear, or
as the case may be, Clearstream, Luxembourg has received a certificate
substantially in the form of the certificate attached as Exhibit B. The
bearer of this temporary Global Note will not be entitled to receive any
payment of interest due on or after the Exchange Date unless, upon due
certification, exchange of this temporary Global Note is improperly
withheld or refused upon due certification.
Upon any payment in respect of the Notes represented by this temporary
Global Note, the amount so paid shall be entered by or on behalf of the
Fiscal Agent on Part 2 of the Schedule to this temporary Global Note. In
the case of any payment of principal the principal amount of this
temporary Global Note shall be reduced for all purposes by the amount so
paid and the remaining principal amount of this temporary Global Note
shall be entered by or on behalf of the Fiscal Agent on Part 2 of the
Schedule to this temporary Global Note.
5. ACCOUNTHOLDERS
For so long as any of the Notes is represented by this temporary Global
Note or by this temporary Global Note and the permanent Global Note and
such Global Note(s) is/are held on behalf of Euroclear and/or Clearstream,
Luxembourg, each person (other than Euroclear or Clearstream, Luxembourg)
who is for the time being shown in the records of Euroclear and/or
Clearstream, Luxembourg as the holder of a particular principal amount of
Notes (each an ACCOUNTHOLDER) (in which regard any certificate or other
document issued by Euroclear or Clearstream, Luxembourg as to the
principal amount of such Notes standing to the account of any person shall
be conclusive and binding for all purposes) shall be treated as the holder
of that principal amount for all purposes (including but not limited to
for the purposes of any quorum requirements of, or the right to demand a
poll or, meetings of the Noteholders and giving notice to the Issuer
pursuant to Condition 10 other than with respect to the payment of
18
principal and interest on the Notes, the right to which shall be vested,
as against the Issuer, solely in the bearer of this temporary Global Note
in accordance with and subject to its terms. Each Accountholder must look
solely to Euroclear or Clearstream, Luxembourg, as the case may be, for
its share of each payment made to the bearer of this temporary Global
Note.
The Issuer covenants in favour of each Accountholder that it will make all
payments in respect of the principal amount of Notes for the time being
shown in the records of Euroclear and/or Clearstream, Luxembourg as being
held by the Accountholder and represented by this temporary Global Note to
the bearer of this temporary Global Note in accordance with clause 1 above
and acknowledges that each Accountholder may take proceedings to enforce
this covenant and any of the other rights which it has under the first
paragraph of this clause directly against the Issuer.
6. NOTICES
For so long as all of the Notes are represented by this temporary Global
Note or by this temporary Global Note and the permanent Global Note and
such Global Note(s) is/are held on behalf of Euroclear and/Clearstream,
Luxembourg, notices to Noteholders may be given by delivery of the
relevant notice to Euroclear and/or Clearstream, Luxembourg (as the case
may be) for communication to the relative Accountholders rather than by
publication as required by Condition 12; provided that the notice will
comply with the rules and regulations of any stock exchange or other
relevant authority on which the Notes are for the time being listed. Any
such notice shall be deemed to have been given to the Noteholders on the
second day after the day on which such notice is delivered to Euroclear
and/or Clearstream, Luxembourg (as the case may be) as aforesaid.
Whilst any of the Notes held by a Noteholder are represented by a Global
Note, notices to be given by such Noteholder may be given by such
Noteholder (where applicable) through Euroclear and/or Clearstream, as the
Fiscal Agent and Euroclear and/or Clearstream, Luxembourg may approve for
this purpose.
7. PRESCRIPTION
Claims against the Issuer and the Guarantor in respect of principal and
interest on the Notes represented by this temporary Global Note will be
prescribed after 10 years (in the case of principal and five years (in the
case of interest) from the Relevant Date (as defined in Condition 8).
8. EUROCLEAR AND CLEARSTREAM, LUXEMBOURG
Notes represented by this temporary Global Note are transferable in
accordance with the rules and procedures of Euroclear and Clearstream,
Luxembourg, as appropriate. References in this temporary Global Note to
Euroclear and/or Clearstream, Luxembourg shall be deemed to include
references to any other clearing system through which interest in the
Notes are held.
9. AUTHENTICATION
This temporary Global Note shall not become valid or enforceable for any
purpose unless and until it has been authenticated by or on behalf of the
Fiscal Agent.
19
10. CONTRACTS (RIGHT OF THIRD PARTIES) ▇▇▇ ▇▇▇▇
No rights are conferred on any person under the Contracts (Rights of Third
Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this temporary Global Note, but
this does not affect any right or remedy of any person which exists or is
available apart from that Act.
11. GOVERNING LAW
This temporary Global Note is governed by, and shall be construed in
accordance with, English law.
IN WITNESS whereof this temporary Global Note has been executed as a deed on
behalf of the Issuer.
20
EXECUTED as a Deed by ▇▇▇▇▇▇▇ EUROPE )
COMPANY LIMITED
acting by )
and )
EXECUTED as a Deed by ▇▇▇▇▇▇▇ COMPANY )
acting by )
)
Dated -
CERTIFICATE OF AUTHENTICATION
This is the temporary Global Note
described in the Agency Agreement
By or on behalf of
HSBC BANK PLC as Fiscal Agent
(without recourse, warranty or liability)
.........................................
21
THE SCHEDULE
PART 1
EXCHANGES FOR THE PERMANENT GLOBAL NOTE/DEFINITIVE NOTES
AND CANCELLATIONS
The following exchanges of a part of this temporary Global Note for interests in
the permanent Global Note/definitive Notes and cancellations of a part of the
aggregate principal amount of this temporary Global Note have been made:
PART OF THE
AGGREGATE PRINCIPAL
AMOUNT OF THIS
TEMPORARY GLOBAL REMAINING PRINCIPAL
NOTE EXCHANGED FOR PART OF THE AMOUNT OF THIS
INTERESTS IN THE AGGREGATE PRINCIPAL TEMPORARY GLOBAL
PERMANENT GLOBAL AMOUNT OF THIS NOTE FOLLOWING NOTATION MADE BY OR
DATE OF EXCHANGE OR NOTE/DEFINITIVE TEMPORARY GLOBAL EXCHANGE OR ON BEHALF OF THE
CANCELLATION NOTES NOTE CANCELLED CANCELLATION FISCAL AGENT
(EURO) (EURO) (EURO)
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
22
PART 2
PAYMENTS
The following payments in respect of the Notes represented by this temporary
Global Note have been made:
REMAINING PRINCIPAL
AMOUNT OF THIS
TEMPORARY GLOBAL NOTATION MADE BY OR
AMOUNT OF INTEREST AMOUNT OF PRINCIPAL NOTE FOLLOWING ON BEHALF OF THE
DATE OF PAYMENT PAID PAID PAYMENT FISCAL AGENT
(EURO) (EURO) (EURO)
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
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23
EXHIBIT A
KELLOGG EUROPE COMPANY LIMITED
(EURO)550,000,000
GUARANTEED FLOATING RATE NOTES DUE 2007
(the SECURITIES)
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organisations
appearing in our records as persons being entitled to a portion of the principal
amount set forth below (our MEMBER ORGANISATIONS) substantially to the effect
set forth in the Agency Agreement, as of the date hereof, [ ] principal amount
of the above-captioned Securities (a) is owned by persons that are not citizens
or residents of the United States, domestic partnerships, domestic corporations
or any estate or trust the income of which is subject to United States federal
income taxation regardless of its source (UNITED STATES PERSONS), (b) is owned
by United States persons that (i) are foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(iv)) (FINANCIAL INSTITUTIONS) purchasing for their own account or
for resale, or (ii) acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (i) or
(ii), each such United States financial institution has agreed, on its own
behalf or through its agent, that we may advise the Issuer or the Issuer's agent
that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the Internal Revenue Code of 1986, as amended, and the regulations thereunder),
or (c) is owned by United States or foreign financial institutions for purposes
of resale during the restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that United States or
foreign financial institutions described in clause (c) above (whether or not
also described in clause (a) or (b)) have certified that they have not acquired
the Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
As used herein, UNITED STATES means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction; and its POSSESSIONS include Puerto Rico, the
U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
If the Securities are of the category contemplated in Section 230.903(c)(3) of
Regulation S under the Securities Act of 1933, as amended, then this is also to
certify with respect to such principal amount of Securities set forth above
that, except as set forth below, we have received in writing, by tested telex or
by electronic transmission, from our Member Organisations entitled to a portion
of such principal amount, certifications with respect to such portion,
substantially to the effect set forth in the Agency Agreement.
We further certify (a) that we are not making available herewith for exchange
(or, if relevant, exercise of any rights or collection of any interest) any
portion of the temporary global Security excepted in such certifications and (b)
that as of the date hereof we have not received any notification from any of our
Member Organisations to the effect that the statements made by such Member
Organisations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, exercise of any rights or collection of any interest)
are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be
24
relevant, we irrevocably authorise you to produce this certification to any
interested party in such proceedings.
Dated*
EUROCLEAR BANK S.A./N.V.
AS OPERATOR OF THE EUROCLEAR SYSTEM] [CLEARSTREAM BANKING, SOCIETE ANONYME]
By _______________________________
Authorised Signatory
----------
* To be dated no earlier than the date to which this certification relates,
namely (a) the payment date or (b) the date set for the exchange of the
temporary Global Note for an interest in the permanent Global Note.
25
EXHIBIT B
KELLOGG EUROPE COMPANY LIMITED
(EURO)550,000,000
GUARANTEED FLOATING RATE NOTES DUE 2007
(the SECURITIES)
This is to certify that as of the date hereof, and except as set forth below,
the above-captioned Securities held by you for our account (a) are owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
(UNITED STATES PERSON(s)), (b) are owned by United States person(s) that (i) are
foreign branches of United States financial institutions (as defined in U.S.
Treasury Regulations Section 1.165-12(c)(1)(iv)) (FINANCIAL INSTITUTIONS)
purchasing for their own account or for resale, or (ii) acquired the Securities
through foreign branches of United States financial institutions and who hold
the Securities through such United States financial institutions on the date
hereof (and in either case (i) or (ii), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you may
advise the Issuer or the Issuer's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) are owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and in addition if the owner of the Securities is a
United States or foreign financial institution described in clause (c) above
(whether or not also described in clause (a) or (b)) this is further to certify
that such financial institution has not acquired the Securities for the purposes
of resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
If the Securities are of the category contemplated in Section 230.903(c)(3) of
Regulation S under the Securities Act of 1933, as amended (the ACT), then this
is also to certify that, except as set forth below (a) in the case of debt
securities, the Securities are beneficially owned by (i) non-U.S. person(s) or
(ii) U.S. person(s) who purchased the Securities in transactions which did not
require registration under the Act; or (b) in the case of equity securities, the
Securities are owned by (i) non-U.S. person(s) (and such person(s) are not
acquiring the Securities for the account or benefit of U.S. person(s)) or (ii)
U.S. person(s) who purchased the Securities in a transaction which did not
require registration under the Act. If this certification is being delivered in
connection with the exercise of warrants pursuant to Section 230.902(m) of
Regulation S under the Act, then this is further to certify that, except as set
forth below, the Securities are being exercised by and on behalf of non-U.S.
person(s). As used in this paragraph the term U.S. PERSON has the meaning given
to it by Regulation S under the Act.
As used herein, UNITED STATES means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction; and its POSSESSIONS include Puerto Rico, the
U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
We undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the Securities held by
you for our account in accordance with your documented procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
This certification excepts and does not relate to [ ] of such interest in the
above Securities in respect of which we are not able to certify and as to which
we understand exchange and delivery of
26
definitive Securities (or, if relevant, exercise of any rights or collection of
any interest) cannot be made until we do so certify.
We understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorise you to produce this certification to any interested
party in such proceedings.
Dated*
By ______________________________________
Qualified Account Holder
----------
* To be dated no earlier than the fifteenth day before the date to which
this certification relates, namely (a) the payment date or (b) the date
set for the exchange of the temporary Global Note for an interest in the
permanent Global Note.
27
PART 2
FORM OF PERMANENT GLOBAL NOTE
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(J) AND 1287(A) OF THE INTERNAL REVENUE CODE.
▇▇▇▇▇▇▇ EUROPE COMPANY LIMITED
PERMANENT GLOBAL NOTE
(EURO)550,000,000
GUARANTEED FLOATING RATE NOTES DUE 2007
UNCONDITIONALLY AND IRREVOCABLY GUARANTEED BY
▇▇▇▇▇▇▇ COMPANY
This permanent Global Note is issued in respect of the Guaranteed Floating Rate
Notes due 2007 (the NOTES) of ▇▇▇▇▇▇▇ EUROPE COMPANY LIMITED (the ISSUER). The
Notes are initially represented by a temporary Global Note interests in which
will be exchanged in accordance with the terms of the temporary Global Note for
interests in this permanent Global Note and, if applicable, definitive Notes.
The Notes are issued subject to and with the benefit of an Agency Agreement (the
AGENCY AGREEMENT) dated 28 November, 2005 between, among others, the Issuer,
▇▇▇▇▇▇▇ COMPANY (the GUARANTOR) and HSBC Bank plc as Fiscal Agent (the FISCAL
AGENT) and the Conditions of the Notes (the CONDITIONS) set out in Part 2 of
Schedule 2 to the Agency Agreement. Payments in respect of the Notes are
unconditionally and irrevocably guaranteed by the Guarantor as provided in a
guarantee dated 28 November, 2005 entered into by the Guarantor by way of deed
poll.
1. PROMISE TO PAY
Subject as provided in this permanent Global Note, the Issuer, for value
received, promises to pay the bearer upon presentation and surrender of
this permanent Global Note the sum of (euro)550,000,000 (five hundred and
fifty million euros) or such lesser sum as is equal to the principal
amount of the Notes represented by this permanent Global Note as shown by
the latest entry in Part 1, Part 2 or Part 3 of the Schedule to this
permanent Global Note or such other amounts as are expressed to be payable
in respect of the Notes represented by this permanent Global Note on early
redemption of the Notes on the Interest Payment Date (as defined in the
Conditions) falling in May 2007 or on such earlier date as the principal
or other amounts in respect of this permanent Global Note may become due
under the Conditions and to pay interest on the principal sum for the time
being outstanding at the rate determined under the Conditions, payable
quarterly in arrear on each Interest Payment Date until payment of the
principal sum has been made or duly provided for in full together with any
other amounts as may be payable, all subject to and under the Conditions.
28
2. EXCHANGE OF INTERESTS IN THE TEMPORARY GLOBAL NOTE FOR INTERESTS IN THIS
PERMANENT GLOBAL NOTE
Upon any exchange of an interest in the temporary Global Note representing
the Notes for an interest in this permanent Global Note, the Fiscal Agent
shall make the appropriate entry in Part 1 of the Schedule to this
permanent Global Note in order to indicate the principal amount of Notes
represented by this permanent Global Note following such exchange.
3. EXCHANGE FOR DEFINITIVE NOTES AND PURCHASES
Upon the occurrence of an Exchange Event (as further described below),
this permanent Global Note may be exchanged for duly executed and
authenticated definitive Notes without charge and the Fiscal Agent or such
other person as the Fiscal Agent may direct (the EXCHANGE AGENT) shall
deliver, in full (but not in partial) exchange for this permanent Global
Note, an aggregate principal amount of duly executed and authenticated
definitive Notes with Coupons attached equal to the total principal amount
of this permanent Global Note.
An Exchange Event will occur:
(a) if the Issuer has been notified that both Euroclear Bank S.A./N.V.,
operator of the Euroclear System (EUROCLEAR) and Clearstream
Banking, societe anonyme (CLEARSTREAM, LUXEMBOURG) have been closed
for business for a continuous period of 14 days (other than by
reason of holiday, statutory or otherwise) or have announced an
intention permanently to cease business or have in fact done so and
no successor clearing system is available; or
(b) if the Issuer has or will become subject to adverse tax consequences
which would not be suffered were the Notes in definitive form.
The Issuer will promptly give notice to Noteholders if an Exchange Event
occurs. In the case of (a) above the bearer of this permanent Global Note,
acting on the instructions of one or more of the Accountholders (as
defined below), may give notice to the Issuer and the Fiscal Agent and, in
the case of (b) above, the Issuer may give notice to the Fiscal Agent of
its intention to exchange this permanent Global Note for definitive Notes
on or after the Exchange Date (as defined below).
On or after the Exchange Date the holder of this permanent Global Note may
or, in the case of (b) above, shall surrender this permanent Global Note
to or to the order of the Fiscal Agent. In exchange for this permanent
Global Note the Issuer will deliver, or procure the delivery of, an equal
aggregate principal amount of definitive Notes (having attached to them
all Coupons in respect of interest which has not already been paid on this
permanent Global Note), security printed in accordance with any applicable
legal and stock exchange requirements and in or substantially in the form
set out in the Agency Agreement. On exchange of this permanent Global
Note, the Issuer will procure that it is cancelled and, if the holder so
requests, returned to the holder together with any relevant definitive
Notes.
EXCHANGE DATE means a day specified in the notice requiring exchange
falling not less than 30 days after that on which such notice is given,
being a day on which banks are open for general business in the place in
which the specified office of the Fiscal Agent is located and, in the case
of exchange pursuant to (a) above, in the place in which the relevant
clearing system is located.
29
The definitive Notes to be issued on exchange will be in bearer form in
the denomination of (euro)50,000 each with interest coupons (COUPONS)
attached and will be substantially in the form set out in Part 1 of
Schedule 2 to the Agency Agreement.
Upon (a) receipt of instructions from Euroclear and Clearstream,
Luxembourg that, following the purchase by or on behalf of the Issuer, the
Guarantor or any of the Guarantor's other subsidiaries of a part of this
permanent Global Note, part is to be cancelled or (b) any redemption of a
part of this permanent Global Note, the portion of the principal amount of
this permanent Global Note so cancelled or redeemed shall be entered by or
on behalf of the Fiscal Agent on Part 2 of the Schedule to this permanent
Global Note, whereupon the principal amount of this permanent Global Note
shall be reduced for all purposes by the amount so cancelled or redeemed
and entered. On an exchange in whole of this permanent Global Note, this
permanent Global Note shall be surrendered to the Fiscal Agent.
4. BENEFITS
Until the entire principal amount of this permanent Global Note has been
extinguished in exchange for definitive Notes or in any other manner
envisaged by the Conditions, the bearer of this permanent Global Note
shall in all respects be entitled to the same benefits as if he were the
bearer of the definitive Notes referred to above. Accordingly, except as
ordered by a court of competent jurisdiction or as required by law or
applicable regulation, the Issuer and any Paying Agent may deem and treat
the holder of this permanent Global Note as the absolute owner of this
permanent Global Note for all purposes. All payments of any amounts
payable and paid to such holder shall, to the extent of the sums so paid,
discharge the liability for the moneys payable on this permanent Global
Note and on the relevant definitive Notes and/or Coupons.
5. PAYMENTS
Payments due in respect of Notes for the time being represented by this
permanent Global Note shall be made to the bearer of this permanent Global
Note.
Upon any payment in respect of the Notes represented by this permanent
Global Note, the amount so paid shall be entered by or on behalf of the
Fiscal Agent on Part 3 of the Schedule to this permanent Global Note. In
the case of any payment of principal the principal amount of this
permanent Global Note shall be reduced for all purposes by the amount so
paid and the remaining principal amount of this permanent Global Note
shall be entered by or on behalf of the Fiscal Agent on Part 3 of the
Schedule to this permanent Global Note.
6. ACCOUNTHOLDERS
For so long as any of the Notes is represented by this permanent Global
Note or by this permanent Global Note and the temporary Global Note and
such Global Note(s) is/are held on behalf of Euroclear and/or Clearstream,
Luxembourg, each person (other than Euroclear or Clearstream, Luxembourg)
who is for the time being shown in the records of Euroclear and/or
Clearstream, Luxembourg as the holder of a particular principal amount of
Notes (each an ACCOUNTHOLDER) (in which regard any certificate or other
document issued by Euroclear or Clearstream, Luxembourg as to the
principal amount of such Notes standing to the account of any person shall
be conclusive and binding for all purposes) shall be treated as the holder
of that principal amount for all purposes (including but not limited to
for the purposes of any quorum requirements of, or the right to demand a
poll or, meetings of the Noteholders and giving notice to the Issuer
pursuant to Condition 10) other than with respect to the payment of
principal and interest on the Notes, the right to which shall be vested,
as against the Issuer, solely in the bearer of this permanent Global Note
in accordance with and subject to its terms.
30
Each Accountholder must look solely to Euroclear or Clearstream,
Luxembourg, as the case may be, for its share of each payment made to the
bearer of this permanent Global Note.
The Issuer covenants in favour of each Accountholder that it will make all
payments in respect of the principal amount of Notes for the time being
shown in the records of Euroclear and/or Clearstream, Luxembourg as being
held by the Accountholder and represented by this permanent Global Note to
the bearer of this permanent Global Note in accordance with clause 1 above
and acknowledges that each Accountholder may take proceedings to enforce
this covenant and any of the other rights which it has under the first
paragraph of this clause directly against the Issuer.
7. NOTICES
For so long as all of the Notes are represented by this permanent Global
Note or by this permanent Global Note and the temporary Global Note and
such Global Note(s) is/are held on behalf of Euroclear and/Clearstream,
Luxembourg, notices to Noteholders may be given by delivery of the
relevant notice to Euroclear and/or Clearstream, Luxembourg (as the case
may be) for communication to the relative Accountholders rather than by
publication as required by Condition 12; provided that the notice will
comply with the rules and regulations of any stock exchange or other
relevant authority on which the Notes are for the time being listed. Any
such notice shall be deemed to have been given to the Noteholders on the
second day after the day on which such notice is delivered to Euroclear
and/or Clearstream, Luxembourg (as the case may be) as aforesaid.
Whilst any of the Notes held by a Noteholder are represented by a Global
Note, notices to be given by such Noteholder may be given by such
Noteholder (where applicable) through Euroclear and/or Clearstream, as the
Fiscal Agent and Euroclear and/or Clearstream, Luxembourg may approve for
this purpose.
8. PRESCRIPTION
Claims against the Issuer and the Guarantor in respect of principal and
interest on the Notes represented by this permanent Global Note will be
prescribed after 10 years (in the case of principal) and five years (in
the case of interest) from the Relevant Date (as defined in Condition 8).
9. EUROCLEAR AND CLEARSTREAM, LUXEMBOURG
Notes represented by this permanent Global Note are transferable in
accordance with the rules and procedures of Euroclear and Clearstream,
Luxembourg, as appropriate. References in this permanent Global Note to
Euroclear and/or Clearstream, Luxembourg shall be deemed to include
references to any other clearing system through which interests in the
Notes are held.
10. AUTHENTICATION
This permanent Global Note shall not become valid or enforceable for any
purpose unless and until it has been authenticated by or on behalf of the
Fiscal Agent.
11. CONTRACTS (RIGHTS OF THIRD PARTIES) ▇▇▇ ▇▇▇▇
No rights are conferred on any person under the Contracts (Rights of Third
Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this permanent Global Note, but
this does not affect any right or remedy of any person which exists or is
available apart from that Act.
31
12. GOVERNING LAW
This permanent Global Note is governed by, and shall be construed in
accordance with, English law.
IN WITNESS whereof this permanent Global Note has been executed as a deed on
behalf of the Issuer.
32
EXECUTED as a Deed by ▇▇▇▇▇▇▇ EUROPE )
COMPANY LIMITED
acting by )
And )
EXECUTED as a Deed by ▇▇▇▇▇▇▇ COMPANY )
acting by )
)
CERTIFICATE OF AUTHENTICATION
This is the permanent Global Note
described in the Agency Agreement
By or on behalf of
HSBC BANK PLC as Fiscal Agent
(without recourse, warranty or liability)
33
THE SCHEDULE
PART 1
EXCHANGES OF THE TEMPORARY GLOBAL NOTE
The following exchanges of part of the temporary Global Note for interests in
this permanent Global Note have been made.
PART OF AGGREGATE PRINCIPAL AGGREGATE PRINCIPAL AMOUNT
AMOUNT OF THE TEMPORARY OF NOTES REPRESENTED BY NOTATION MADE BY OR ON
GLOBAL NOTE EXCHANGED FOR THIS PERMANENT GLOBAL NOTE BEHALF OF THE FISCAL
DATE OF EXCHANGE THIS PERMANENT GLOBAL NOTE FOLLOWING EXCHANGE AGENT
(EURO) (EURO)
-------------- ----------------- ----------------- -----------------
-------------- ----------------- ----------------- -----------------
-------------- ----------------- ----------------- -----------------
-------------- ----------------- ----------------- -----------------
-------------- ----------------- ----------------- -----------------
-------------- ----------------- ----------------- -----------------
-------------- ----------------- ----------------- -----------------
-------------- ----------------- ----------------- -----------------
-------------- ----------------- ----------------- -----------------
-------------- ----------------- ----------------- -----------------
-------------- ----------------- ----------------- -----------------
-------------- ----------------- ----------------- -----------------
-------------- ----------------- ----------------- -----------------
-------------- ----------------- ----------------- -----------------
-------------- ----------------- ----------------- -----------------
-------------- ----------------- ----------------- -----------------
34
PART 2
EXCHANGES FOR DEFINITIVE NOTES AND CANCELLATIONS
The following exchanges of a part of this permanent Global Note for definitive
Notes and cancellations of a part of the aggregate principal amount of this
permanent Global Note have been made:
REMAINING
PART OF THE AGGREGATE PRINCIPAL AMOUNT
PRINCIPAL AMOUNT OF PART OF THE AGGREGATE OF THIS PERMANENT
THIS PERMANENT GLOBAL PRINCIPAL AMOUNT OF GLOBAL NOTE NOTATION MADE BY
DATE OF EXCHANGE NOTE EXCHANGED FOR THIS PERMANENT GLOBAL FOLLOWING EXCHANGE OR ON BEHALF OF
OR CANCELLATION DEFINITIVE NOTES NOTE CANCELLED OR CANCELLATION THE FISCAL AGENT
(EURO) (EURO) (EURO)
----------- --------------- ------------- ------------- -------------
----------- --------------- ------------- ------------- -------------
----------- --------------- ------------- ------------- -------------
----------- --------------- ------------- ------------- -------------
----------- --------------- ------------- ------------- -------------
----------- --------------- ------------- ------------- -------------
----------- --------------- ------------- ------------- -------------
----------- --------------- ------------- ------------- -------------
----------- --------------- ------------- ------------- -------------
----------- --------------- ------------- ------------- -------------
----------- --------------- ------------- ------------- -------------
----------- --------------- ------------- ------------- -------------
----------- --------------- ------------- ------------- -------------
----------- --------------- ------------- ------------- -------------
----------- --------------- ------------- ------------- -------------
35
PART 3
PAYMENTS
The following payments in respect of the Notes represented by this permanent
Global Note have been made:
REMAINING PRINCIPAL
AMOUNT OF THIS
PERMANENT GLOBAL NOTATION MADE BY
AMOUNT OF PRINCIPAL NOTE FOLLOWING OR ON BEHALF OF
DATE OF PAYMENT AMOUNT OF INTEREST PAID PAID PAYMENT THE FISCAL AGENT
(EURO) (EURO) (EURO)
----------- -------------- ------------- ------------- -------------
----------- -------------- ------------- ------------- -------------
----------- -------------- ------------- ------------- -------------
----------- -------------- ------------- ------------- -------------
----------- -------------- ------------- ------------- -------------
----------- -------------- ------------- ------------- -------------
----------- -------------- ------------- ------------- -------------
----------- -------------- ------------- ------------- -------------
----------- -------------- ------------- ------------- -------------
----------- -------------- ------------- ------------- -------------
----------- -------------- ------------- ------------- -------------
----------- -------------- ------------- ------------- -------------
----------- -------------- ------------- ------------- -------------
----------- -------------- ------------- ------------- -------------
----------- -------------- ------------- ------------- -------------
----------- -------------- ------------- ------------- -------------
36
SCHEDULE 2
PART 2
FORM OF DEFINITIVE NOTE AND COUPON
(Face of Note)
000000 XS0236296660 00 00000
KELLOGG EUROPE COMPANY LIMITED
(incorporated with limited liability in Bermuda)
(EURO)550,000,000
GUARANTEED FLOATING RATE NOTES DUE 2007
UNCONDITIONALLY AND IRREVOCABLY GUARANTEED
AS TO PAYMENT OF PRINCIPAL AND INTEREST BY
▇▇▇▇▇▇▇ COMPANY
(incorporated with limited liability in the State of Delaware)
The issue of the Notes was authorised by a unanimous written resolution of the
Board of Directors of Kellogg Europe Company Limited (the ISSUER) passed on 9
November, 2005 and the giving of the guarantee in respect of the Notes was
authorised by a resolution of the Finance Committee of the Board of Directors of
▇▇▇▇▇▇▇ Company (the GUARANTOR) passed on 28 April, 2005.
This Note forms one of a series of Notes issued as bearer Notes in the
denomination of (euro)550,000,000 each in an aggregate principal amount of
(euro)50,000.
The Issuer for value received and subject to and in accordance with the
Conditions endorsed hereon hereby promises to pay to the bearer on the Interest
Payment Date (as defined in the Conditions endorsed hereon) falling in May 2007
(or on such earlier date as the principal sum (as determined under the
Conditions) may become repayable under the said Conditions) the principal sum
of:
(euro)50,000
together with interest on the principal sum at the rate determined under
Condition 5 payable quarterly in arrear on each Interest Payment Date and
together with such other amounts as may be payable, all subject to and under the
Conditions.
The Notes are issued pursuant to an Agency Agreement (the AGENCY AGREEMENT)
dated 28 November, 2005 between, among others, the Issuer, the Guarantor and
HSBC Bank plc as Fiscal Agent. Payments of principal and interest in respect of
the Notes are unconditionally and irrevocably guaranteed by the Guarantor as
provided in a Guarantee (the GUARANTEE) dated 28 November, 2005 entered into by
the Guarantor. The Notes have the benefit of, and are subject to, the provisions
contained in the Agency Agreement, the Guarantee and the Conditions.
Neither this Note nor any of the Coupons relating to this Note shall become
valid or enforceable for any purpose unless and until this Note has been
authenticated by or on behalf of the Fiscal Agent.
37
IN WITNESS WHEREOF this Note and the Coupons relating to this Note have been
executed on behalf of the Issuer.
Dated as of [ ],
Issued in London, England.
KELLOGG EUROPE COMPANY LIMITED
By:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes described
in the Agency Agreement.
By or on behalf of
HSBC Bank plc as Fiscal Agent
(without recourse, warranty or liability)
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
38
(Reverse of Note)
CONDITIONS OF THE NOTES
(as set out in Part 2 of this Schedule 2)
FISCAL AND PRINCIPAL PAYING AGENT
HSBC BANK PLC
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
OTHER PAYING AGENT
HSBC INSTITUTIONAL TRUST SERVICES (IRELAND) LIMITED
HSBC ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇
and/or such other or further Fiscal Agent or Paying Agents and/or specified
offices as may from time to time be appointed by the Issuer and notice of which
has been given to the Noteholders.
39
FORM OF COUPON
(Face of Coupon)
▇▇▇▇▇▇▇ EUROPE COMPANY LIMITED
(EURO)550,000,000 GUARANTEED FLOATING RATE NOTES DUE 2007
unconditionally and irrevocably guaranteed by
▇▇▇▇▇▇▇ COMPANY
Coupon for the amount due under the Coupon due
Conditions of the Notes on the Interest in [ ],
Payment Date falling in [ ], [ ]. [ ]
This Coupon is payable to bearer, separately negotiable and subject to the
Conditions, under which it may become void before its due date.
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
00 000000 XS0236296660 000000
40
(Reverse of Coupon)
FISCAL AND PRINCIPAL PAYING AGENT:
HSBC BANK PLC
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
OTHER PAYING AGENTS:
HSBC INSTITUTIONAL TRUST SERVICES (IRELAND) LIMITED
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇
41
PART 2
CONDITIONS OF THE NOTES
The following is the text of the Conditions of the Notes which (subject to
modification) will be endorsed on each Note in definitive form:
The (euro)550,000,000 Floating Rate Notes due 2007 (the NOTES, which expression
shall in these Conditions, unless the context otherwise requires, include any
further notes issued pursuant to Condition 14 and forming a single series with
the Notes) of Kellogg Europe Company Limited (the ISSUER) are issued subject to
and with the benefit of an Agency Agreement dated 28 November, 2005 (such
agreement as amended and/or supplemented and/or restated from time to time, the
AGENCY AGREEMENT) made between the Issuer, ▇▇▇▇▇▇▇ Company (the GUARANTOR) as
guarantor, HSBC Bank plc as fiscal agent, principal paying agent and agent bank
(the FISCAL AGENT) and the other initial paying agents named in the Agency
Agreement (together with the Fiscal Agent, the PAYING AGENTS).
The statements in these Conditions include summaries of, and are subject to, the
detailed provisions of and definitions in the Agency Agreement. Copies of the
Agency Agreement are available for inspection during normal business hours by
the Noteholders and holders (the COUPONHOLDERS) of the coupons appertaining to
the Notes (the COUPONS) at the specified office of each of the Paying Agents.
The Noteholders and the Couponholders are entitled to the benefit of, are bound
by, and are deemed to have notice of, all the provisions of the Agency Agreement
applicable to them. References in these Conditions to the Fiscal Agent and the
Paying Agents shall include any successor appointed under the Agency Agreement.
1. FORM, DENOMINATION AND TITLE
1.1 FORM AND DENOMINATION
The Notes are in bearer form, serially numbered, in the denomination of
(euro)50,000 with Coupons attached on issue.
1.2 TITLE
Title to the Notes and to the Coupons will pass by delivery.
1.3 HOLDER ABSOLUTE OWNER
The Issuer, the Guarantor and any Paying Agent may (to the fullest extent
permitted by applicable laws) deem and treat the bearer of any Note or
Coupon as the absolute owner for all purposes (whether or not the Note or
Coupon shall be overdue and notwithstanding any notice of ownership or
writing on the Note or Coupon or any notice of previous loss or theft of
the Note or Coupon).
2. STATUS OF THE NOTES
The Notes and the Coupons are direct, unconditional and (subject to the
provisions of Condition 4) unsecured obligations of the Issuer and
(subject as provided above) rank and will rank pari passu, without any
preference among themselves, with all other outstanding unsecured and
unsubordinated obligations of the Issuer, present and future, but, in the
event of insolvency, only to the extent permitted by applicable laws
relating to creditors' rights.
3. GUARANTEE
3.1 GUARANTEE
The payment of the principal and interest in respect of the Notes has been
unconditionally and irrevocably guaranteed by the Guarantor under a
guarantee (the GUARANTEE) dated 28 November, 2005 and executed by the
Guarantor.
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3.2 STATUS OF THE GUARANTEE
The obligations of the Guarantor under the Guarantee constitute direct,
unconditional and (subject to the provisions of Condition 4) unsecured
obligations of the Guarantor and (subject as provided above) rank and will
rank pari passu with all other outstanding unsecured and unsubordinated
obligations of the Guarantor, present and future, but, in the event of
insolvency, only to the extent permitted by applicable laws relating to
creditors' rights. The original of the Guarantee is held by the Fiscal
Agent on behalf of, and copies are available at its specified office for
inspection by, the Noteholders and Couponholders.
3.3 GUARANTOR MAY CONSOLIDATE, ETC. ON CERTAIN TERMS
Nothing contained in the Guarantee or in these Conditions shall prevent
any consolidation or merger of the Guarantor with or into any other
corporation or corporations (whether or not affiliated with the
Guarantor), or successive consolidations or mergers in which the Guarantor
or its successor or successors shall be a party or parties, or shall
prevent any sale, conveyance or lease of all or substantially all the
property of the Guarantor to any other corporation (whether or not
affiliated with the Guarantor) authorised to acquire and operate the same;
provided, however, which the Guarantor has covenanted in the Guarantee,
that upon any such consolidation, merger, sale, conveyance or lease, other
than a merger in which the Guarantor is the continuing corporation, the
due and punctual performance and observance of all of the covenants and
conditions under the Guarantee to be performed by the Guarantor shall be
expressly assumed by the corporation (if other than the Guarantor) formed
by such consolidation, or into which the Guarantor shall have been merged,
or by the corporation which shall have acquired or leased such property.
3.4 SUCCESSOR CORPORATION SUBSTITUTED
In case of any such consolidation, merger, sale or conveyance, and
following such an assumption by the successor corporation, such successor
corporation shall succeed to and be substituted for the Guarantor, with
the same effect as if it had been named in the Guarantee.
In case of any such consolidation, merger, sale, lease or conveyance such
changes in phraseology and form (but not in substance) may be made in the
Guarantee, the Notes and Coupons, if any, appertaining thereto, thereafter
to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by
way of lease) the Guarantor or any successor corporation which shall have
become such in the manner described in this Condition 3 shall be
discharged from all obligations and covenants under the Guarantee or in
these Conditions and may be liquidated and dissolved.
4. LIMITATION ON LIENS; LIMITATION ON SALE AND LEASEBACK
4.1 INTERPRETATION
In these Conditions:
(a) RESTRICTED SUBSIDIARY means any Subsidiary (i) substantially all the
property of which is located within the continental United States of
America, (ii) which owns a Principal Property, and (iii) in which
the Guarantor's investment, direct or indirect and whether in the
form of equity, debt or advances, as shown on the consolidating
balance sheet used in the preparation of the latest quarterly
consolidated financial statements of the Guarantor preceding the
date of determination, is in excess of 1 per cent. of the total
consolidated assets of the Guarantor as shown on such quarterly
consolidated financial statements; provided, however, that the term
RESTRICTED SUBSIDIARY shall not include any Subsidiary which is
principally engaged in leasing or in financing instalment
receivables or which is principally engaged in financing the
Guarantor's operations outside the continental United States of
America.
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(b) SUBSIDIARY means any corporation which is consolidated in the
Guarantor's accounts and any corporation of which at least a
majority of the outstanding stock having by the terms thereof
ordinary voting power to elect a majority of the board of directors
of such corporation (irrespective of whether or not at the time
stock of any other class or classes of such corporation shall have
or might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned or
controlled by the Guarantor, or by one or more Subsidiaries, or by
the Guarantor and one or more Subsidiaries.
(c) PRINCIPAL PROPERTY means any manufacturing plant or facility which
is located within the continental United States of America and is
owned by the Guarantor or any Restricted Subsidiary, except any such
plant or facility which the Board of Directors of the Guarantor or
any committee of such Board duly authorised to act hereunder (the
BOARD OF DIRECTORS) by resolution declares is not of material
importance to the total business conducted by the Guarantor and its
Restricted Subsidiaries as an entirety and which, when taken
together with all other plants and facilities as to which such a
declaration has been made, are so declared by the Board of Directors
to be not of material importance to the total business conducted by
the Guarantor and its Restricted Subsidiaries as an entirety.
4.2 LIMITATION ON LIENS
(a) The Guarantor will not, nor will it permit any Restricted Subsidiary
to, issue, assume or guarantee any indebtedness for money borrowed
(DEBT), secured by a mortgage, security interest, pledge, lien or
other encumbrance (a MORTGAGE) upon any Principal Property of the
Guarantor or any Restricted Subsidiary or upon any shares of stock
or indebtedness of any Restricted Subsidiary (whether such Principal
Property, shares of stock or indebtedness are now owned or hereafter
acquired) without in any such case effectively providing
concurrently with the issuance, assumption or guarantee of any such
Debt that the Guarantee (together with, if the Guarantor shall so
determine, any other indebtedness of or guaranteed by the Guarantor
or such Restricted Subsidiary ranking equally with the Guarantee and
then existing or thereafter created) shall be secured equally and
rateably with (or, at the option of the Guarantor, prior to) such
Debt for so long as such Debt shall be so secured; provided,
however, that the foregoing restrictions shall not apply to Debt
secured by:
(i) mortgages on property, shares of stock or indebtedness
(PROPERTY) of any corporation existing at the time such
corporation becomes a Restricted Subsidiary;
(ii) mortgages on property existing at the time of acquisition of
the affected property by the Guarantor or a Restricted
Subsidiary, or mortgages to secure the payment of all or any
part of the purchase price of such property upon the
acquisition of such property by the Guarantor or a Restricted
Subsidiary or to secure any Debt incurred by the Guarantor or
a Restricted Subsidiary prior to, at the time of, or within
360 days after the later of the acquisition, the completion of
construction (including any improvements on an existing
property) or the commencement of commercial operation of such
property, which Debt is incurred for the purpose of financing
all or any part of the purchase price thereof or construction
or improvements thereon; provided, however, that in the case
of any such acquisition, construction or improvement the
mortgage shall not apply to any property theretofore owned by
the Guarantor or a Restricted Subsidiary, other than, in the
case of any such construction or improvement, any real
property on which the property so constructed or the
improvement is located, which in the opinion of the Board of
Directors was, prior to such construction or improvement,
substantially unimproved for the use intended by the Guarantor
or such Restricted Subsidiary;
(iii) mortgages on property of a Restricted Subsidiary securing Debt
owing to the Guarantor or to another Restricted Subsidiary;
(iv) mortgages on property of a corporation existing at the time
such corporation is merged into or consolidated with the
Guarantor or a Restricted Subsidiary or at the time of a
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sale, lease or other disposition of the properties of a
corporation or firm as an entirety or substantially as an
entirety to the Guarantor or a Restricted Subsidiary provided,
however, that any such mortgages do not attach to or affect
property theretofore owned by the Guarantor or such Restricted
Subsidiary;
(v) mortgages on property owned or leased by the Guarantor or a
Restricted Subsidiary in favour of the United States of
America or any State thereof, or any department, agency or
instrumentality or political subdivision of the United States
of America or any State thereof, or in favour of any other
country or any political subdivision thereof, or in favour of
holders of securities issued by any such entity, pursuant to
any contract or statute (including, without limitation,
mortgages to secure Debt of the pollution control or
industrial revenue bond type) or to secure any indebtedness
incurred for the purpose of financing all or any part of the
purchase price or the cost of construction of the property
subject to such mortgages;
(vi) mortgages existing at the date of issue of the Notes;
(vii) landlords' liens on fixtures located on premises leased by the
Guarantor or a Restricted Subsidiary in the ordinary course of
business;
(viii) mortgages on property of the Guarantor or a Restricted
Subsidiary to secure partial, progress, advance or other
payments or any Debt insured for the purpose of financing all
or any part of the purchase price or the cost of construction,
development, or substantial repair, alteration or improvement
of the property subject to such mortgages if the commitment
for the financing is obtained not later than one year after
the later of the completion of or the placing into operation
(exclusive of test and start-up periods) of such constructed,
developed, repaired, altered or improved property;
(ix) mortgages arising in connection with contracts and
subcontracts with or made at the request of the United States
of America, or any state thereof, or any department, agency or
instrumentality of the United States or any state thereof;
(x) mechanics', materialman's, carriers' or other like liens
arising in the ordinary course of business (including
construction of facilities) in respect of obligations which
are not due or which are being contested in good faith;
(xi) any mortgage arising by reason of deposits with, or the giving
of any form of security to, any governmental agency or any
body created or approved by law or governmental regulations,
which is required by law or governmental regulation as a
condition to the transaction of any business, or the exercise
of any privilege, franchise or licence;
(xii) mortgages for taxes, assessments or governmental charges or
levies not yet delinquent, or mortgages for taxes, assessments
or governmental charges or levies already delinquent but the
validity of which is being contested in good faith;
(xiii) mortgages (including judgment liens) arising in connection
with legal proceedings so long as such proceedings are being
contested in good faith and, in the case of judgment liens,
execution thereon is stayed; or
(xiv) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of
any mortgage referred to in the foregoing clauses (i) to
(xiii), inclusive, provided, however, that the principal
amount of Debt secured thereby shall not exceed the principal
amount of Debt so secured at the time of such extension,
renewal or replacement mortgage, and that such extension,
renewal or replacement mortgage shall be limited to all or a
part of the property which secured the mortgage so extended,
renewed or replaced (plus improvements on such property).
(b) Notwithstanding the foregoing provisions of this Condition 4, the
Guarantor and any one or more Restricted Subsidiaries may issue,
assume or guarantee Debt secured by mortgages which
45
would otherwise be subject to the foregoing restrictions in an
aggregate amount which, together with all other Debt of the
Guarantor and its Restricted Subsidiaries which (if originally
issued, assumed or guaranteed at such time) would otherwise be
subject to the foregoing restrictions (not including Debt permitted
to be secured under clauses (i) through (xiv) above), does not at
the time exceed 10 per cent. of Consolidated Total Assets, as shown
on the latest quarterly consolidated financial statements of the
Guarantor preceding the date of determination.
CONSOLIDATED TOTAL ASSETS means, as at any particular time, the total
amount of assets (less applicable reserves) as shown in the latest
quarterly consolidated balance sheet of the Guarantor contained in the
Guarantor's then most recent annual report to stockholders or quarterly
report filed with the Securities and Exchange Commission (or other body
which assumes the duties currently assigned to the Securities and Exchange
Commission under the United States Securities Exchange Act of 1934), as
the case may be, except that assets shall include an amount equal to the
Attributable Debt in respect of any Sale and Lease-Back Transaction (each
as defined in Condition 4.3) not capitalised on such balance sheet.
4.3 LIMITATION ON SALE AND LEASE-BACK
The Guarantor will not, nor will it permit any Restricted Subsidiary to,
enter into any arrangement with any person providing for the leasing by
the Guarantor or any Restricted Subsidiary of any Principal Property of
the Guarantor or any Restricted Subsidiary (whether such Principal
Property is now owned or hereafter acquired) (except for temporary leases
for a term of not more than three years and except for leases between the
Guarantor and a Restricted Subsidiary or between Restricted Subsidiaries),
which Principal Property has been or is to be sold or transferred by the
Guarantor or such Restricted Subsidiary to such person (herein referred to
as a SALE AND LEASE-BACK TRANSACTION), unless (a) the Guarantor or such
Restricted Subsidiary would be entitled, pursuant to the provisions of
Condition 4.2, to issue, assume or guarantee Debt secured by a mortgage
upon such Principal Property at least equal in amount to the Attributable
Debt in respect of such arrangement without equally and rateably securing
the Notes, provided, however, that from and after the date on which such
arrangement becomes effective the Attributable Debt in respect of such
arrangement shall be deemed for all purposes under Condition 4.2 or 4.3 to
be Debt subject to the provisions of Condition 4.2; or (b) the Guarantor
shall apply an amount in cash equal to the Attributable Debt in respect of
such arrangement to the retirement (other than any mandatory retirement or
by way of payment at maturity), within 120 days of the effective date of
any such arrangement, of Debt of the Guarantor or any Restricted
Subsidiary (other than Debt owned by the Guarantor or any Restricted
Subsidiary and other than Debt of the Guarantor which is subordinated to
the Notes) which by its terms matures at or is extendible or renewable at
the option of the obligor to a date more than twelve months after the date
of the creation of such Debt.
The term ATTRIBUTABLE DEBT shall mean the present value (discounted at the
actual percentage rate inherent in such arrangement as determined in good
faith by the Guarantor, compounded semi-annually) of the obligation of a
lessee for rental payments during the remaining term of any lease
(including any period for which such lease has been extended). Such rental
payments shall not include amounts payable by the lessee for maintenance
and repairs, insurance, taxes, assessments and similar charges and for
contingent rents (such as those based on sales). In case of any lease
which is terminable by the lessee upon the payment of a penalty, such
rental payments shall also include such penalty, but no rent shall be
considered as required to be paid under such lease subsequent to the first
date upon which it may be so terminated. Any determination of any actual
percentage rate inherent in any such arrangement made in good faith by the
Guarantor shall be binding and conclusive.
5. INTEREST
5.1 INTEREST PAYMENT DATES
The Notes bear interest on their outstanding principal amount from and
including 28 November, 2005 (the INTEREST COMMENCEMENT DATE), and interest
will be payable on 28 February, 28 May, 28 August
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and 28 November in each year (each an INTEREST PAYMENT DATE) save that, if
any Interest Payment Date would otherwise fall on a day which is not a
Business Day, it shall be postponed to the next day which is a Business
Day unless it would then fall into the next calendar month, in which event
the Interest Payment Date shall be brought forward to the immediately
preceding Business Day.
5.2 INTEREST ACCRUAL
Each Note will cease to bear interest from and including the due date for
redemption unless, upon due presentation, payment of the principal in
respect of the Note is improperly withheld or refused or unless default is
otherwise made in respect of the payment. In such event, interest will
continue to accrue until whichever is the earlier of:
(a) the date on which all amounts due in respect of such Note have been
paid; and
(b) five days after the date on which the full amount of the moneys
payable in respect of such Notes has been received by the Fiscal
Agent and notice to that effect has been given to the Noteholders in
accordance with Condition 12.
5.3 RATE OF INTEREST
The rate of interest payable from time to time in respect of the Notes
(the RATE OF INTEREST) will be determined on the basis of the following
provisions:
(a) On each Interest Determination Date, the Fiscal Agent or its duly
appointed successor (in such capacity, the AGENT BANK) will
determine the Screen Rate at approximately 11.00 a.m. (Brussels
time) on that Interest Determination Date. If the Screen Rate is
unavailable, the Agent Bank will request the principal Euro-zone
office of each of the Reference Banks to provide the Agent Bank with
the rate at which deposits in euro are offered by it to prime banks
in the Euro-zone interbank market for three months at approximately
11.00 a.m. (Brussels time) on the Interest Determination Date in
question and for a Representative Amount.
(b) The Rate of Interest for the Interest Period shall be the Screen
Rate plus the Margin or, if the Screen Rate is unavailable, and at
least two of the Reference Banks provide such rates, the arithmetic
mean (rounded if necessary to the fifth decimal place, with 0.000005
being rounded upwards) as established by the Agent Bank of such
rates, plus the Margin.
(c) If fewer than two rates are provided as requested, the Rate of
Interest for that Interest Period will be the arithmetic mean of the
rates quoted by major banks in the Euro-zone, selected by the Agent
Bank, at approximately 11.00 a.m. (Brussels time) on the first day
of such Interest Period for loans in euro to leading European banks
for a period of three months commencing on the first day of such
Interest Period and for a Representative Amount, plus the Margin. If
the Rate of Interest cannot be determined in accordance with the
above provisions, the Rate of Interest shall be determined as at the
last preceding Interest Determination Date.
(d) In these Conditions (except where otherwise defined), the
expression:
(i) BUSINESS DAY means a day which is both a day on which
commercial banks and foreign exchange markets settle payments
and are open for general business (including dealing in
foreign exchange and foreign currency deposits) in London and
a TARGET Settlement Day;
(ii) EURO-ZONE means the region comprised of the member states of
the European Union that have adopted the single currency in
accordance with the Treaty establishing the European Community
(signed in Rome on 25 March, 1957) as amended;
(iii) INTEREST DETERMINATION DATE means the second TARGET Settlement
Day before the commencement of the Interest Period for which
the rate will apply;
47
(iv) INTEREST PERIOD means the period from and including the
Interest Commencement Date to but excluding the first Interest
Payment Date, and each successive period from and including an
Interest Payment Date to but excluding the next succeeding
Interest Payment Date;
(v) MARGIN means 0.12 per cent. per annum;
(vi) REFERENCE BANKS means the principal Euro-zone office of each
of four major banks engaged in the Euro-zone interbank market
selected by the Agent Bank and approved by the Guarantor
provided that, once a Reference Bank has been selected by the
Agent Bank and approved by the Guarantor, that Reference Bank
shall not be changed unless and until it ceases to be capable
of acting as such;
(vii) REPRESENTATIVE AMOUNT means, in relation to any quotation of a
rate for which a Representative Amount is relevant, an amount
that is representative for a single transaction in the
relevant market at the relevant time;
(viii) SCREEN RATE means the rate for three month deposits in euro
which appears on the Telerate Page 3750 (or such replacement
page on that service which displays the information); and
(ix) TARGET SETTLEMENT DAY means any day on which the
Trans-European Automated Real-Time Gross Settlement Express
Transfer (TARGET) System is open.
5.4 DETERMINATION OF RATE OF INTEREST AND INTEREST AMOUNT
The Agent Bank shall, as soon as practicable after 11.00 a.m. (Brussels
time) on each Interest Determination Date, but in no event later than the
third Business Day thereafter, determine the euro amount (the INTEREST
AMOUNT) payable in respect of interest on each (euro)50,000 principal
amount of Notes for the relevant Interest Period. The Interest Amount
shall be determined by applying the Rate of Interest to such principal
amount, multiplying the sum by the actual number of days in the Interest
Period concerned divided by 360 and rounding the resultant figure to the
nearest cent (half a cent being rounded upwards).
5.5 PUBLICATION OF RATE OF INTEREST AND INTEREST AMOUNT
The Agent Bank shall cause the Rate of Interest and the Interest Amount
for each Interest Period and the relative Interest Payment Date to be
notified to the Issuer, the Guarantor, the Fiscal Agent and to any stock
exchange or other relevant authority on which the Notes are at the
relevant time listed (by no later than the first day of each Interest
Period) and to be published in accordance with Condition 12 as soon as
possible after their determination, and in no event later than the second
Business Day thereafter. The Interest Amount and Interest Payment Date may
subsequently be amended (or appropriate alternative arrangements made by
way of adjustment) without notice in the event of an extension or
shortening of the Interest Period.
5.6 NOTIFICATIONS, ETC. TO BE FINAL
All notifications, opinions, determinations, certificates, calculations,
quotations and decisions given, expressed, made or obtained for the
purposes of the provisions of this Condition, whether by the Reference
Banks (or any of them) or the Agent Bank, will (in the absence of wilful
default, bad faith or manifest error) be binding on the Issuer, the
Guarantor, the Agents and all Noteholders and Couponholders and (in the
absence of wilful default, bad faith or manifest error) no liability to
the Issuer, the Guarantor or the Noteholders or the Couponholders shall
attach to the Reference Banks (or any of them), the Agent Bank in
connection with the exercise or non-exercise by it of its powers, duties
and discretions under this Condition.
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5.7 AGENT BANK
The Issuer shall procure that, so long as any of the Notes remains
outstanding, there is at all times an Agent Bank for the purposes of the
Notes and the Issuer may terminate the appointment of the Agent Bank. In
the event of the appointed office of any bank being unable or unwilling to
continue to act as the Agent Bank or failing duly to determine the Rate of
Interest and the Interest Amount for any Interest Period, the Issuer shall
appoint a Euro-zone office of another major bank engaged in the Euro-zone
interbank market to act in its place. The Agent Bank may not resign its
duties or be removed without a successor having been appointed.
6. PAYMENTS
6.1 PAYMENTS IN RESPECT OF NOTES
Payments of principal and interest in respect of each Note will be made
against presentation and surrender (or, in the case of part payment only,
endorsement) of the Note, except that payments of interest due on an
Interest Payment Date will be made against presentation and surrender (or,
in the case of part payment only, endorsement) of the relevant Coupon, in
each case at the specified office outside the United States of any of the
Paying Agents.
6.2 METHOD OF PAYMENT
Payments will be made by credit or transfer to a euro account (or any
other account to which euro may be credited or transferred) specified by
the payee or, at the option of the payee, by euro cheque.
6.3 MISSING UNMATURED COUPONS
Upon the date on which any Note becomes due and repayable, all unmatured
Coupons appertaining to the Note (whether or not attached) shall become
void and no payment shall be made in respect of such Coupons.
6.4 PAYMENTS SUBJECT TO APPLICABLE LAWS
Payments in respect of principal and interest on Notes are subject in all
cases to any fiscal or other laws and regulations applicable in the place
of payment, but without prejudice to the provisions of Condition 8.
6.5 PAYMENT ONLY ON A PRESENTATION DATE
A holder shall be entitled to present a Note or Coupon for payment only on
a Presentation Date and shall not, except as provided in Condition 5, be
entitled to any further interest or other payment if a Presentation Date
is after the due date.
In this Condition:
BUSINESS DAY means, in relation to any place, a day on which commercial
banks and foreign exchange markets settle payments and are open for
general business (including dealing in foreign exchange and foreign
currency deposits) in that place and TARGET SETTLEMENT DAY means any day
on which the Trans-European Automated Real-Time Gross Settlement Express
Transfer (TARGET) system is open; and
PRESENTATION DATE means a day which (subject to Condition 9):
(a) is or falls after the relevant due date;
(b) is a Business Day in the place of the specified office of the Paying
Agent at which the Note or Coupon is presented for payment; and
49
(c) in the case of payment by credit or transfer to a euro account as
referred to above, is a TARGET Settlement Day.
6.6 INITIAL PAYING AGENTS
The names of the initial Paying Agents and their initial specified offices
are set out at the end of these Conditions. The Issuer and the Guarantor
reserve the right at any time to vary or terminate the appointment of any
Paying Agent and to appoint additional or other Paying Agents provided
that:
(a) there will at all times be a Fiscal Agent;
(b) there will at all times be at least one Paying Agent (which may be
the Fiscal Agent) having its specified office in a European city
which so long as the Notes are admitted to official listing on the
Irish Stock Exchange shall be Dublin or such other place as the
Irish Financial Supervisory and Regulatory Authority may approve;
and
(c) the Issuer undertakes that it will ensure that it maintains a Paying
Agent in a Member State of the European Union that is not 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.
Notice of any termination or appointment and of any changes in specified
offices given to the Noteholders promptly by the Issuer in accordance with
Condition 12.
7. REDEMPTION AND PURCHASE
7.1 REDEMPTION AT MATURITY
Unless previously redeemed or purchased and cancelled as provided below,
the Issuer will redeem the Notes at their principal amount on the Interest
Payment Date falling in May 2007.
7.2 REDEMPTION FOR TAXATION REASONS
If:
(a) as a result of any change in, or amendment to, the laws or
regulations of a Relevant Jurisdiction (as defined in Condition
8.2(b)), or any change in the official application or interpretation
of the laws or regulations of a Relevant Jurisdiction, or any action
taken by any taxing authority of a Relevant Jurisdiction which
change or amendment or action becomes effective, or action is taken
or becomes generally known, after 24 November, 2005, on the next
Interest Payment Date either (i) the Issuer would be required to pay
additional amounts as provided or referred to in Condition 8 or (ii)
the Guarantor would be unable for reasons outside its control to
procure payment by the Issuer and in making payment itself would be
required to pay such additional amounts; and
(b) the requirement cannot be avoided by the Issuer or, as the case may
be, the Guarantor taking reasonable measures available to it,
the Issuer may at its option, having given not less than 30 nor more than
60 days' notice to the Noteholders in accordance with Condition 12 (which
notice shall be irrevocable), redeem all the Notes, but not some only, on
the next Interest Payment Date at their principal amount. Prior to the
publication of any notice of redemption pursuant to this paragraph, the
Issuer shall deliver to the Fiscal Agent a certificate signed by two
Directors of the Issuer or, as the case may be, the Guarantor stating that
the requirement referred to in (a) above will apply on the next Interest
Payment Date and cannot be avoided by the Issuer or, as the case may be,
the Guarantor taking reasonable measures available to it (in the terms
referred to in (b) above) and an opinion of independent legal advisers of
recognised standing to the effect that the Issuer or, as the case may be,
the Guarantor has or will become obliged to pay such additional amounts as
a result of the change or amendment or action.
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7.3 REDEMPTION AT THE OPTION OF THE ISSUER
The Issuer may, having given:
(a) not less than 15 nor more than 30 days' notice to the Noteholders in
accordance with Condition 12; and
(b) notice to the Fiscal Agent not less than 15 days before the giving
of the notice referred to in (a);
(which notices shall be irrevocable and shall specify the date fixed for
redemption), redeem all or some only of the Notes on the Interest Payment
Date falling in November 2006 or February 2007 at their principal amount.
7.4 PURCHASES
The Issuer, the Guarantor or any of the Guarantor's other Subsidiaries (as
defined above) may at any time purchase Notes (provided that all unmatured
Coupons appertaining to the Notes are purchased with the Notes) in any
manner and at any price.
7.5 CANCELLATIONS
All Notes which are (a) redeemed or (b) purchased at the option of the
Issuer/Guarantor by or on behalf of the Issuer, the Guarantor or any of
the Guarantor's other Subsidiaries will forthwith be cancelled, together
with all relative unmatured Coupons attached to the Notes or surrendered
with the Notes, and accordingly may not be reissued or resold.
7.6 NOTICES FINAL
Upon the expiry of any notice as is referred to in Condition 7.2 or 7.3
above the Issuer shall be bound to redeem the Notes to which the notice
refers in accordance with the terms of such paragraph.
8. TAXATION
8.1 PAYMENT WITHOUT WITHHOLDING
All payments in respect of the Notes by or on behalf of the Issuer or the
Guarantor shall be made without withholding or deduction for, or on
account of, any present or future taxes, duties, assessments or
governmental charges of whatever nature (TAXES) imposed or levied by or on
behalf of the Relevant Jurisdictions, unless the withholding or deduction
of the Taxes is required by law. In that event, the Issuer or, as the case
may be, the Guarantor will pay such additional amounts as may be necessary
in order that the net amounts received by the Noteholders and
Couponholders after the withholding or deduction shall equal the
respective amounts which would have been receivable in respect of the
Notes or, as the case may be, Coupons in the absence of the withholding or
deduction; except that no additional amounts shall be payable:
(a) in relation to any payment in respect of any Note or Coupon where
such withholding or deduction is imposed on a payment to an
individual and is required to be made pursuant to European Council
Directive 2003/48/EC or any law implementing or complying with, or
introduced in order to conform to, such Directive; or
(b) in relation to any payment in respect of any Note or Coupon
presented for payment by or on behalf of a holder who would have
been able to avoid such withholding or deduction by presenting the
relevant Note or Coupon to another Paying Agent in a Member State of
the European Union; or
(c) in relation to any payment in respect of any Note or Coupon
presented for payment more than 30 days after the Relevant Date (as
defined below) except to the extent that a holder would have
51
been entitled to additional amounts on presenting the same for
payment on the last day of the period of 30 days assuming that day
to have been a Presentation Date (as defined in Condition 6.5); or
(d) for or on account of any tax, assessment or other governmental
charge that would not have been so imposed but for the existence of
any present or former connection (other than the more holding of a
Note or Coupon) between such Noteholder or Couponholder (or between
a fiduciary, settlor, beneficiary, member or shareholder of such
Noteholder or Couponholder, if such Noteholder or Couponholder is an
estate, a trust, a partnership or a corporation) and any Relevant
Jurisdiction and its possessions, including, without limitation,
such Noteholder or Couponholder (or such fiduciary, settlor,
beneficiary, member or shareholder) being or having been a citizen
or resident thereof or being or having been engaged in a trade or
business or present therein or having, or having had, a permanent
establishment therein; or
(e) for or on account of any estate, inheritance, gift, sales, transfer
or personal property tax or any similar tax, assessment or
governmental charge; or
(f) for or on account of any tax, assessment or other governmental
charge imposed by reason of such Noteholder or Couponholder's past
or present status as a controlled foreign corporation or passive
foreign investment company with respect to the United States or as a
corporation that accumulates earnings to avoid United States federal
income tax; or
(g) for or on account of any tax, assessment or other governmental
charge that is payable otherwise than by withholding from payments
on or in respect of any Note; or
(h) for or on account of any tax, assessment or other governmental
charge that would not have been imposed but for the failure to
comply with certification, information or other reporting
requirements concerning the nationality, residence or identity of
the Noteholder or Couponholder, if such compliance is required by
statute or by regulation of the United States or of any political
subdivision or taxing authority thereof or therein as a precondition
to relief or exemption from such tax, assessment or other
governmental charge; or
(i) for or on account of any tax, assessment or other governmental
charge imposed by reason of such Noteholder or Couponholder's past
or present status as the actual or constructive owner of 10 per
cent, or more of the total combined voting power of all classes of
the stock of the Guarantor entitled to vote or as a controlled
foreign corporation that is related directly or indirectly to the
Guarantor through stock ownership.
8.2 INTERPRETATION
In these Conditions:
(a) RELEVANT DATE means the date on which the payment first becomes due
but, if the full amount of the money payable has not been received
by the Fiscal Agent on or before the due date, it means the date on
which, the full amount of the money having been so received, notice
to that effect has been duly given to the Noteholders by the Issuer
in accordance with Condition 12; and
(b) RELEVANT JURISDICTION means Bermuda or any political subdivision or
any authority thereof or therein having power to tax (in the case of
payments by the Issuer) or the United States of America or any
political subdivision or any authority thereof or therein having
power to tax (in the case of payments by the Guarantor) or in either
case any other jurisdiction or any political subdivision or any
authority thereof or therein having power to tax to which the Issuer
or the Guarantor, as the case may be, becomes subject in respect of
payments made by it of principal and interest on the Notes and
Coupons.
52
8.3 ADDITIONAL AMOUNTS
Any reference in these Conditions to any amounts in respect of the Notes
shall be deemed also to refer to any additional amounts which may be
payable under this Condition.
9. PRESCRIPTION
Notes and Coupons will become void unless presented for payment within
periods of 10 years (in the case of principal) and five years (in the case
of interest) from the Relevant Date in respect of the Notes or, as the
case may be, the Coupons, subject to the provisions of Condition 6.
10. EVENTS OF DEFAULT
The holder of any Note may give notice to the Issuer that the Note is, and
it shall accordingly forthwith become, immediately due and repayable at
its principal amount, together with interest accrued to the date of
repayment, if any of the following events (EVENTS OF DEFAULT) shall have
occurred and be continuing:
(a) if default is made in the payment of any principal or interest due
in respect of the Notes or any of them and the default continues for
a period of 7 days in the case of principal or 30 days in the case
of interest; or
(b) if the Issuer or the Guarantor fails to perform or observe any of
its other obligations under these Conditions or the Guarantee and
the failure continues for the period of 90 days following the
service by any Noteholder on the Issuer or the Guarantor (as the
case may be) of notice requiring the same to be remedied; or
(c) the Issuer or the Guarantor shall make an assignment for the benefit
of creditors, or shall file a petition in bankruptcy; or the Issuer
or the Guarantor shall be adjudicated insolvent or bankrupt, or
shall petition or shall apply to any court having jurisdiction in
the premises for the appointment of a receiver, trustee, liquidator
or sequestrator of, or for, the Issuer or the Guarantor or any
substantial portion of the property of the Issuer or the Guarantor;
or the Issuer or the Guarantor shall commence any proceeding
relating to it or any substantial portion of its property under any
insolvency, reorganisation, arrangement, or readjustment of debt,
dissolution, winding-up, adjustment, composition or liquidation law
or statute of any jurisdiction, whether now or hereafter in effect
(hereinafter in this Condition 10 called PROCEEDING); or if there
shall be commenced against the Issuer or the Guarantor any
Proceeding and an order approving the petition shall be entered, or
such Proceeding shall remain undischarged for a period of 60 days;
or a receiver, trustee, liquidatior or sequestrator of, or for, the
Issuer or the Guarantor or any substantial portion of the property
of the Issuer or the Guarantor shall be appointed and shall not be
discharged within a period of 60 days; or the Issuer or the
Guarantor by any act shall indicate consent to or approval of or
acquiescence in any Proceeding or the appointment of a receiver,
trustee, liquidator or sequestrator of, or for, Issuer or the
Guarantor or any substantial portion of its property; provided that
a resolution or other for winding-up the Issuer or the Guarantor
with a view to its consolidation, amalgamation or merger with
another company or the transfer of its assets as a whole, or
substantially as a whole, to such other company as permitted in the
Guarantee and referred to in Condition 3 shall not make the rights
and remedies herein enforceable under this Condition 10 if such
last-mentioned company shall, as a part of such consolidation,
amalgamation, merger or transfer, and within 60 days from the
passing of the resolution or the date of the order, comply with the
conditions to that end stated in the Guarantee and referred to in
Condition 3; or
(d) if the Guarantee ceases to be, or is claimed by the Guarantor not to
be, in full force and effect; or
(e) if the Issuer ceases to be a subsidiary majority owned and
controlled, directly or indirectly, by the ▇▇▇▇▇▇▇▇▇.
▇▇
▇▇. REPLACEMENT OF NOTES AND COUPONS
Should any Note or Coupon be lost, stolen, mutilated, defaced or destroyed
it may be replaced at the specified office of the Fiscal Agent, upon
payment by the claimant of the expenses incurred in connection with the
replacement and on such terms as to evidence and indemnity as the Issuer
may reasonably require. Mutilated or defaced Notes or Coupons must be
surrendered before replacements will be issued.
12. NOTICES
12.1 NOTICES TO THE NOTEHOLDERS
All notices to the Noteholders will be valid if published in a leading
English language daily newspaper with general circulation in Europe as the
Issuer may decide. The Issuer shall also ensure that notices are duly
published in a manner which complies with the rules and regulations of any
stock exchange or other relevant authority on which the Notes are for the
time being listed. Any such notice will be deemed to have been given on
the date of the first publication or, where required to be published in
more than one newspaper, on the date of the first publication in all
required newspapers.
12.2 NOTICES FROM THE NOTEHOLDERS
Notices to be given by any Noteholder shall be in writing and given by
lodging the same, together with the relative Note or Notes, with the
Fiscal Agent or, if the Notes are held in a clearing system, may be given
through the clearing system in accordance with the standard rules and
procedures.
13. MEETINGS OF NOTEHOLDERS AND MODIFICATION
13.1 MEETINGS OF NOTEHOLDERS
The Agency Agreement contains provisions for convening meetings of the
Noteholders to consider any matter affecting their interests, including
the modification by Extraordinary Resolution of any of these Conditions or
the Guarantee or any of the provisions of the Agency Agreement. The quorum
at any meeting for passing an Extraordinary Resolution will be one or more
persons present holding or representing more than 50 per cent in
principal amount of the Notes for the time being outstanding, or at any
adjourned meeting one or more persons present whatever the principal
amount of the Notes held or represented by him or them, except that at any
meeting the business of which includes the modification of certain of
these Conditions the necessary quorum for passing an Extraordinary
Resolution will be one or more persons present holding or representing not
less than two-thirds, or at any adjourned meeting not less than one-third,
of the principal amount of the Notes for the time being outstanding. An
Extraordinary Resolution passed at any meeting of the Noteholders will be
binding on all Noteholders, whether or not they are present at the
meeting, and on all Couponholders.
13.2 MODIFICATION
The Fiscal Agent may agree, without the consent of the Noteholders or
Couponholders, to any modification of any of these Conditions or any of
the provisions of the Agency Agreement for the purpose of curing any
ambiguity or of curing, correcting or supplementing any manifest or proven
error or any other defective provision contained herein or therein. Any
modification shall be binding on the Noteholders and the Couponholders
and, unless the Fiscal Agent agrees otherwise, any modification shall be
notified by the Issuer to the Noteholders as soon as practicable
thereafter in accordance with Condition 12.
14. FURTHER ISSUES
The Issuer may from time to time without the consent of the Noteholders or
Couponholders create and issue further notes, having terms and conditions
the same as those of the Notes, or the same except
54
for the amount of the first payment of interest, which may be consolidated
and form a single series with the outstanding Notes.
15. GOVERNING LAW AND SUBMISSION TO JURISDICTION
15.1 GOVERNING LAW
The Agency Agreement, the Guarantee, the Notes and the Coupons are
governed by, and will be construed in accordance with English law.
15.2 JURISDICTION OF ENGLISH COURTS
The Issuer and the Guarantor have irrevocably agreed for the benefit of
the Noteholders and the Couponholders that the courts of England are to
have exclusive jurisdiction to settle any disputes which may arise out of
or in connection with the Notes or the Coupons and accordingly have
submitted to the exclusive jurisdiction of the English courts. The Issuer
and the Guarantor waive any objection to the courts of England on the
grounds that they are an inconvenient or inappropriate forum.
The Noteholders and the Couponholders may take any suit, action or
proceeding arising out of or in connection with the Notes or the Coupons
respectively (together referred to as PROCEEDINGS) against the Issuer or
the Guarantor in any other court of competent jurisdiction and concurrent
Proceedings in any number of jurisdictions.
15.3 APPOINTMENT OF PROCESS AGENT
The Issuer hereby irrevocably and unconditionally appoints Kellogg
Marketing & Sales Co. (U.K.) Ltd. at its registered office as its agent
for service of process in England in respect of any Proceedings and
undertakes that in the event of such agent ceasing so to act it will
appoint another person as its agent for that purpose.
15.4 OTHER DOCUMENTS
Each of the Issuer and the Guarantor in the Agency Agreement and the
Guarantor in the Guarantee has submitted to the jurisdiction of the
English courts and appointed an agent in England for service of process,
in terms substantially similar to those set out above.
16. RIGHTS OF THIRD PARTIES
No rights are conferred on any person under the Contracts (Rights of Third
Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this Note, but this does not
affect any right or remedy of any person which exists or is available
apart from that Act.
55
SCHEDULE 3
FORM OF GUARANTEE
THIS GUARANTEE is given on 28 November, 2005 by ▇▇▇▇▇▇▇ COMPANY (the GUARANTOR).
WHEREAS:
(A) The Guarantor has agreed to guarantee the obligations of ▇▇▇▇▇▇▇ Europe
Company Limited (the ISSUER) under the (euro)550,000,000 Guaranteed
Floating Rate Notes due 2007 (the NOTES) to be issued by the Issuer
pursuant to an Agency Agreement (the AGENCY AGREEMENT) dated 28 November,
2005 between, among others, the Issuer, the Guarantor and HSBC plc as
Fiscal Agent (the FISCAL AGENT).
(B) Terms defined in the Conditions of the Notes (the CONDITIONS) and in the
Agency Agreement and not otherwise defined in this Guarantee shall have
the same meaning when used in this Guarantee.
NOW THIS DEED WITNESSETH as follows:
1. GUARANTEE
The Guarantor as primary obligor unconditionally and irrevocably:
(a) guarantees to the holder from time to time of each Note or Coupon by
way of continuing guarantee the due and punctual payment of all
amounts payable by the Issuer on or in respect of the Note or Coupon
(including any additional amounts which may become payable under
Condition 8) as and when the same shall become due according to the
Conditions; and
(b) agrees that, if and each time that the Issuer shall fail to make any
payments as and when the same become due, the Guarantor will on
demand (without requiring the relevant Noteholder or Couponholder
first to take steps against the Issuer or any other person) pay to
the relevant Noteholder or Couponholder the amounts (as to which the
certificate of the relevant Noteholder or Couponholder shall in the
absence of manifest error be conclusive) in the currency in which
the amounts are payable by the Issuer.
2. TAXATION
2.1 All payments under the Guarantee shall be made without withholding or
deduction for, or on account of, any present or future taxes, duties,
assessments or governmental charges of whatever nature (TAXES) imposed or
levied by or on behalf of the Relevant Jurisdictions, unless the
withholding or deduction of the Taxes is required by law. In that event,
the Guarantor will pay such additional amounts as may be necessary in
order that the net amounts received by the Noteholders and Couponholders
after the withholding or deduction shall equal the respective amounts
which would have been receivable in respect of the Notes or, as the case
may be, Coupons in the absence of the withholding or deduction; except
that no additional amounts shall be payable:
56
(a) in relation to any payment in respect of any Note or Coupon where
such withholding or deduction is imposed on a payment to an
individual and is required to be made pursuant to European Council
Directive 2003/48/EC or any law implementing or complying with, or
introduced in order to conform to, such Directive; or
(b) in relation to any payment in respect of any Note or Coupon
presented for payment by or on behalf of a holder who would have
been able to avoid such withholding or deduction by presenting the
relevant Note or Coupon to another Paying Agent in a Member State of
the European Union; or
(c) in relation to any payment in respect of any Note or Coupon
presented for payment more than 30 days after the Relevant Date
except to the extent that a holder would have been entitled to
additional amounts on presenting the same for payment on the last
day of the period of 30 days assuming that day to have been a
Presentation Date (as defined in Condition 6.5); or
(d) for or on account of any tax, assessment or other governmental
charge that would not have been so imposed but for the existence of
any present or former connection (other than the mere holding of a
Note or Coupon) between such Noteholder or Couponholder (or between
a fiduciary, settlor, beneficiary, member or shareholder of such
Noteholder or Couponholder, if such Noteholder or Couponholder is an
estate, a trust, a partnership or a corporation) and any Relevant
Jurisdiction and its possessions, including, without limitation,
such Noteholder or Couponholder (or such fiduciary, settlor,
beneficiary, member or shareholder) being or having been a citizen
or resident thereof or being or having been engaged in a trade or
business or present therein or having, or having had, a permanent
establishment therein; or
(e) for or on account of any estate, inheritance, gift, sales, transfer
or personal property tax or any similar tax, assessment or
governmental charge; or
(f) for or on account of any tax, assessment or other governmental
charge imposed by reason of such Noteholder or Couponholder's past
or present status as a controlled foreign corporation or passive
foreign investment company with respect to the United States or as a
corporation that accumulates earnings to avoid United States federal
income tax; or
(g) for or on account of any tax, assessment or other governmental
charge that is payable otherwise than by withholding from payments
on or in respect of any Note; or
(h) for or on account of any tax, assessment or other governmental
charge that would not have been imposed but for the failure to
comply with certification, information or other reporting
requirements concerning the nationality, residence or identity of
the Noteholder or Couponholder, if such compliance is required by
statute or by regulation of the United States or of any political
subdivision or taxing authority thereof or therein as a precondition
to relief or exemption from such tax, assessment or other
governmental charge; or
(i) for or on account of any tax, assessment or other governmental
charge imposed by reason of such Noteholder or Couponholder's past
or present status as the actual or constructive owner of 10 per
cent. or more of the total combined voting power of all classes of
the stock of the Guarantor entitled to vote or as a controlled
foreign corporation that is related directly or indirectly to the
Guarantor through stock ownership.
57
2.2 Any reference to any amounts in respect of the Notes shall be deemed also
to refer to any additional amounts which may be payable under this
paragraph 2.
3. GUARANTEE INDEPENDENT
The obligations of the Guarantor under this Guarantee shall not be
affected by any matter or thing which but for this provision might operate
to affect the obligations including, without limitation:
(a) any time or indulgence granted to or composition with the Issuer or
any other person;
(b) the taking, variation, renewal or release of remedies or securities
against the Issuer or any other person; or
(c) any unenforceability, invalidity or irregularity.
4. EFFECT OF ARRANGEMENTS WITH ISSUER
Where any discharge (whether in respect of the obligations of the Issuer
or any security for the obligations of the Issuer or otherwise) is made in
whole or in part or any arrangement is made on the faith of any payment,
security or other disposition which is avoided or must be repaid on
bankruptcy, liquidation or otherwise without limitation, the liability of
the Guarantor under this Guarantee shall continue as if there had been no
discharge or arrangement. The holder of any Note or Coupon, acting in good
faith, shall be entitled to concede or compromise any claim that any
payment, security or other disposition is liable to avoidance or
repayment.
5. LIMITATION ON LIENS
(a) The Guarantor will not, nor will it permit any Restricted Subsidiary
to, issue, assume or guarantee any indebtedness for money borrowed
(DEBT), secured by a mortgage, security interest, pledge, lien or
other encumbrance (a MORTGAGE) upon any Principal Property of the
Guarantor or any Restricted Subsidiary or upon any shares of stock
or indebtedness of any Restricted Subsidiary (whether such Principal
Property, shares of stock or indebtedness are now owned or hereafter
acquired) without in any such case effectively providing
concurrently with the issuance, assumption or guarantee of any such
Debt that this Guarantee (together with, if the Guarantor shall so
determine, any other indebtedness of or guaranteed by the Guarantor
or such Restricted Subsidiary ranking equally with this Guarantee
and then existing or thereafter created) shall be secured equally
and ratably with (or, at the option of the Guarantor, prior to) such
Debt for so long as such Debt shall be so secured; provided,
however, that the foregoing restrictions shall not apply to Debt
secured by:
(i) mortgages on property, shares of stock or indebtedness
(PROPERTY) of any corporation existing at the time such
corporation becomes a Restricted Subsidiary;
(ii) mortgages on property existing at the time of acquisition of
the affected property by the Guarantor or a Restricted
Subsidiary, or mortgages to secure the payment of all or any
part of the purchase price of such property upon the
acquisition of such property by the Guarantor or a Restricted
Subsidiary or to secure any Debt incurred by the Guarantor or
a Restricted Subsidiary prior to, at the time of, or within
360 days after the later of the acquisition, the completion of
construction (including any improvements on an existing
58
property) or the commencement of commercial operation of such
property, which Debt is incurred for the purpose of financing
all or any part of the purchase price thereof or construction
or improvements thereon; provided, however, that in the case
of any such acquisition, construction or improvement the
mortgage shall not apply to any property theretofore owned by
the Guarantor or a Restricted Subsidiary, other than, in the
case of any such construction or improvement, any real
property on which the property so constructed or the
improvement is located, which in the opinion of the Board of
Directors was, prior to such construction or improvement,
substantially unimproved for the use intended by the Guarantor
or such Restricted Subsidiary;
(iii) mortgages on property of a Restricted Subsidiary securing Debt
owing to the Guarantor or to another Restricted Subsidiary;
(iv) mortgages on property of a corporation existing at the time
such corporation is merged into or consolidated with the
Guarantor or a Restricted Subsidiary or at the time of a sale,
lease or other disposition of the properties of a corporation
or firm as an entirety or substantially as an entirety to the
Guarantor or a Restricted Subsidiary provided, however, that
any such mortgages do not attach to or affect property
theretofore owned by the Guarantor or such Restricted
Subsidiary;
(v) mortgages on property owned or leased by the Guarantor or a
Restricted Subsidiary in favour of the United States of
America or any State thereof, or any department, agency or
instrumentality or political subdivision of the United States
of America or any State thereof, or in favour of any other
country or any political subdivision thereof, or in favour of
holders of securities issued by any such entity, pursuant to
any contract or statute (including, without limitation,
mortgages to secure Debt of the pollution control or
industrial revenue bond type) or to secure any indebtedness
incurred for the purpose of financing all or any part of the
purchase price or the cost of construction of the property
subject to such mortgages;
(vi) mortgages existing at the date of issue of the Notes;
(vii) landlords' liens on fixtures located on premises leased by the
Guarantor or a Restricted Subsidiary in the ordinary course of
business;
(viii) mortgages on property of the Guarantor or a Restricted
Subsidiary to secure partial, progress, advance or other
payments or any Debt insured for the purpose of financing all
or any part of the purchase price or the cost of construction,
development, or substantial repair, alteration or improvement
of the property subject to such mortgages if the commitment
for the financing is obtained not later than one year after
the later of the completion of or the placing into operation
(exclusive of test and start-up periods) of such constructed,
developed, repaired, altered or improved property;
(ix) mortgages arising in connection with contracts and
subcontracts with or made at the request of the United States
of America, or any state thereof, or any department, agency or
instrumentality of the United States or any state thereof;
59
(x) mechanics', materialman's, carriers' or other like liens
arising in the ordinary course of business (including
construction of facilities) in respect of obligations which
are not due or which are being contested in good faith;
(xi) any mortgage arising by reason of deposits with, or the giving
of any form of security to, any governmental agency or any
body created or approved by law or governmental regulations,
which is required by law or governmental regulation as a
condition to the transaction of any business, or the exercise
of any privilege, franchise or licence;
(xii) mortgages for taxes, assessments or governmental charges or
levies not yet delinquent, or mortgages for taxes, assessments
or governmental charges or levies already delinquent but the
validity of which is being contested in good faith;
(xiii) mortgages (including judgment liens) arising in connection
with legal proceedings so long as such proceedings are being
contested in good faith and, in the case of judgment liens,
execution thereon is stayed; or
(xiv) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of
any mortgage referred to in the foregoing clauses (i) to
(xiii), inclusive, provided, however, that the principal
amount of Debt secured thereby shall not exceed the principal
amount of Debt so secured at the time of such extension,
renewal or replacement mortgage, and that such extension,
renewal or replacement mortgage shall be limited to all or a
part of the property which secured the mortgage so extended,
renewed or replaced (plus improvements on such property).
(b) Notwithstanding the foregoing provisions, the Guarantor and any one
or more Restricted Subsidiaries may issue, assume or guarantee Debt
secured by mortgages which would otherwise be subject to the
foregoing restrictions in an aggregate amount which, together with
all other Debt of the Guarantor and its Restricted Subsidiaries
which (if originally issued, assumed or guaranteed at such time)
would otherwise be subject to the foregoing restrictions (not
including Debt permitted to be secured under clauses (i) through
(xiv) above), does not at the time exceed 10% of Consolidated Total
Assets, as shown on the latest quarterly consolidated financial
statements of the Guarantor preceding the date of determination.
6. LIMITATION ON SALE AND LEASE-BACK
The Guarantor will not, nor will it permit any Restricted Subsidiary to,
enter into any arrangement with any person providing for the leasing by
the Guarantor or any Restricted Subsidiary of any Principal Property of
the Guarantor or any Restricted Subsidiary (whether such Principal
Property is now owned or hereafter acquired) (except for temporary leases
for a term of not more than three years and except for leases between the
Guarantor and a Restricted Subsidiary or between Restricted Subsidiaries),
which Principal Property has been or is to be sold or transferred by the
Guarantor or such Restricted Subsidiary to such person (herein referred to
as a SALE AND LEASE-BACK TRANSACTION), unless (a) the Guarantor or such
Restricted Subsidiary would be entitled, pursuant to the provisions of
paragraph 5, to issue, assume or guarantee Debt secured by a mortgage upon
such Principal Property at least equal in amount to the Attributable Debt
in respect of such arrangement without equally and rateably securing the
Notes, provided, however, that from and after the date on which such
arrangement becomes effective the Attributable Debt in respect of such
arrangement shall be deemed for all purposes under paragraph 5 or 6 to be
Debt subject to the provisions of
60
paragraph 5; or (b) the Guarantor shall apply an amount in cash equal to
the Attributable Debt in respect of such arrangement to the retirement
(other than any mandatory retirement or by way of payment at maturity),
within 120 days of the effective date of any such arrangement, of Debt of
the Guarantor or any Restricted Subsidiary (other than Debt owned by the
Guarantor or any Restricted Subsidiary and other than Debt of the
Guarantor which is subordinated to the Notes) which by its terms matures
at or is extendible or renewable at the option of the obligor to a date
more than twelve months after the date of the creation of such Debt.
7. GUARANTOR MAY CONSOLIDATE, ETC. ON CERTAIN TERMS
Nothing contained in this Guarantee shall prevent any consolidation or
merger of the Guarantor with or into any other corporation or corporations
(whether or not affiliated with the Guarantor), or successive
consolidations or mergers in which the Guarantor or its successor or
successors shall be a party or parties, or shall prevent any sale,
conveyance or lease of all or substantially all the property of the
Guarantor to any other corporation (whether or not affiliated with the
Guarantor) authorised to acquire and operate the same; provided, however,
and the Guarantor hereby covenants, that upon any such consolidation,
merger, sale, conveyance or lease, other than a merger in which the
Guarantor is the continuing corporation, the due and punctual performance
and observance of all of the covenants and conditions under the Guarantee
to be performed by the Guarantor shall be expressly assumed by the
corporation (if other than the Guarantor) formed by such consolidation, or
into which the Guarantor shall have been merged, or by the corporation
which shall have acquired or leased such property.
8. SUCCESSOR CORPORATION SUBSTITUTED
8.1 In case of any such consolidation, merger, sale or conveyance referred to
in paragraph 7, and following such an assumption by the successor
corporation, such successor corporation shall succeed to and be
substituted for the Guarantor, with the same effect as if it had been
named in this Guarantee.
8.2 In the event of any such sale or conveyance (other than a conveyance by
way of lease) the Guarantor or any successor corporation which shall have
become such in the manner described in this Guarantee shall be discharged
from all obligations and covenants under this Guarantee and may be
liquidated and dissolved.
9. MISCELLANEOUS
9.1 Until all amounts which may be or become payable under the Notes and the
Coupons have been irrevocably paid in full, the Guarantor shall not by
virtue of this Guarantee be subrogated to any rights of any holder of any
Note or Coupon or claim in competition with the holders against the
Issuer.
9.2 This Guarantee shall enure for the benefit of the Noteholders and
Couponholders and shall be deposited with and held by the Fiscal Agent.
10. GOVERNING LAW AND JURISDICTION
10.1 This Guarantee is governed by, and shall be construed in accordance with,
the laws of England.
10.2 (a) Subject to subparagraph (c) below, the Guarantor irrevocably agrees
for the benefit of the Noteholders and the Couponholders that the courts
of England are to have
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exclusive jurisdiction to settle any dispute which may arise out of or in
connection with this Guarantee and accordingly submit to the exclusive
jurisdiction of the English courts.
(b) The Guarantor waives any objection to the courts of England on the
grounds that they are an inconvenient or inappropriate forum.
(c) The Noteholders and the Couponholders may take any suit, action or
proceeding arising out of or in connection with this Guarantee
(together referred to as PROCEEDINGS) against the Guarantor in any
other court of competent jurisdiction and concurrent Proceedings in
any number of jurisdictions.
(d) The Guarantor appoints Kellogg Marketing & Sales Co. (UK) Limited in
London to accept service of process on its behalf. If such person
shall cease to have an office in London, the Guarantor shall appoint
another person with an office in London to accept service. The
Guarantor will procure that, so long as any of the Notes remains
outstanding, a person with an office in London shall be appointed to
accept service.
(e) Nothing in this Guarantee shall affect the right to serve process in
any other manner permitted by law.
IN WITNESS whereof this Guarantee has been entered into as a deed by the
Guarantor on the date which appears first on page 1.
EXECUTED as a deed by ▇▇▇▇▇▇▇ COMPANY )
acting by )
)
EXECUTED AS A DEED BY ▇▇▇▇▇▇▇ )
EUROPE COMPANY LIMITED )
acting by )
)
Dated 28 November, 2005
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SCHEDULE 4
PROVISIONS FOR MEETINGS OF NOTEHOLDERS
DEFINITIONS
1. As used in this Schedule, the following expressions have the following
meanings unless the context otherwise requires:
VOTING CERTIFICATE means an English language certificate issued by a
Paying Agent and dated in which it is stated that the bearer of the voting
certificate is entitled to attend and vote at the meeting and any
adjourned meeting in respect of the Notes represented by the certificate;
BLOCK VOTING INSTRUCTION means an English language document issued by a
Paying Agent and dated which:
(a) relates to a specified principal amount of Notes and a meeting (or
adjourned meeting) of the holders of the Notes;
(b) states that the Paying Agent has been instructed (either by the
holders of the Notes or by a relevant clearing system) to attend the
meeting and procure that the votes attributable to the Notes are
cast at the meeting in accordance with the instructions given;
(c) identifies with regard to each resolution to be proposed at the
meeting the principal amount of Notes in respect of which
instructions have been given that the votes attributable to them
should be cast in favour of the resolution and the principal amount
of Notes in respect of which instructions have been given that the
votes attributable to them should be cast against the resolution;
and
(d) states that one or more named persons (each a PROXY) is or are
authorised and instructed by the Paying Agent to cast the votes
attributable to the Notes identified in accordance with the
instructions referred to in paragraph (c) above as set out in the
block voting instruction;
a RELEVANT CLEARING SYSTEM means, in respect of any Notes represented by a
Global Note, any clearing system on behalf of which the Global Note is
held or which is the bearer of the Global Note, in either case whether
alone or jointly with any other clearing system(s);
24 HOURS means a period of 24 hours including all or part of a day on
which banks are open for business both in the place where the meeting is
to be held and in each of the places where the Paying Agents have their
specified offices (disregarding for this purpose the day on which the
meeting is to be held) and that period shall be extended by one period or,
to the extent necessary, more periods of 24 hours until there is included
all or part of a day on which banks are open for business in all of the
places where the Paying Agents have their specified offices; and
48 HOURS means a period of 48 hours including all or part of two days on
which banks are open for business both in the place where the meeting is
to be held and in each of the places where the Paying Agents have their
specified offices (disregarding for this purpose the day on which the
meeting is to be held) and that period shall be extended by one period or,
to the extent necessary, more periods of 24 hours until there is included
all or part of two days on
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which banks are open for business in all of the places where the Paying
Agents have their specified offices.
For the purposes of calculating a period of CLEAR DAYS, no account shall
be taken of the day on which a period commences or the day on which a
period ends.
EVIDENCE OF ENTITLEMENT TO ATTEND AND VOTE
2. The following persons (each an ELIGIBLE PERSON) are entitled to attend and
vote at a meeting of the holders of the Notes:
(a) a holder of any Notes in definitive bearer form;
(b) a bearer of any voting certificate in respect of the Notes; and
(c) a proxy specified in any block voting instruction.
A Noteholder may require the issue by any Paying Agent of voting
certificates and block voting instructions in accordance with the terms of
paragraph 3 below.
For the purposes of paragraphs 3(a) and 3(d) below, the Fiscal Agent
shall be entitled to rely, without further enquiry, on any information or
instructions received from a relevant clearing system and shall have no
liability to any Noteholder or other person for any loss, damage, cost,
claim or other liability caused by its reliance on those instructions, nor
for any failure by a relevant clearing system to deliver information or
instructions to the Fiscal Agent.
The holder of any voting certificate or the proxies named in any block
voting instruction shall for all purposes in connection with the meeting
or adjourned meeting be deemed to be the holder of the Notes to which the
voting certificate or block voting instruction relates and the Paying
Agent with which the Notes have been deposited or the person holding the
Notes to the order or under the control of any Paying Agent shall be
deemed for those purposes not to be the holder of those Notes.
3. (a) Definitive Notes - voting certificate
A holder of a Note in definitive form may obtain a voting
certificate in respect of that Note from a Paying Agent (unless the
Note is the subject of a block voting instruction which has been
issued and is outstanding in respect of the meeting specified in the
voting certificate or any adjourned meeting) subject to the holder
procuring that the Note is deposited with the Paying Agent or (to
the satisfaction of the Paying Agent) is held to its order or under
its control or blocked in an account with a relevant clearing system
upon terms that the Note will not cease to be deposited or held or
blocked until the first to occur of:
(i) the conclusion of the meeting specified in the voting
certificate or, if later, of any adjourned meeting; and
(ii) the surrender of the voting certificate to the Paying Agent
who issued it.
(b) Global Notes - voting certificate
A holder of a Note (not being a Note in respect of which
instructions have been given to the Fiscal Agent in accordance with
paragraph 3(d)) represented by a Global Note may procure the
delivery of a voting certificate in respect of that Note by giving
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notice to the relevant clearing system specifying by name a person
(an IDENTIFIED PERSON) (which need not be the holder himself) to
collect the voting certificate and attend and vote at the meeting.
The voting certificate will be made available at or shortly before
the start of the meeting by the Fiscal Agent against presentation by
the Identified Person of the form of identification previously
notified by the holder to the relevant clearing system. The relevant
clearing system may prescribe forms of identification (including,
without limitation, passports) which it considers appropriate for
these purposes. Subject to receipt by the Fiscal Agent from the
relevant clearing system, no later than 24 hours before the time for
which the meeting is convened, of notification of the nominal amount
of the Notes to be represented by any voting certificate and the
form of identification against presentation of which the voting
certificate should be released, the Fiscal Agent shall, without any
obligation to make further enquiry, make available voting
certificates against presentation of forms of identification
corresponding to those notified.
(c) Definitive Notes - block voting instruction
A holder of a Note in definitive form may require a Paying Agent to
issue a block voting instruction in respect of that Note (unless the
Note is the subject of a voting certificate which has been issued
and is outstanding in respect of the meeting specified in the block
voting instruction or any adjourned meeting) by depositing the Note
with the Paying Agent or (to the satisfaction of the Paying Agent)
by:
(i) procuring that, not less than 48 hours before the time fixed
for the meeting, the Note is held to the Paying Agent's order
or under its control or is blocked in an account with a
relevant clearing system, in each case on terms that the Note
will not cease to be so deposited or held or blocked until the
first to occur of:
(A) the conclusion of the meeting specified in the block
voting instruction or, if later, of any adjourned
meeting; and
(B) the surrender to the Paying Agent, not less than 48
hours before the time for which the meeting or any
adjourned meeting is convened, of the receipt issued by
the Paying Agent in respect of each deposited Note which
is to be released or (as the case may require) the Note
ceasing with the agreement of the Paying Agent to be
held to its order or under its control or to be blocked
and the giving of notice by the Paying Agent to the
Issuer in accordance with paragraph 3(d) of the
necessary amendment to the block voting instruction; and
(ii) instructing the Paying Agent that the vote(s) attributable to
each Note so deposited or held or blocked should be cast in a
particular way in relation to the resolution or resolutions to
be put to the meeting or any adjourned meeting and that the
instruction is, during the period commencing 48 hours before
the time for which the meeting or any adjourned meeting is
convened and ending at the conclusion or adjournment of the
meeting, neither revocable nor capable of amendment.
(d) Global Notes - block voting instruction
A holder of a Note (not being a Note in respect of which a voting
certificate has been issued) represented by a Global Note may
require the Fiscal Agent to issue a block
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voting instruction in respect of the Note by first instructing the
relevant clearing system to procure that the votes attributable to
the holder's Note should be cast at the meeting in a particular way
in relation to the resolution or resolutions to be put to the
meeting. Any such instruction shall be given in accordance with the
rules of the relevant clearing system then in effect. Subject to
receipt by the Fiscal Agent, no later than 24 hours before the time
for which the meeting is convened, of (i) instructions from the
relevant clearing system, (ii) notification of the principal amount
of the Notes in respect of which instructions have been given and
(iii) the manner in which the votes attributable to the Notes should
be cast, the Fiscal Agent shall, without any obligation to make
further enquiry, attend the meeting and cast votes in accordance
with those instructions.
(A) Each block voting instruction shall be deposited by the
relevant Paying Agent at the place specified by the Fiscal
Agent for the purpose not less than 24 hours before the time
appointed for holding the meeting or adjourned meeting at
which the proxies named in the block voting instruction
propose to vote, and in default the block voting instruction
shall not be treated as valid unless the Chairman of the
meeting decides otherwise before the meeting or adjourned
meeting proceeds to business. A notarially certified copy of
each block voting instruction shall (if so requested by the
Issuer) be deposited with the Issuer before the start of the
meeting or adjourned meeting but the Issuer shall not as a
result be obliged to investigate or be concerned with the
validity of or the authority of the proxies named in the block
voting instruction.
(B) Any vote given in accordance with the terms of a block voting
instruction shall be valid notwithstanding the previous
revocation or amendment of the block voting instruction or of
any of the instructions of the relevant Noteholder or the
relevant clearing system (as the case may be) pursuant to
which it was executed provided that no indication in writing
of any revocation or amendment has been received from the
relevant Paying Agent by the Issuer at its registered office
by the time being 24 hours before the time appointed for
holding the meeting or adjourned meeting at which the block
voting instruction is to be used.
CONVENING OF MEETINGS, QUORUM, ADJOURNED MEETINGS
4. The Issuer or the Guarantor may at any time and, if required in writing by
Noteholders holding not less than five per cent. in nominal amount of the
Notes for the time being outstanding, shall convene a meeting of the
Noteholders and if the Issuer fails for a period of seven days to convene
the meeting the meeting may be convened by the relevant Noteholders.
Whenever the Issuer or the Guarantor is about to convene any meeting it
shall immediately give notice in writing to the Fiscal Agent of the day,
time and place of the meeting and of the nature of the business to be
transacted at the meeting. Every meeting shall be held at a time and place
approved by the Fiscal Agent.
5. At least 21 clear days' notice specifying the place, day and hour of the
meeting shall be given to the Noteholders in the manner provided in
Condition 12. The notice, which shall be in the English language, shall
state generally the nature of the business to be transacted at the meeting
and, in the case of an Extraordinary Resolution only, shall specify the
terms of the Extraordinary Resolution to be proposed. The notice shall
include statements as to the manner in which Noteholders may arrange for
voting certificates or block voting instructions to be issued. A copy of
the notice shall be sent by post to the Issuer (unless the meeting is
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convened by the Issuer) and to the Guarantor (unless the meeting is
convened by the Guarantor).
6. The person (who may but need not be a Noteholder) nominated in writing by
the Issuer shall be entitled to take the chair at each meeting but if no
nomination is made or if at any meeting the person nominated is not
present within 15 minutes after the time appointed for holding the meeting
the Noteholders present shall choose one of their number to be Chairman
failing which the Issuer may appoint a Chairman. The Chairman of an
adjourned meeting need not be the same person as was Chairman of the
meeting from which the adjournment took place.
7. At any meeting one or more Eligible Persons present and holding or
representing in the aggregate not less than five per cent. in principal
amount of the Notes for the time being outstanding shall (except for the
purpose of passing an Extraordinary Resolution) form a quorum for the
transaction of business and no business (other than the choosing of a
Chairman) shall be transacted at any meeting unless the required quorum is
present at the commencement of business. The quorum at any meeting for
passing an Extraordinary Resolution shall (subject as provided below) be
one or more Eligible Persons present and holding or representing in the
aggregate not less than 50 per cent. in principal amount of the Notes for
the time being outstanding, provided that at any meeting the business of
which includes any of the following matters (each of which shall only be
capable of being effected after having been approved by Extraordinary
Resolution):
(a) modification of the maturity date of the Notes or reduction or
cancellation of the principal amount payable at maturity; or
(b) reduction or cancellation of the amount payable or modification of
the payment date in respect of any interest in respect of the Notes
or variation of the method of calculating the rate of interest in
respect of the Notes; or
(c) modification of the currency in which payments under the Notes are
to be made; or
(d) modification of the majority required to pass an Extraordinary
Resolution; or
(e) the sanctioning of any scheme or proposal described in paragraph
19(f); or
(f) alteration of this proviso or the proviso to paragraph 9 below,
the quorum shall be one or more Eligible Persons present and holding or
representing in the aggregate not less than two-thirds in principal amount
of the Notes for the time being outstanding.
8. If within 15 minutes (or such longer period not exceeding 30 minutes as
the Chairman may decide) after the time appointed for any meeting a quorum
is not present for the transaction of any particular business, then,
subject and without prejudice to the transaction of the business (if any)
for which a quorum is present, the meeting shall if convened by
Noteholders be dissolved. In any other case it shall be adjourned to the
same day in the next week (or if that day is a public holiday the next
following business day) at the same time and place (except in the case of
a meeting at which an Extraordinary Resolution is to be proposed in which
case it shall be adjourned for a period being not less than 14 clear days
nor more than 42 clear days and at a place appointed by the Chairman and
approved by the Agent). If within 15 minutes (or a longer period not
exceeding 30 minutes as the Chairman may decide) after the time appointed
for any adjourned meeting a quorum is not present for the transaction of
any particular business, then, subject and without prejudice to the
transaction of the business (if any) for which a quorum is present, the
Chairman may either dissolve the meeting or adjourn
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it for a period, being not less than 14 clear days (but without any
maximum number of clear days) and to a place as may be appointed by the
Chairman (either at or after the adjourned meeting) and approved by the
Fiscal Agent, and the provisions of this sentence shall apply to all
further adjourned meetings.
9. At any adjourned meeting one or more Eligible Persons present (whatever
the principal amount of the Notes so held or represented by them) shall
(subject as provided below) form a quorum and shall (subject as provided
below) have power to pass any Extraordinary Resolution or other resolution
and to decide upon all matters which could properly have been dealt with
at the meeting from which the adjournment took place had the required
quorum been present, provided that at any adjourned meeting the business
of which includes any of the matters specified in the proviso to paragraph
7 the quorum shall be one or more Eligible Persons present and holding or
representing in the aggregate not less than one-third in principal amount
of the Notes for the time being outstanding.
10. Notice of any adjourned meeting at which an Extraordinary Resolution is to
be submitted shall be given in the same manner as notice of an original
meeting but as if 10 were substituted for 21 in paragraph 5 and the notice
shall state the relevant quorum. Subject to this it shall not be necessary
to give any notice of an adjourned meeting.
CONDUCT OF BUSINESS AT MEETINGS
11. Every question submitted to a meeting shall be decided in the first
instance by a show of hands and in the case of an equality of votes the
Chairman shall both on a show of hands and on a poll have a casting vote
in addition to the vote or votes (if any) to which he may be entitled as
an Eligible Person.
12. At any meeting, unless a poll is (before or on the declaration of the
result of the show of hands) demanded by the Chairman or the Issuer, the
Guarantor or by any Eligible Person present (whatever the principal amount
of the Notes held by him), a declaration by the Chairman that a resolution
has been carried or carried by a particular majority or lost or not
carried by a particular majority shall be conclusive evidence of the fact
without proof of the number or proportion of the votes recorded in favour
of or against the resolution.
13. Subject to paragraph 15, if at any meeting a poll is demanded it shall be
taken in the manner and, subject as provided below, either at once or
after an adjournment as the Chairman may direct and the result of the poll
shall be deemed to be the resolution of the meeting at which the poll was
demanded as at the date of the taking of the poll. The demand for a poll
shall not prevent the continuance of the meeting for the transaction of
any business other than the motion on which the poll has been demanded.
14. The Chairman may, with the consent of (and shall if directed by) any
meeting, adjourn the meeting from time to time and from place to place. No
business shall be transacted at any adjourned meeting except business
which might lawfully (but for lack of required quorum) have been
transacted at the meeting from which the adjournment took place.
15. Any poll demanded at any meeting on the election of a Chairman or on any
question of adjournment shall be taken at the meeting without adjournment.
16. Any director or officer of the Issuer or the Guarantor and their
respective lawyers and financial advisers may attend and speak at any
meeting. Subject to this, but without prejudice to the proviso to the
definition of OUTSTANDING in clause 2 of this Agreement, no person shall
be entitled to attend and speak nor shall any person be entitled to vote
at any meeting of the Noteholders or join with others in requiring the
convening of a meeting unless he is an
68
Eligible Person. No person shall be entitled to vote at any meeting in
respect of Notes held by, for the benefit of, or on behalf of the Issuer,
the Guarantor or any Subsidiary of the Issuer or the Guarantor. Nothing
contained in this paragraph shall prevent any of the proxies named in any
block voting instruction from being a director, officer or representative
of or otherwise connected with the Issuer or the Guarantor.
17. Subject as provided in paragraph 16, at any meeting:
(a) on a show of hands every Eligible Person present shall have one
vote; and
(b) on a poll every Eligible Person present shall have one vote in
respect of each (euro)50,000, or such other amount as the Fiscal
Agent shall in its absolute discretion specify in principal amount
of Notes in respect of which he is an Eligible Person.
Without prejudice to the obligations of the proxies named in any block
voting instruction, any person entitled to more than one vote need not use
all his votes or cast all the votes to which he is entitled in the same
way.
18. The proxies named in any block voting instruction need not be Noteholders.
19. A meeting of the Noteholders shall in addition to the powers set out above
have the following powers exercisable only by Extraordinary Resolution
(subject to the provisions relating to quorum contained in paragraphs 7
and 9), namely:
(a) power to approve any compromise or arrangement proposed to be made
between the Issuer and the Guarantor and the Noteholders and
Couponholders or any of them;
(b) power to approve any abrogation, modification, compromise or
arrangement in respect of the rights of the Noteholders and
Couponholders against the Issuer and the Guarantor or against any of
their property whether these rights arise under this Agreement, the
Notes or the Coupons or otherwise;
(c) power to agree to any modification of the provisions contained in
this Agreement or the Conditions, the Notes or the Guarantee which
is proposed by the Issuer or the Guarantor;
(d) power to give any authority or approval which under the provisions
of this Schedule or the Notes is required to be given by
Extraordinary Resolution;
(e) power to appoint any persons (whether Noteholders or not) as a
committee or committees to represent the interests of the
Noteholders and to confer upon any committee or committees any
powers or discretions which the Noteholders could themselves
exercise by Extraordinary Resolution;
(f) power to approve any scheme or proposal for the exchange or sale of
the Notes for, or the conversion of the Notes into, or the
cancellation of the Notes in consideration of, shares, stock, notes,
bonds, debentures, debenture stock and/or other obligations and/or
securities of the Issuer or the Guarantor or any other company
formed or to be formed, or for or into or in consideration of cash,
or partly for or into or in consideration of shares, stock, notes,
bonds, debentures, debenture stock and/or other obligations and/or
securities as stated above and partly for or into or in
consideration of cash; and
69
(g) power to approve the substitution of any entity in place of (i) the
Issuer (or any previous substitute) as the principal debtor in
respect of the Notes and the Coupons or (ii) the Guarantor (or any
previous substitute) as guarantor under the Guarantee.
20. Any resolution passed at a meeting of the Noteholders duly convened and
held in accordance with the provisions of this Schedule shall be binding
upon all the Noteholders whether present or not present at the meeting and
whether or not voting and upon all Couponholders and each of them shall be
bound to give effect to the resolution accordingly and the passing of any
resolution shall be conclusive evidence that the circumstances justify its
passing. Notice of the result of voting on any resolution duly considered
by the Noteholders shall be published in accordance with Condition 12 by
the Issuer within 14 days of the result being known provided that
non-publication shall not invalidate the resolution.
21. The expression EXTRAORDINARY RESOLUTION when used in this Schedule means
(a) a resolution passed at a meeting of the Noteholders duly convened and
held in accordance with the provisions of this Schedule by a majority
consisting of not less than 75 per cent. of the persons voting on the
resolution upon a show of hands or, if a poll was duly demanded, by a
majority consisting of not less than 75 per cent. of the votes given on
the poll or (b) a resolution in writing signed by or on behalf of all the
Noteholders, which resolution in writing may be contained in one document
or in several documents in similar form each signed by or on behalf of one
or more of the Noteholders.
22. Minutes of all resolutions and proceedings at every meeting shall be made
and duly entered in books to be from time to time provided for that
purpose by the Issuer and any minutes signed by the Chairman of the
meeting at which any resolution was passed or proceedings had shall be
conclusive evidence of the matters contained in them and, until the
contrary is proved, every meeting in respect of the proceedings of which
minutes have been made shall be deemed to have been duly held and convened
and all resolutions passed or proceedings had at the meeting to have been
duly passed or had.
23. Subject to all other provisions contained in this Schedule, the Fiscal
Agent may without the consent of the Issuer, the Guarantor, the
Noteholders or the Couponholders prescribe any other regulations regarding
the calling and/or the holding of meetings of Noteholders and attendance
and voting at them as the Fiscal Agent may in its sole discretion think
fit (including, without limitation, the substitution for periods of 24
hours and 48 hours referred to in this Schedule of shorter periods). Any
regulations prescribed by the Fiscal Agent may but need not reflect the
practices and facilities of any relevant clearing system. Notice of any
other regulations may be given to Noteholders in accordance with Condition
12 and/or at the time of service of any notice convening a meeting.
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▇▇▇▇▇▇▇ EUROPE COMPANY LIMITED
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
HSBC BANK PLC (as Fiscal Agent and Agent Bank)
By: /s/ ▇▇▇▇▇ Fort
HSBC INSTITUTIONAL TRUST SERVICES (IRELAND) LIMITED
By: /s/ ▇▇▇▇▇ Fort
71