9505 Dexia BIL.qxd

Transcription

9505 Dexia BIL.qxd

Banque Internationale
à Luxembourg
DEXIA BANQUE INTERNATIONALE A LUXEMBOURG, SOCIETE ANONYME
(Incorporated with limited liability in Luxembourg)
SINGAPORE BRANCH
(Registration Number S89FC4012D)
EUR 10,000,000,000
Programme for the issue of Euro Medium Term Notes, Certificates and Warrants
On 9 November, 1995, Dexia Banque Internationale à Luxembourg, société anonyme (formerly Banque Internationale à Luxembourg S.A.) entered
into a U.S.$1,000,000,000 Programme for the issue of Euro Medium Term and Undated Notes and Warrants (the “Programme”) and issued an offering circular
on that date describing the Programme. The limit of the Programme was increased to U.S.$2,000,000,000 on 8 November, 1996, to U.S.$5,000,000,000 on 16
December, 1997, to U.S.$8,000,000,000 on 21 February, 2005 and to Euro 10,000,000,000 on 3 October, 2005. The States of France, Belgium and
Luxembourg (the “State Guarantors”) may guarantee certain issues of Senior Notes (as defined below) (the “State Guaranteed Notes”) under the Programme
(the “State Guarantee”) if so specified in the relevant Final Terms. For further information, see the section entitled “The State Guarantee” in this Prospectus.
Any Notes, Certificates or Warrants (as defined below) issued under the Programme on or after the date of this Prospectus are issued subject to the
provisions described herein save that any Notes or Warrants issued which are to be consolidated and form a single series with a previous issue of Notes or
Warrants shall be subject to the terms and conditions applicable to that previous issue of Notes or Warrants as set out in the prospectus applicable thereto.
Under the Programme, Dexia Banque Internationale à Luxembourg, société anonyme (the “Bank” or “Dexia BIL”) through its head office, subject
to compliance with all relevant laws, regulations and directives, may from time to time issue medium term notes that rank as senior obligations of Dexia BIL
(the “Senior Notes”), medium term notes that rank as subordinated obligations of Dexia BIL (the “Subordinated Notes” and, together with the Senior Notes,
the “Notes”), certificates (the “Certificates”) and warrants or other similar instruments (the “Warrants”), or, acting through its Singapore Branch (“Dexia BIL
Singapore”) may, subject to compliance with all relevant laws, regulations and directives, from time to time issue Senior Notes, Certificates and Warrants.
References herein to the “Issuer” shall mean Dexia BIL, whether acting through its head office or its Singapore Branch. The aggregate principal amount of
Notes and Certificates outstanding will not at any time exceed Euro 10,000,000,000 (or the equivalent in other currencies).
Application has been made to the Commission de Surveillance du Secteur Financier (the “CSSF”) in its capacity as competent authority under the
Luxembourg Act dated 10 July, 2005 relating to prospectuses for securities to approve this document as a base Prospectus. Application has also been made
to the Luxembourg Stock Exchange for Notes, Certificates and Warrants issued under the Programme for the period of 12 months from the date of publication
of this Prospectus to be listed on the official list of the Luxembourg Stock Exchange (the “Official List”) and to be admitted to trading on the regulated market
of the Luxembourg Stock Exchange (the “Regulated Market”). References in this Prospectus to Notes, Certificates and Warrants being “listed” (and all related
references) shall mean that such Notes, Certificates and Warrants have been listed on the Official List of the Luxembourg Stock Exchange and admitted to
trading on the Regulated Market. The Regulated Market is a regulated market for the purposes of the Directive 2004/39/EC of the European Parliament and
of the Council on Markets in financial instruments. However, unlisted Notes, Certificates and Warrants may be issued pursuant to the Programme. The relevant
Final Terms (as defined on page 6) in respect of the issue of any Notes, the relevant Final Terms for the Certificates (as defined on page 6) in respect of the
issue of any Certificates and the relevant Final Terms for the Warrants (as defined on page 13) in respect of the issue of any Warrants will specify whether or
not such Notes, Certificates or Warrants will be listed on the Official List of the Luxembourg Stock Exchange (or any other stock exchange(s)).
Each Tranche (as defined on page 6) of Notes in bearer form will be represented on issue by a temporary global note in bearer form (each, a
“temporary Global Note”) or a permanent global note in bearer form (each, a “permanent Global Note” and together with the temporary Global Notes, the
“Global Notes”). Notes in registered form (“Registered Notes”) will be represented by registered certificates (each, a “Registered Note Certificate”), one
Registered Note Certificate being issued in respect of each Noteholder’s entire holding of Registered Notes of one Series (as defined on page 6) of Notes.
Each Tranche of Certificates in bearer form will be represented on issue by a temporary global certificate in bearer form (each a “temporary Global Certificate”)
or a permanent global certificate in bearer form (each, a “permanent Global Certificate” and together with the temporary Global Certificate, the “Global
Certificates”). Certificates in registered form (“Certificates in Registered Form”) will be represented by registered certificates (each a “Registered Certificate”),
one Registered Certificate being issued in respect of each Certificateholder’s entire holding of Certificates in Registered Form of one Series of Certificates. Each
Tranche of Warrants in bearer form will be represented on issue by a temporary global warrant in bearer form (each, a “temporary Global Warrant”). Each
Tranche of Warrants in book-entry form will be represented by a global warrant (each, a “Global Warrant”, which expression does not include temporary Global
Warrants). If the Global Notes or the Global Certificates are stated in the applicable Final Terms or Final Terms for the Certificates to be issued in new global
note (“NGN”) form, they will be delivered on or prior to the original issue date of the relevant Tranche to a common safekeeper (the “Common Safekeeper”)
for Euroclear Bank S.A./N.V. (“Euroclear”) and Clearstream Banking, société anonyme (“Clearstream, Luxembourg”).
Global Notes and Global Certificates which are not issued in NGN form (“CGNs”), Registered Note Certificates, Certificates in Registered Form,
temporary Global Warrants and Global Warrants will be deposited on the issue date of the relevant Tranche with a common depositary on behalf of Euroclear and
Clearstream, Luxembourg (the “Common Depositary”).
The provisions governing the exchange of interests in Global Notes for other Global Notes and definitive Notes are described in “Summary of
Provisions Relating to the Notes while in Global Form”. The provisions governing the exchange of interests in Global Certificates for other Global Certificates
and definitive Certificates are described in “Summary of Provisions Relating to the Certificates while in Global Form”. Each temporary Global Warrant will be
exchangeable in whole, but not in part, for definitive Warrants in bearer form 40 days after its issue date upon certification as to non-U.S. beneficial ownership.
The purchase, transfer and exercise of Warrants in book-entry form may only be effected through an account at Euroclear or Clearstream, Luxembourg.
Definitive Warrants in book-entry form will not be issued.
Tranches of Notes and Certificates may be rated or unrated. Where a Tranche of Notes or Certificates is rated, it will be specified in the relevant Final
Terms or the Final Terms for the Certificates, as the case may be. Such rating will not necessarily be the same as ratings assigned to the Programme. A rating is
not a recommendation to buy, sell or hold securities and may be subject to suspension, reduction or withdrawal at any time by the assigning rating agency.
Moody’s Investors Service Limited (“Moody’s”) has assigned the following ratings to the Programme: A1 for Senior Notes having a maturity of one
year or more; P–1 for Senior Notes having a maturity of less than one year; A2 for dated and undated Subordinated Notes.
Standard & Poor’s Ratings Services, a division of the The McGraw-Hill Companies, Inc. (“Standard & Poor’s”) has assigned the following ratings to
the Programme: A for Senior Notes having a maturity of one year or more; A-1 for Senior Notes having a maturity of less than one year; A- for Senior
Surbordinated Notes. Notes guaranteed by the State Guarantors are expected to be given a Backed Aa1/Prime -1 rating by Moody’s and given a AA+ rating
by Standard & Poor’s.
Prospective investors should have regard to the factors described under the section headed “Risk Factors” in this Prospectus.
This Prospectus comprises a base prospectus for the purposes of Article 5.4 of Directive 2003/71/EC (the “Prospectus Directive”).
Dealers
BNP PARIBAS
Citi
DEXIA Capital Markets
Goldman Sachs International
Merrill Lynch International
Morgan Stanley
CALYON Crédit Agricole CIB
Credit Suisse
Dresdner Kleinwort
J.P. Morgan
Mitsubishi UFJ Securities International plc
Nomura International
UBS Investment Bank
Arranger
The date of this Prospectus is 3 April, 2009
A6.1
A6.2
SNA12-6.1
SNA5-6.1
SNA12.4.1.4
Responsibility Statement
The Issuer accepts responsibility for the information given in the Prospectus. Having taken all
reasonable care to ensure that such is the case, the information contained in this Prospectus is, to
the best of the knowledge of the Issuer, in accordance with the facts and contains no omission
likely to affect its import.
SNA5-1.1
SNA5-1.2
RDA11-1.1
RDA11-1.2
SNA12-1.1
None of the State Guarantors has either reviewed this Prospectus or verified the information
contained in it, and none of the State Guarantors makes any representation with respect to, nor
accepts any responsibility for, the contents of this Prospectus or any other statement made or
purported to be made on its behalf in connection with the Issuer or the issue and offering of any
Notes. Each of the State Guarantors accordingly disclaims all and any liability, whether arising in
tort or contract or otherwise, which it might otherwise have in respect of this Prospectus or any
such statement. The Issuer confirms that the disclosure relating to the State Guarantors, as set out
at pages 176 to 196 of this Prospectus, has been accurately reproduced and that, so far as it is
aware, and is able to ascertain from information published by the State Guarantors, no facts have
been omitted which would render the reproduced information inaccurate or misleading.
General
This Prospectus has been prepared on the basis that, except to the extent sub-paragraph (ii)
below may apply, any offer of Notes, Certificates or Warrants in any Member State of the European
Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”)
will be made pursuant to an exemption under the Prospectus Directive, as implemented in that
Relevant Member State, from the requirement to publish a prospectus for offers of Notes,
Certificates or Warrants. Accordingly any person making or intending to make an offer in that
Relevant Member State of Notes, Certificates or Warrants which are the subject of an offering
contemplated in this Prospectus as completed by final terms in relation to the offer of those Notes,
Certificates or Warrants may only do so (i) in circumstances in which no obligation arises for the
Issuer or any Dealer to publish a prospectus pursuant to Article 3 of the Prospectus Directive or
supplement a prospectus pursuant to Article 16 of the Prospectus Directive, in each case, in
relation to such offer, or (ii) if a prospectus for such offer has been approved by the competent
authority in that Relevant Member State or, where appropriate, approved in another Relevant
Member State and notified to the competent authority in that Relevant Member State and (in either
case) published, all in accordance with the Prospectus Directive, provided that any such prospectus
has subsequently been completed by relevant final terms which specify that offers may be made
other than pursuant to Article 3(2) of the Prospectus Directive in that Relevant Member State and
such offer is made in the period beginning and ending on the dates specified for such purpose in
such prospectus or relevant final terms, as applicable . Except to the extent sub-paragraph (ii)
above may apply, neither the Issuer nor any Dealer have authorised, nor do they authorise, the
making of any offer of Notes, Certificates or Warrants in circumstances in which an obligation arises
for the Issuer or any Dealer to publish or supplement a prospectus for such offer.
This Prospectus is to be read in conjunction with all documents which are incorporated
herein by reference (see “Documents Incorporated by Reference”).
No person has been authorised to give any information or to make any representation other
than those contained in this Prospectus in connection with the issue or sale of the Notes,
Certificates or Warrants and, if given or made, such information or representation must not be relied
upon as having been authorised by the Issuer or any of the Dealers or the Arranger (as defined in
“Summary of the Programme”). Neither the delivery of this Prospectus nor any sale made in
connection herewith shall, under any circumstances, create any implication that there has been no
change in the affairs of the Issuer or the Issuer’s consolidated subsidiaries taken as a whole (the
“Dexia BIL Group”) since the date hereof or the date upon which this Prospectus has been most
recently supplemented or that there has been no adverse change in the financial position of the
Issuer or the Dexia BIL Group since the date hereof or the date upon which this Prospectus has
been most recently supplemented or that any other information supplied in connection with the
Programme is correct as of any time subsequent to the date on which it is supplied or, if different,
the date indicated in the document containing the same.
The distribution of this Prospectus and the offering or sale of the Notes, Certificates and
Warrants in certain jurisdictions may be restricted by law. Persons into whose possession this
Prospectus comes are required by the Issuer, the Dealers and the Arranger to inform themselves
2
SNA12-1.2
A11.13.2
A16.1.1
A16.1.2
about and to observe any such restriction. The Notes, the State Guarantee, Certificates and
Warrants have not been and will not be registered under the United States Securities Act of 1933,
as amended (the “Securities Act”). The Notes and Certificates include Notes and Certificates in
bearer form that are subject to U.S. tax law requirements. Subject to certain exceptions, Notes and
Certificates may not be offered, sold or delivered within the United States or to U.S. persons. The
Warrants may not at any time be offered, sold or delivered directly or indirectly in the United States
or to, or for the account or benefit of, any U.S. person. Furthermore, neither the sale of nor trading
in Warrants which relate to currencies, commodity prices or indices has been approved by the
United States Commodity Futures Trading Commission under the United States Commodity
Exchange Act, and no U.S. person may at any time purchase, trade or maintain a position in such
Warrants unless otherwise specified in the relevant Final Terms for the Warrants. For a description
of certain restrictions on offers and sales of Notes, Certificates and Warrants and on the distribution
of this Prospectus, see “Plan of Distribution”.
This Prospectus does not constitute an offer of, or an invitation by or on behalf of the Issuer
or the Dealers to subscribe for, or purchase, any Notes, Certificates or Warrants.
To the fullest extent permitted by law, none of the Dealers (other than the Issuer in its
capacity as Dealer) or the Arranger accept any responsibility for the contents of this Prospectus or
for any other statement, made or purported to be made by the Arranger or a Dealer (other than the
Issuer in its capacity as Dealer) or on its behalf in connection with the Issuer or the issue and
offering of the Notes, the Certificates or the Warrants. The Arranger and each Dealer (other than the
Issuer in its capacity as Dealer) accordingly disclaims all and any liability whether arising in tort or
contract or otherwise (save as referred to above) which it might otherwise have in respect of this
Prospectus or any such statement. Neither this Prospectus nor any other financial statements are
intended to provide the basis of any credit or other evaluation and should not be considered as a
recommendation by any of the Issuer, the Arranger or the Dealers that any recipient of this
Prospectus or any other financial statements should purchase the Notes, Certificates or Warrants,
as the case may be. Each potential purchaser of Notes, Certificates or Warrants should determine
for itself the relevance of the information contained in this Prospectus and its purchase of Notes,
Certificates or Warrants, as the case may be, should be based upon such investigation as it deems
necessary. None of the Dealers (other than the Issuer in its capacity as Dealer) or the Arranger
undertakes to review the financial condition or affairs of the Issuer or the Dexia BIL Group during
the life of the arrangements contemplated by this Prospectus nor to advise any investor or potential
investor in the Notes, Certificates or Warrants of any information coming to the attention of any of
the Dealers or the Arranger.
In connection with the issue of any Tranche of Notes or Certificates the Dealer or
Dealers (if any) named as the Stabilising Manager(s) (or persons acting on behalf of any
Stabilising Manager(s)) in the applicable Final Terms or Final Terms for the Certificates, as the
case may be, may over-allot Notes or Certificates, as the case may be, or effect transactions
with a view to supporting the market price of the Notes or Certificates, as the case may be,
at a level higher than that which might otherwise prevail. However, there is no assurance that
the Stabilising Manager(s) (or persons acting on behalf of a Stabilising Manager) will
undertake stabilisation action. Any stabilisation action may begin on or after the date on
which adequate public disclosure of the terms of the offer of the relevant Tranche of Notes
or Certificates, as the case may be, is made and, if begun, may be ended at any time, but it
must end no later than the earlier of 30 days after the issue date of the relevant Tranche of
Notes or Certificates, as the case may be, and 60 days after the date of the allotment of the
relevant Tranche of Notes or Certificates, as the case may be. Any stabilisation action or
over-allotment must be conducted by the relevant Stabilising Manager(s) (or persons acting
on behalf of any Stabilising Manager(s)) in accordance with all applicable laws and rules.
Stabilising activities are not permitted in respect of the Warrants.
In this Prospectus, unless otherwise specified or the context otherwise requires, references to
“EUR” and “euro” are to the currency introduced pursuant to Article 109I(4) of the Treaty
establishing the European Community as amended by the Treaty on European Union and the Treaty
of Amsterdam and as further amended from time to time, to “GBP”, “Pounds Sterling” and
“Sterling” are to the lawful currency of the United Kingdom, “Singapore Dollars” are to the lawful
currency of Singapore, and to “U.S.$”, “USD” and “U.S. dollars” are to the lawful currency of the
United States.
3
TABLE OF CONTENTS
SUMMARY OF THE PROGRAMME .............................................................................................
5
RISK FACTORS.............................................................................................................................
16
GENERAL DESCRIPTION OF THE PROGRAMME .....................................................................
33
DOCUMENTS INCORPORATED BY REFERENCE ......................................................................
33
PROSPECTUS SUPPLEMENT .....................................................................................................
33
TERMS AND CONDITIONS OF THE SENIOR NOTES................................................................
34
TERMS AND CONDITIONS OF THE SUBORDINATED NOTES .................................................
56
TERMS AND CONDITIONS OF THE CERTIFICATES..................................................................
78
GENERAL CONDITIONS OF THE BOOK-ENTRY WARRANTS ..................................................
103
GENERAL CONDITIONS OF THE BEARER WARRANTS ...........................................................
108
SUMMARY OF PROVISIONS RELATING TO THE NOTES WHILE IN GLOBAL FORM ............
112
THE STATE GUARANTEE .............................................................................................................
117
CONVENTION DE GARANTIE AUTONOME ................................................................................
136
USE OF PROCEEDS ....................................................................................................................
154
DEXIA BANQUE INTERNATIONALE A LUXEMBOURG, SOCIETE ANONYME..........................
155
DEXIA BANQUE INTERNATIONALE A LUXEMBOURG, SOCIETE
ANONYME SINGAPORE BRANCH ..............................................................................................
160
DEXIA GROUP ..............................................................................................................................
162
DEXIA PRESS RELEASE ..............................................................................................................
163
KINGDOM OF BELGIUM..............................................................................................................
176
GRAND DUCHY OF LUXEMBOURG ...........................................................................................
183
FRENCH REPUBLIC .....................................................................................................................
190
TAXATION ......................................................................................................................................
197
PLAN OF DISTRIBUTION .............................................................................................................
204
FORM OF FINAL TERMS .............................................................................................................
209
FORM OF FINAL TERMS FOR THE CERTIFICATES ..................................................................
222
FORM OF FINAL TERMS FOR THE WARRANTS.......................................................................
234
GENERAL INFORMATION ............................................................................................................
237
REGISTERED OFFICE OF THE ISSUER......................................................................................
239
4
SUMMARY OF THE PROGRAMME
This summary must be read as an introduction to this Prospectus. Any decision to invest in any
Notes, Certificates or Warrants should be based on a consideration of this Prospectus as a whole,
including the documents incorporated by reference, by any investor. Following the implementation
of the relevant provisions of the Prospectus Directive in each Member State of the European
Economic Area (an “EEA State”), the responsible persons may have civil liability in respect of this
summary, if it is misleading, inaccurate or inconsistent when read together with the other parts of
this Prospectus. Where a claim relating to information contained in this Prospectus is brought
before a court in an EEA State, the plaintiff may, under the national legislation of the EEA State
where the claim is brought, be required to bear the costs of translating the Prospectus before the
legal proceedings are initiated.
The following summary does not purport to be complete and is taken from, and is qualified in its
entirety by the remainder of, this Prospectus and, in relation to the terms and conditions of any
particular Tranche of Notes, Certificates or Warrants, the applicable Final Terms, Final Terms for the
Certificates or Final Terms for the Warrants. Words and expressions defined or used in “Terms and
Conditions of the Senior Notes’’, “Terms and Conditions of the Subordinated Notes’’, “Terms and
Conditions of the Certificates”, “General Conditions of the Book-Entry Warrants” and “General
Conditions of the Bearer Warrants” shall have the same meaning in this summary.
Information relating to the Issuer:
Dexia BIL, together with Dexia Banque Belgium S.A. in Belgium and Dexia Crédit Local in France,
is a member of the European banking group Dexia (“Dexia Group” or “the Group”) which is one of
the twenty largest financial institutions listed on the stock market in the euro-zone according to
Fininfo. Dexia BIL’s main business activities cover the fields of commercial banking, private banking,
financial banking, asset management and investment fund administration services.
Dexia BIL was incorporated in Luxembourg on 8 March, 1856 in the form of a société anonyme
(limited liability company), governed by Luxembourg law. Its registered office is located at 69, route
d’Esch, Luxembourg, L-1470 Luxembourg, telephone number +352 45901. Dexia BIL is registered
in the Luxembourg Register of Commerce and Companies under number B-6307.
RDA11-4.1.1
RDA11-6.1
RDA11-5.1.4
RDA11-5.1.3
RDA11-5.1.1
RDA11-13.2
RDA11-4.1.2
RDA11-4.1.3
RDA11-4.1.4
Dexia BIL’s duration is unlimited.
The objects of Dexia BIL are to undertake all banking and financial operations of whatsoever kind,
and, inter alia, to accept deposits from the public or any other person or institutions and to grant
credit for its own account. It may also undertake all activities reserved for investment firms and to
other professionals in the financial sector and all financial, administrative, management and advisory
operations directly or indirectly related to its activities. It may establish subsidiaries, branches and
agencies in or outside Luxembourg and participate in all financial, commercial and industrial
operations.
Dexia BIL Singapore has been established as a branch to conduct commerical banking activities as
an offshore bank. Dexia BIL Singapore is not a separately incorporated legal entity and its capital
is not represented by shares.
Information relating to the Programme:
Issuer:
Dexia Banque Internationale à Luxembourg, société anonyme. If
so specified in the applicable Final Terms, Final Terms for the
Certificates or Final Terms for the Warrants, as applicable, Senior
Notes, Certificates and Warrants may be issued by the Issuer
through its Singapore Branch.
State Guarantee:
The States of France, Belgium and Luxembourg (the “State
Guarantors”) may guarantee certain issues of Senior Notes under
the Programme (the “State Guarantee”) if so specified in the
relevant Final Terms. For further information, see the sections
entitled “The State Guarantee” and “Convention de Garantie
Autonome” in this Prospectus.
5
A6.1
A6.2
Description:
Programme for the issue of Euro Medium Term Notes,
Certificates and Warrants.
Size:
Up to a10,000,000,000 (or the equivalent in other currencies at
the date of issue) aggregate nominal amount of Notes and
Certificates outstanding at any one time.
Arranger:
Dealers:
BNP PARIBAS
CALYON
Citigroup Global Markets Limited
Credit Suisse Securities (Europe) Limited
Dexia Banque Internationale à Luxembourg, société anonyme
(Dexia Capital Markets)
Dresdner Bank Aktiengesellschaft
J.P. Morgan Securities Ltd.
Morgan Stanley & Co. International plc
Nomura International plc
UBS Limited
The Issuer may from time to time terminate the appointment of
any dealer under the Programme or appoint additional dealers
either in respect of one or more Tranches of Notes, Certificates
or Warrants or in respect of the whole Programme.
Information Relating to the Notes and the Certificates:
Fiscal Agent:
Dexia Banque Internationale à Luxembourg, société anonyme.
Method of Issue:
The Notes and the Certificates will be issued on a syndicated or
non-syndicated basis. The Notes and the Certificates will be
issued in series (each a “Series”) having one or more issue dates
and on terms otherwise identical (or identical other than in
respect of the first payment of interest), the Notes or Certificates
of each Series being intended to be interchangeable with all
other Notes or Certificates of that Series. Each Series may be
issued in tranches (each a “Tranche”) on the same or different
issue dates. The specific terms of each Tranche (which will be
supplemented, where necessary, with supplemental terms and
conditions and, save in respect of the issue date, issue price,
first payment of interest and nominal amount of the Tranche, will
be identical to the terms of other Tranches of the same Series)
will be set out in the relevant Final Terms (the “Final Terms”) or
Final Term for the Certificates (the “Final Terms for the
Certificates”), as the case may be.
Issue Price:
Notes and Certificates may be issued at their nominal amount or at
a discount or premium to their nominal amount. Partly-Paid Notes
may be issued, the issue price of which will be payable in two or
more instalments.
Form of Notes:
The Notes may be issued in bearer form only (“Bearer Notes”), in
bearer form exchangeable for Registered Notes (“Exchangeable
Bearer Notes”) or in registered form only (“Registered Notes”).
Each Tranche of Bearer Notes and Exchangeable Bearer Notes
will initially be represented by a temporary Global Note if (i)
6
SNA12-5.1.3
SNA5-5.1.3
SNA5-4.3
SNA12-4.1.4
definitive Notes are to be made available to Noteholders
following the expiry of 40 days after their issue date or (ii) such
Notes have an initial maturity of more than one year and are
being issued in compliance with the D Rules (as defined in
“Selling Restrictions”), otherwise such Tranche will be
represented by a permanent Global Note. Registered Notes will
be represented by Registered Note Certificates, one Registered
Note Certificate being issued in respect of each Noteholder’s
entire holding of Registered Notes of one Series. Registered Note
Certificates that are registered in the name of a nominee for one
or more clearing systems are referred to as “Registered Note
Global Certificates”.
Form of Certificates:
Clearing Systems:
The Certificates may be issued in bearer form only (“Bearer
Certificates”), in bearer form exchangeable for Certificates in
Registered Form (“Exchangeable Bearer Certificates”) or in
registered form only (“Certificates in Registered Form”). Each
Tranche of Bearer Certificates and Exchangeable Bearer
Certificates will initially be represented by a temporary Global
Certificate if (i) definitive Certificates are to be made available to
Certificateholders following the expiry of 40 days of their issue
date or (ii) such Certificates have an initial maturity of more than
one year and are being issued in compliance with the D Rules,
otherwise such Tranche will be represented by a permanent
Global Certificate. Certificates in Registered Form will be
represented by Registered Certificates, one Registered Certificate
being issued in respect of each Certificateholder’s entire holding
of Certificates in Registered Form of one Series. Registered
Certificates that are registered in the name of a nominee for one
or more clearing systems are referred to as “Global Certificates in
Registered Form”.
Clearstream, Luxembourg, Euroclear and, in relation to any
Tranche, such other clearing system as may be agreed between
the Issuer and the relevant Dealer.
Initial Delivery of
On or before the issue date for each Tranche, if the relevant
Senior Notes and Certificates: Global Note or Global Certificate is a NGN, the Global Note or
Global Certificate will be delivered to a Common Safekeeper for
Euroclear and Clearstream, Luxembourg. On or before the issue
date for each Tranche, if the relevant Global Note or Global
Certificate is a CGN, (i) the Global Note representing Bearer
Notes or Exchangeable Bearer Notes or (ii) the Registered Note
Certificate representing Registered Notes or (iii) the Global
Certificate representing Bearer Certificates or Exchangeable
Bearer Certificates or (iv) the Registered Certificate representing
Certificates in Registered Form may (or, in the case of Notes or
Certificates listed on the Official List of the Luxembourg Stock
Exchange, shall) be deposited with a common depositary for
Euroclear and Clearstream, Luxembourg. Global Notes or
Registered Note Certificates relating to Notes and Global
Certificates or Registered Certificates relating to Certificates may
also be deposited with any other clearing system or may be
delivered outside any clearing system provided that, save in the
case of delivery to Euroclear France, the method of such delivery
has been agreed in advance by the Issuer and the relevant
Dealer. Registered Notes or Certificates in Registered Form that
7
SNA12-4.1.4
SNA5-4.3
are to be credited to one or more clearing systems on issue will
be registered in the name of nominees or a common nominee for
such clearing systems.
Initial Delivery of
Subordinated Notes:
On or before the issue date for each Tranche, the Global
Note representing Bearer Notes or Exchangeable Bearer Notes or
the Registered Note Certificate representing Registered Notes
may be deposited with a common depositary for Euroclear and
Clearstream, Luxembourg. Global Notes or Registered Note
Certificates may also be deposited with any other clearing
system or may be delivered outside any clearing system provided
that, save in the case of delivery to Euroclear France, the method
of such delivery has been agreed in advance by the Issuer and
the relevant Dealer. Registered Notes that are to be credited to
one or more clearing systems on issue will be registered in the
name of nominees or a common nominee for such clearing
systems.
Currencies:
Subject to compliance with all relevant laws, regulations and
directives, Notes and Certificates may be issued in any currency
agreed between the Issuer and the relevant Dealers.
Maturities:
SNA5-4.4
SNA12-4.1.5
Subject to compliance with all relevant laws, regulations and
directives, Senior Notes and Certificates may have any maturity
that is one month or greater and Subordinated Notes will have
either (i) a maturity that is one month or greater (“Dated Notes”)
or (ii) no scheduled maturity date (“Undated Notes”).
Under the Luxembourg Act dated 10 July, 2005 relating to
prospectuses for securities which implements the Prospectus
Directive, prospectuses relating to money market instruments
having a maturity at issue of less than 12 months and complying
also with the definition of securities are not subject to the approval
provisions of Part II of such law.
Redenomination:
The relevant Final Terms or Final Terms for the Certificates may
provide that certain Notes or Certificates may be redenominated
in Euro. If so, the wording of the redenomination clause will be set
out in the relevant Final Terms or Final Terms for the Certificates.
Denomination:
Definitive Notes and Definitive Certificates will be in such
denominations as may be specified in the relevant Final Terms, or
Final Terms for the Certificates, as the case may be, save that
the minimum denomination of each Note and Certificate admitted
to trading on a regulated market within the European Economic
Area or offered to the public in a Member State of the European
Economic Area in circumstances which require the publication of
a prospectus under the Prospectus Directive will be EUR 1,000–
(or, if the Notes or Certificates are denominated in a currency
other than Euro, the equivalent amount in such currency at the
time of issue).
The minimum denomination of State Guaranteed Notes will be
EUR 25,000 (or, if the Notes or Certificates are denominated in a
currency other than Euro, the equivalent amount in such currency
at the time of issue).
Fixed Rate Notes and Fixed
Rate Certificates:
Fixed interest will be payable in arrear on the date or dates in
each year specified in the relevant Final Terms or Final Terms for
the Certificates, as the case may be.
8
SNA5-5.1.5
Floating Rate Notes and
Floating Rate Certificates:
Floating Rate Notes and Floating Rate Certificates will bear
interest determined separately for each Series as follows:
(i)
on the same basis as the floating rate under a notional
interest rate swap transaction in the relevant Specified
Currency governed by an agreement incorporating the
2006 ISDA Definitions published by the International
Swaps and Derivatives Association, Inc. or
(ii)
by reference to EURIBOR or LIBOR (or such other
benchmark as may be specified in the relevant Final Terms
or Final Terms for the Certificates, as the case may be) as
adjusted for any applicable margin. Interest periods will be
specified in the relevant Final Terms or Final Terms for the
Certificates, as the case may be.
Zero Coupon Notes:
Zero Coupon Notes may be issued at their nominal amount or at
a discount to it and will not bear interest.
Dual Currency Notes:
Payments (whether in respect of principal or interest and whether
at maturity or otherwise) in respect of Dual Currency Notes will
be made in such currencies, and based on such rates of
exchange, as may be specified in the relevant Final Terms.
Index-Linked Notes:
Payments of principal in respect of Index-Linked Redemption
Notes or of interest in respect of Index-Linked Interest Notes will
be calculated by reference to such index and/or formula as may
be specified in the relevant Final Terms.
Interest Periods and
Interest Rates:
The length of the interest periods for the Notes Certificates and
and the applicable interest rate or its method of calculation may
differ from time to time or be constant for any Series. Notes and
Certificates may have a maximum interest rate, a minimum
interest rate, or both. The use of interest accrual periods permits
the Notes and Certificates to bear interest at different rates in the
same interest period. All such information will be set out in the
relevant Final Terms or Final Terms for the Certificates, as the
case may be.
Redemption:
The relevant Final Terms or Final Terms for the Certificates, as the
case may be, will specify the basis for calculating the redemption
amounts payable, which may be by reference to a stock index or
formula or as otherwise provided in the relevant Final Terms or
Final Terms for the Certificates, as the case may be. See
“Redemption of the Certificates” below.
Redemption by Instalments:
The relevant Final Terms or Final Terms for the Certificates, as the
case may be, issued in respect of each issue of Notes and
Certificates that are redeemable in two or more instalments will
set out the dates on which, and the amounts in which, such
Notes and Certificates may be redeemed.
Other Notes and Certificates:
Terms applicable to high interest Notes and Certificates, low
interest Notes and Certificates, step-up Notes, step-down Notes
and Certificates, dual currency Notes and Certificates, reverse
dual currency Notes and Certificates, optional dual currency
Notes and Certificates, Partly-Paid Notes and any other type of
Note or Certificate that the Issuer and any Dealer or Dealers may
agree to issue under the Programme will be set out in the
case may be, or in a supplement to the Prospectus.
9
Optional Redemption:
The relevant Final Terms issued in respect of each issue of Notes
or the Final Terms for the Certificates issued in respect of each
issue of Certificates will state whether such Notes or Certificates
may be redeemed prior to their stated maturity at the option of
the Issuer (either in whole or in part) and, in the case of Senior
Notes and Certificates only, at the option of the holders, and if so
the terms applicable to such redemption. Such redemption will
be subject to the prior approval of the CSSF for Subordinated
Notes.
Status of Notes:
Senior Notes and Certificates may be issued by the Issuer
(including through Dexia BIL Singapore). Senior Notes and
Certificates will constitute direct, unconditional, unsecured and
unsubordinated obligations of the Issuer as described in “Terms
and Conditions of the Senior Notes—Status” and “Terms
and Conditions of the Certificates—Status”, respectively.
Subordinated Notes may not be issued by the Issuer through
Dexia BIL Singapore and will constitute direct, unsecured and
subordinated obligations of the Issuer as described in “Terms
and
Conditions
of
the
Subordinated
Notes—Status”.
Subordinated Notes may be issued as Upper Tier II or Lower Tier
II Capital of the Issuer. Notes that are intended to constitute
Lower Tier II Capital of the Issuer will have a minimum maturity of
five years. Notes that are intended to constitute Upper Tier II
Capital of the Issuer will either be Undated Notes or will be
Dated Notes with a minimum maturity of five years in respect of
which the maturity date may be postponed until the CSSF shall
have agreed to their redemption.
Negative Pledge:
Applicable to Senior Notes only. See “Terms and Conditions of
the Senior Notes—Negative Pledge”.
Cross Default:
Applicable to Senior Notes only. See “Terms and Conditions of
the Senior Notes—Events of Default”.
Early Redemption:
Except as provided in “Optional Redemption” above, Notes will
be redeemable at the option of the Issuer prior to maturity only
for tax reasons. Such redemption will be subject to the prior
approval of the CSSF for Subordinated Notes. See “Terms and
Conditions of the Senior Notes—Redemption, Purchase and
Options” or “Terms and Conditions of the Subordinated Notes—
Redemption, Purchase and Options”, as the case may be.
Withholding Tax:
All payments of principal and interest in respect of the Notes will
be made free and clear of withholding taxes of Luxembourg and
Singapore subject subject to customary exceptions, all as
described in “Terms and Conditions of the Senior Notes—
Taxation” or “Terms and Conditions of the Subordinated Notes—
Taxation”, as the case may be. All payments of principal and
interest in respect of the Certificates shall be made without
withholding or deduction for or on account of tax or otherwise
unless required by applicable law. If any such withholding or
deduction is required by applicable law, the Certificateholders
shall not be entitled to receive, and the Issuer shall not be
required to pay, an additional amount in respect thereof.
Governing Law:
Senior Notes denominated in EUR may be governed by
Luxembourg law or English law, as specified in the relevant Final
Terms. Certificates will be governed by English law. Subordinated
10
SNA5-4.14
SNA12-4.1.14
Notes will be governed by Luxembourg law. The State Guarantee
is governed by the laws of Belgium.
Listing:
The official list of the Luxembourg Stock Exchange and/or as
otherwise specified in the relevant Final Terms or Final Terms for
the Certificates, as the case may be. As specified in the relevant
Final Terms or Final Terms for the Certificates, as the case may
be, a Series of Notes or Certificates may be unlisted.
Selling Restrictions:
United States, EEA, United Kingdom, France, Germany, Japan,
Singapore, The Netherlands. See “Plan of Distribution”.
The Issuer is Category 2 for the purposes of Regulation S under
the United States Securities Act of 1933, as amended.
The Notes and Certificates will be issued in compliance with U.S.
Treas. Reg. §1.163- 5(c)(2)(i)(D) (the “D Rules”) unless (i) the
case may be, state that Notes or Certificates are issued in
compliance with U.S. Treas. Reg. §1.163-5(c)(2)(i)(C) (the “C
Rules”) or (ii) the Notes or Certificates are issued other than in
compliance with the D Rules or the C Rules but in circumstances
in which the Notes or Certificates will not constitute “registration
required obligations” under the United States Tax Equity and
Fiscal Responsibility Act of 1982 (“TEFRA”), which circumstances
will be referred to in the relevant Final Terms or Final Terms for
the Certificates as a transaction to which TEFRA is not
applicable.
In addition, there are restrictions on the sale of State Guaranteed
Notes.
Ratings:
Tranches of Notes and Certificates may be rated or unrated.
Where a Tranche of Notes or Certificates is rated, the ratings will
be specified in the relevant Final Terms or the Final Terms for the
Certificates, as the case may be. Such rating will not necessarily
be the same as ratings assigned to the Programme.
Moody’s Investors Service Limited has assigned the following
ratings to Notes to be issued under the Programme: A1 for
Senior Notes having a maturity of one year or more; P-1 for
Senior Notes having a maturity of less than one year; A2 for
dated and undated Subordinated Notes.
Standard & Poor’s Ratings Services, a division of The McGrawHill Companies, Inc. has assigned the following ratings to Notes
to be issued under the Programme: A for Senior Notes having a
maturity of one year or more; A-1 for Senior Notes having a
maturity of less than one year; A- for Senior Subordinated Notes.
Notes guaranteed by the State Guarantors are expected to be
given a Backed Aa1/Prime-1 rating by Moody’s and given a AA+
rating by Standard & Poor’s.
Notes issued under the State Guarantee will be rated on an issue
by issue basis and such rating confirmed in the Final Terms.
11
SNA5-4.13
A rating is not a recommendation to buy, sell or hold securities
and may be subject to suspension, reduction or withdrawal at
any time by the assigning rating agency.
Risk Factors:
Use of Proceeds:
RDA11-3.1
There are risk factors that fully affect the Issuer’s ability to fulfil its
obligations under the Notes and the Certificates. These include
Credit Risk, Market Risk, Operational Risk, Liquidity Risk, Risk
Management, Regulatory Risk, uncertain economic conditions and
competition. There are risk factors which are material for the
purpose of assessing the market risks associated with the Notes
and the Certificates. These include the risk that the Notes and the
Certificates may not be a suitable investment for all investors. There
are also risk factors that relate to the structure of a particular issue
of Notes and Certificates. These include specific risk factors for:
Notes and Certificates subject to optional redemption by the Issuer,
Index Linked Notes, Dual Currency Notes, Partly-Paid Notes,
Variable Notes with a multiplier or other coverage factor,
Fixed/Floating Rate Notes, Index Linked Certificates, Share Linked
Certificates, Debt Linked Certificates, Currency Linked Certificates,
Commodity Linked Certificates, Interest Rate Linked Certificates,
Fund Linked Certificates, Investors will not be able to calculate in
advance their rate of return on Floating Rate Notes or Floating Rate
Certificates or Zero Coupon Notes which are subject to higher price
fluctuations than not discounted notes, Notes or Certificates issued
issued at a substantial discount or premium, Foreign Currency
Notes expose investors to foreign exchange risk as well as to Issuer
risk, the Issuer’s obligations under Subordinated Notes,
Noteholders’ and Certificateholders’ actual yield on the Notes and
Certificates may be reduced from the stated yield by transaction
costs and Noteholders’ and Certificateholders’ effective yield on the
Notes and Certificates may be diminished by the tax impact on that
holder of its investment in the Notes and Certificates. There are
risks relating to the Notes and Certificates generally. These include
modifications, waivers and substitution, Basel Capital Requirements
Directive, the trading market for debt securities may be volatile and
may be adversely impacted by many events, the European
Monetary Union, the EU Savings Directive and change of law. There
are risks related to the market generally. These include the
secondary market generally, exchange rate risks and exchange
controls, interest rate risks and credit ratings may not reflect all
risks. Legal investment considerations may restrict certain
investments.
SNA12-2
Also, there are risk factors associated with the State Guarantee,
including the following: (i) several and not joint State Guarantee,
(ii) state quotas and the maximum amount of the State Guarantee,
(iii) conditions for benefiting and making claims under the State
Guarantee, (iv) withholding tax and gross up under the State
Guarantee; and (v) governing law and jurisdiction.
A16.2
The net proceeds of the sale of the Notes and the Certificates
will be used for the general funding purposes of the Issuer. If, in
respect of any particular issue, there is a particular identified use
of proceeds, this will be stated in the relevant Final Terms or
Final Terms for the Certificates, as the case may be.
RDA5-3.2
12
SNA5-2.1
Additional Information Relating to the Certificates:
The Certificates are Index Linked Certificates, Share Linked
Certificates, Debt Linked Certificates, Currency Linked
Certificates, Commodity Linked Certificates, Interest Rate Linked
Certificates, Fund Linked Certificates or any other or further type
of Certificates as may be specified in the applicable Final Terms
for the Certificates.
Conditional Interest:
If so specified in the applicable Final terms for the Certificates,
the payment and/or accrual of interest may be subject to certain
events or conditions having or not having occurred. See “Terms
and Conditions of the Certificates – Interest”.
Interest Indexed Certificates:
Certificates may bear interest at a rate determined by reference
to the performance of an Index, a Share, a Debt Security, a
Commodity, an Inflation Index (each of which is as defined in the
“Conditions for the Certificates”) or any other Underlying Security
or any combination thereof in the manner specified in the
applicable Final Terms for the Certificates.
Redemption of the Certificates: If so specified in the applicable Final Terms for the Certificates,
each Certificate will be redeemed by the Issuer in the case of a
Cash Settled Certificate, by payment of the Redemption Amount
or in the case of a Physical Delivery Certificate, by delivery of the
Entitlement. See “Terms and Conditions of the Certificates –
Redemption, Payment and Physical Delivery”.
Issuers Option to Vary
Settlement:
If so specified in the applicable Final Terms for the Certificates,
the Issuer may vary settlement in respect of the Physical Delivery
Certificates by electing not to pay Certificateholders the
Redemption Amount, the Optional Redemption Amount or the
Automatic Early Redemption Amount or to deliver the Entitlement
but in lieu thereof to deliver the Entitlement or the Alternative
Cash Settlement Amount.
Information Relating to the Warrants:
Method of Issue:
The Warrants will be issued on a syndicated or non-syndicated
basis. The Warrants will be issued in Series having one or more
issue dates and on terms otherwise identical, the Warrants of
each Series being intended to be interchangeable with all other
Warrants of that Series. Each Series may be issued in Tranches
on the same or different issue dates. The specific terms (the
“Terms”) of each Tranche (which, save in respect of the issue
date, issue price and number of Warrants comprising the
Tranche, will be identical to the terms of other Tranches of the
same Series) will be set out in a supplement to this Prospectus
(the “Final Terms for the Warrants”).
Issue Price:
The Warrants may be issued at any issue price. The issue price
will be specified in the Final Terms for the Warrants.
Form of Warrants:
The Warrants may be issued in bearer form only (“Bearer
Warrants”) or in book-entry form only, being capable of being
purchased, transferred and exercised only through an account at
Euroclear or Clearstream, Luxembourg (“Book-entry Warrants”).
Each Tranche of Bearer Warrants will be represented on issue by
a temporary Global Warrant exchangeable for definitive Bearer
Warrants 40 days after its issue date. Each Tranche of Book-entry
Warrants will be represented by a Global Warrant at all times.
13
SNA12-4.1.4
SNA5-4.3
SNA12.4.1.4
Book-entry Warrants will not be issued in definitive form.
Initial Delivery of Warrants:
Temporary Global Warrants may, and Global Warrants will, be
deposited with a common depositary for Euroclear and
Clearstream, Luxembourg immediately prior to their issue date.
Clearing Systems:
Clearstream, Luxembourg and Euroclear and, in relation to any
Tranche of Bearer Warrants, such other clearing system as may
be agreed between the Issuer and the relevant Dealer.
Terms of the Warrants:
As set out in the relevant Final Terms for the Warrants, each
Series of Warrants will entitle the Warrantholder (as defined in the
general conditions of the Warrants (the “General Conditions”)) to
receive a cash amount from the Issuer calculated in accordance
with the relevant Terms, all as set out in the General Conditions
and in the relevant Terms. Each Final Terms for the Warrants will
set forth certain information with respect to Warrants of the
relevant Series (distinguishing between separate Tranches of
Warrants, if applicable) including the designation, the maximum
aggregate number and type of Warrants, the date of issue, the
issue price, the strike price, the settlement amount, the exercise
period or the exercise date or dates, the final exercise date and
the settlement date.
Important Notice
for Investors:
Investors should note that the Warrants create options
exercisable by the relevant Warrantholder. There is no obligation
upon any Warrantholder to exercise his Warrant nor, in the
absence of such exercise, any obligation upon the Issuer to pay
or cause to be paid any amount in respect of the Warrants. Upon
exercise of any Warrants, Warrantholders will be required to
make a certification in respect of certain laws of the United
States of America (see “General Conditions of the Book-entry
Warrants—Exercise Procedure” or “General Conditions of the
Bearer Warrants—Exercise Procedure”, as the case may be).
Status of Warrants:
The Warrants will constitute unsubordinated and unsecured
obligations of the Issuer.
Events of Default and
Negative Pledge:
The Warrants will not contain any negative pledge or events of
default.
Termination for Illegality:
The Issuer has the right to terminate any Warrants prior to
exercise only if its performance under such Warrants has become
unlawful. In such circumstances the Issuer will (to the extent
permitted by applicable law) cause an amount to be paid to each
Warrantholder in respect of each relevant Warrant which is the
fair market value of such Warrant immediately prior to such
termination. (See “General Conditions of the Book-entry
Warrants—Illegality” or “General Conditions of the Bearer
Warrants—Illegality”, as the case may be.)
Taxation:
Warrantholders will be liable for any taxes, including withholding
tax, arising in connection with the Warrants.
Governing Law:
Book-entry Warrants shall be governed by English law. Bearer
Warrants shall be governed by Luxembourg law.
Listing:
The official list of the Luxembourg Stock Exchange or as otherwise
specified in the relevant Final Terms for the Warrants. As specified
in the relevant Final Terms for the Warrants, a Series of Warrants
may be unlisted.
14
SNA12-4.1.4
SNA12-4.1.14
SNA5-4.14
Risk Factors:
Use of Proceeds:
United States, EEA, United Kingdom, France, Germany, Japan,
The Netherlands, Singapore. See “Plan of Distribution”. The
Warrants may not at any time be offered, sold or delivered
directly or indirectly in the United States or to, or for the account
or benefit of, any U.S. person. Furthermore, neither the sale of
nor trading in Warrants which relate to currencies, commodity
prices or indices has been approved by the United States
Commodity Futures Trading Commission under the United States
Commodity Exchange Act, and no U.S. person may at any time
purchase, trade or maintain a position in such Warrants unless
otherwise specified in the relevant Final Terms for the Warrants.
SNA12-4.1.10
There are risk factors that may affect the Issuer’s ability to fulfil its
obligations under the Warrants. These include Credit Risk, Market
Risk, Operational Risk, Liquidity Risk, Risk Management,
Regulatory Risk, uncertain economic conditions and competition.
There are risk factors which are material for the purpose of
assessing the market risks associated with the Warrants. These
include the risk that the Warrants may not be a suitable
investment for all investors. There are risk factors that relate to the
structure of a potential issue of Warrants. Investment in warrants
involves a high degree of risk, certain factors affecting the value
and trading price of warrants, Limitations on Exercise, Minimum
Exercise Amount, Certain Considerations regarding Hedging and
Time Lag after Exercise and Certain Additional Risk Factors
Associated with Currency Warrants. There are risks relating to the
Warrants generally. These include modifications, waivers and
substitution, Basel Capital Requirements Directive, the trading
market for debt securities may be volatile and may be adversely
impacted by many events, the European Monetary Union, the EU
Savings Directive and change of law. There are risks relating to
the market generally. These include the secondary market
generally, exchange rate risks and exchange controls, interest rate
risks and credit ratings may not reflect all risks. Legal investment
considerations may restrict certain investments.
SNA12-2
The net proceeds of the sale of the Warrants will be used for the
general funding purposes of the Issuer. If, in respect of any
particular issue, there is a particular identified use of proceeds,
this will be stated in the relevant Final Terms for the Warrants.
SNA12-3.2
15
SNA5-4.13
RDA11-3.1
SNA5-2.1
RISK FACTORS
The Issuer believes that the following factors may affect its ability to fulfil its obligations under the
Notes and/or the Certificates and/or the Warrants. All of these factors are contingencies which may or
may not occur and the Issuer is not in a position to express a view on the likelihood of all or any of
such contingencies occurring.
Factors which the Issuer believes may be material for the purpose of assessing the market
risks associated with the Notes, the Certificates and the Warrants issued under the Programme are
also described below.
The Issuer believes that the factors described below represent the principal risks inherent in
investing in Notes issued under the Programme, but the inability of the Issuer to pay interest,
principal or other amounts on or in connection with any Notes may occur for other reasons and the
Issuer does not represent that the statements below regarding the risks of holding any Notes are
exhaustive.
Prospective investors should also read the detailed information set out elsewhere in this
Prospectus (including any documents deemed to be incorporated in it by reference) and reach their
own views prior to making any investment decision.
Factors that may affect the Issuer’s ability to fulfil its obligations under the Notes, the
Certificates and the Warrants.
Like other banks, the Issuer faces financial risk in the conduct of its business, such as credit
risk, operational risk and market risk (including liquidity risk).
Credit risk
As a credit institution, the Issuer is exposed to the creditworthiness of its customers and
counterparties. The Issuer may suffer losses related to the inability of its customers or other
counterparties to meet their financial obligations. Most of the commitment decisions concern
customers in the local government sector, which is low risk and also subject to specific controls
relating to its public nature. The Issuer cannot assume that its level of provisions will be adequate
or that it will not have to make significant additional provisions for possible bad and doubtful debts
in future periods. Group Risk Management oversees the Dexia Group’s risk policy and is
responsible for, inter alia, setting and managing the risk surveillance function and decision
processes and implementing Group-wide risk assessment methods for each of the bank’s activities
and operational entities.
Market risk
Market risks are all the risks linked to the fluctuations of market prices, including, principally,
exposure to loss arising from adverse movements in interest rates, and, to a lesser extent, foreign
exchange rates and equity prices, stemming from Dexia Group’s capital market activities. Due to
the nature of its activity, the Dexia Group is prevented from assuming significant exposure to
market risk. It does not act as a market maker and therefore has exposure mainly on its short-term
cash management and a portfolio of derivative products with customers that is managed on a
market value basis. Market risks generated by the commercial businesses are generally hedged and
residual risks are handled by the Asset and Liability Management function.
Operational risk
Within the Issuer, operational risk comprises the exposure to loss from inadequate or failed
internal processes, people and systems or from external events (such as, but not limited to natural
disasters and fires), risk relating to the security of information systems, litigation risk and reputation
risk. Operational risks are inherent in all activities within the organisation, in outsourced activities
and in all interaction with external parties. The Issuer’s operational risk management framework, set
up in 2003, is responsible for, inter alia, coordinating the collection of risk event data and risk and
control self-assessment within the different entities and activities of the Dexia Group, defining
methodological principles, selecting adequate tools and ensuring global consistency. Unforeseen
events like severe natural catastrophes, terrorist attacks or other states of emergency can lead to
an abrupt interruption of the Issuer’s operations, which can cause substantial losses. Such losses
can relate to property, financial assets, trading positions and to key employees. Such unforeseen
events can also lead to additional costs (such as relocation of employees affected) and increase the
16
A16.2
SNA5-2.1
RDA11-3.1
RDA12-2
Issuer’s costs (such as insurance premiums). Such events may also make insurance coverage for
certain risks unavailable and thus increase the Issuer’s risk.
As with most other banks, the Issuer relies heavily on communications and information
systems to conduct its business. Any failure or interruption or breach in security of these systems
could result in failures or interruptions in the Issuer’s customer relationship management, general
ledger, deposit, servicing and/or loan organisation systems. The Issuer cannot provide assurances
that such failures or interruptions will not occur or, if they do occur, that they will be adequately
addressed. The occurrence of any failures or interruptions could have a material adverse effect on
the Issuer’s financial condition and results of operations.
Liquidity risk
The objective of liquidity management is to ensure that, at all times, the Issuer holds
sufficient funds to meet its contracted and contingent commitments to customers and
counterparties, at an economic price. All the main issues regarding liquidity risk are directly
managed by the Dexia Group’s Asset and Liability Management function, which carefully manages
the Dexia Group’s resources and their use, in particular, the adequacy of expected new lending
production with the available resources and the Dexia Group’s liquidity needs.
Risk Management
Monitoring of the risks relating to the Issuer and its operations and the banking industry is
performed jointly by the appropriate committees and the Risk Management department, with the
help of tools that it develops, in compliance with the guidelines established by the Dexia Group and
all legal constraints and rules of prudence. As regards the supervision of risks in the subsidiaries
and branches, each entity has its own local risk management structure. These structures are strictly
independent of the front-offices and reporting to the Issuer’s Local Risk Management department
either directly (branches) or functionally (subsidiaries).
Regulatory risk
The Issuer’s business activities are subject to substantial regulation and regulatory oversight
in the jurisdictions in which it operates. Current, together with future regulatory developments,
including changes to accounting standards and the amount of regulatory capital required to support
the risk, could have an adverse effect impacting on how the Issuer conducts its business and on
the results of its operations. The Issuer’s business and earnings are also affected by fiscal and
other policies that are adopted by the various regulatory authorities of the European Union, foreign
governments and international agencies. The nature and impact of future changes in such policies
are not predictable and are beyond the Issuer’s control.
Uncertain economic conditions
The Issuer’s business activities are dependant on the level of banking, finance and financial
services required by its customers. In particular, levels of borrowing are heavily dependent on
customer confidence, market interest rates and other factors that affect the economy. Although in
recent years there have been significant adverse developments in world markets, the current
outlook for the world economy is improving. The profitability of the Issuer’s businesses could,
therefore, be adversely affected by a worsening of general economic conditions in its markets, as
well as by foreign and domestic trading market conditions and/or related factors, including
governmental policies and initiatives. An economic downturn or significantly higher interest rates
could increase the risk that a greater number of the Issuer’s customers would default on their loans
or other obligations to the Issuer, or would refrain from seeking additional borrowing.
Increased Regulation
Recent developments in the global markets have led to an increase in the involvement of
various governmental and regulatory authorities in the financial sector and in the operations of
financial institutions. In particular, governmental and regulatory authorities in France, the UK, the
United States, Belgium, Luxembourg and elsewhere have provided additional capital and funding
and already or may in the future be introducing a significantly more restrictive regulatory
environment including new accounting and capital adequacy rules, restriction on termination
payments for key personnel in addition to new regulation of derivative instruments. It is uncertain
how the more rigorous regulatory climate will impact financial institutions including the Issuer and
Dexia Group but an adverse impact on their respective businesses cannot be excluded, which
17
could in turn affect the Issuer’s ability to meet its payments under the Notes, Certificates
and Warrants.
Competition
The Issuer faces strong competition across all its markets from local and international
financial institutions including banks, building societies, life insurance companies and mutual
insurance organisations. While the Issuer believes it is positioned to compete effectively with these
competitors, there can be no assurance that increased competition will not adversely affect the
Issuer in one or more of the markets in which it operates.
Factors which are material for the purpose of assessing the market risks associated with
the Notes, the Certificates and the Warrants.
Current Market Volatility and Recent Market Developments
Significant declines in the housing market in the United States and in various other countries
in the past two years have contributed to significant write-downs of asset values by financial
institutions, including government-sponsored entities and major commercial and investment banks.
These write-downs have caused many financial institutions to seek additional capital, to merge with
larger and stronger institutions and, in some cases, to fail. Amid concerns about the stability of the
financial markets generally and the strength of counterparties, many lenders and institutional
investors have substantially reduced, and in some cases, halted their funding to borrowers,
including other financial institutions.
While the capital and credit markets have been experiencing volatility and disruption for more
than 12 months, the volatility and disruption has reached unprecedented levels in recent months.
In some cases, this has resulted in downward pressure on stock prices and significantly reduced
the capacity of certain issuers to raise debt. The resulting lack of credit availability, lack of
confidence in the financial sector, increased volatility in the financial markets and reduced business
activity could materially and adversely affect the Issuer’s business, financial condition and results of
operations, which could in turn affect the Issuer’s ability to meet its payments under the Notes.
Notes, Certificates and Warrants may not be a suitable investment for all investors
Each potential investor in any Notes and/or Certificates and/or Warrants must determine the
suitability of that investment in light of its own circumstances. In particular, each potential investor
should:
(i)
have sufficient knowledge and experience to make a meaningful evaluation of the
relevant Notes and/or Certificates and/or Warrants, the merits and risks of investing in
the relevant Notes and/or Certificates and/or Warrants and the information contained or
incorporated by reference in this Prospectus or any applicable supplement;
(ii)
have access to, and knowledge of, appropriate analytical tools to evaluate, in the
context of its particular financial situation, an investment in the relevant Notes,
Certificates and/or Warrants and the impact such investment will have on its overall
investment portfolio;
(iii)
have sufficient financial resources and liquidity to bear all of the risks of an investment
in the relevant Notes and/or Certificates and/or Warrants, including where principal or
interest is payable in one or more currencies, or where the currency for principal or
interest payments is different from the potential investor’s currency;
(iv)
understand thoroughly the terms of the relevant Notes and/or Certificates and/or
Warrants and be familiar with the behaviour of any relevant indices and financial
markets; and
(v)
be able to evaluate (either alone or with the help of a financial adviser) possible
scenarios for economic, interest rate and other factors that may affect its investment
and its ability to bear the applicable risks.
Some Notes and/or Certificates and/or Warrants are complex financial instruments and such
instruments may be purchased as a way to reduce risk or enhance yield with an understood,
measured, appropriate addition of risk to their overall portfolios. A potential investor should not
invest in Notes, Certificates and/or Warrants which are complex financial instruments unless it has
the expertise (either alone or with the help of a financial adviser) to evaluate how the Notes and/or
18
Certificates and/or Warrants will perform under changing conditions, the resulting effects on the
value of such Notes and/or Certificates and/or Warrants and the impact this investment will have on
the potential investor’s overall investment portfolio.
Risks related to the structure of a particular issue of Notes and Certificates
A wide range of Notes and Certificates may be issued under the Programme. A number of
these Notes and/or Certificates may have features which contain particular risks for potential
investors. Set out below is a description of certain such features:
Notes and Certificates subject to optional redemption by the Issuer
An optional redemption feature is likely to limit the market value of Notes and/or Certificates.
During any period when the Issuer may elect to redeem Notes and/or Certificates, the market value
of those Notes and/or Certificates generally will not rise substantially above the price at which they
can be redeemed. This may also be true prior to any redemption period.
The Issuer may be expected to redeem Notes and/or Certificates when its cost of borrowing
is lower than the interest rate on the Notes and/or Certificates. As a consequence, part of the
capital invested by the Noteholder and Certificateholder, as the case may be, may be lost, so that
the Noteholder and Certificateholder, as the case may be, in such case would not receive the total
amount of the capital invested. In addition, investors that choose to reinvest monies they receive
through an early redemption may be able to do so only in securities with a lower yield than the
redeemed Notes and/or Certificates. Potential investors should consider reinvestment risk in light of
other investments available at that time.
Index Linked Notes, Dual Currency Notes and Index Linked Certificates
The Issuer may issue Notes and Certificates with principal or interest determined by reference
to an index or formula, to changes in the prices of securities or commodities, to movements in
currency exchange rates or other factors (each, a “Relevant Factor”). An investment in Index Linked
Notes or Index Linked Certificates entails significant risks that are not associated with similar
investments in a conventional fixed or floating rate debt security. The Issuer believes that Index
Linked Notes or Index Linked Certificates should only be purchased by investors who are, or who
are purchasing under the guidance of, financial institutions or other professional investors that are
in a position to understand the special risks that an investment in these instruments involves.
Potential investors should be aware that:
(i)
the market price of such Notes and Certificates may be volatile;
(ii)
such index or indices may be subject to significant changes, whether due to the
composition of the index itself, or because of fluctuations in value of the indexed
assets;
(iii)
the resulting interest rate will be less (or may be more) than that payable on a
conventional debt security issued by the Issuer at the same time;
(iv)
payment of principal or interest may occur at a different time or in a different currency
than expected;
(v)
the holder of an Index Linked Note or Index Linked Certificate could lose all or a
substantial portion of the principal of such Note or Certificate (whether payable at
maturity or upon redemption or repayment), and, if the principal is lost, interest may
cease to be payable on the Index Linked Note or Index Linked Certificate;
(vi)
a Relevant Factor may be subject to significant fluctuations that may not correlate with
changes in interest rates, currencies or other indices;
(vii)
if a Relevant Factor is applied to Notes or Certificates in conjunction with a multiplier
greater than one or contains some other leverage factor, the effect of changes in the
Relevant Factor on principal or interest payable will likely be magnified;
(viii)
the timing of changes in a Relevant Factor may affect the actual yield to investors,
even if the average level is consistent with their expectations. In general, the earlier the
change in the Relevant Factor, the greater the effect on yield;
(ix)
the risks of investing in an Index Linked Note or Index Linked Certificate encompass
19
SNA12-4.1.2
both risks relating to the underlying indexed securities and risks that are unique to the
Note or Certificate itself;
(x)
any Index Linked Note or Index Linked Certificate that is indexed to more than one
type of underlying asset, or on formulas that encompass the risks associated with
more than one type of asset, may carry levels of risk that are greater than Notes or
Certificates that are indexed to one type of asset only;
(xi)
it may not be possible for investors to hedge their exposure to these various risks
relating to Index Linked Notes or Index Linked Certificates; and
(xii)
a significant market disruption could mean that the index on which the Index Linked
Notes or Index Linked Certificates are based ceases to exist.
In addition, the value of Index Linked Notes or Index Linked Certificates on the secondary
market is subject to greater levels of risk than is the value of other Notes or Certificates. The
secondary market, if any, for Index Linked Notes or Index Linked Certificates will be affected by a
number of factors, independent of the creditworthiness of the Issuer and the value of the
applicable currency, stock, interest rate or other index, including the volatility of the applicable
currency, stock, interest rate or other index, the time remaining to the maturity of such Notes or
Certificates, the amount outstanding of such Notes or Certificates and market interest rates. The
value of the applicable currency, stock, interest rate or other index depends on a number of
interrelated factors, including economic, financial and political events, over which the Issuer has
no control. Additionally, if the formula used to determine the amount of principal, premium and/or
interest payable with respect to Index Linked Notes or Index Linked Certificates contains a
multiplier or leverage factor, the effect of any change in the applicable currency, stock, interest
rate or other index will be increased. The historical experience of the relevant currencies,
commodities, stocks, interest rates or other indices should not be taken as an indication of future
performance of such currencies, stocks, interest rates or other indices during the term of any
Index Linked Note or Index Linked Certificate. Additionally, there may be regulatory and other
ramifications associated with the ownership by certain investors of certain Index Linked Notes or
Index Linked Certificates.
Various transactions by the Issuer could impact the performance of any Index Linked Notes
or Index Linked Certificates, which could lead to conflicts of interest between the Issuer and
holders of its Index Linked Notes or Index Linked Certificates.
The Issuer is active in the international securities and currency markets on a daily basis. It
may thus, for its own account or for the account of customers, engage in transactions directly or
indirectly involving assets that are “reference assets” under Index Linked Notes or Index Linked
Certificates and may make decisions regarding these transactions in the same manner as it would
if the Index Linked Notes or Index Linked Certificates had not been issued. The Issuer and its
affiliates may on the issue date of the Index Linked Notes or Index Linked Certificates or at any
time thereafter be in possession of information in relation to any reference assets that may be
material to holders of any Index Linked Notes or Index Linked Certificates and that may not be
publicly available or known to the Noteholders or Certificateholders, as the case may be. There is
no obligation on the part of the Issuer to disclose any such business or information to the
Noteholders or Certificateholders, as the case may be.
Partly-Paid Notes
The Issuer may issue Notes where the issue price is payable in more than one instalment.
Failure to pay any subsequent instalment could result in an investor losing some or all of its
investment.
Variable Rate Notes with a multiplier or other leverage factor
Notes with variable interest rates can be volatile investments. If they are structured to include
multipliers or other leverage factors, or caps or floors, or any combination of those features or other
similar related features, their market values may be even more volatile than those for securities that
do not include such features.
Fixed/Floating Rate Notes and Fixed/Floating Rate Certificates
Fixed/Floating Rate Notes and Fixed/Floating Rate Certificates may bear interest at a rate
20
that the Issuer may elect to convert from a fixed rate to a floating rate, or from a floating rate to a
fixed rate. The Issuer’s ability to convert the interest rate will affect the secondary market and the
market value of such Notes and Certificates, since the Issuer may be expected to convert the rate
when it is likely to produce a lower overall cost of borrowing. If the Issuer converts from a fixed rate
to a floating rate, the spread on the Fixed/Floating Rate Notes and Fixed/Floating Rate Certificates
may be less favourable than then prevailing spreads on comparable Floating Rate Notes or Floating
Rate Certificates tied to the same reference rate. In addition, the new floating rate at any time may
be lower than the rates on other Notes or Certificates. If the Issuer converts from a floating rate to
a fixed rate, the fixed rate may be lower than then prevailing rates on its Notes or Certificates.
Investors will not be able to calculate in advance their rate of return on Floating Rate Notes or
Floating Rate Certificates
A key difference between (i) Floating Rate Notes and Floating Rate Certificates and (ii) Fixed
Rate Notes and Fixed Rate Certificates is that interest income on Floating Rate Notes and Floating
Rate Certificates cannot be anticipated. Due to varying interest income, investors are not able to
determine a definite yield of Floating Rate Notes and Floating Rate Certificates at the time they
purchase them, so that their return on investment cannot be compared with that of investments
having longer fixed interest periods. If the terms and conditions of the Notes or Certificates provide
for frequent interest payment dates, investors are exposed to the reinvestment risk if market interest
rates decline. That is, investors may reinvest the interest income paid to them only at the relevant
lower interest rates then prevailing.
Zero Coupon Notes are subject to higher price fluctuations than non-discounted notes
Changes in market interest rates have a substantially stronger impact on the prices of Zero
Coupon Notes than on the prices of ordinary notes because the discounted issue prices are
substantially below par. If market interest rates increase, Zero Coupon Notes can suffer higher price
losses than other notes having the same maturity and credit rating. Due to their leverage effect,
Zero Coupon Notes are a type of investment associated with a particularly high price risk.
Notes issued at a substantial discount or premium
The market values of Notes issued at a substantial discount or premium to their nominal
amount tend to fluctuate more in relation to general changes in interest rates than do prices for
conventional interest-bearing securities. Generally, the longer the remaining term of the securities,
the greater the price volatility as compared to conventional interest-bearing securities with
comparable maturities.
Foreign Currency Notes expose investors to foreign-exchange risk as well as to issuer risk
As purchasers of Foreign Currency Notes, investors are exposed to the risk of changing
foreign exchange rates. This risk is in addition to any performance risk that relates to the issuer or
the type of note being issued.
The Issuer’s obligations under Subordinated Notes
The Issuer’s obligations under Subordinated Notes will be unsecured and subordinated
and will rank junior in priority to the claims of creditors in respect of Subordinated Obligations
(as defined in “Terms and Conditions of the Notes”). If no dividend or other distribution has
been declared paid or made on any class of the stock or share capital of the Issuer in the
immediately preceding Interest Period, then the Issuer may defer the payment of interest on
the Subordinated Notes. Such deferral may last until the earliest of (i) the date on which any
dividend or other distribution is next declared, paid or made on any class of stock or share
capital of the Issuer, (ii) the date set for any repayment permitted under the Conditions of the
Subordinated Notes on an undated basis and (iii) the commencement of winding-up of the
Issuer.
After Dexia BIL has fully paid all deferred interest on the issue of Subordinated Notes and if
that issue of Subordinated Notes remains outstanding, future interest payments on that issue of
Subordinated Notes will be subject to further deferral as described above.
Any deferral of interest payments will likely have an adverse effect on the market price of the
Subordinated Notes. In addition, as a result of the interest deferral provision of the Subordinated Notes,
the market price of the Subordinated Notes may be more volatile than the market prices of other debt
securities on which original issue discount or interest accrues that are not subject to such deferrals and
may be more sensitive generally to adverse changes in the Issuer’s financial condition.
21
A Noteholder’s actual yield on the Notes and Certificates may be reduced from the stated yield by
transaction costs
When Notes and Certificates are purchased or sold, several types of incidental costs
(including transaction fees and commissions) are incurred in addition to the current price of the
security. These incidental costs may significantly reduce or even exclude the profit potential of the
Notes and Certificates. For instance, credit institutions as a rule charge their clients for own
commissions which are either fixed minimum commissions or pro-rata commissions depending on
the order value. To the extent that additional – domestic or foreign – parties are involved in the
execution of an order, including but not limited to domestic dealers or brokers in foreign markets,
Noteholders and Certificateholders, as the case may be, must take into account that they may also
be charged for the brokerage fees, commissions and other fees and expenses of such parties (third
party costs).
In addition to such costs directly related to the purchase of securities (direct costs),
Noteholders and Certificateholders must also take into account any follow-up costs (such as
custody fees). Investors should inform themselves about any additional costs incurred in connection
with the purchase, custody or sale of the Notes and Certificates before investing in the Notes and
Certificates.
A Noteholder’s effective yield on the Notes and Certificates may be diminished by the tax impact
on that Noteholder or Certificateholder, as the case may be, of its investment in the Notes and
Certificates
Payments of interest on the Notes and Certificates, or profits realised by the Noteholder or
certificateholder, as the case may be, upon the sale or repayment of the Notes and Certificates,
may be subject to taxation in its home jurisdiction or in other jurisdictions in which it is required to
pay taxes. The tax impact on Noteholders and Certificateholders generally is described under
“Taxation” below; however, the tax impact on an individual Noteholder or Certificateholder may
differ from the situation described for Noteholders and Certificateholders generally. The Issuer
advises all investors to contact their own tax advisers for advice on the tax impact of an investment
in the Notes and Certificates.
Risks related to the structure of a particular issue of Warrants
Investment in Warrants involves a high degree of risk
Investment in Warrants involves a high degree of risk, which may include, among others,
interest rate, foreign exchange, time value and political risks. Prospective purchasers of Warrants
should recognise that their Warrants, other than any Warrants having a minimum expiration value,
may expire worthless. Purchasers should be prepared to sustain a total loss of the purchase price
of their Warrants except, if so indicated in the Final Terms for the Warrants, to the extent of any
minimum expiration value attributable to such Warrants. This risk reflects the nature of a Warrant as
an asset which, other factors held constant, tends to decline in value over time and which may
become worthless when it expires (except to the extent of any minimum expiration value). See
‘’Certain Factors Affecting the Value and Trading Price of Warrants’’ below. Prospective purchasers
of Warrants should be experienced with respect to options and option transactions, should
understand the risks of transactions involving the relevant Warrants and should reach an investment
decision only after careful consideration, with their advisers, of the suitability of such Warrants in
light of their particular financial circumstances, the information set forth herein and the information
regarding the relevant Warrants and the particular reference security (or basket of securities), index
(or basket of indices), currency (or basket of currencies), commodity (or basket of commodities) or
other basis of reference to which the value of the relevant Warrants may relate, as specified in the
applicable Final Terms for the Warrants.
The risk of the loss of some or all of the purchase price of a Warrant upon expiration means
that, in order to recover and realise a return upon his or her investment, a purchaser of a Warrant
must generally be correct about the direction, timing and magnitude of an anticipated change in the
value of the relevant reference security (or basket of securities), index (or basket of indices),
currency (or basket of currencies), commodity (or basket of commodities) or other basis which may
be specified in the applicable Final Terms for the Warrants. Assuming all other factors are held
constant, the more a Warrant is “out-of-the-money’’ and the shorter its remaining term to
expiration, the greater the risk that purchasers of such Warrants will lose all or part of their
investment. With respect to European-style Warrants, the only means through which a holder can
22
realise value from the Warrant prior to the Exercise Date in relation to such Warrant is to sell it at
its then market price in an available secondary market.
Fluctuations in the value of the relevant index or basket of indices will affect the value of
Index Warrants. Fluctuations in the price of the relevant share or value of the basket of shares will
affect the value of Share Warrants. Fluctuations in the price or yield of the relevant debt instrument
or value of the basket of debt instruments will affect the value of Debt Warrants. Fluctuations in the
rates of exchange between the relevant currencies will affect the value of Currency Warrants. Also,
due to the character of the particular market on which a debt instrument is traded, the absence of
last sale information and the limited availability of quotations for such debt instrument may make it
difficult for many investors to obtain timely, accurate data for the price or yield of such debt
instrument. Fluctuations in the value of the relevant commodity or basket of commodities will affect
the value of Commodity Warrants. Purchasers of Warrants risk losing their entire investment if the
value of the relevant underlying basis of reference does not move in the anticipated direction.
Certain Factors Affecting the Value and Trading Price of Warrants
The Settlement Amount at any time prior to expiration is typically expected to be less than
the trading price of such Warrants at that time. The difference between the trading price and the
Settlement Amount will reflect, among other things, the “time value’’ of the Warrants. The “time
value’’ of the Warrants will depend partly upon the length of the period remaining to expiration and
expectations concerning the value of the reference security (or basket of securities), index (or
basket of indices), currency (or basket of currencies), commodity (or basket of commodities) or
other basis of reference as specified in the applicable Final Terms for the Warrants. Warrants offer
hedging and investment diversification opportunities but also pose some additional risks with
regard to interim value. The interim value of the Warrants varies with the price level of the reference
security (or basket of securities), index (or basket of indices), currency (or basket of currencies),
commodity (or basket of commodities) or other basis of reference as specified in the applicable
Final Terms for the Warrants, as well as a result of a number of other interrelated factors, including
those specified herein.
Before exercising or selling Warrants, Warrantholders should carefully consider, among other
things, (i) the trading price of the Warrants, (ii) the value and volatility of the reference security (or
basket of securities), index (or basket of indices), currency (or basket of currencies), commodity (or
basket of commodities) or other basis of reference as specified in the applicable Final Terms for the
Warrants, (iii) the time remaining to expiration, (iv) the probable range of Settlement Amounts, (v)
any change(s) in interim interest rates and dividend yields if applicable, (vi) any change(s) in
currency exchange rates, (vii) the depth of the market or liquidity of the reference security (or basket
of securities), index (or basket of indices), currency (or basket of currencies), commodity (or basket
of commodities) or other basis of reference as specified in the applicable Final Terms for the
Warrants and (viii) any related transaction costs.
Limitations on Exercise
If so indicated in the Final Terms for the Warrants, the Issuer will have the option to limit the
number of Warrants exercisable on any date (other than the final exercise date) to the maximum
number specified in the Final Terms for the Warrants and, in conjunction with such limitation, to
limit the number of Warrants exercisable by any person or group of persons (whether or not acting
in concert) on such date. In the event that the total number of Warrants being exercised on any
date (other than the final exercise date) exceeds such maximum number and the Issuer elects to
limit the number of Warrants exercisable on such date, a Warrantholder may not be able to exercise
on such date all Warrants that such holder desires to exercise. In any such case, the number of
Warrants to be exercised on such date will be reduced until the total number of Warrants exercised
on such date no longer exceeds such maximum, such Warrants being selected at the discretion of
the Issuer or in any other manner specified in the applicable Final Terms for the Warrants. Unless
otherwise specified in the Final Terms for the Warrants, the Warrants tendered for exercise but not
exercised on such date will be automatically exercised on the next date on which Warrants may be
exercised, subject to the same daily maximum limitation and delayed exercise provisions.
Minimum Exercise Amount
If so indicated in the Final Terms for the Warrants, a Warrantholder must tender a specified
number of Warrants at any one time in order to exercise. Thus, Warrantholders with fewer than the
specified minimum number of Warrants will either have to sell their Warrants or purchase additional
23
Warrants, incurring transaction costs in each case, in order to realise their investment. Furthermore,
holders of such Warrants incur the risk that there may be differences between the trading price of
such Warrants and the Settlement Amount of such Warrants.
Certain Considerations Regarding Hedging
Prospective purchasers intending to purchase Warrants to hedge against the market risk
associated with investing in a reference security (or basket of securities), index (or basket of
indices), currency (or basket of currencies), commodity (or basket of commodities) or other basis of
reference which may be specified in the applicable Final Terms for the Warrants, should recognise
the complexities of utilising Warrants in this manner. For example, the value of the Warrants may
not exactly correlate with the value of the reference security (or basket of securities), index (or
basket of indices), currency (or basket of currencies), commodity (or basket of commodities) or
other basis which may be specified in the applicable Final Terms for the Warrants. Due to
fluctuating supply and demand for the Warrants, there is no assurance that their value will correlate
with movements of the reference security (or basket of securities), index (or basket of indices),
currency (or basket of currencies), commodity (or basket of commodities) or other basis which may
be specified in the applicable Final Terms for the Warrants.
Time Lag after Exercise
In the case of any exercise of Warrants, there may be a time lag between the time a
Warrantholder gives instructions to exercise and the time the applicable Settlement Amount relating
to such exercise is determined. Such delay could be significantly longer than expected, particularly
in the case of a delay in exercise of Warrants arising from any daily maximum exercise limitation,
the occurrence of a market disruption event (if applicable) or following the imposition of any
exchange controls or other similar regulations affecting the ability to obtain or exchange any
relevant currency (or basket of currencies) in the case of Currency Warrants. The applicable
Settlement Amount may change significantly during any such period, and such movement or
movements could decrease the Settlement Amount of the Warrants being exercised and may result
in such Settlement Amount being zero.
Certain Additional Risk Factors Associated with Currency Warrants
Fluctuations in exchange rates of the relevant currency (or basket of currencies) will affect the
value of Currency Warrants. Furthermore, investors who intend to convert gains or losses from the
exercise or sale of Currency Warrants into their home currency may be affected by fluctuations in
exchange rates between their home currency and the relevant currency (or basket of currencies).
Currency values may be affected by complex political and economic factors, including governmental
action to fix or support the value of a currency (or basket of currencies), regardless of other market
forces. Purchasers of Currency Warrants risk losing their entire investment if exchange rates of the
relevant currency (or basket of currencies) do not move in the anticipated direction.
If additional warrants or options relating to particular currencies or currency indices are
subsequently issued, the supply of warrants and options relating to such currencies or currency
indices, as applicable, in the market will increase, which could cause the price at which the
Warrants and such other warrants and options trade in the secondary market to decline
significantly.
Risks related to Notes, Certificates and Warrants generally
Set out below is a brief description of certain risks relating to the Notes, Certificates and
Warrants generally:
Modification, waivers and substitution
The Terms and Conditions of the Notes and Certificates contain provisions for calling
meetings of Noteholders and Certificateholders to consider matters affecting their interests
generally. These provisions permit defined majorities to bind all Noteholders and Certificateholders
including Noteholders and Certificateholders who did not attend and vote at the relevant meeting
and Noteholders and Certificateholders who voted in a manner contrary to the majority.
Basel Capital Requirements Directive
The introduction in 2007 of the general agreement of the Basel Committee for Bank
Supervision for the International Convergence of Capital Measurement and Capital Standards of
24
June 2004, or Basel II, is likely to bring changes to banks’ capital ratios, including those of the
Issuer. The direction and magnitude of the impact of Basel II will depend on the particular asset
structures of each bank and its precise impact on the Issuer cannot be quantified with certainty at
this time. The Issuer expects to incur costs in complying with the new guidelines. The new
guidelines may also require the Issuer to operate its business in ways that may be less profitable
than its present operations.
The trading market for debt securities may be volatile and may be adversely impacted by many events
The market for debt securities issued by banks is influenced by economic and market
conditions and, to varying degrees, market conditions, interest rates, currency exchange rates and
inflation rates in other European and other industrialised countries. There can be no assurance that
events in Europe or elsewhere will not cause market volatility or that such volatility will not
adversely affect the price of Notes and/or Certificates and/or Warrants or that economic and market
conditions will not have any other adverse effect.
European Monetary Union
If the United Kingdom joins the European Monetary Union prior to the maturity of the Notes
and/or Certificates and/or Warrants, there is no assurance that this would not adversely affect
investors in the Notes and/or Certificates and/or Warrants. It is possible that prior to the maturity of
the Notes and/or Certificates and/or Warrants the United Kingdom may become a participating
Member State and that the Euro may become the lawful currency of the United Kingdom. In that
event (i) all amounts payable in respect of any Notes and/or Certificates and/or Warrants
denominated in Sterling may become payable in Euro (ii) the law may allow or require such Notes
and/or Certificates and/or Warrants to be re-denominated into Euro and additional measures to be
taken in respect of such Notes and/or Certificates and/or Warrants; and (iii) there may no longer be
available published or displayed rates for deposits in Sterling used to determine the rates of interest
on such Notes and/or Certificates and/or Warrants or changes in the way those rates are
calculated, quoted and published or displayed. The introduction of the Euro could also be
accompanied by a volatile interest rate environment, which could adversely affect investors in the
Notes and/or Certificates and/or Warrants.
EU Savings Directive
Under EC Council Directive 2003/48/EC on taxation of savings income, Member States are
required, from 1 July, 2005, to provide to the tax authorities of another Member State details of
payments of interest (or similar income) paid by a person within its jurisdiction to an individual
resident or to certain other persons established in that other Member State. However, for a
transitional period, Belgium, Luxembourg and Austria may instead (unless during that period they
elect otherwise) operate a withholding system in relation to such payments subject to a procedure
whereby on meeting certain conditions, the beneficial owner of the interest or other income may
request that no tax be withheld (the ending of such transitional period being dependent upon the
conclusion of certain other agreements relating to information exchange with certain other
countries). A number of non-EU countries and territories, including Switzerland, have adopted
similar measures (a withholding system in the case of Switzerland). Belgium currently operates this
withholding system. However, according to public statements from the Belgian Minister of Finance,
Belgium may switch to exchange of information before the end of the transitional period, possibly
in 2011 (before the withholding rate reaches 35 per cent.) or as early as 2010.
If a payment were to be made or collected through a Member State which has opted for a
withholding system and an amount of, or in respect of, tax were to be withheld from that payment,
neither the Issuer, any Paying Agent, nor any other person would be obliged to pay additional
amounts with respect to any Note or Certificates as a result of the imposition of such withholding
tax. The Issuer will be required, save as provided in the Terms and Conditions of the Notes and
Certificates, to maintain a Paying Agent in a Member State that will not be obliged to withhold or
deduct tax pursuant to the Directive.
Investors should note that the European Commission announced proposals to amend the
Directive. If implemented, the proposed amendments would, inter alia, extend the scope of the
Directive to (i) payments made through certain intermediate structures (whether or not established
in a Member State) for the ultimate benefit of an EU resident individual, and (ii) a wide range of
income similar to interest.
25
Change of law
The Terms and Conditions of the Certificates and the General Conditions of the Book-Entry
Warrants are, and the Terms and Conditions of the Senior Notes may be, based on English law, and
the Terms and Conditions of the Subordinated Notes and the General Conditions of the Bearer
Warrants are, and the Terms and Conditions of the Senior Notes may be, based on Luxembourg
law, in each case in effect as at the date of issue of the relevant Notes and/or Certificates and/or
Warrants. No assurance can be given as to the impact of any possible judicial decision or change
to English law or Luxembourg law or administrative practice after the date of issue of the relevant
Notes and/or Certificates and/or Warrants.
Factors which are material for the purpose of assessing the market risks associated with
the Certificates
General
The Certificates involve a high degree of risk, which may include, among others, interest rate,
foreign exchange, time value and political risks. Prospective purchasers of Certificates should
recognise that their Certificates, other than any Certificates having a minimum expiration or
redemption value, may expire or mature worthless. Purchasers should be prepared to sustain a total
loss of the purchase price of their Certificates, except, if so indicated in the Final Terms, to the
extent of any minimum expiration or redemption value attributable to such Certificates. This risk
reflects the nature of a Certificates as an asset which, other factors held constant, tends to decline
in value over time and which may become worthless when it expires or matures (except to the
extent of any minimum expiration or redemption value). Prospective purchasers of Certificates
should be experienced with respect to options and option transactions, should understand the risks
of transactions involving the relevant Certificates and should reach an investment decision only
after careful consideration, with their advisers, of the suitability of such Certificates in light of their
particular financial circumstances, the information set forth herein and the information regarding the
relevant Certificates and the particular reference security (or basket of securities), index (or basket
of indices), currency (or basket of currencies), commodity (or basket of commodities), funds (or
basket of funds) or other basis of reference to which the value of the relevant Certificates may
relate, as specified in the applicable Final Terms.
Risk of Loss of Investments
The trading price of Certificates may fall in value as rapidly as it may rise and holders of
Certificates may sustain a total loss of their investment. Prospective purchasers should therefore
ensure that they understand the nature of Certificates and should form their own view of the merits
of Certificates and not rely on information contained in the relevant Final Terms or this Base
Prospectus.
The risk of the loss of some or all of the purchase price of a Certificate upon expiration or
maturity means that, in order to recover and realise a return upon his or her investment, a
purchaser of a Certificate must generally be correct about the direction, timing and magnitude of an
anticipated change in the value of the relevant reference security (or basket of securities), index (or
basket of indices), currency (or basket of currencies), commodity (or basket of commodities), funds
(or basket of funds) or other basis of reference which may be specified in the applicable Final
Terms. Assuming all other factors are held constant, the more a Certificates is "out-of-the-money"
and the shorter its remaining term to expiration or maturity, the greater the risk that purchasers of
such Certificates will lose all or part of their investment.
Value of Assets Underlying a Certificate
The market price of Certificates at any time is expected to be affected primarily by changes
in the price of the asset(s) (the “Relevant Assets”) to which such Certificates relate. It is impossible
to predict whether the price of the Relevant Assets will rise or fall.
Even where payments in respect of Certificates are not expressly linked to a rate or rates of
exchange between currencies, the value of the Certificates could, in certain circumstances, be
affected by factors such as fluctuations in the rates of exchange between any currency in which
any payment in respect of the Certificates is to be made and any currency in which the Relevant
Assets are traded, appreciation or depreciation of any such currencies and any existing or future
governmental or other restrictions on the exchangeability of such currencies. There can be no
assurance that rates of exchange between any relevant currencies which are current rates at the
26
date of issue of any Certificates will be representative of the relevant rates of exchange used in
computing the value of the relevant Certificates at any time thereafter.
Fluctuations in the value of the relevant index or basket of indices will affect the value of
Index Linked Certificates. Fluctuations in the price of the relevant shares or value of the basket of
shares will affect the value of Share Linked Certificates. Fluctuations in the price or yield of the
relevant debt instrument or value of the basket of debt instruments will affect the value of Debt
Linked Certificates. Also, due to the character of the particular market on which a debt instrument
is traded, the absence of last sale information and the limited availability of quotations for such
debt instrument may make it difficult for many investors to obtain timely, accurate data for the price
or yield of such debt instrument. Fluctuations in the rates of exchange between the relevant
currencies will affect the value of Currency Linked Certificates. Fluctuations in the value of the
relevant commodity or basket of commodities will affect the value of Commodity Linked
Certificates. Fluctuations in the value of the relevant fund or basket of funds will affect the value of
Fund Linked Certificates. Purchasers of Certificates risk losing their entire investment if the value of
the relevant underlying basis of reference does not move in the anticipated direction.
The Issuers may issue several issues of Certificates relating to various reference indices,
securities, currencies, commodities or other bases specified in the applicable Final Terms. At any
given time, the number of Certificates outstanding may be substantial. Certificates provide
opportunities for investment and pose risks to investors as a result of fluctuations in the value of
the underlying investment. In general, certain of the risks associated with Certificates are similar to
those generally applicable to other options or warrants of private corporate issuers. Options or
warrants on equities or debt securities are priced primarily on the basis of the value of underlying
securities whilst Currency Linked Certificates, Commodity Linked Certificates, Fund Linked
Certificates and Index Linked Certificates are priced primarily on the basis of present and expected
values of the reference currency (or basket of currencies), commodity (or basket of commodities),
funds (or basket of funds) or index (or basket of indices) specified in the applicable Final Terms.
Physical Delivery Certificate
An investment in Physical Delivery Certificates may bear similar market risks to a direct equity
investment in the Reference Asset to which such Certificates relate and investors should take
advice accordingly. Interest payable on such Certificates may be determined by reference to, and
the application of such Interest Rate and / or the payment of such interest amount, may be limited
or affected by, the performance of an Index Share, a Debt Security, a Commodity, an Inflation Index
or any other underlying security or any combination thereof in the manner specified in the
applicable Final Terms of such Interest Index Certificates and, for the avoidance of doubt, the
provisions in these Conditions relating to such Index, Share, Debt Security, Commodity, Inflation
Index or such underlying security shall apply mutatis mutandis in the manner specified in the
Considerations associated with Certificates relating to Shares or certain Obligations
The market value for the Certificates will be affected by a number of factors in addition to the
creditworthiness of the Issuer and the value of the Relevant Assets including, but not limited to, the
volatility of the Relevant Assets, the rate of return of the Relevant Assets, the financial results and
prospects of the obligor of the Relevant Assets (the “Relevant Obligor”), market interest and yield
rates in the Relevant Obligor and/or the Relevant Assets and the time remaining to the expiration or
the maturity of the Certificates. In addition, the value of the Relevant Assets may depend on a
number of interrelated factors, including economic, financial and political events and factors
affecting capital markets generally and the relevant stock exchanges.
Each prospective investor who considers purchasing Certificates should reach an investment
decision only after carefully considering the suitability of Certificates in light of its particular
circumstances and after obtaining such professional advice as it deems appropriate. The Issuer is
not responsible for the lawfulness of the acquisition of the Certificates by a prospective investor,
nor is the Issuer a source of advice or credit analysis with respect to the Relevant Assets or the
Relevant Obligor. Each prospective investor shall be deemed to have made a representation to such
effect each time it purchases the Certificates of any Series.
The Relevant Obligor will have no involvement in the offer and sale of the Certificates and no
obligation to the holder of the Certificates. The Relevant Obligor may take actions, such as a
27
merger or sale of assets, without regard to the interests of the Certificateholder. Any of these
actions could adversely affect the value of the Certificates.
If the Issuer issue a Certificate linked to a Relevant Asset, the Issuer may include historical
information about the Relevant Asset in the applicable Final Terms. Any information about the
Relevant Asset that the Issuers may provide will be furnished as a matter of information only, and
should not be regarded as indicative of the range of, or trends in, fluctuations in the Relevant Asset
that may occur in the future.
Certificates are Unsecured Obligations
The Certificates constitute general, unsecured, contractual obligations of the Issuer and of no
other person. Any person who purchases Certificates is relying upon the creditworthiness of the
Issuer and has no rights under the Terms and Conditions against any other person. The Certificates
will not be secured by any property of the Issuer and all Certificates rank equally among themselves
with all other unsecured and unsubordinated obligations of the Issuer.
Illiquid Market
It is not possible to predict the price at which Certificates will trade in the secondary market
or whether such market will be liquid or illiquid. The Issuer may, but is not obliged to, list
Certificates on a stock exchange. If the Certificates are not listed or traded on any exchange,
pricing information for the Certificates may be more difficult to obtain and the liquidity of the
Certificates may be adversely affected. If the Issuer does list an issue of Certificates on any stock
or other exchange, then the Issuer shall use all reasonable endeavours to maintain such listing.
Also, to the extent Certificates of a particular issue are exercised or redeemed, the number of
Certificates of such issue outstanding will decrease, resulting in a diminished liquidity for the
remaining Certificates of such issue. A decrease in the liquidity of an issue of Certificates may
cause, in turn, an increase in the volatility associated with the price of such issue of Certificates.
The Issuer and any Dealer may, but is not obliged to, at any time purchase Certificates at any
price in the open market or by tender or private treaty. Any Certificates so purchased may be held
or resold or surrendered for cancellation. A Dealer may, but is not obliged to, be a market-maker
for an issue of Certificates. Even if a Dealer is a market-maker for an issue of Certificates, the
secondary market for such Certificates may be limited. To the extent that an issue of Certificates
becomes illiquid, an investor may have to exercise such Certificates to realise value.
Foreign Exchange Risk
Fluctuations in exchange rates of the relevant currency (or one or more of the currencies in a
basket of currencies) will affect the value of Currency Linked Certificates. Furthermore, investors
who intend to convert gains or losses from the exercise or sale of Currency Linked Certificates into
their home currency may be affected by fluctuations in exchange rates between their home
currency and the relevant currency (or one or more of the currencies in a basket of currencies).
Currency values may be affected by complex political and economic factors, including
governmental action to fix or support the value of a currency (or one or more of the currencies in a
basket of currencies), regardless of other market forces. Purchasers of Currency Linked Certificates
risk losing their entire investment if exchange rates of the relevant currency (or one or more of the
currencies in a basket of currencies) do not move in the anticipated direction.
If additional securities relating to particular currencies or particular currency indices are
subsequently issued, the supply of securities relating to such currencies or currency indices, as
applicable, in the market will increase, which could cause the price at which the Certificates and
such other securities traded in the secondary market to decline significantly.
Taxation
Each Certificateholder will assume and be solely responsible for any and all taxes of any
jurisdiction or governmental or regulatory authority, including, without limitation, any state or local
taxes or other like assessment or charges that may be applicable to any payment or delivery of
assets to it in respect of the Certificates. The Issuers will not pay any additional amounts to
Certificateholder to reimburse them for any tax, assessment or charge required to be withheld or
deducted by the Issuer or any agent from payments in respect of the Certificates.
Potential investors should seek independent advice as to their tax positions.
28
Certain Factors Affecting the Value and Trading Price of Certificates
The Cash Settlement Amount or the Redemption Amount (in the case of Cash Settled
Certificates) or the value of the Entitlement (in the case of Physical Delivery Certificates) at any time
prior to expiration is typically expected to be less than the trading price of such Certificates at that
time. The difference between the trading price and the Cash Settlement Amount (in the case of
Cash Settled Certificates) or the value of the Entitlement (in the case of Physical Delivery
Certificates) will reflect, among other things, the "time value" of the Certificates. The "time value" of
the Certificates will depend partly upon the length of the period remaining to expiration or maturity
and expectations concerning the value of the reference security (or basket of securities), index (or
(or basket of funds) or other basis of reference as specified in the applicable Final Terms.
Certificates offer hedging and investment diversification opportunities but also pose some additional
risks with regard to interim value. The interim value of the Certificates varies with the price level of
the reference security (or basket of securities), index (or basket of indices), currency (or basket of
currencies), commodity (or basket of commodities), funds (or basket of funds) or other basis of
reference as specified in the applicable Final Terms, as well as due to a number of other interrelated
factors, including those specified herein.
Before exercising or selling Certificates, Certificateholders should carefully consider, among
other things, (i) the trading price of the Certificates, (ii) the value and volatility of the reference
security (or basket of securities), index (or basket of indices), currency (or basket of currencies),
commodity (or basket of commodities), fund (or basket of funds) or other basis of reference as
specified in the applicable Final Terms, (iii) the time remaining to expiration or redemption, (iv) in the
case of Cash Settled Certificates, the probable range of Cash Settlement Amounts, (v) any
change(s) in interim interest rates and dividend yields if applicable, (vi) any change(s) in currency
exchange rates, (vii) the depth of the market or liquidity of the reference security (or basket of
securities), index (or basket of indices), currency (or basket of currencies), commodity (or basket of
commodities) or other basis of reference as specified in the applicable Final Terms and (viii) any
related transaction costs.
Certain Considerations Regarding Hedging
Prospective purchasers intending to purchase Certificates to hedge against the market risk
associated with investing in a reference security (or basket of securities), index (or basket of
indices), currency (or basket of currencies), commodity (or basket of commodities), funds (or basket
of funds) or other basis of reference which may be specified in the applicable Final Terms, should
recognise the complexities of utilising Certificates in this manner. For example, the value of the
Certificates may not exactly correlate with the value of the reference security (or basket of
securities), index (or basket of indices), currency (or basket of currencies), commodity (or basket of
commodities), funds (or basket of funds) or other basis which may be specified in the applicable
Final Terms. Due to fluctuating supply and demand for the Certificates, there is no assurance that
their value will correlate with movements of the reference security (or basket of securities), index (or
(or basket of funds) or other basis which may be specified in the applicable Final Terms. For these
reasons, among others, it may not be possible to purchase or liquidate securities in a portfolio at
the prices used to calculate the value of any relevant index or basket.
In the ordinary course of their business, including without limitation in connection with their
market-making activities, the Issuer and/or any of its affiliates may effect transactions for their own
account or for the account of their customers and hold long or short positions in the Relevant
Assets. In addition, in connection with the offering of any Certificates, the Issuer or and/or any of
their affiliates may enter into one or more hedging transactions with respect to, among others, the
Relevant Assets. The entry into of such hedging transactions or the conduct of such marketmaking, proprietary or other trading activities by the Issuer and/or any of its affiliates, may affect the
market price, liquidity or value of the Certificates in a manner adverse to the interests of the holders
thereof.
Effect of Credit Rating Reduction
The value of the Certificates is expected to be affected, in part, by investors' general
appraisal of the Issuer’s creditworthiness. Such perceptions are generally influenced by the ratings
accorded to the Issuer’s outstanding securities by standard statistical rating services, such as
Moody's Investors Service Limited, Standard & Poor's Ratings Services, a division of The McGraw-
29
Hill Companies, Inc., and Fitch Ratings Ltd. A reduction in the rating, if any, accorded to
outstanding debt securities of the Issuer by one of these rating agencies could result in a reduction
in the trading value of the Certificates.
Time Lag after Exercise or Right to Receive Payments/Delivery
Unless otherwise specified in the applicable Final Terms, in the event entitling receipt of
payments or delivery of assets, there will be a time lag between the time the applicable Cash
Settlement Amount relating to such exercise is determined and/or such procedures are
implemented or satisfied. Any delay between the time of exercise or implementation or satisfaction
of such procedures and the determination of the Cash Settlement Amount will be specified in the
applicable Final Terms or the applicable Conditions. However, a delay in such determination could
be significantly longer, particularly following the imposition of any exchange controls or other similar
regulations affecting the ability to obtain or exchange any relevant currency (or basket of currencies)
in the case of Currency Linked Certificates. Any such delay could decrease the Cash Settlement
Amount of the Certificates being exercised or redeemed from what it might otherwise have been
and may result in such Cash Settlement Amount being zero. Certificateholders whose Certificates
are being redeemed will not be compensated in respect of any such delay.
On redemption of Physical Delivery Certificates, there will be a time lag between the time
redemption occurs and the time the applicable Entitlement is delivered. Any delay between the time
of exercise or, as the case may be, the redemption and such delivery will be specified in the
applicable Final Terms or the Conditions. However, a delay in delivery could be significantly longer,
particularly in the case of Certificates upon due determination by the Calculation Agent that a
Settlement Disruption Event occurred at any relevant time. The value of the assets comprising the
Entitlement could increase or decrease during this period and could result in the value of the
Entitlement being less than the Strike Price or possibly zero. Certificateholders whose Certificates
have been redeemed will not be compensated in respect of any such delay.
Potential Conflicts of Interest
The Issuer and/or any of its affiliates may also engage in trading activities (including hedging
activities) related to the interest underlying any Certificates and other instruments or derivative
products based on or related to the interest underlying any Certificates for their proprietary
accounts or for other accounts under their management. The Issuer and/or any of its affiliates may
also issue other derivative instruments in respect of the interest underlying any Certificates. Such
activities could present certain conflicts of interest, could influence the prices of such shares or
other securities and could adversely affect the value of such Certificates.
Because the Calculation Agent may be the Issuer or any of its respective affiliates and/or may
be providing a hedge in respect of the Certificates, potential conflicts of interest may exist between
the Calculation Agent and holders of the Certificates, including with respect to certain
determinations and judgments that the Calculation Agent must make, including whether Settlement
Disruption Event has occurred. The Calculation Agent is obligated to carry out its duties and
functions as Calculation Agent in good faith and using its reasonable judgment.
Illegality or Impracticality
If the Issuer determines that the performance of its obligations under any Certificates has
become illegal or impracticable in whole or in part for any reason, the Issuer may cancel such
Certificates and, if and to the extent permitted by applicable law, pay an amount to each
Certificateholder in respect of each Certificate an amount equal to the fair market value of such
Certificate, notwithstanding such illegality or impracticality, less the cost to the Issuer and/or its
affiliates of unwinding any underlying related hedging arrangements (if any) plus, if already paid by
or on behalf of the Certificateholder the Strike Price, all as determined by the Calculation Agent in
its sole and absolute discretion.
Risks related to the market generally
Set out below is a brief description of certain market risks, including liquidity risk, exchange
rate risk, interest rate risk and credit risk:
The secondary market generally
Notes and/or Certificates and/or Warrants may have no established trading market when
issued, and one may never develop. If a market does develop, it may not be liquid. Therefore,
30
investors may not be able to sell their Notes and/or Certificates and/or Warrants easily or at prices
that will provide them with a yield comparable to similar investments that have a developed
secondary market. This is particularly the case for Notes and/or Certificates and/or Warrants that
are especially sensitive to interest rate, currency or market risks, are designed for specific
investment objectives or strategies or have been structured to meet the investment requirements of
limited categories of investors. These types of Notes and/or Certificates and/or Warrants generally
would have a more limited secondary market and more price volatility than conventional debt
securities. Illiquidity may have a severely adverse effect on the market value of Notes and/or
Certificates and/or Warrants.
Exchange rate risks and exchange controls
The Issuer will pay principal and interest on the Notes and Certificates in the Specified
Currency. This presents certain risks relating to currency conversions if an investor’s financial
activities are denominated principally in a currency or currency unit (the “Investor’s Currency”) other
than the Specified Currency. These include the risk that exchange rates may significantly change
(including changes due to devaluation of the Specified Currency or revaluation of the Investor’s
Currency) and the risk that authorities with jurisdiction over the Investor’s Currency may impose or
modify exchange controls. An appreciation in the value of the Investor’s Currency relative to the
Specified Currency would decrease (1) the equivalent yield on the Notes and Certificates in the
Investor’s Currency, (2) the equivalent value of the principal payable on the Notes and Certificates
in the Investor’s Currency and (3) the equivalent market value of the Notes and Certificates in the
Investor’s Currency.
Government and monetary authorities may impose (as some have done in the past) exchange
controls that could adversely affect an applicable exchange rate. As a result, investors may receive
less interest or principal than expected, or no interest or principal.
Interest rate risks
Investment in Fixed Rate Notes and Fixed Rate Certificates involves the risk that subsequent
changes in market interest rates may adversely affect the value of Fixed Rate Notes or Fixed Rate
Certificates.
Credit ratings may not reflect all risks
One or more independent credit rating agencies may assign credit ratings to an issue of
Notes or Certificates. The ratings may not reflect the potential impact of all risks related to
structure, market, additional factors discussed above, and other factors that may affect the value of
the Notes or Certificates. A credit rating is not a recommendation to buy, sell or hold securities and
may be revised or withdrawn by the rating agency at any time.
Legal investment considerations may restrict certain investments
The investment activities of certain investors are subject to investment laws and regulations,
or review or regulation by certain authorities. Each potential investor should consult its legal
advisers to determine whether and to what extent (1) Notes and/or Certificates and/or Warrants are
legal investments for it, (2) Notes and/or Certificates and/or Warrants can be used as collateral for
various types of borrowing and (3) other restrictions apply to its purchase or pledge of any Notes
and/or Certificates and/or Warrants. Financial institutions should consult their legal advisers or the
appropriate regulators to determine the appropriate treatment of Notes and/or Certificates and/or
Warrants under any applicable risk-based capital or similar rules.
Risk Factors relating to the State Guarantee and the State Guaranteed Notes
Investors should carefully consider the terms of the State Guarantee Agreement included
elsewhere in this Prospectus before investing in State Guaranteed Notes. In particular, investors’
attention is drawn to the following considerations relating to the State Guarantee and the State
Guaranteed Notes. Certain terms used in the risk factors below are based on the non-binding
English version of the State Guarantee, not the original French language text of the State Guarantee
Agreement, which is the binding version.
Several and not Joint State Guarantee
The State Guarantee is shared among three States (Belgium, France and Luxembourg) as
State Guarantors and the obligations of each of these State Guarantors under the State Guarantee
are several, but not joint, and will be divided among them in the proportions set out in Article 5.1
of the State Guarantee Agreement. Consequently, if the State Guarantee is called, each State
Guarantor will be obliged to fulfil its payment obligation under the State Guarantee only to the
31
A16.2
extent of its proportional commitment set out in the State Guarantee Agreement, and will not be
required to increase its payment to account for any shortfall in the payment of any other State
Guarantor.
State Quotas and Maximum of the State Guarantee
The aggregate maximum commitment of the State Guarantors under the State Guarantee
Agreement for all State Guaranteed Obligations (including State Guaranteed Notes) at any one time
including all principal, interest and incidental amounts outstanding will be Euro 150 billion shared
among the State Guarantors in the proportions set out in Article 5.2 of the State Guarantee
Agreement.
Conditions for benefiting from, and making claims under, the State Guarantee
In order to benefit from the State Guarantee, relevant Notes needed to be issued within a
period which was originally set from 9 October 2008 until 3 April 2009. According to its Decision of
13 March 2009, the European Commission has authorised the extension of this initial period until it
takes its final decision which will not be for several months. Accordingly, Notes with the benefit of
the State Guarantee can be issued after 3 April 2009, and until the earliest of (i) 31 October 2009
or (ii) the final decision of the European Commission (which decision should define the final validity
period of the Guarantee). Notes must mature no later than 31 October 2011, and must be originally
issued to, and subscribed by, “Third Party Beneficiaries” as defined in Annex 1 to the State
Guarantee Agreement.
Any demand for payment under the State Guarantee must be made immediately and be
accompanied by the information and documentation required by Article 7.2.3 of, and Appendix 4 to,
the State Guarantee Agreement, and otherwise in accordance with the State Guarantee Agreement.
Investors in State Guaranteed Notes are reminded that, while such State Guaranteed Notes
are represented by a Global Note, any claims and/or demands for payments under the State
Guarantee must be exercised through, and in accordance with, the standard procedures of
Euroclear, Clearstream, Luxembourg, Euroclear France or any other clearing system (as the case
may be). Accordingly, such holders must, and are responsible for, notifying and liaising with their
financial intermediary and/or custodian in order to ensure that the necessary steps are taken to
validly exercise their rights under the State Guarantee in a timely manner.
Withholding tax and gross-up under the State Guarantee
The State Guarantee Agreement does not impose an obligation on the State Guarantors to
pay additional amounts in the event that deduction or withholding for or on account of any taxes,
duties, assessments or governmental charges is made with respect to payments by any State
Guarantor under the State Guarantee, if applicable.
Governing Law and Jurisdiction
The State Guarantee Agreement is governed by the laws of Belgium and the courts of
Brussels are given exclusive jurisdiction to settle any disputes relating thereto as between the
parties thereto and in relation to any disputes involving holders of State Guaranteed Notes.
32
GENERAL DESCRIPTION OF THE PROGRAMME
The Programme is a EUR 10,000,000,000 Euro Medium Term Note, Certificate and Warrant
Programme under which the Issuer, including the Issuer acting through its Singapore Branch, may
from time to time issue Euro Medium Term Notes, Certificates and Warrants in accordance with and
subject to all applicable laws and regulations and denominated in Euro or such other currencies or
currency units as may be set forth in the relevant Final Terms, Final Terms for the Certificates or Final
Terms for the Warrants. The applicable terms of any Notes, Certificates or Warrants will be agreed
between the Issuer and the relevant Dealer prior to the issue of the Notes, Certificates or Warrants
and will be set out in the relevant terms and conditions of the Notes, Certificates or Warrants
endorsed on, or attached to, or incorporated by reference into, the Notes, Certificates or Warrants, as
modified and supplemented by the applicable Final Terms, Final Terms for the Certificates or Final
Terms for the Warrants attached to, or endorsed on, such Notes, Certificates or Warrants.
DOCUMENTS INCORPORATED BY REFERENCE
This Prospectus should be read and construed in conjunction with the audited consolidated
annual accounts of the Issuer for the years ended 31 December, 2007, and 31 December, 2008,
including the reports of the statutory auditors in respect thereof, which have been filed with the
CSSF and are incorporated by reference in this Prospectus. Physical copies of all documents
incorporated by reference will be available free of charge from the offices of the Issuer. All
documents that have been incorporated by reference will be available to view on the Luxembourg
Stock Exchange Website (www.bourse.lu).
The balance sheet, income statements, cash flow statements, accounting policies, notes and
auditors’ reports of the Issuer are set out on the following pages of the annual reports of the Issuer:
Annual Report
Non-consolidated Balance Sheet
Non-consolidated Profit and Loss Account
Consolidated Balance Sheet
Consolidated Statement of Income
Consolidated Cash Flow Statements
Notes to the Non-consolidated Accounts
Notes to the Consolidated Accounts
Auditors’ Reports
for the Non-consolidated Accounts
Auditors’ Report for the Consolidated Accounts
2007
125
127
21
23
26
129
27
Annual Report 2008
129
131
22
24
27
135
28
124
20
128
20
Information contained in the documents incorporated by reference other than information
listed in the table above is for information purposes only.
PROSPECTUS SUPPLEMENT
If at any time the Issuer shall be required to prepare a supplement to the Prospectus
pursuant to Article 13 of the Luxembourg Act dated 10 July, 2005 relating to the prospectuses for
securities, the Issuer will prepare and make available an appropriate supplement to this Prospectus
or a further Prospectus which, in respect of any subsequent issue of Notes, Certificates or Warrants
to be listed on the Official List of the Luxembourg Stock Exchange and admitted to trading on the
Regulated Market, shall constitute a prospectus supplement as required by Article 13 of the
Luxembourg Act dated 10 July, 2005 relating to prospectuses for securities.
The Issuer has given an undertaking to the Dealers that if at any time during the duration of
the Programme there is a significant new factor, material mistake or inaccuracy relating to
information contained in this Prospectus which is capable of affecting the assessment of any Notes,
Certificates or Warrants and whose inclusion in or removal from this Prospectus is necessary for the
purpose of allowing an investor to make an informed assessment of the assets and liabilities,
financial position, profits and losses and prospects of the Issuer, and the rights attaching to the
Notes, the Certificates or Warrants, the Issuer shall prepare a supplement to this Prospectus or
publish a replacement Prospectus for use in connection with any subsequent offering of the Notes,
the Certificates or the Warrants and shall supply to each Dealer such number of copies of such
supplement hereto as such Dealer may reasonably request.
33
RDA11-11.1
RDA11-11.2
RDA11.11.3.2
RDA11.14
TERMS AND CONDITIONS OF THE SENIOR NOTES
The following is the text of the terms and conditions that, subject to completion and amendment
and as supplemented or varied in accordance with the provisions of Part A of the relevant Final Terms,
shall be applicable to the Notes in definitive form (if any) issued in exchange for the Global Note(s)
representing each Tranche. Either (i) the full text of these terms and conditions together with Part A of the
relevant provisions of the Final Terms or (ii) these terms and conditions as so completed, amended,
supplemented or varied (and subject to simplification by the deletion of non- applicable provisions), shall
be endorsed on such Bearer Notes or on the Registered Note Certificates relating to such Registered
Notes. All capitalised terms that are not defined in these conditions will have the meanings given to them
in the relevant Final Terms. Those definitions will be endorsed on the definitive Notes or Registered Note
Certificates, as the case may be. References in these Conditions to “Notes” are to the Senior Notes of
one Series only, not to all Senior Notes that may be issued under the Programme.
SNA12-4.1.7
SNA12-5.1.1
SNA5-4.6
SNA5-5.1.1
An Agency Agreement (as further amended or supplemented as at the date of issue of the
Notes (the “Issue Date”) (the “Agency Agreement”) dated 9 November, 1995 as amended and
restated on 3 April, 2009 between the Issuer acting through its head office or through Dexia Banque
Internationale à Luxembourg, société anonyme Singapore Branch and the other agents named in it,
has been entered into in relation to the Notes. The fiscal agent, the paying agents, the registrars,
the transfer agents and the calculation agent(s) for the time being (if any) are referred to below
respectively as the “Fiscal Agent”, the “Paying Agents” (which expression shall include the Fiscal
Agent), the “Registrars”, the “Transfer Agents” and the “Calculation Agent(s)”. The Noteholders (as
defined below), the holders of the interest coupons (the “Coupons”) relating to interest bearing
Notes in bearer form and, where applicable in the case of such Notes, talons for further Coupons
(the “Talons”) (the “Couponholders”) and the holders of the receipts for the payment of instalments
of principal (the “Receipts”) relating to Notes in bearer form of which the principal is payable in
instalments are deemed to have notice of all of the provisions of the Agency Agreement applicable
to them. If so specified in the relevant Final Terms, the Notes will be severally, but not jointly,
guaranteed by the States of France, Belgium and Luxembourg according to the terms of the State
Guarantee Agreement dated 9 December 2008 (the “State Guarantee Agreement”).
Copies of the Agency Agreement are available for inspection free of charge at the specified
offices of each of the Paying Agents, the Registrar and the Transfer Agents.
1.
Form, Denomination and Title
The Notes are issued in bearer form (“Bearer Notes”, which expression includes Notes that
are specified to be Exchangeable Bearer Notes), in registered form (“Registered Notes”) or in bearer
form exchangeable for Registered Notes (“Exchangeable Bearer Notes”) in each case in the
Specified Denomination(s) shown hereon.
All Registered Notes shall have the same Specified Denomination. Where Exchangeable
Bearer Notes are issued, the Registered Notes for which they are exchangeable shall have the same
Specified Denomination as the lowest denomination of Exchangeable Bearer Notes.
This Note is a Fixed Rate Note, a Floating Rate Note, a Zero Coupon Note, an Index Linked
Interest Note, an Index Linked Redemption Note, an Instalment Note, a Dual Currency Note or a
Partly Paid Note, a combination of any of the foregoing or any other kind of Note depending upon
the Interest and Redemption/Payment Basis shown hereon.
Bearer Notes are serially numbered and are issued with Coupons (and, where appropriate, a
Talon) attached, save in the case of Zero Coupon Notes in which case references to interest (other
than in relation to interest due after the Maturity Date), Coupons and Talons in these Conditions are
not applicable. Instalment Notes are issued with one or more Receipts attached.
Registered Notes are represented by registered note certificates (“Registered Note
Certificates”) and, save as provided in Condition 2(c), each Registered Note Certificate shall
represent the entire holding of Registered Notes by the same holder.
Title to the Bearer Notes and the Receipts, Coupons and Talons shall pass by delivery. Title
to the Registered Notes shall pass by registration in the register that the Issuer shall procure to be
kept by the Registrar in accordance with the provisions of the Agency Agreement (the “Register”).
Except as ordered by a court of competent jurisdiction or as required by law, the holder (as defined
below) of any Note, Receipt, Coupon or Talon shall be deemed to be and may be treated as its
absolute owner for all purposes, whether or not it is overdue and regardless of any notice of
34
SNA12-4.1.1
SNA5-4.1
ownership, trust or an interest in it, any writing on it (or on the Registered Note Certificate
representing it) or its theft or loss (or that of the related Registered Note Certificate) and no person
shall be liable for so treating the holder.
In these Conditions, “Noteholder” means the bearer of any Bearer Note and the Receipts
relating to it or the person in whose name a Registered Note is registered (as the case may be),
“holder” (in relation to a Note, Receipt, Coupon or Talon) means the bearer of any Bearer Note,
Receipt, Coupon or Talon or the person in whose name a Registered Note is registered (as the case
may be) and capitalised terms have the meanings given to them hereon, the absence of any such
meaning indicating that such term is not applicable to the Notes.
2.
Exchanges of Exchangeable Bearer Notes and Transfers of Registered Notes
(a)
Exchange of Exchangeable Bearer Notes:
Subject as provided in Condition 2(f), Exchangeable Bearer Notes may be exchanged for the
same nominal amount of Registered Notes at the request in writing of the relevant Noteholder and
upon surrender of each Exchangeable Bearer Note to be exchanged, together with all unmatured
Receipts, Coupons and Talons relating to it, at the specified office of any Transfer Agent; provided,
however, that where an Exchangeable Bearer Note is surrendered for exchange after the Record
Date (as defined in Condition 7(b)) for any payment of interest, the Coupon in respect of that
payment of interest need not be surrendered with it. Registered Notes may not be exchanged for
Bearer Notes. Bearer Notes of one Specified Denomination may not be exchanged for Bearer Notes
of another Specified Denomination.
(b)
Transfer of Registered Notes:
One or more Registered Notes may be transferred upon the surrender (at the specified office
of the Registrar or any Transfer Agent) of the Registered Note Certificate representing such
Registered Notes to be transferred, together with the form of transfer endorsed on such Registered
Note Certificate (or another form of transfer substantially in the same form and containing the same
representations and certifications (if any), unless otherwise agreed by the Issuer) duly completed
and executed and any other evidence as the Registrar or Transfer Agent may reasonably require. In
the case of a transfer of part only of a holding of Registered Notes represented by one Registered
Note Certificate, a new Registered Note Certificate shall be issued to the transferee in respect of
the part transferred and a further new Certificate in respect of the balance of the holding not
transferred shall be issued to the transferor. In the case of a transfer of Registered Notes to a
person who is already a holder of Registered Notes, a new Registered Note Certificate representing
the enlarged holding shall only be issued against surrender of the Registered Note Certificate
representing the existing holding.
(c)
Exercise of Options or Partial Redemption in Respect of Registered Notes:
In the case of an exercise of an Issuer’s or Noteholders’ option in respect of, or a partial
redemption of, a holding of Registered Notes represented by a single Registered Note Certificate, a
new Registered Note Certificate shall be issued to the holder to reflect the exercise of such option
or in respect of the balance of the holding not redeemed. In the case of a partial exercise of an
option resulting in Registered Notes of the same holding having different terms, separate Registered
Note Certificates shall be issued in respect of those Notes of that holding that have the same
terms. New Registered Note Certificates shall only be issued against surrender of the existing
Registered Note Certificates to the Registrar or any Transfer Agent.
(d)
Delivery of New Registered Note Certificates:
Each new Registered Note Certificate to be issued pursuant to Conditions 2(a), (b) or (c) shall
be available for delivery within three business days of receipt of the request for exchange, form of
transfer or Exercise Notice (as defined in Condition 6(e)) and in each case surrender of the
Registered Note Certificate for exchange. Delivery of the new Registered Note Certificate(s) shall be
made at the specified office of the Transfer Agent or of the Registrar (as the case may be) to whom
delivery or surrender of such request for exchange, form of transfer, Exercise Notice or Registered
Note Certificate shall have been made or, at the option of the holder making such delivery or
surrender as aforesaid and as specified in the relevant request for exchange, form of transfer,
Exercise Notice or otherwise in writing, be mailed by uninsured post at the risk of the holder
entitled to the new Registered Note Certificate to such address as may be so specified, unless
such holder requests otherwise and pays in advance to the relevant Agent (as defined in the
35
Agency Agreement) the costs of such other method of delivery and/or such insurance as it may
specify. In this Condition 2(d), “business day” means a day, other than a Saturday or Sunday, on
which banks are open for business in Luxembourg and in the place of the specified office of the
relevant Transfer Agent or the Registrar (as the case may be).
(e)
Exchange Free of Charge:
Exchange and transfer of Notes and Registered Note Certificates on registration, transfer,
partial redemption or exercise of an option shall be effected without charge by or on behalf of the
Issuer, the Registrar or the Transfer Agents, but upon payment of any tax or other governmental
charges that may be imposed in relation to it (or the giving of such indemnity as the Registrar or
the relevant Transfer Agent may require).
(f)
Closed Periods:
No Noteholder may require the transfer of a Registered Note to be registered or an
Exchangeable Bearer Note to be exchanged for one or more Registered Note(s) (i) during the period
of 15 days ending on the due date for redemption of, or payment of any Instalment Amount in
respect of, that Note, (ii) during the period of 15 days before any date on which Notes may be
called for redemption by the Issuer at its option pursuant to Condition 6(d), (iii) after any such Note
has been called for redemption or (iv) during the period of 7 days ending on (and including) any
Record Date. An Exchangeable Bearer Note called for redemption may, however, be exchanged for
one or more Registered Note(s) in respect of which the Registered Note Certificate is
simultaneously surrendered not later than the relevant Record Date.
3.
Status
The Notes, Receipts and Coupons constitute (subject to Condition 4) direct, unconditional,
unsecured and unsubordinated obligations of the Issuer and shall at all times rank pari passu and
without any preference among themselves. The payment obligations of the Issuer under the Notes,
Receipts and Coupons shall, save for such exceptions as may be provided by applicable legislation
and subject to Condition 4, at all times rank at least equally with all other unsecured and
unsubordinated indebtedness and monetary obligations of the Issuer present and future (including
deposits).
4.
Negative Pledge
(a)
Restriction:
The Issuer undertakes that, so long as any of the Notes, Receipts or Coupons remain
outstanding (as defined in the Agency Agreement), it shall not create or have outstanding any
mortgage, charge, pledge, lien (other than a lien arising solely by operation of law in the ordinary
course of business) or other encumbrance upon, or with respect to, the whole or any part of its
present or future property, assets or revenues to secure repayment of, or to secure any guarantee
of or indemnity in respect of, any external indebtedness unless the Notes, Receipts and Coupons
(A) are, at the same time, secured equally and rateably therewith, or (B) have the benefit of such
other security or other arrangement as shall be approved by an Extraordinary Resolution (as defined
in the Agency Agreement) of the Noteholders. However, this undertaking shall not include any
liabilities, indebtedness, guarantee or depreciation of the Issuer’s assets in relation with any issues
made by the Issuer’s subsidiary, Dexia LdG Banque S.A., in the form of covered bonds or similar
instruments.
(b)
External indebtedness:
In this Condition 4, “external indebtedness” means any obligation for the repayment of
borrowed money in the form of, or represented by, bonds, notes, debentures or other securities (i)
that on issue were offered through an international group of banks or financial institutions as to
more than 50 per cent. in issue amount outside Luxembourg and (ii) that are, or are capable of
being, quoted, listed or ordinarily traded on any stock exchange, automated trading system, overthe-counter or other securities market.
5.
Interest and Other Calculations
(a)
Interest on Fixed Rate Notes:
Each Fixed Rate Note bears interest on its outstanding nominal amount from the Interest
Commencement Date at the rate per annum (expressed as a percentage) equal to the Rate of
Interest, such interest being payable in arrear on each Interest Payment Date. The amount of
36
SNA5-4.5
SNA12-4.1.6
interest payable shall be determined in accordance with Condition 5(h).
(b)
Interest on Floating Rate Notes and Index Linked Interest Notes:
(i)
Interest Payment Dates: Each Floating Rate Note and Index Linked Interest Note bears
interest on its outstanding nominal amount from the Interest Commencement Date at
the rate per annum (expressed as a percentage) equal to the Rate of Interest, such
interest being payable in arrear on each Interest Payment Date. The amount of interest
payable shall be determined in accordance with Condition 5(h). The Interest Payment
Date(s) is/are either shown hereon as Specified Interest Payment Dates or, if no
Specified Interest Payment Date(s) is/are shown hereon, Interest Payment Date shall
mean each date which falls the number of months or other period shown hereon as the
Specified Period after the preceding Interest Payment Date or, in the case of the first
Interest Payment Date, after the Interest Commencement Date.
(ii)
Business Day Convention: If any date referred to in these Conditions that is specified
to be subject to adjustment in accordance with a Business Day Convention would
otherwise fall on a day that is not a Business Day, then, if the Business Day
Convention specified is (A) the Floating Rate Business Day Convention, such date shall
be postponed to the next day that is a Business Day unless it would thereby fall into
the next calendar month, in which event (x) such date shall be brought forward to the
immediately preceding Business Day and (y) each subsequent such date shall be the
last Business Day of the month in which such date would have fallen had it not been
subject to adjustment, (B) the Following Business Day Convention, such date shall be
postponed to the next day that is a Business Day, (C) the Modified Following Business
Day Convention, such date shall be postponed to the next day that is a Business Day
unless it would thereby fall into the next calendar month, in which event such date
shall be brought forward to the immediately preceding Business Day or (D) the
Preceding Business Day Convention, such date shall be brought forward to the
immediately preceding Business Day.
(iii)
Rate of Interest for Floating Rate Notes: The Rate of Interest in respect of Floating Rate
Notes for each Interest Accrual Period shall be determined in the manner specified
hereon and the provisions below relating to either ISDA Determination or Screen Rate
Determination shall apply depending upon which is specified hereon:
(A)
ISDA Determination for Floating Rate Notes
Where ISDA Determination is specified hereon as the manner in which the Rate
of Interest is to be determined, the Rate of Interest for each Interest Accrual
Period shall be determined by the Calculation Agent as a rate equal to the
relevant ISDA Rate. For the purposes of this sub-paragraph (A), “ISDA Rate” for
an Interest Accrual Period means a rate equal to the Floating Rate that would be
determined by the Calculation Agent under a Swap Transaction under the terms
of an agreement incorporating the ISDA Definitions and under which:
(x)
the Floating Rate Option is as specified hereon;
(y)
the Designated Maturity is a period specified hereon; and
(z)
the relevant Reset Date is the first day of that Interest Accrual Period
unless otherwise specified hereon.
For the purposes of this sub-paragraph (A), “Floating Rate”, “Calculation
Agent”, “Floating Rate Option”, “Designated Maturity”, “Reset Date” and
“Swap Transaction” have the meanings given to those terms in the ISDA
Definitions.
(B)
Screen Rate Determination for Floating Rate Notes
Where Screen Rate Determination is specified hereon as the manner in which the
Rate of Interest is to be determined, the Rate of Interest for each Interest Accrual
Period will, subject as provided below, be either:
(x)
(1)
the offered quotation; or
(2)
the arithmetic mean of the offered quotations,
37
(expressed as a percentage rate per annum) for the Reference Rate which
appears or appear, as the case may be, on the Relevant Screen Page as
at 11.00 a.m. (London time in the case of LIBOR or Brussels time in the
case of EURIBOR) on the Interest Determination Date in question as
determined by the Calculation Agent. If five or more of such offered
quotations are available on the Relevant Screen Page, the highest (or, if
there is more than one such highest quotation, one only of such
quotations) and the lowest (or, if there is more than one such lowest
quotation, one only of such quotations) shall be disregarded by the
Calculation Agent for the purpose of determining the arithmetic mean of
such offered quotations.
If the Reference Rate from time to time in respect of Floating Rate Notes
is specified in the applicable Final Terms as being other than LIBOR or
EURIBOR, the Rate of Interest in respect of such Notes will be determined
as provided in the applicable Final Terms;
(y)
if the Relevant Screen Page is not available or if sub-paragraph (x)(1)
above applies and no such offered quotation appears on the Relevant
Screen Page or if sub-paragraph (x)(2) above applies and fewer than three
such offered quotations appear on the Relevant Screen Page in each case
as at the time specified above, subject as provided below, the Calculation
Agent shall request, if the Reference Rate is LIBOR, the principal London
office of each of the Reference Banks or, if the Reference Rate is
EURIBOR, the principal Euro-zone office of each of the Reference Banks,
to provide the Calculation Agent with its offered quotation (expressed as a
percentage rate per annum) for the Reference Rate if the Reference Rate
is LIBOR, at approximately 11.00 a.m. (London time), or if the Reference
Rate is EURIBOR, at approximately 11.00 a.m. (Brussels time) on the
Interest Determination Date in question. If two or more of the Reference
Banks provide the Calculation Agent with such offered quotations, the
Rate of Interest for such Interest Period shall be the arithmetic mean of
such offered quotations as determined by the Calculation Agent; and
(z)
if paragraph (y) above applies and the Calculation Agent determines that
fewer than two Reference Banks are providing offered quotations, subject
as provided below, the Rate of Interest shall be the arithmetic mean of the
rates per annum (expressed as a percentage) as communicated to (and at
the request of) the Calculation Agent by the Reference Banks or any two or
more of them, at which such banks were offered, if the Reference Rate is
LIBOR, at approximately 11.00 a.m. (London time) or, if the Reference Rate
is EURIBOR, at approximately 11.00 a.m. (Brussels time) on the relevant
Interest Determination Date, deposits in the Specified Currency for a period
equal to that which would have been used for the Reference Rate by
leading banks in, if the Reference Rate is LIBOR, the London inter-bank
market or, if the Reference Rate is EURIBOR, the Euro-zone inter-bank
market, as the case may be, or, if fewer than two of the Reference Banks
provide the Calculation Agent with such offered rates, the offered rate for
deposits in the Specified Currency for a period equal to that which would
have been used for the Reference Rate, or the arithmetic mean of the
offered rates for deposits in the Specified Currency for a period equal to
that which would have been used for the Reference Rate, at which, if the
Reference Rate is LIBOR, at approximately 11.00 a.m. (London time) or, if
the Reference Rate is EURIBOR, at approximately 11.00 a.m. (Brussels
time), on the relevant Interest Determination Date, any one or more banks
(which bank or banks is or are in the opinion of the Trustee and the Issuer
suitable for such purpose) informs the Calculation Agent it is quoting to
leading banks in, if the Reference Rate is LIBOR, the London inter-bank
market or, if the Reference Rate is EURIBOR, the Euro-zone inter-bank
market, as the case may be, provided that, if the Rate of Interest cannot be
38
determined in accordance with the foregoing provisions of this paragraph,
the Rate of Interest shall be determined as at the last preceding Interest
Determination Date (though substituting, where a different Margin or
Maximum or Minimum Rate of Interest is to be applied to the relevant
Interest Accrual Period from that which applied to the last preceding
Interest Accrual Period, the Margin or Maximum or Minimum Rate of
Interest relating to the relevant Interest Accrual Period, in place of the
Margin or Maximum or Minimum Rate of Interest relating to that last
preceding Interest Accrual Period).
(iv)
Rate of Interest for Index Linked Interest Notes: The Rate of Interest in respect of Index
Linked Interest Notes for each interest Accrual Period shall be determined in the
manner specified hereon and interest will accrue by reference to an index or formula as
specified hereon.
(c)
Zero Coupon Notes:
Where a Note the Interest Basis of which is specified to be Zero Coupon is repayable prior
to the Maturity Date and is not paid when due, the amount due and payable prior to the Maturity
Date shall be the Early Redemption Amount of such Note. As from the Maturity Date, the Rate of
Interest for any overdue principal of such a Note shall be a rate per annum (expressed as a
percentage) equal to the Amortisation Yield (as described in Condition 6(b)(i)).
(d)
In the case of Dual Currency Notes, if the rate or amount of interest is to be determined by
reference to a Rate of Exchange or a method of calculating Rate of Exchange, the rate or amount
of interest payable shall be determined in the manner specified hereon.
(e)
Partly-Paid Notes:
In the case of Partly-Paid Notes (other than Partly-Paid Notes which are Zero Coupon Notes),
interest will accrue as aforesaid on the paid-up nominal amount of such Notes and otherwise as
specified hereon.
(f)
Accrual of Interest:
Interest shall cease to accrue on each Note on the due date for redemption unless, upon due
presentation, payment is improperly withheld or refused, in which event interest shall continue to
accrue (both before and after judgment) at the Rate of Interest in the manner provided in this
Condition 5 to the Relevant Date (as defined in Condition 8).
(g)
Margin, Maximum/Minimum Rates of Interest, Instalment Amounts and Redemption
Amounts and Rounding:
(i)
If any Margin is specified hereon (either (x) generally, or (y) in relation to one or more
Interest Accrual Periods), an adjustment shall be made to all Rates of Interest, in the
case of (x), or the Rates of Interest for the specified Interest Accrual Periods, in the
case of (y), calculated in accordance with (b) above by adding (if a positive number) or
subtracting the absolute value (if a negative number) of such Margin, subject always to
the next paragraph.
(ii)
If any Maximum or Minimum Rate of Interest, Instalment Amount or Redemption
Amount is specified hereon, then any Rate of Interest, Instalment Amount or
Redemption Amount shall be subject to such maximum or minimum, as the case may
be.
(iii)
For the purposes of any calculations required pursuant to these Conditions (unless
otherwise specified), (x) all percentages resulting from such calculations shall be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage point
(with halves being rounded up), (y) all figures shall be rounded to seven significant
figures (with halves being rounded up) and (z) all currency amounts that fall due and
payable shall be rounded to the nearest unit of such currency (with halves being
rounded up), save in the case of yen, which shall be rounded down to the nearest yen.
For these purposes “unit” means the lowest amount of such currency that is available
as legal tender in the country(ies) of such currency.
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(h)
Calculations:
The amount of interest payable per Calculation Amount in respect of any Note for any
Interest Accrual Period shall be equal to the product of the Rate of Interest, Calculation Amount
specified hereon, and the Day Count Fraction for such Interest Accrual Period, unless an Interest
Amount (or a formula for its calculation) is applicable to such Interest Accrual Period, in which case
the amount of interest payable per Calculation Amount in respect of such Note for such Interest
Amounts shall equal such Interest Amount (or be calculated in accordance with such formula).
Where any Interest Period comprises two or more Interest Accrual Periods, the amount of interest
payable per Calculation Amount in respect of such Interest Period shall be the sum of the Interest
Amounts payable payable in respect of each of those Interest Accrual Periods. In respect of any
other period for which interest is required to be calculated, the provisions above shall apply save
that the Day Count Fraction shall be for the period for which interest is required to be calculated.
(i)
Determination and Publication of Rates of Interest, Interest Amounts, Final Redemption
Amounts, Early Redemption Amounts, Optional Redemption Amounts and Instalment
Amounts:
The Calculation Agent shall, as soon as practicable on such date as the Calculation Agent
may be required to calculate any rate or amount, obtain any quotation or make any determination
or calculation, determine such rate and calculate the Interest Amounts for the relevant Interest
Accrual Period, calculate the Final Redemption Amount, Early Redemption Amount, Optional
Redemption Amount or Instalment Amount, obtain such quotation or make such determination or
calculation, as the case may be, and cause the Rate of Interest and the Interest Amounts for each
Interest Accrual Period and the relevant Interest Payment Date and, if required to be calculated, the
Final Redemption Amount, Early Redemption Amount, Optional Redemption Amount or any
Instalment Amount to be notified to the Fiscal Agent, the Issuer, each of the Paying Agents, the
Noteholders, any other Calculation Agent appointed in respect of the Notes that is to make a
further calculation upon receipt of such information and, if the Notes are listed on a stock exchange
and the rules of such exchange so require, such exchange as soon as possible after their
determination but in no event later than (i) the commencement of the relevant Interest Period, if
determined prior to such time, in the case of notification to such exchange of a Rate of Interest and
Interest Amount or (ii) in all other cases, the fourth Business Day after such determination. Where
any Interest Payment Date or Interest Period Date is subject to adjustment pursuant to Condition
5(b)(ii), the Interest Amounts and the Interest Payment Date so published may subsequently be
amended (or appropriate alternative arrangements made by way of adjustment) without notice in
the event of an extension or shortening of the Interest Period. If the Notes become due and payable
under Condition 10, the accrued interest and the Rate of Interest payable in respect of the Notes
shall nevertheless continue to be calculated as previously in accordance with this Condition but no
publication of the Rate of Interest or the Interest Amount so calculated need be made. The
determination of any rate or amount, the obtaining of each quotation and the making of each
determination or calculation by the Calculation Agent(s) shall (in the absence of manifest error) be
final and binding upon all parties.
(j)
Definitions:
In these Conditions, unless the context otherwise requires, the following defined terms shall
have the meanings set out below:
“Business Day” means:
(i)
in the case of a currency other than EUR, a day (other than a Saturday or Sunday) on
which commercial banks and foreign exchange markets settle payments in the principal
financial centre for such currency; and/or
(ii)
in the case of EUR a day on which the TARGET System is operating (a “TARGET
Business Day”); and/or
(iii)
in the case of a currency and/or one or more Additional Business Centres, a day (other
than a Saturday or a Sunday) on which commercial banks and foreign exchange
markets settle payments in such currency in the Additional Business Centre(s) or, if no
currency is indicated, generally in each of the Additional Business Centres.
“Day Count Fraction” means, in respect of the calculation of an amount of interest on any
Note for any period of time (from and including the first day of such period to but excluding the
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last) (whether or not constituting an Interest Period or an Interest Accrual Period, the “Calculation
Period”):
(i)
if “Actual/365” or “Actual/Actual-ISDA” is specified hereon, the actual number of days
in the Calculation Period divided by 365 (or, if any portion of that Calculation Period
falls in a leap year, the sum of (A) the actual number of days in that portion of the
Calculation Period falling in a leap year divided by 366 and (B) the actual number of
days in that portion of the Calculation Period falling in a non-leap year divided by 365);
(ii)
if “Actual/Actual (Fixed)” is specified hereon, the actual number of days in the
Calculation Period divided by 365;
(iii)
if “Actual/360” is specified hereon, the actual number of days in the Calculation Period
divided by 360;
(iv)
if “30/360”, “360/360” or “Bond Basis” is specified hereon, the number of days in the
Calculation Period divided by 360, calculated on a formula basis as follows;
Day Count Fraction =
[360 x (Y2 – Y1)] + [30 x (M2 – M1)] + (D2 – D1)
360
where:
“Y1” is the year, expressed as a number, in which the first day of the Calculation Period
falls;
“Y2” is the year, expressed as a number, in which the day immediately following the last
day included in the Calculation Period falls;
“M1” is the calendar month, expressed as a number, in which the first day of the
Calculation Period falls;
“M2” is the calendar month, expressed as a number, in which the day immediately
following the last day included in the Calculation Period falls;
“D1” is the first calendar day, expressed as a number, of the Calculation Period, unless
such number would be 31, in which case D1 will be 30; and
“D2” is the calendar day, expressed as a number, immediately following the last day
included in the Calculation Period, unless such number would be 31 and D1 is greater
than 29, in which case D2 will be 30.
(v)
if “30E/360” or “Eurobond Basis” is specified hereon, the number of days in the
Calculation Period divided by 360 calculated on a formula basis as follows:
[360 x (Y2 – Y1)] + [30 x (M2 – M1)] + (D2 – D1)
360
where:
falls;
included in the Calculation Period, unless such number would be 31, in which case D2
will be 30.
41
(vi)
if “30E/360 (ISDA)” is specified hereon, the number of days in the Calculation Period
divided by 360, calculated on a formula basis as follows:
[360 x (Y2 – Y1)] + [30 x (M2 – M1)] + (D2 – D1)
360
where:
falls;
(i) that day is the last day of February or (ii) such number would be 31, in which case
D1 will be 30; and
included in the Calculation Period, unless (i) that day is the last day of February but not
the Maturity Date or (ii) such number would be 31, in which case D2 will be 30
(vii)
if “Actual/Actual-ICMA” is specified hereon, (a) if the Calculation Period is equal to or
shorter than the Determination Period during which it falls, the number of days in the
Calculation Period divided by the product of (x) the number of days in such
Determination Period and (y) the number of Determination Periods normally ending in
any year; and (b) if the Calculation Period is longer than one Determination Period, the
sum of: (x) the number of days in such Calculation Period falling in the Determination
Period in which it begins divided by the product of (1) the number of days in such
Determination Period and (2) the number of Determination Periods normally ending in
any year; and (y) the number of days in such Calculation Period falling in the next
Determination Period divided by the product of (1) the number of days in such
any year,
where:
“Determination Period” means the period from and including a Determination Date in
any year to but excluding the next Determination Date; and
“Determination Date” means the date specified as such hereon or, if none is so
specified, the Interest Payment Date.
“Euro-zone” means the region comprised of member states of the European Union that
adopt the single currency in accordance with the Treaty establishing the European
Community as amended by the Treaty on European Union and the Treaty of
Amsterdam.
“Interest Accrual Period” means the period beginning on (and including) the Interest
Commencement Date and ending on (but excluding) the first Interest Period Date and
each successive period beginning on (and including) an Interest Period Date and
ending on (but excluding) the next succeeding Interest Period Date.
“Interest Amount” means
(i)
in respect of an Interest Accrual Period, the amount of interest payable per
Calculation Amount for that Interest Accrual Period and which, in the case of
Fixed Rate Notes, and unless otherwise specified hereon, shall mean the Fixed
Coupon Amount or Broken Amount specified hereon as being payable on the
Interest Payment Date ending the Interest Period of which such Interest Accrual
Period forms part; and
42
(ii)
in respect of any other period, the amount of interest payable per Calculation
Amount for that period
“Interest Commencement Date” means the Issue Date or such other date as may be
specified hereon.
“Interest Determination Date” means, with respect to a Rate of Interest and Interest
Accrual Period, the date specified as such hereon or, if none is so specified, (i) the first
day of such Interest Accrual Period if the Specified Currency is Sterling or (ii) the day
falling two Business Days in London for the Specified Currency prior to the first day of
such Interest Accrual Period if the Specified Currency is neither Sterling nor EUR or (iii)
the day falling two TARGET Business Days prior to the first day of such Interest
Accrual Period if the Specified Currency is EUR.
“Interest Period” means the period beginning on (and including) the Interest
Commencement Date and ending on (but excluding) the first Interest Payment Date
and each successive period beginning on (and including) an Interest Payment Date and
ending on (but excluding) the next succeeding Interest Payment Date.
“Interest Period Date” means each Interest Payment Date unless otherwise specified
hereon.
“ISDA Definitions” means the 2006 ISDA Definitions published by the International
Swaps and Derivatives Association, Inc., unless otherwise specified hereon.
“Number of Actual Calculation Periods” means, in relation to Day Count Fraction
above, the number of Actual Calculation Periods normally ending in any year.
“Rate of Interest” means the rate of interest payable from time to time in respect of this
Note and that is either specified or calculated in accordance with the provisions
hereon.
“Reference Banks” means, in the case of a determination of LIBOR, the principal
London office of four major banks in the London inter-bank market and, in the case of
a determination of EURIBOR, the principal Euro-zone office of four major banks in the
Euro-zone inter-bank market, in each case selected by the Calculation Agent or as
specified hereon.
“Reference Rate” means the rate specified as such hereon.
“Relevant Screen Page” means such page, section, caption, column or other part of a
particular information service as may be specified hereon.
“Specified Currency” means the currency specified as such hereon or, if none is
specified, the currency in which the Notes are denominated.
“State Guarantee” means the irrevocable and unconditional guarantee of the State
Guarantors granted pursuant to the State Guarantee Agreement;
“State Guarantee Agreement” means the First Demand Guarantee Agreement dated
9 December 2008 between the State Guarantors and Dexia SA on behalf of itself and
certain other Dexia Group entities including the Issuer, as supplemented, modified,
amended or restated from time to time;
“State Guarantors” means the Kingdom of Belgium, the Republic of France and the
Grand Duchy of Luxembourg;
“TARGET System” means the Trans-European Automated Real-Time Gross Settlement
Express Transfer (known as TARGET2) System which was launched on 19 November
2007 or any successor thereto.
(k)
Calculation Agent:
SNA12-4.1.13
The Issuer shall procure that there shall at all times be one or more Calculation Agents if
provision is made for them hereon and for so long as any Note is outstanding. Where more than
one Calculation Agent is appointed in respect of the Notes, references in these Conditions to the
Calculation Agent shall be construed as each Calculation Agent performing its respective duties
43
under the Conditions. If the Calculation Agent is unable or unwilling to act as such or if the
Calculation Agent fails duly to establish the Rate of Interest for an Interest Accrual Period or to
calculate any Interest Amount, Instalment Amount, Final Redemption Amount, Early Redemption
Amount or Optional Redemption Amount, as the case may be, or to comply with any other
requirement, the Issuer shall appoint a leading bank or financial institution engaged in the interbank
market (or, if appropriate, money, swap or over-the-counter index options market) that is most
closely connected with the calculation or determination to be made by the Calculation Agent (acting
through its principal London office or any other office actively involved in such market) to act as
such in its place. The Calculation Agent may not resign its duties without a successor having been
appointed as aforesaid.
6.
Redemption, Purchase and Options
(a)
Redemption by Instalments and Final Redemption:
(i)
Unless previously redeemed, purchased and cancelled as provided in this Condition 6,
each Note that provides for Instalment Dates and Instalment Amounts shall be partially
redeemed on each Instalment Date at the related Instalment Amount specified hereon.
The outstanding nominal amount of each such Note shall be reduced by the Instalment
Amount (or, if such Instalment Amount is calculated by reference to a proportion of the
nominal amount of such Note, such proportion) for all purposes with effect from the
related Instalment Date, unless payment of the Instalment Amount is improperly
withheld or refused on presentation of the related Receipt, in which case, such amount
shall remain outstanding until the Relevant Date relating to such Instalment Amount.
(ii)
Unless previously redeemed, purchased and cancelled as provided below, each Note
shall be finally redeemed on the Maturity Date specified hereon at its Final Redemption
Amount (which, unless otherwise provided, is its nominal amount) or, in the case of a
Note falling within paragraph (i) above, its final Instalment Amount.
(b)
Early Redemption:
(i)
Zero Coupon Notes:
(A)
The Early Redemption Amount payable in respect of any Zero Coupon Note, the
Early Redemption Amount of which is not linked to an index and/or a formula,
upon redemption of such Note pursuant to Condition 6(c) or upon it becoming
due and payable as provided in Condition 10 shall be the Amortised Face
Amount (calculated as provided below) of such Note unless otherwise specified
hereon.
(B)
Subject to the provisions of sub-paragraph (C) below, the Amortised Face
Amount of any such Note shall be the scheduled Final Redemption Amount of
such Note on the Maturity Date discounted at a rate per annum (expressed as a
percentage) equal to the Amortisation Yield (which, if none is shown hereon, shall
be such rate as would produce an Amortised Face Amount equal to the issue
price of the Notes if they were discounted back to their issue price on the Issue
Date) compounded annually.
(C)
If the Early Redemption Amount payable in respect of any such Note upon its
redemption pursuant to Condition 6(c) or upon it becoming due and payable as
provided in Condition 10 is not paid when due, the Early Redemption Amount
due and payable in respect of such Note shall be the Amortised Face Amount of
such Note as defined in sub-paragraph (B) above, except that such subparagraph shall have effect as though the date on which the Note becomes due
and payable were the Relevant Date. The calculation of the Amortised Face
Amount in accordance with this sub-paragraph shall continue to be made (both
before and after judgment) until the Relevant Date, unless the Relevant Date falls
on or after the Maturity Date, in which case the amount due and payable shall
be the scheduled Final Redemption Amount of such Note on the Maturity Date
together with any interest that may accrue in accordance with Condition 5(c).
Where such calculation is to be made for a period of less than one year, it shall
be made on the basis of the Day Count Fraction shown hereon.
44
(ii)
Other Notes:
The Early Redemption Amount payable in respect of any Note (other than Notes
described in (i) above), upon redemption of such Note pursuant to Condition 6(c) or
upon it becoming due and payable as provided in Condition 10, shall be the Final
Redemption Amount together (if applicable) with interest accrued to, but excluding, the
date fixed for redemption unless otherwise specified hereon.
(c)
Redemption for Taxation Reasons:
The Notes may be redeemed at the option of the Issuer in whole, but not in part, on any
Interest Payment Date (if this Note is either a Floating Rate Note or an Index Linked Note) or at any
time (if this Note is neither a Floating Rate Note nor an Index Linked Note), on giving not less than
30 nor more than 45 days’ notice to the Noteholders in accordance with Condition 14 (which notice
shall be irrevocable), at their Early Redemption Amount (as described in Condition 6(b) above)
(together with interest accrued to the date fixed for redemption), if (i) the Issuer has or will become
obliged to pay additional amounts as provided or referred to in Condition 8 as a result of any
change in the laws or regulations of Luxembourg (or Singapore, in the case of Notes issued through
the Singapore Branch) (or in the official application of such laws or regulations) or any political
subdivision or any authority thereof or therein having power to tax, or any change in the application
of such laws or regulations, which change or amendment becomes effective on or after the Issue
Date, and (ii) such obligation cannot be avoided by the Issuer taking reasonable measures available
to it, provided that no such notice of redemption shall be given earlier than 90 days prior to the
earliest date on which the Issuer would be obliged to pay such additional amounts were a payment
in respect of the Notes then due. Before the publication of any notice of redemption pursuant to
this paragraph, the Issuer shall make available at the specified offices of the Fiscal Agent and the
Paying Agent a certificate signed by two Directors of the Issuer stating that the Issuer is entitled to
effect such redemption and setting forth a statement of facts showing that the conditions precedent
to the right of the Issuer so to redeem have occurred, and an opinion of independent legal advisers
of recognised standing to the effect that the Issuer has or will become obliged to pay such
additional amounts as a result of such change or amendment.
(d)
Redemption at the Option of the Issuer:
If Call Option is specified hereon (the details of which will be specified in the relevant Final
Terms), the Issuer may, on giving not less than 15 nor more than 30 days’ irrevocable notice to
the Noteholders in accordance with Condition 14 (or such other notice period as may be
specified hereon) redeem all or, if so provided, some of the Notes on any Optional Redemption
Date. Any such redemption of Notes shall be at their Optional Redemption Amount together with
interest accrued to the date fixed for redemption. Any such redemption or exercise must relate to
Notes of a nominal amount at least equal to the Minimum Redemption Amount to be redeemed
specified hereon and no greater than the Maximum Redemption Amount to be redeemed
specified hereon.
All Notes in respect of which any such notice is given shall be redeemed on the date
specified in such notice in accordance with this Condition.
In the case of a partial redemption, the notice to Noteholders shall also contain the certificate
numbers of the Bearer Notes or, in the case of Registered Notes, shall specify the nominal amount
of Registered Notes drawn and the holder(s) of such Registered Notes to be redeemed which shall
have been drawn in such place and in such manner as may be fair and reasonable in the
circumstances, taking account of prevailing market practices, subject to compliance with any
applicable laws and stock exchange requirements.
(e)
Redemption at the Option of Noteholders:
If Put Option is specified hereon, the Issuer shall, at the option of the holder of any such
Note upon the holder of such Note giving not less than 15 nor more than 30 days’ notice to the
Issuer (or such other notice period as may be specified hereon) redeem such Note on the Optional
Redemption Date(s) at its Optional Redemption Amount together with interest accrued to the date
fixed for redemption.
To exercise such option the holder must deposit such Note (together with all unmatured
Receipts and Coupons and unexchanged Talons) with any Paying Agent (in the case of Bearer
Notes) or the Registered Note Certificate representing such Note(s) with the Registrar or any
45
Transfer Agent (in the case of Registered Notes) at its specified office, together with a duly
completed option exercise notice (“Exercise Notice”) in the form obtainable from any Paying Agent,
the Registrar or any Transfer Agent (as applicable) within the notice period. No Note or Registered
Note Certificate so deposited and option exercised may be withdrawn (except as provided in the
Agency Agreement) without the prior consent of the Issuer.
(f)
Partly-Paid Notes:
Partly-Paid Notes will be redeemed, whether at maturity, early redemption or otherwise, in
accordance with the provisions of this Condition and the provisions specified hereon.
(g)
Purchases:
In addition to Notes, Receipts or Coupons purchased in the ordinary course of dealing in
securities on behalf of third parties, the Issuer or any of its Subsidiaries (as defined below) may at
any time purchase Notes (provided that all unmatured Receipts and Coupons and unexchanged
Talons relating thereto are attached thereto or surrendered therewith) in the open market or
otherwise at any price in accordance with applicable laws (if any). The Notes so purchased, while
held by or on behalf of the Issuer or any of its Subsidiaries shall not entitle the holder to vote at
any meetings of the Noteholders and shall not be deemed to be outstanding for the purposes of
calculating quorums at meetings of the Noteholders or for the purposes of Condition 11 (a).
“Subsidiary” means any company 50 per cent. or more of the equity share capital of which is
owned directly or indirectly by the Issuer. Such Notes may be reissued or resold by the Issuer or its
Subsidiaries.
(h)
Cancellation:
All Notes that are redeemed shall be cancelled forthwith (together with all unmatured
Receipts and Coupons and unexchanged Talons attached thereto or surrendered therewith) and
accordingly may not be reissued or resold.
7.
Payments and Talons
(a)
Bearer Notes:
SNA12-4.1.12
Payments of principal and interest in respect of Bearer Notes shall, subject as mentioned
below, be made against presentation and surrender of the relevant Receipts (in the case of
payments of Instalment Amounts other than on the due date for redemption and provided that the
Receipt is presented for payment together with its relative Note), Notes (in the case of all other
payments of principal and, in the case of interest, as specified in Condition 7(f)(vi)) or Coupons (in
the case of interest, save as specified in Condition 7(f)(vi)), as the case may be, at the specified
office of any Paying Agent outside the United States by a cheque payable in the relevant currency
drawn on, or, at the option of the holder, by transfer to an account denominated in such currency
with a Bank. “Bank” means a bank in the principal financial centre for such currency or, in the case
of EUR, in a city in which banks have access to the TARGET System.
(b)
Registered Notes:
(i)
Payments of principal (which for the purposes of this Condition 7(b) shall include final
Instalment Amounts but not other Instalment Amounts) in respect of Registered Notes
shall be made against presentation and surrender of the relevant Registered Note
Certificates at the specified office of any of the Transfer Agents or of the Registrar and
in the manner provided in paragraph (ii) below.
(ii)
Interest (which for the purpose of this Condition 7(b) shall include all Instalment
Amounts other than final Instalment Amounts) on Registered Notes shall be paid to the
person shown on the Register at the close of business on the fifteenth day before the
due date for payment thereof (the “Record Date”). Payments of interest on each
Registered Note shall be made in the relevant currency by cheque drawn on a Bank
and mailed to the holder (or to the first named of joint holders) of such Note at its
address appearing in the Register. Upon application by the holder to the specified
office of the Registrar or any Transfer Agent before the Record Date, such payment of
interest may be made by transfer to an account in the relevant currency maintained by
the payee with a Bank.
46
(c)
Payments in the United States:
Notwithstanding the foregoing, if any Bearer Notes are denominated in U.S. dollars,
payments in respect thereof may be made at the specified office of any Paying Agent in New York
City in the same manner as aforesaid if (i) the Issuer shall have appointed Paying Agents with
specified offices outside the United States with the reasonable expectation that such Paying Agents
would be able to make payment of the amounts on the Notes in the manner provided above when
due, (ii) payment in full of such amounts at all such offices is illegal or effectively precluded by
exchange controls or other similar restrictions and (iii) such payment is then permitted by United
States law, without involving, in the opinion of the Issuer, any adverse tax consequence to the
Issuer.
(d)
Payments Subject to Fiscal Laws:
All payments are subject in all cases to any applicable fiscal or other laws, regulations and
directives, but without prejudice to the provisions of Condition 8. No commission or expenses shall
be charged to the Noteholders or Couponholders in respect of such payments.
(e)
Appointment of Agents:
The Fiscal Agent, the Paying Agents, the Registrars, the Transfer Agents and any Calculation
Agent initially appointed by the Issuer and their respective specified offices are listed below. The
Fiscal Agent, the Paying Agents, the Registrars, the Transfer Agents and the Calculation Agent(s)
act solely as agents of the Issuer and do not assume any obligation or relationship of agency or
trust for or with any Noteholder or Couponholder. The Issuer reserves the right at any time to vary
or terminate the appointment of the Fiscal Agent, any other Paying Agent, any Registrar, any
Transfer Agent or the Calculation Agent and to appoint additional or other Paying Agents or Transfer
Agents, provided that the Issuer shall at all times maintain (i) a Fiscal Agent, (ii) a Registrar in
relation to Registered Notes, (iii) a Transfer Agent in relation to Registered Notes in Luxembourg, (iv)
one or more Calculation Agent(s) where the Conditions so require, (v) Paying Agents having
specified offices in at least two major European cities, (vi) such other agents as may be required by
the rules of any other stock exchange on which the Notes may be listed and (vii) to the extent not
satisfied by (v) or (vi) above, a Paying Agent with a specified office in a European Union member
state that will not be obliged to withhold or deduct tax pursuant to any law implementing European
Union Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN
Council meeting of 26-27 November 2000. Notice of any such termination or appointment and of
any change in the specified office through which any Paying Agent acts will be given in accordance
with Condition 14.
In addition, the Issuer shall forthwith appoint a Paying Agent in New York City in respect of
any Bearer Notes denominated in U.S. dollars in the circumstances described in paragraph (c)
above.
Notice of any such change or any change of any specified office shall promptly be given to
the Noteholders.
(f)
Unmatured Coupons and Receipts and unexchanged Talons:
(i)
Upon the due date for redemption of Bearer Notes which comprise Fixed Rate Notes
(other than Dual Currency Notes or Index Linked Notes) should be surrendered for
payment together with all unmatured Coupons (if any) relating thereto, failing which an
amount equal to the face value of each missing unmatured Coupon (or, in the case of
payment not being made in full, that proportion of the amount of such missing
unmatured Coupon that the sum of principal so paid bears to the total principal due)
shall be deducted from the Final Redemption Amount, Early Redemption Amount or
Optional Redemption Amount, as the case may be, due for payment. Any amount so
deducted shall be paid in the manner mentioned above against surrender of such
missing Coupon within a period of 10 years from the Relevant Date for the payment of
such principal (whether or not such Coupon has become void pursuant to Condition 9).
(ii)
Upon the due date for redemption of any Bearer Note comprising a Floating Rate Note,
Dual Currency Interest Note or Index Linked Note, unmatured Coupons relating to such
Note (whether or not attached) shall become void and no payment shall be made in
respect of them.
47
(iii)
Upon the due date for redemption of any Bearer Note, any unexchanged Talon relating
to such Note (whether or not attached) shall become void and no Coupon shall be
delivered in respect of such Talon.
(iv)
Upon the due date for redemption of any Bearer Note that is redeemable in
instalments, all Receipts relating to such Note having an Instalment Date falling on or
after such due date (whether or not attached) shall become void and no payment shall
be made in respect of them.
(v)
Where any Bearer Note that provides that the relative unmatured Coupons are to
become void upon the due date for redemption of those Notes is presented for
redemption without all unmatured Coupons, and where any Bearer Note is presented
for redemption without any unexchanged Talon relating to it, redemption shall be made
only against the provision of such indemnity as the Issuer may require.
(vi)
If the due date for redemption of any Note is not a due date for payment of interest,
interest accrued from the preceding due date for payment of interest or the Interest
Commencement Date, as the case may be, shall only be payable against presentation
(and surrender if appropriate) of the relevant Bearer Note or Registered Note Certificate
representing it, as the case may be.
Interest accrued on a Note that only bears interest after its Maturity Date shall be payable on
redemption of such Note against presentation of the relevant Note or Registered Note Certificate
(g)
Talons:
On or after the Interest Payment Date for the final Coupon forming part of a Coupon sheet
issued in respect of any Bearer Note, the Talon forming part of such Coupon sheet may be
surrendered at the specified office of the Fiscal Agent in exchange for a further Coupon sheet (and
if necessary another Talon for a further Coupon sheet) (but excluding any Coupons that may have
become void pursuant to Condition 9).
(h)
Non-Business Days:
If any date for payment in respect of any Note, Receipt or Coupon is not a business day, the
holder shall not be entitled to payment until the next following business day nor to any interest or
other sum in respect of such postponed payment. In this paragraph (h), “business day” means a
day (other than a Saturday or a Sunday) on which banks and foreign exchange markets are open
for business in the relevant place of presentation, in such jurisdictions as shall be specified as
“Additional Financial Centres” hereon and:
(i)
(in the case of a payment in a currency other than EUR) where payment is to be made
by transfer to an account maintained with a bank in the relevant currency, on which
foreign exchange transactions may be carried on in the relevant currency in the
principal financial centre of the country of such currency; or
(ii)
(in the case of a payment in EUR) which is a TARGET Business Day.
8.
Taxation
All payments of principal and interest in respect of the Notes, the Receipts and the Coupons
shall be made free and clear of, without withholding or deduction for, or on account of, any present
or future taxes, duties, assessments or governmental charges of whatever nature imposed, levied,
collected, withheld or assessed by or on behalf of Luxembourg (or Singapore, in the case of Notes
issued through the Singapore Branch) or any authority therein or thereof having power to tax,
unless such withholding or deduction is required by law. In that event, the Issuer shall pay such
additional amounts as shall result in receipt by the Noteholders and the Couponholders of such
amounts as would have been received by them had no such withholding or deduction been
required, except that no such additional amounts shall be payable with respect to any Note,
Receipt or Coupon:
(a)
Other connection:
to, or to a third party on behalf of, a holder who is liable to such taxes, duties,
assessments or governmental charges in respect of such Note, Receipt or Coupon by
reason of his having some connection with Luxembourg and/or Singapore (as
applicable) other than the mere holding of the Note, Receipt or Coupon;
48
(b)
Lawful avoidance of withholding:
presented (or in respect of which the Registered Note Certificate representing it is
presented) for payment more than 30 days after the Relevant Date (as defined below)
except to the extent that the holder of it would have been entitled to such additional
amounts on presenting it for payment on the thirtieth such day;
(c)
Payment to individuals:
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 other
Directive implementing the conclusions of the ECOFIN Council meeting of 26-27
November 2000 on the taxation of savings income or any law implementing or
complying with, or introduced in order to conform to, such Directive; or
(d)
Payment by another Paying Agent:
(except in the case of Registered Notes) presented for payment by or on behalf of a
holder who would have been able to avoid such withholding or deduction by
presenting the relevant Note, Receipt or Coupon to another Paying Agent in a Member
State of the European Union.
As used in these Conditions, “Relevant Date” in respect of any Note, Receipt or Coupon
means the date on which payment in respect of it first becomes due or (if any amount of the money
payable is improperly withheld or refused) the date on which payment in full of the amount
outstanding is made or (if earlier) the date seven days after that on which notice is duly given to the
Noteholders that, upon further presentation of the Note (or relative Registered Note Certificate),
Receipt or Coupon being made in accordance with the Conditions, such payment will be made,
provided that payment is in fact made upon such presentation. References in these Conditions to
(i) “principal” shall be deemed to include any premium payable in respect of the Notes, all
Instalment Amounts, Final Redemption Amounts, Early Redemption Amounts, Optional Redemption
Amounts, Amortised Face Amounts and all other amounts in the nature of principal payable
pursuant to Condition 6 or any amendment or supplement to it, (ii) “interest” shall be deemed to
include all Interest Amounts and all other amounts payable pursuant to Condition 5 or any
amendment or supplement to it and (iii) “principal” and/or “interest” shall be deemed to include any
additional amounts that may be payable under this Condition.
9.
Prescription
Claims against the Issuer for payment in respect of the Notes, Receipts and Coupons (which
for this purpose shall not include Talons) shall be prescribed and become void unless made within
ten years (in the case of principal) or five years (in the case of interest) from the appropriate
Relevant Date in respect of them.
10.
Events of Default
If any of the following events (“Events of Default”) occurs and is continuing, the holder of any
Note may give written notice to the Fiscal Agent at its specified office that such Note is immediately
repayable, whereupon the Early Redemption Amount of such Note together (if applicable) with
accrued interest to the date of payment shall become immediately due and payable:
(a)
Non-Payment: default is made for more than 14 days (in the case of interest) or 7 days
(in the case of principal) in the payment on the due date of interest or principal in
respect of any of the Notes; or
(b)
Breach of Other Obligations: the Issuer defaults in performance or observance of, or
compliance with, any of its other obligations in the Notes which default is incapable of
remedy or which, if capable of remedy, is not remedied within 21 days after notice of
such default shall have been given to the Fiscal Agent at its specified office by any
Noteholder; or
(c)
Enforcement Proceedings: a distress, attachment, execution or other legal process is
levied, enforced or sued out on or against all or a material part of the property, assets
or revenues of the Issuer and is not stayed or discharged within 21 days; or
(d)
Security Enforced: any present or future mortgage, charge, pledge, lien or other
encumbrance on or over all or a material part of the property, assets or revenues of the
49
SNA5-4.7
Issuer becomes enforceable and any step is taken to enforce it (including the taking of
possession or the appointment of a receiver, manager, administrator or other similar
person) and such enforcement or step is not stayed or discharged within 21 days; or
(e)
Insolvency: the Issuer becomes insolvent within the meaning of Luxembourg law or
applies for or consents to or suffers the appointment of a liquidator (liquidateur) or
receiver of the Issuer or of the whole or any substantial part of the undertaking,
property, assets or revenues of the Issuer or initiates any proceedings under any law
for a readjustment or deferment of its obligations or any substantial part thereof or
makes or enters into a general assignment or an arrangement or composition with or
for the benefit of its creditors or an order is made or an effective resolution is passed
for the dissolution (dissolution) or liquidation (liquidation) of the Issuer or to admit the
Issuer to a regime of suspension of payments (sursis de paiement); or
(f)
Cessation of Business: the Issuer ceases to carry on business (except for the purpose
of any amalgamation, merger or other reorganisation under which the continuing or
successor corporation has assumed all of the assets and business undertakings of the
Issuer pursuant to Condition 11(c) and has expressly and effectively assumed the
obligations of the Issuer under the Notes); or
(g)
Cross-Default: (i) any loan or other present or future indebtedness of the Issuer for or in
respect of moneys borrowed or raised and not being money deposited with the Issuer
or transferred pursuant to a fiduciary contract within the meaning of the law of 27 July,
2003, as amended from time to time, or otherwise borrowed in the ordinary course of
business of the Issuer (“Relevant Indebtedness”) becomes due and payable prior to its
stated maturity otherwise than at the option of the Issuer, or (ii) the Issuer fails to make
any payment in respect of Relevant Indebtedness on the due date for such payment as
extended by any originally applicable grace period, or (iii) the security for any Relevant
Indebtedness becomes enforceable, or (iv) default is made by the Issuer in making any
payment due under any present or future guarantee and/or indemnity given by it of, or
in respect of, Relevant Indebtedness provided that the aggregate amount of the
Relevant Indebtedness in respect of which one or more of the events mentioned above
in this paragraph (g) have occurred equals or exceeds U.S.$10,000,000 or its equivalent
(on the basis of the middle spot rate for the relevant currency against the U.S. dollar as
quoted by any leading bank on the day on which this paragraph operates).
11.
Meetings of Noteholders, Modifications and Substitution
The following applies in the case of all Senior Notes other than Senior Notes governed by
Luxembourg law:
(a)
Meetings of Noteholders:
The Agency Agreement contains provisions for convening meetings of Noteholders to consider
any matter affecting their interests, including the sanctioning by Extraordinary Resolution of a
modification of any of these Conditions. For so long as the Notes are listed on Euronext Paris, notice
of the date, time, place and agenda of such meeting will be published as provided under Condition
14. Such a meeting may be convened by Noteholders holding not less than 10 per cent. in nominal
amount of the Notes for the time being outstanding. The quorum for any meeting convened to
consider an Extraordinary Resolution shall be two or more persons holding or representing a clear
majority in nominal amount of the Notes for the time being outstanding, or at any adjourned meeting
two or more persons being or representing Noteholders whatever the nominal amount of the Notes
held or represented, unless the business of such meeting includes consideration of proposals, inter
alia, (i) to amend the dates of maturity or redemption of the Notes, any Instalment Date or any date
for payment of interest or Interest Amounts on the Notes, (ii) to reduce or cancel the nominal amount
of, or any Instalment Amount of, or any premium payable on redemption of, the Notes, (iii) to reduce
the rate or rates of interest in respect of the Notes or to vary the method or basis of calculating the
rate or rates or amount of interest or the basis for calculating any Interest Amount in respect of the
Notes, (iv) if a Minimum and/or a Maximum Rate of Interest, Instalment Amount or Redemption
Amount is shown hereon, to reduce any such Minimum and/or Maximum, (v) to vary any method of,
or basis for, calculating the Final Redemption Amount, the Early Redemption Amount or the Optional
Redemption Amount including the method of calculating the Amortised Face Amount, (vi) to vary the
currency or currencies of payment or denomination of the Notes or (vii) to modify the provisions
concerning the quorum required at any meeting of Noteholders or the majority required to pass the
50
SNA5-4.10
Extraordinary Resolution, in which case the necessary quorum shall be two or more persons holding
or representing not less than 75 per cent., or at any adjourned meeting not less than 25 per cent.,
in nominal amount of the Notes for the time being outstanding. Any Extraordinary Resolution duly
passed shall be binding on Noteholders (whether or not they were present at the meeting at which
such resolution was passed) and on all Couponholders.
These Conditions may be amended, modified or varied in relation to any Series of Notes by
the terms of the relevant Final Terms in relation to such Series.
(b)
Modification of Agency Agreement:
The Issuer shall only permit any modification of, or any waiver or authorisation of any breach
or proposed breach of or any failure to comply with, the Agency Agreement, if to do so could not
reasonably be expected to be prejudicial to the interests of the Noteholders.
(c)
Substitution:
The Issuer, or any previous substituted company, may at any time, without the consent of the
Noteholders or the Couponholders, substitute for itself as principal debtor under the Notes, the
Receipts, the Coupons and the Talons any Subsidiary of the Issuer or the successor company of
the Issuer or jointly and severally one or more companies to whom the Issuer has transferred all of
its assets and business undertakings (in each case the “Substitute”) provided that no payment in
respect of the Notes, the Receipts or the Coupons is at the relevant time overdue, no steps have
been taken to admit the Issuer to a regime of suspension of payments (sursis de paiement) and
(except in the case of a solvent reorganisation or amalgamation) no order has been made or
resolution passed for the dissolution (dissolution) or liquidation (liquidation) of the Issuer. Such
substitution effected in accordance with this Condition will release the Issuer or any previous
substituted company and the Noteholders and Couponholders expressly consent hereto. The
substitution shall be made by a deed poll (the “Deed Poll”), to be substantially in the form
scheduled to the Agency Agreement as Schedule 10A and may take place only if (i) the Substitute
shall, by means of the Deed Poll, agree to indemnify each Noteholder and Couponholder against
any tax, duty, assessment, withholding, deduction or governmental charge which is imposed on it
by (or by any taxing authority in or of) the jurisdiction of the country of the Substitute’s residence
for tax purposes and, if different, of its incorporation with respect to any Note, Receipt, Coupon,
Talon or the Deed of Covenant and which would not have been so imposed had the substitution
not been made, as well as against any tax, duty, assessment or governmental charge, and any cost
or expense, relating to the substitution; (ii) if the Substitute is a Subsidiary of the Issuer, the
obligations of the Substitute under the Deed Poll, the Notes and the Coupons shall be
unconditionally and irrevocably guaranteed by the Issuer or its successor or each of the companies
to whom together the Issuer has transferred all of its assets and business undertakings (each a
“Guarantor”) by means of a guarantee substantially in the form contained in the Deed Poll (the
“Guarantee”); (iii) all action, conditions and things required to be taken, fulfilled and done (including
the obtaining of any necessary consents) to ensure that the Deed Poll, the Notes, Receipts,
Coupons, Talons and Deed of Covenant represent valid, legally binding and enforceable obligations
of the Substitute and in the case of the Deed Poll of the Guarantor have been taken, fulfilled and
done and are in full force and effect; (iv) the Substitute shall have become party to the Agency
Agreement, with any appropriate consequential amendments, as if it had been an original party to
it; (v) legal opinions addressed to the Noteholders shall have been delivered to them (care of the
Fiscal Agent) from a lawyer or firm of lawyers with a leading securities practice in each jurisdiction
referred to in (i) above as to the fulfilment of the preceding conditions of this Condition 11(c) and
the other matters specified in the Deed Poll; (vi) the substitution does not affect adversely the rating
of the Notes by Moody’s Investors Service Ltd. and Standard & Poor’s Rating Group or if any such
rating agency does not exist at the relevant time any two existing internationally recognised rating
agencies and (vii) the Issuer shall have given at least 30 days’ prior notice of such substitution to
the Noteholders, to be published in accordance with Condition 14, stating that copies, or pending
execution the agreed text, of all documents in relation to the substitution which are referred to
above, or which might otherwise reasonably be regarded as material to Noteholders, will be
available for inspection at the specified office of each of the Paying Agents. References in
Condition 10 to obligations under the Notes shall be deemed to include obligations under the Deed
Poll and, where the Deed Poll contains a Guarantee, the events listed in Condition 10 shall be
deemed to include such Guarantee not being (or being claimed by the Guarantor not to be) in full
force and effect and the Guarantee shall contain (a) events of default in respect of the Notes in the
same terms as Condition 10 of the Notes relating to the Guarantor (except that references in
51
Condition 10(a) to failure to pay principal and interest on the Notes shall be a reference to failure to
pay under the Guarantee), (b) clauses relating to the Guarantor in the form of Conditions 6(f) and (9)
and (c) and a negative pledge in relation to the Guarantee in the form of Condition 4. References
to “outstanding” in relation to the Notes of any Series shall, on a substitution of the Issuer where
the Guarantor guarantees the Notes, not include Notes held by the Guarantor and its subsidiaries
for the purposes of (i) ascertaining the right to attend and vote at any meeting of the Noteholders
and (ii) the determination of how many Notes are outstanding for the purposes of Condition 11.
In the case of Notes which benefit from the State Guarantee, the Issuer or any previous
substituted company may only substitute a Substitute for itself, which is guaranteed by the State
Guarantee under the State Guarantee Agreement on the day of the Substitution.
The following applies in the case of all Senior Notes governed by Luxembourg law:
(a)
Meetings of Noteholders:
Noteholders will belong to a masse (the “Masse”) created, among other things, for the
representation of their common interests pursuant to the provisions of the law of 10 August, 1915
on commercial companies, as amended (loi du 10 aout 1915 concernant les sociétés commerciales,
telle qu’elle a été modifiée) (the “Luxembourg Company Law”). The discussion below is based on
the Luxembourg Company Law in effect on the Issue Date. Any subsequent amendments to the
relevant provisions of the Luxembourg Company Law may amend or modify the discussion below.
A general meeting of the Noteholders (the “Masse Meeting”) may appoint and determine the
powers of one or more representatives (the “Representatives”). Where Representatives have been
appointed, Noteholders may no longer individually exercise their rights against the Issuer. A Masse
Meeting may be called at any time by the Representatives (if any) or the Board of Directors of the
Issuer. The Representatives, provided an advance on expenses has been paid to them, or the
Board of Directors must convene the Masse Meeting if called upon to do so by holders of Notes
representing 5 per cent. or more of the Notes outstanding. All Masse Meetings shall be held at the
place specified in the notice calling the meeting and such notice must be published as provided
under Condition 14. All Noteholders have the right to attend and vote at the Masse Meeting either
personally or by proxy. The voting rights attached to the Notes are equal to the proportion of the
principal amount of the outstanding Notes represented by the principal amount of the Note or
Notes held by the relevant holder. A Masse Meeting may be called in the event of a merger
involving the Issuer, may approve certain changes in the rights of the Noteholders and may,
generally, determine any measures designed to ensure the defence of interests or the exercise of
the rights of the Noteholders in accordance with the provisions of the Luxembourg Company Law.
A Masse Meeting may deliberate validly without a quorum and by vote of a simple majority of
Noteholders attending or represented at such Masse Meeting on the appointment and revocation of
the Representatives, the revocation of special representatives appointed by the Issuer and the
approval of any measures of a conservatory nature in the general interests of the Noteholders. On
all other matters (except in respect of certain matters, including a change in the nationality of the
Issuer, where unanimous consent is required) the Masse Meeting may deliberate validly on first
convocation only if Noteholders present or represented hold at least 50 per cent. of the Notes then
outstanding. On second convocation no quorum is required. Decisions at such meetings shall be
taken by a majority of 662/3 per cent. of the votes cast by Noteholders attending such meetings or
represented thereat.
These Conditions may be amended, modified or varied in relation to any Series of Notes by
(b)
(c)
Substitution:
Subject to the provisions of this Condition, the Noteholders and the Couponholders by
subscribing to or purchasing any Notes or Coupons, expressly consent to the Issuer, or any
previously substituted company, at any time, substituting for itself as principal debtor under the
Notes, the Receipts, the Coupons and the Talons any Subsidiary of the Issuer or the successor
company of the Issuer or jointly and severally one or more companies to whom the Issuer has
transferred all of its assets and business undertakings (in each case the “Substitute”) provided that
52
SNA5-4.10
no payment in respect of the Notes, the Receipts or the Coupons is at the relevant time overdue,
no steps have been taken to admit the Issuer to a regime of suspension of payments (sursis de
paiement) and (except in the case of a solvent reorganisation or amalgamation) no order has been
made or resolution passed for the dissolution (dissolution) or liquidation (liquidation) of the Issuer.
Such substitution effected in accordance with this Condition will release the Issuer or any previous
substituted company and the Noteholders and Couponholders expressly consent hereto. The
substitution shall be made by written undertaking (the “Undertaking”), to be substantially in the form
scheduled to the Agency Agreement as Schedule 10B and may take place only if (i) the Substitute
shall, by means of the Undertaking, agree to indemnify each Noteholder and Couponholder against
any tax, duty, assessment, withholding, deduction or governmental charge which is imposed on it
by (or by any taxing authority in or of) the jurisdiction of the country of the Substitute’s residence
for tax purposes and, if different, of its incorporation with respect to any Note, Receipt, Coupon,
Talon or the Deed of Covenant and which would not have been so imposed had the substitution
not been made, as well as against any tax, duty, assessment or governmental charge, and any cost
or expense, relating to the substitution; (ii) if the Substitute is a Subsidiary of the Issuer, the
obligations of the Substitute under the Undertaking, the Notes and the Coupons shall be
unconditionally and irrevocably guaranteed by the Issuer or its successor or each of the companies
to whom together the Issuer has transferred all of its assets and business undertakings (each a
“Guarantor”) by means of a guarantee substantially in the form contained in the Undertaking (the
“Guarantee”); (iii) all action, conditions and things required to be taken, fulfilled and done (including
the obtaining of any necessary consents) to ensure that the Undertaking, the Notes, Receipts,
Coupons, Talons and Deed of Covenant represent valid, legally binding and enforceable obligations
of the Substitute and in the case of the Undertaking of the Guarantor have been taken, fulfilled and
done and are in full force and effect; (iv) the Substitute shall have become party to the Agency
Agreement, with any appropriate consequential amendments, as if it had been an original party to
it; (v) legal opinions addressed to the Noteholders shall have been delivered to them (care of the
Fiscal Agent) from a lawyer or firm of lawyers with a leading securities practice in each jurisdiction
referred to in (i) above as to the fulfilment of the preceding conditions of this Condition 11(c) and
the other matters specified in the Undertaking; (vi) the substitution does not affect adversely the
rating of the Notes by Moody’s Investors Service Ltd. and Standard & Poor’s Rating Group or if any
such rating agency does not exist at the relevant time any two existing internationally recognised
rating agencies; (vii) the Issuer shall have given at least 30 days’ prior notice of such substitution to
the Noteholders, to be published in accordance with Condition 14, stating that copies, or pending
execution the agreed text, of all documents in relation to the substitution which are referred to
above, or which might otherwise reasonably be regarded as material to Noteholders, will be
available for inspection at the specified office of each of the Paying Agents; and (viii) in the case of
Notes guaranteed under the State Guarantee, for as long as the Notes benefit from the State
Guarantee the Issuer or any previous substituted company may only substitute a Substitute for
itself, which is guaranteed under the State Guarantee under the State Guarantee Agreement on the
day of the substitution, and which is not a véhicule d'émission (as such term is used in the State
Guarantee Agreement). References in Condition 10 to obligations under the Notes shall be deemed
to include obligations under the Undertaking and, where the Undertaking contains a Guarantee, the
events listed in Condition 10 shall be deemed to include such Guarantee not being (or being
claimed by the Guarantor not to be) in full force and effect and the Guarantee shall contain (a)
events of default in respect of the Notes in the same terms as Condition 10 of the Notes relating
to the Guarantor (except that references in Condition 10(a) to failure to pay principal and interest on
the Notes shall be a reference to failure to pay under the Guarantee), (b) clauses relating to the
Guarantor in the form of Conditions 6(f) and (9) and (c) and a negative pledge in relation to the
Guarantee in the form of Condition 4.
12.
Replacement of Notes, Registered Note Certificates, Receipts, Coupons and Talons
If a Note, Registered Note Certificate, Receipt, Coupon or Talon is lost, stolen, mutilated,
defaced or destroyed, it may be replaced, subject to applicable laws, regulations and stock
exchange regulations, at the specified office of a Fiscal Agent (in the case of Bearer Notes,
Receipts, Coupons or Talons) and of the Registrar (in the case of Registered Note Certificates) or
such other Paying Agent or Transfer Agent, as the case may be, as may from time to time be
designated by the Issuer for the purpose and notice of whose designation is given to Noteholders,
in each case on payment by the claimant of the fees and costs incurred in connection therewith
and on such terms as to evidence, security and indemnity (which may provide, inter alia, that if the
allegedly lost, stolen or destroyed Note, Registered Note Certificate, Receipt, Coupon or Talon is
53
subsequently presented for payment or, as the case may be, for exchange for further Coupons,
there shall be paid to the Issuer on demand the amount payable by the Issuer in respect of such
Notes, Registered Note Certificates, Receipts, Coupons or further Coupons) and otherwise as the
Issuer may require. Mutilated or defaced Notes, Registered Note Certificates, Receipts, Coupons or
Talons must be surrendered before replacements will be issued.
13.
Further Issues
The Issuer may from time to time without the consent of the Noteholders or Couponholders
create and issue further notes having the same terms and conditions as the Notes (so that, for the
avoidance of doubt, references in these Conditions to “Issue Date” shall be to the first issue date
of the Notes) and so that the same shall be consolidated and form a single series with such Notes,
and references in these Conditions to “Notes” shall be construed accordingly.
SNA5-5.2.2
14.
Notices
Notices to the holders of Registered Notes shall be mailed to them at their respective
addresses in the Register and shall be deemed to have been given on the fourth weekday (being a
day other than a Saturday or a Sunday) after the date of mailing and, for so long as the Registered
Notes are listed on the Official List of the Luxembourg Stock Exchange and the rules of that
exchange so require, such notices shall in addition be published in a daily newspaper with general
circulation in Luxembourg (which is expected to be the Luxemburger Wort) or on the website of the
Luxembourg Stock Exchange (www.bourse.lu). Notices to the holders of Bearer Notes shall be valid
if published in a daily newspaper of general circulation in Luxembourg (which is expected to be the
Luxemburger Wort) except that for so long as the Notes are listed on the Official List of the
Luxembourg Stock Exchange and the rules of that exchange so require, such notices shall be
published in a daily newspaper with general circulation in Luxembourg (which is expected to be the
Luxemburger Wort) or on the website of the Luxembourg Stock Exchange (www.bourse.lu). If any
such publication is not practicable, notice shall be validly given if published in another leading daily
English language newspaper with general circulation in Europe. Any such notice shall be deemed to
have been given on the date of such publication or, if published more than once or on different
dates on the date of the first publication as provided above. Couponholders shall be deemed for all
purposes to have notice of the contents of any notice given to the holders of Bearer Notes in
accordance with this Condition.
15.
Currency Indemnity
Any amount received or recovered in a currency other than the currency in which payment
under the relevant Note, Coupon or Receipt is due (whether as a result of, or of the enforcement
of, a judgment or order of a court of any jurisdiction, in the winding-up or dissolution of the Issuer
or otherwise) by any Noteholder or Couponholder in respect of any sum expressed to be due to it
from the Issuer shall only constitute a discharge to the Issuer to the extent of the amount in the
currency of payment under the relevant Note, Coupon or Receipt that the recipient is able to
purchase with the amount so received or recovered in that other currency on the date of that
receipt or recovery (or, if it is not practicable to make that purchase on that date, on the first date
on which it is practicable to do so). If the amount received or recovered is less than the amount
expressed to be due to the recipient under any Note, Coupon or Receipt, the Issuer shall indemnify
it against any loss sustained by it as a result. In any event, the Issuer shall indemnify the recipient
against the cost of making any such purchase. For the purposes of this Condition, it shall be
sufficient for the Noteholder or Couponholder, as the case may be, to demonstrate that it would
have suffered a loss had an actual purchase been made. These indemnities constitute a separate
and independent obligation from the Issuer’s other obligations, shall give rise to a separate and
independent cause of action, shall apply irrespective of any indulgence granted by any Noteholder
or Couponholder and shall continue in full force and effect despite any other judgment, order, claim
or proof for a liquidated amount in respect of any sum due under any Note, Coupon or Receipt or
any other judgment or order.
16.
Luxembourg law:
(a)
Governing Law:
The Notes, the Receipts, the Coupons and the Talons, and any non-contractual obligations
arising out of or in connection with them, are governed by, and shall be construed in accordance
54
SNA5-4.2
SNA12-4.1.3
with, English law. The State Guarantee is governed by the laws of Belgium. Application of articles
86 to 94-8 of the Luxembourg law of 10 August, 1915 on commercial companies is specifically
excluded.
(b)
Jurisdiction:
The courts of England are to have jurisdiction to settle any disputes that may arise out of or
in connection with any Notes, Receipts, Coupons or Talons and accordingly any legal action or
proceedings arising out of or in connection with any Notes, Receipts, Coupons or Talons
(“Proceedings”) may be brought in such courts. The Issuer irrevocably submits to the jurisdiction of
the courts of England and waives any objection to Proceedings in such courts on the ground of
venue or on the ground that the Proceedings have been brought in an inconvenient forum. This
submission is made for the benefit of each of the holders of the Notes, Receipts, Coupons and
Talons and shall not affect the right of any of them to take Proceedings in any other court of
competent jurisdiction nor shall the taking of Proceedings in one or more jurisdictions preclude the
taking of Proceedings in any other jurisdiction (whether concurrently or not) to the extent permitted
by applicable law.
(c)
Service of Process:
The Issuer irrevocably appoints Dexia Bank Belgium S.A., London Branch at Shackleton
House, Hay’s Galleria, 4 Battle Bridge Lane, London SE1 2GZ as its agent in England to receive,
for it and on its behalf, service of process in any Proceedings in England. For the avoidance of
doubt, service of process on the Issuer at the address specified in this Condition 16 will also
constitute service of process upon Dexia BIL Singapore. Such service shall be deemed completed
on delivery to such process agent (whether or not it is forwarded to and received by the Issuer). If
for any reason such process agent ceases to be able to act as such or no longer has an address
in London, the Issuer irrevocably agrees to appoint a substitute process agent and shall
immediately notify Noteholders of such appointment in accordance with Condition 14. Nothing shall
affect the right to serve process in any manner permitted by law.
SNA5-5.4.2
The following applies in the case of all Senior Notes governed by Luxembourg law:
(a)
Governing Law:
SNA5-4.2
with, Luxembourg law. The State Guarantee is governed by the laws of Belgium.
(b)
Jurisdiction:
The courts of Luxembourg are to have jurisdiction to settle any disputes that may arise out
of or in connection with any Notes, Receipts, Coupons or Talons and accordingly any legal action
or proceedings arising out of or in connection with any Notes, Receipts, Coupons or Talons
(“Proceedings”) may be brought in such courts. The Issuer irrevocably submits to the jurisdiction of
the courts of Luxembourg and waives any objection to Proceedings in such courts on the ground
of venue or on the ground that the Proceedings have been brought in an inconvenient forum. This
submission is made for the benefit of each of the holders of the Notes, Receipts, Coupons and
Talons and shall not affect the right of any of them to take Proceedings in any other court of
by applicable law.
Luxembourg law:
17.
Contracts (Rights of Third Parties) Act 1999
No person shall have any right to enforce any term or condition of the Notes under the
Contracts (Rights of Third Parties) Act 1999.
55
SNA12-4.1.3
TERMS AND CONDITIONS OF THE SUBORDINATED NOTES
The following (apart from the text in italics) is the text of the terms and conditions that, subject
to completion and amendment and as supplemented or varied in accordance with the provisions of
Part A of the relevant Final Terms, shall be applicable to the Subordinated Notes in definitive form (if
any) issued in exchange for the Global Note(s) representing each Tranche. Either (i) the full text of
these terms and conditions together with the relevant provisions of Part A of the Final Terms or (ii)
these terms and conditions as so completed, amended, supplemented or varied (and subject to
simplification by the deletion of non-applicable provisions), shall be endorsed on such Bearer Notes
or on the Registered Note Certificates relating to such Registered Notes. All capitalised terms that
are not defined in these Conditions will have the meanings given to them in the relevant Final Terms.
Those definitions will be endorsed on the definitive Notes or Registered Note Certificates, as the case
may be. References in these Conditions to “Notes” are to the Subordinated Notes of one Series only,
not to all Subordinated Notes that may be issued under the Programme.
SNA12-4.1.7
SNA12-5.1.1
SNA5-4.6
SNA5-5.1.1
Notes (the “Issue Date”)) (the “Agency Agreement”) dated 9 November, 1995 as amended and
restated on 3 April, 2009 between the Issuer acting through its head office or through Dexia
Banque Internationale à Luxembourg, société anonyme Singapore Branch and the other agents
named in it has been entered into in relation to the Notes. The fiscal agent, the paying agents,
the registrars, the transfer agents and the calculation agent(s) for the time being (if any) are
referred to below respectively as the “Fiscal Agent”, the “Paying Agents” (which expression shall
include the Fiscal Agent), the “Registrars”, the “Transfer Agents” and the “Calculation Agent(s)”.
The Noteholders (as defined below), the holders of the interest coupons (the “Coupons”) relating
to interest bearing Notes in bearer form and, where applicable in the case of such Notes, talons
for further Coupons (the “Talons”) (the “Couponholders”) and the holders of the receipts for the
payment of instalments of principal (the “Receipts”) relating to Notes in bearer form of which the
principal is payable in instalments are deemed to have notice of all of the provisions of the
Agency Agreement applicable to them.
1.
Form, Denomination and Title
The Notes are issued in bearer form (“Bearer Notes”, which expression includes Notes that
are specified to be Exchangeable Bearer Notes), in registered form (“Registered Notes”) or in bearer
form exchangeable for Registered Notes (“Exchangeable Bearer Notes”) in each case in the
Specified Denomination(s) shown hereon.
All Registered Notes shall have the same Specified Denomination. Where Exchangeable
Bearer Notes are issued, the Registered Notes for which they are exchangeable shall have the
same Specified Denomination as the lowest denomination of Exchangeable Bearer Notes.
This Note is a Fixed Rate Note, a Floating Rate Note, a Zero Coupon Note, an Index Linked
Interest Note, an Index Linked Redemption Note, an Instalment Note, a Dual Currency Note or a
Partly-Paid Note, a combination of any of the foregoing or any other kind of Note, depending upon
the Interest and Redemption/Payment Basis shown hereon.
Bearer Notes are serially numbered and are issued with Coupons (and, where appropriate, a
Talon) attached, save in the case of Zero Coupon Notes in which case references to interest (other
than in relation to interest due after the Maturity Date), Coupons and Talons in these Conditions are
not applicable. Instalment Notes are issued with one or more Receipts attached.
Registered Notes are represented by registered note certificates (“Registered Note
Certificates”) and, save as provided in Condition 2(c), each Registered Note Certificate shall
represent the entire holding of Registered Notes by the same holder.
Title to the Bearer Notes and the Receipts, Coupons and Talons shall pass by delivery. Title
to the Registered Notes shall pass by registration in the register that the Issuer shall procure to be
kept by the Registrar in accordance with the provisions of the Agency Agreement (the “Register”).
Except as ordered by a court of competent jurisdiction or as required by law, the holder (as defined
below) of any Note, Receipt, Coupon or Talon shall be deemed to be and may be treated as its
absolute owner for all purposes, whether or not it is overdue and regardless of any notice of
56
SNA12-4.1.1
SNA5-5-4.1
ownership, trust or an interest in it, any writing on it (or on the Registered Note Certificate
representing it) or its theft or loss (or that of the related Registered Note Certificate) and no person
shall be liable for so treating the holder.
In these Conditions, “Noteholder” means the bearer of any Bearer Note and the Receipts (if
any) relating to it or the person in whose name a Registered Note is registered (as the case may
be), “holder” (in relation to a Note, Receipt, Coupon or Talon) means the bearer of any Bearer Note,
Receipt, Coupon or Talon or the person in whose name a Registered Note is registered (as the case
may be) and capitalised terms have the meanings given to them hereon, the absence of any such
meaning indicating that such term is not applicable to the Notes.
2.
Exchanges of Exchangeable Bearer Notes and Transfers of Registered Notes
(a)
Exchange of Exchangeable Bearer Notes:
Subject as provided in Condition 2(f), Exchangeable Bearer Notes may be exchanged for the
same nominal amount of Registered Notes at the request in writing of the relevant Noteholder and
upon surrender of each Exchangeable Bearer Note to be exchanged, together with all unmatured
Receipts, Coupons and Talons relating to it, at the specified office of any Transfer Agent; provided,
however, that where an Exchangeable Bearer Note is surrendered for exchange after the Record
Date (as defined in Condition 6(b)) for any payment of interest, the Coupon in respect of that
payment of interest need not be surrendered with it. Registered Notes may not be exchanged for
Bearer Notes. Bearer Notes of one Specified Denomination may not be exchanged for Bearer Notes
of another Specified Denomination.
(b)
Transfer of Registered Notes:
One or more Registered Notes may be transferred upon the surrender (at the specified office
of the Registrar or any Transfer Agent) of the Registered Note Certificate representing such
Registered Notes to be transferred, together with the form of transfer endorsed on such Registered
Note Certificate (or another form of transfer substantially in the same form and containing the same
representations and certifications (if any), unless otherwise agreed by the Issuer) duly completed
and executed and any other evidence as the Registrar or Transfer Agent may reasonably require. In
the case of a transfer of part only of a holding of Registered Notes represented by one Registered
Note Certificate, a new Registered Note Certificate shall be issued to the transferee in respect of
the part transferred and a further new Registered Note Certificate in respect of the balance of the
holding not transferred shall be issued to the transferor. In the case of a transfer of Registered
Notes to a person who is already a holder of Registered Notes, a new Registered Note Certificate
representing the enlarged holding shall only be issued against surrender of the Registered Note
Certificate representing the existing holding.
(c)
Exercise of Options or Partial Redemption in Respect of Registered Notes:
In the case of an exercise of an Issuer’s or Noteholders’ option in respect of, or a partial
redemption of, a holding of Registered Notes represented by a single Registered Note Certificate, a
new Registered Note Certificate shall be issued to the holder to reflect the exercise of such option
or in respect of the balance of the holding not redeemed. In the case of a partial exercise of an
option resulting in Registered Notes of the same holding having different terms, separate Registered
Note Certificates shall be issued in respect of those Notes of that holding that have the same
terms. New Registered Note Certificates shall only be issued against surrender of the existing
Registered Note Certificates to the Registrar or any Transfer Agent.
(d)
Delivery of New Registered Note Certificates:
Each new Registered Note Certificate to be issued pursuant to Conditions 2(a), (b) or (c) shall
be available for delivery within three business days of receipt of the request for exchange, form of
transfer and in each case surrender of the Registered Note Certificate for exchange. Delivery of the
new Registered Note Certificate(s) shall be made at the specified office of the Transfer Agent or of
the Registrar (as the case may be) to whom delivery or surrender of such request for exchange,
form of transfer or Registered Note Certificate shall have been made or, at the option of the holder
making such delivery or surrender as aforesaid and as specified in the relevant request for
exchange, form of transfer or otherwise in writing, be mailed by uninsured post at the risk of the
holder entitled to the new Registered Note Certificate to such address as may be so specified,
unless such holder requests otherwise and pays in advance to the relevant Agent (as defined in the
Agency Agreement) the costs of such other method of delivery and/or such insurance as it may
specify. In this Condition 2(d), “business day” means a day, other than a Saturday or Sunday, on
57
which banks are open for business in Luxembourg and in the place of the specified office of the
relevant Transfer Agent or the Registrar (as the case may be).
(e)
Exchange Free of Charge:
Exchange and transfer of Notes and Registered Note Certificates on registration, transfer,
partial redemption or exercise of an option shall be effected without charge by or on behalf of the
Issuer, the Registrar or the Transfer Agents, but upon payment of any tax or other governmental
charges that may be imposed in relation to it (or the giving of such indemnity as the Registrar or
the relevant Transfer Agent may require).
(f)
Closed Periods:
No Noteholder may require the transfer of a Registered Note to be registered or an
Exchangeable Bearer Note to be exchanged for one or more Registered Note(s) (i) during the period
of 15 days ending on the due date for redemption of, or payment of any Instalment Amount in
respect of, that Note, (ii) during the period of 15 days before any date on which Notes may be
called for redemption by the Issuer at its option pursuant to Condition 5(e), (iii) after any such Note
has been called for redemption or (iv) during the period of 7 days ending on (and including) any
Record Date. An Exchangeable Bearer Note called for redemption may, however, be exchanged for
one or more Registered Note(s) in respect of which the Registered Note Certificate is
simultaneously surrendered not later than the relevant Record Date.
3.
Status and Subordination
(a)
Status of Senior Subordinated Notes:
Notes in respect of which the status is specified hereon as “Senior Subordinated” (“Senior
Subordinated Notes”) and the Receipts and Coupons relating to them constitute direct, unsecured
and subordinated obligations of the Issuer and shall at all times rank pari passu and without any
preference among themselves. The payment obligations of the Issuer under the Senior
Subordinated Notes and the Receipts and Coupons relating to them shall at all times rank equally
with all other Senior Subordinated Obligations (as defined below).
Senior Subordinated Notes that constitute Lower Tier II Capital will have a minimum maturity
of five years.
(b)
Subordination of Senior Subordinated Notes:
In the event of the winding up of the Issuer, the rights of the holders of Senior Subordinated
Notes and the Receipts and Coupons relating to them shall rank ahead of:
(i)
those persons whose claims are in respect of any class of equity (including preference
shares) of the Issuer; and
(ii)
creditors whose claims are in respect of any obligations of the Issuer that rank or are
expressed to rank (whether only in the winding up of the Issuer or otherwise) junior to
Senior Subordinated Obligations,
but shall be subordinated to the claims of:
(iii)
all Senior Creditors.
(c)
Status of Junior Subordinated Notes:
Notes in respect of which the status is specified hereon as “Junior Subordinated” (“Junior
Subordinated Notes”) and the Receipts and Coupons relating to them constitute direct, unsecured
and subordinated obligations of the Issuer and shall at all times rank pari passu and without any
preference among themselves. The payment obligations of the Issuer under the Junior
Subordinated Notes and the Receipts and Coupons relating to them shall at all times rank equally
with all other Junior Subordinated Obligations (as defined below).
Junior Subordinated Notes that have a scheduled maturity date and constitute Upper Tier II
Capital will have a minimum maturity of five years or may be undated.
(d)
Subordination of Junior Subordinated Notes:
The rights of the holders of Junior Subordinated Notes and the Receipts and Coupons
relating to them shall rank ahead of:
(i)
those persons whose claims are in respect of any class of equity (including preference
shares) of the Issuer; and
58
SNA5-4.5
SNA12-4.1.6
(ii)
creditors whose claims are in respect of any obligations that rank or are expressed to
rank junior to any Junior Subordinated Obligations or the claims of holders of such
Notes, Receipts and Coupons,
but shall be subordinated to the claims of:
(iii)
all other creditors of the Issuer whose claims do not rank or are not expressed to rank
pari passu with the claims of the holders of Junior Subordinated Notes and are not
referred to in paragraph (d) (including creditors whose claims are in respect of Senior
Subordinated Obligations);
and payments of principal and interest in respect of the Junior Subordinated Notes will be
conditional on the Issuer being solvent at the time of payment by the Issuer and no principal or
interest shall be due and payable in respect of the Junior Subordinated Notes except to the extent
that the Issuer could make such payment in whole or in part, rateably with payments in respect of
Junior Subordinated Notes, and still be solvent immediately thereafter. For the purpose of this
paragraph the Issuer shall be solvent if (i) it is able to pay its debts as they fall due, (ii) its Assets
exceed its Liabilities, other than its Liabilities to persons who are not Prior Ranking Creditors (in
each case as defined below), (iii) the Issuer’s Eligible Own Funds are at least equal to the amount
of the Issuer’s Overall Capital Requirements (in each case as defined below) and (iv) the Issuer’s
Eligible Own Funds are at least equal to the minimum amount set out in Article 8 of the Law of
5 April, 1993 on the financial sector, as amended. A report as to the solvency of the Issuer by two
directors of the Issuer or (if the Issuer is in winding- up) its liquidator shall in the absence of proven
error be treated and accepted by the Issuer and the holders of Junior Subordinated Notes and the
Receipts and Coupons relating to them as correct and sufficient evidence thereof.
(e)
Defined Terms:
In this Condition:
“Assets” means the total assets of the Issuer and “Liabilities” means the total liabilities of the
Issuer (excluding for the avoidance of doubt, any capital, reserves, profits for the relevant
financial year, profits brought forward or funds for general banking risks) each as shown by
the latest published non-consolidated audited balance sheet of the Issuer, but adjusted for
contingencies and for subsequent events, valued in such manner as such directors or
liquidator (as the case may be) referred to above may determine consistent with generally
accepted accounting principles;
“Circular” means Circular No. 06/273 entitled “The definition of capital adequacy ratios
pursuant to Article 56 of the Law of 5 April, 1993 on the financial sector (application to credit
institutions)” issued by the Commission de Surveillance du Secteur Financier (the “CSSF”);
“Eligible Own Funds” shall have the meaning given thereto in, and be calculated in
accordance with, the Circular;
“Junior Subordinated Obligations” means claims of creditors of the Issuer which are
subordinated so as to rank or are expressed to rank pari passu with the claims of the holders
of Junior Subordinated Notes and the Receipts and Coupons relating to them;
“Overall Capital Requirements” shall have the meaning given thereto in, and be calculated in
accordance with, the Circular;
“Prior Ranking Creditors” means all creditors of the Issuer other than the creditors whose
claims are referred to in paragraph (d)(2) above and creditors whose claims rank or are
expressed to rank pari passu with the claims of holders of the Junior Subordinated Notes and
the Receipts and Coupons relating to them and for the avoidance of doubt, other than all
persons whose claims are referred to in paragraph (d)(1) above;
“Senior Creditors” means all creditors of the Issuer who are depositors or other general,
unsubordinated creditors; and
“Senior Subordinated Obligations” means all indebtedness and monetary obligations of the
Issuer present and future that rank or are expressed to rank junior in right of payment
(whether only in the event of the winding up of the Issuer or otherwise) to the claims of
Senior Creditors but that are not subordinated so as to rank in point of subordination junior
to any other obligations of the Issuer.
59
If the Issuer would not otherwise be solvent for the purposes of this paragraph, the amount
of the principal and sums which would otherwise be payable as interest on the Junior Subordinated
Notes will be available to meet any losses of the Issuer.
4.
Interest and Other Calculations
(a)
Rate of Interest and Accrual on Senior Subordinated Notes and Optional and
Compulsory Payment of Interest on Junior Subordinated Notes:
(i)
Each Senior Subordinated Note bears interest on its outstanding nominal amount from
the Interest Commencement Date at the rate per annum (expressed as a percentage)
equal to the Rate of Interest, such interest being payable in arrear on each Interest
Payment Date. The amount of interest payable shall be calculated in accordance with
Condition 4(h).
(ii)
Each Junior Subordinated Note bears interest on its outstanding nominal amount from
the Interest Commencement Date at the rate per annum (expressed as a percentage)
equal to the Rate of Interest. Interest on Junior Subordinated Notes shall (subject to
Condition 3(d)) be payable on each Compulsory Interest Payment Date in respect of
the interest accrued in the Interest Period ending on the day immediately preceding
such date. On any Optional Interest Payment Date there may be paid (if the Issuer so
elects but subject to Condition 3(d)) the interest accrued in the Interest Period ending
on the day immediately preceding such date but the Issuer shall not have any
obligation to make such payment and any failure to pay shall not constitute a default
by the Issuer for any purpose. The Issuer shall notify the Noteholders five business
days prior to each Interest Payment Date of the result of such election.
(iii)
Without prejudice to Condition 9(b), any interest not paid on an Interest Payment Date
relating to a Junior Subordinated Note shall, so long as the same remains unpaid,
constitute “Arrears of Interest”. Arrears of Interest may at the option of the Issuer be paid
in whole or in part at any time after the expiry of and after not less than seven days’
notice to such effect given by the Issuer to the Noteholders in accordance with Condition
13 below provided that all accrued Additional Interest as defined below on such Arrears
of Interest is paid. All Arrears of Interest on all Junior Subordinated Notes outstanding
shall (subject to Condition 3(d)) become due in full on whichever is the earliest of (A) the
Interest Payment Date immediately following the date upon which a dividend is next
declared on any class of share capital of the Issuer, (B) the date set for redemption in
respect of any Junior Subordinated Note pursuant to Condition 5 or, where all the Junior
Subordinated Notes are purchased by the Issuer (other than in the ordinary course of the
business of dealing in securities on behalf of third parties) pursuant to Condition 5(g), and
(C) the date that an order is made or an effective resolution is passed for the dissolution
(dissolution) or liquidation (liquidation) of the Issuer.
if notice is given by the Issuer of its intention to pay the whole or part of Arrears of
Interest, the Issuer shall be obliged (subject to Condition 3(d)) to do so on the expiry of
such notice.
Where Arrears of Interest are paid in part, each such payment shall be applied in or
towards satisfaction of the full amount of the Arrears of Interest accrued in respect of
the earliest Interest Period in respect of which Arrears of Interest have accrued and
have not been paid in full.
In these Conditions:
“Compulsory Interest Payment Date” means if, in the twelve months ending on the day
immediately preceding an Interest Payment Date, any dividend has been declared on
any class of share capital of the Issuer, that Interest Payment Date; and
“Optional Interest Payment Date” means any Interest Payment Date other than a
Compulsory Interest Payment Date.
(iv)
Arrears of Interest shall bear interest (“Additional Interest”) at the Rate of Interest plus
an additional rate of 1.5 per cent. per annum which shall be calculated in accordance
with paragraph (f) below and accrue on a daily basis, for each successive period of
twelve calendar months (“Additional Interest Period”) from and including the first
60
Interest Payment Date on which such Arrears of Interest may or should have been paid
and ending on the day immediately preceding the last date of the Additional Interest
Period. The Issuer can elect to pay any Additional Interest on the date that any Arrears
of Interest are to be paid by the Issuer pursuant to these Conditions but the Issuer
shall not have any obligation to make such payment and any failure to pay shall not
constitute a default by the Issuer for any purpose. All Additional Interest which is not
paid on any Interest Payment Date at the end of each Additional Interest Period, shall
become Arrears of Interest and bear interest accordingly.
(v)
Interest shall cease to accrue on each Note on the due date for redemption unless,
upon due presentation, payment of principal is improperly withheld or refused, in which
event interest shall continue to accrue (as well after as before judgment) at the Rate of
Interest in the manner provided in this Condition 4 to the Relevant Date (as defined in
Condition 7).
(b)
Interest on Floating Rate Notes and Index Linked Interest Notes:
(i)
Interest Payment Dates:
Each Floating Rate Note and Index Linked Interest Note bears interest on its
outstanding nominal amount from the Interest Commencement Date at the rate per
annum (expressed as a percentage) equal to the Rate of Interest, such interest being
payable in arrear on each Interest Payment Date. The amount of interest payable shall
be determined in accordance with Condition 4(h). The Interest Payment Date(s) is/are
either shown hereon, as Specified Interest Payment Dates or, if no Specified Interest
Payment Date(s) is/are shown hereon Interest Payment Date shall mean each date
which falls the number of months or other period shown hereon as the Specified
Period after the preceding Interest Payment Date or, in the case of the first Interest
Payment Date, after the Interest Commencement Date.
(ii)
Business Day Convention:
If any date referred to in these Conditions that is specified to be subject to adjustment
in accordance with a Business Day Convention would otherwise fall on a day that is
not a Business Day, then, if the Business Day Convention specified is (A) the Floating
Rate Business Day Convention, such date shall be postponed to the next day that is a
Business Day unless it would thereby fall into the next calendar month, in which event
(x) such date shall be brought forward to the immediately preceding Business Day and
(y) each subsequent such date shall be the last Business Day of the month in which
such date would have fallen had it not been subject to adjustment, (B) the Following
Business Day Convention, such date shall be postponed to the next day that is a
Business Day, (C) the Modified Following Business Day Convention, such date shall be
postponed to the next day that is a Business Day unless it would thereby fall into the
next calendar month, in which event such date shall be brought forward to the
immediately preceding Business Day or (D) the Preceding Business Day Convention,
such date shall be brought forward to the immediately preceding Business Day.
(iii)
Rate of Interest for Floating Rate Notes:
The Rate of Interest in respect of Floating Rate Notes, for each Interest Accrual Period
shall be determined in the manner specified herein and the provisions below relating to
either ISDA Determination or Screen Rate Determination shall apply depending upon
which is specified hereon:
(A)
ISDA Determination for Floating Rate Notes
Where ISDA Determination is specified hereon as the manner in which the Rate
of Interest is to be determined, the Rate of Interest for each Interest Accrual
Period shall be determined by the Calculation Agent as a rate equal to the
relevant ISDA Rate. For the purposes of this sub-paragraph (A), “ISDA Rate” for
an Interest Accrual Period means a rate equal to the Floating Rate that would be
determined by the Calculation Agent under a Swap Transaction under the terms
of an agreement incorporating the ISDA Definitions and under which:
(x)
the Floating Rate Option is as specified hereon;
(y)
the Designated Maturity is a period specified hereon; and
61
(z)
the relevant Reset Date is the first day of that Interest Accrual Period
unless otherwise specified hereon.
for the purposes of this sub-paragraph (A), “Floating Rate”, “Calculation Agent”,
“Floating Rate Option”, “Designated Maturity”, “Reset Date” and “Swap
Transaction” have the meanings given to those terms in the ISDA Definitions.
(B)
Screen Rate Determination for Floating Rate Notes
Where Screen Rate Determination is specified hereon as the manner in which the
Rate of Interest is to be determined, the Rate of Interest for each Interest Accrual
Period:
(x)
(1)
(2)
is specified in the applicable Final Terms as being other than LIBOR or
EURIBOR, the Rate of Interest in respect of such Notes will be determined
as provided in the applicable Final Terms;
(y)
if the Relevant Screen Page is not available or if sub-paragraph (x)(1)
above applies and no such offered quotation appears on the Relevant
Screen Page or if sub-paragraph (x)(2) above applies and fewer than three
such offered quotations appear on the Relevant Screen Page in each case
as at the time specified above, subject as provided below, the Calculation
Agent shall request, if the Reference Rate is LIBOR, the principal London
Rate of Interest for such Interest Period shall be the arithmetic mean of
such offered quotations as determined by the Calculation Agent; and
(z)
if paragraph (y) above applies and the Calculation Agent determines that fewer
than two Reference Banks are providing offered quotations, subject as
provided below, the Rate of Interest shall be the arithmetic mean of the rates
per annum (expressed as a percentage) as communicated to (and at the
request of) the Calculation Agent by the Reference Banks or any two or more
of them, at which such banks were offered, if the Reference Rate is LIBOR, at
approximately 11.00 a.m. (London time) or, if the Reference Rate is EURIBOR,
at approximately 11.00 a.m. (Brussels time) on the relevant Interest
Determination Date, deposits in the Specified Currency for a period equal to
that which would have been used for the Reference Rate by leading banks in,
if the Reference Rate is LIBOR, the London inter-bank market or, if the
Reference Rate is EURIBOR, the Euro-zone inter-bank market, as the case may
be, or, if fewer than two of the Reference Banks provide the Calculation Agent
62
with such offered rates, the offered rate for deposits in the Specified Currency
for a period equal to that which would have been used for the Reference Rate,
or the arithmetic mean of the offered rates for deposits in the Specified
Currency for a period equal to that which would have been used for the
Reference Rate, at which, if the Reference Rate is LIBOR, at approximately
11.00 a.m. (London time) or, if the Reference Rate is EURIBOR, at
approximately 11.00 a.m. (Brussels time), on the relevant Interest Determination
Date, any one or more banks (which bank or banks is or are in the opinion of
the Trustee and the Issuer suitable for such purpose) informs the Calculation
Agent it is quoting to leading banks in, if the Reference Rate is LIBOR, the
London inter-bank market or, if the Reference Rate is EURIBOR, the Euro-zone
inter-bank market, as the case may be, provided that, if the Rate of Interest
cannot be determined in accordance with the foregoing provisions of this
paragraph, the Rate of Interest shall be determined as at the last preceding
Interest Determination Date (though substituting, where a different Margin or
Maximum or Minimum Rate of Interest is to be applied to the relevant Interest
Accrual Period from that which applied to the last preceding Interest Accrual
Period, the Margin or Maximum or Minimum Rate of Interest relating to the
relevant Interest Accrual Period, in place of the Margin or Maximum or
Minimum Rate of Interest relating to that last preceding Interest Accrual Period).
(iv)
Rate of Interest for Index Linked Interest Notes:
The Rate of Interest in respect of Index Linked Interest Notes for each Interest Accrual
Period shall be determined in the manner specified hereon and interest will accrue by
reference to an Index or Formula as specified hereon.
(c)
Zero Coupon Senior Subordinated Notes:
Where a Senior Subordinated Note the Interest Basis of which is specified to be Zero
Coupon is repayable prior to the Maturity Date and is not paid when due, the amount due and
payable prior to the Maturity Date shall be the Early Redemption Amount of such Senior
Subordinated Note. As from the Maturity Date, the Rate of Interest for any overdue principal of such
a Senior Subordinated Note shall be a rate per annum (expressed as a percentage) equal to the
Amortisation Yield (as described in Condition 5(c)).
(d)
In the case of Dual Currency Notes, if the rate or amount of interest is to be determined by
reference to a Rate of Exchange or a method of calculating Rate of Exchange, the rate or amount
of interest payable shall be determined in the manner specified hereon.
(e)
Partly-Paid Notes:
In the case of Partly-Paid Notes (other than Partly-Paid Notes which are Zero Coupon Notes),
interest will accrue as aforesaid on the paid-up nominal amount of such Notes and otherwise as
specified hereon.
(f)
Accrual of Interest:
Interest shall cease to accrue on each Note on the due date for redemption unless, upon due
presentation, payment is improperly withheld or refused, in which event interest shall continue to
accrue (both before and after judgment) at the Rate of Interest in the manner provided in this
Condition 4 to the Relevant Date (as defined in Condition 7).
(g)
Margin, Maximum/Minimum Rates of Interest, Instalment Amounts and Redemption
Amounts and Rounding:
(i)
If any Margin is specified hereon (either (x) generally, or (y) in relation to one or more
Interest Accrual Periods), an adjustment shall be made to all Rates of Interest, in the
case of (x), or the Rates of Interest for the specified Interest Accrual Periods, in the
case of (y), calculated in accordance with (b) above by adding (if a positive number) or
subtracting the absolute value (if a negative number) of such Margin, subject always to
the next paragraph.
(ii)
If any Maximum or Minimum Rate of Interest, Instalment Amount or Redemption Amount
is specified hereon, then any Rate of Interest, Instalment Amount or Redemption Amount
shall be subject to such maximum or minimum, as the case may be.
63
(iii)
For the purposes of any calculations required pursuant to these Conditions (unless
otherwise specified), (x) all percentages resulting from such calculations shall be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage point
(with halves being rounded up), (y) all figures shall be rounded to seven significant
figures (with halves being rounded up) and (z) all currency amounts that fall due and
payable shall be rounded to the nearest unit of such currency (with halves being
rounded up), save in the case of yen, which shall be rounded down to the nearest yen.
For these purposes “unit” means, the lowest amount of such currency that is available
as legal tender in the country(ies) of such currency.
(h)
Calculations:
The amount of interest payable per Calculation Amount (subject to Condition 3(b) and (d)) in
respect of any Note for any Interest Accrual Period shall be equal to the product of the Rate of Interest,
the Calculation Amount specified hereon, and the Day Count Fraction for such Interest Accrual Period,
unless an Interest Amount (or a formula for its calculation) is applicable to such Interest Accrual Period,
in which case the amount of interest payable per Calculation Amount in respect of such Note for such
Interest Accrual Period shall equal such Interest Amount (or be calculated in accordance with such
formula). Where any Interest Period comprises two or more Interest Accrual Periods, the amount of
interest payable per Calculation Amount in respect of such Interest Period shall be the sum of the
Interest Amounts payable in respect of each of those Interest Accrual Periods. In respect of any other
period for which interest is required to be calculated, the provisions above shall apply save that the Day
Count Fraction shall be for the period for which interest is required to be calculated.
(i)
Determination and Publication of Rates of Interest, Interest Amounts and, in the case of
Senior Subordinated Notes, Final Redemption Amounts, Early Redemption Amounts,
Optional Redemption Amounts and Instalment Amounts:
The Calculation Agent shall, as soon as practicable on such date as the Calculation Agent
may be required to calculate any rate or amount, obtain any quotation or make any determination
or calculation, determine such rate and calculate the Interest Amounts for the relevant Interest
Accrual Period, (in the case of Senior Subordinated Notes) calculate the Final Redemption
Amounts, Early Redemption Amounts, Optional Redemption Amount or Instalment Amount, obtain
such quote or make such determination or calculation, as the case may be, and cause the Rate of
Interest and the Interest Amounts for each Interest Accrual Period and the relevant Interest Payment
Date and, if required to be calculated, the Final Redemption Amounts, Early Redemption Amounts,
Optional Redemption Amount or any Instalment Amount to be notified to the Fiscal Agent, the
Issuer, each of the Paying Agents, the Noteholders, any other Calculation Agent appointed in
respect of the Notes that is to make a further calculation upon receipt of such information and, if
the Notes are listed on a stock exchange and the rules of such exchange so require, such
exchange as soon as possible after their determination but in no event later than (i) the
commencement of the relevant Interest Period, if determined prior to such time, in the case of
notification to such exchange of a Rate of Interest, Interest Amount, Interest Period Date and
Interest Payment Date, or (ii) in all other cases, the fourth Business Day after such determination.
Where any Interest Payment Date or Interest Period Date is subject to adjustment pursuant to
Condition 4(b), the Interest Amounts and the Interest Payment Date so published may subsequently
be amended (or appropriate alternative arrangements made by way of adjustment) without notice in
the event of an extension or shortening of the Interest Period. If the Notes become due and payable
under Condition 9, the accrued interest and the Rate of Interest payable in respect of the Notes
shall nevertheless continue to be calculated as previously in accordance with this Condition but no
publication of the Rate of Interest or the Interest Amount so calculated need be made. The
determination of any rate or amount, the obtaining of each quotation and the making of each
determination or calculation by the Calculation Agent(s) shall (in the absence of manifest error) be
final and binding upon all parties.
(j)
Definitions:
In these Conditions, unless the context otherwise requires, the following defined terms shall
have the meanings set out below:
(i)
in the case of a currency other than EUR, a day (other than a Saturday or Sunday) on
which commercial banks and foreign exchange markets settle payments in the principal
financial centre for such currency; and/or
64
(ii)
in the case of EUR, a day on which the TARGET System is operating (a “TARGET
Business Day”); and/or
(iii)
In the case of a currency and/or one or more Additional Business Centres, a day (other
than a Saturday or a Sunday) on which commercial banks and foreign exchange
markets settle payments in such currency in the Additional Business Centres or, if no
currency is indicated, generally in each of the Additional Business Centres.
“Day Count Fraction” means, in respect of the calculation of an amount of interest on any
Note for any period of time (from and including the first day of such period to but excluding
the last) (whether or not constituting an Interest Period or an Interest Accrual Period, the
“Calculation Period”):
(i)
if “Actual/365” or “Actual/Actual-ISDA” is specified hereon, the actual number of days
in the Calculation Period divided by 365 (or, if any portion of that Calculation Period
falls in a leap year, the sum of (A) the actual number of days in that portion of the
Calculation Period falling in a leap year divided by 366 and (B) the actual number of
days in that portion of the Calculation Period falling in a non-leap year divided by 365);
(ii)
if “Actual/Actual (Fixed)” is specified hereon, the actual number of days in the
Calculation Period divided by 365;
(iii)
if “Actual/360” is specified hereon, the actual number of days in the Calculation Period
divided by 360;
(iv)
if “30/360”, “360/360” or “Bond Basis” is specified hereon, the number of days in the
Calculation Period divided by 360, calculated on a formula basis as follows:
[360 x (Y2 – Y1)] + [30 x (M2 – M1)] + (D2 – D1)
360
where:
falls;
included in the Calculation Period, unless such number would be 31 and D1 is greater
than 29, in which case D2 will be 30.
(v)
if “30E/360” or “Eurobond Basis” is specified hereon, the number of days in the
Calculation Period divided by 360 calculated on a formula basis as follows:
[360 x (Y2 – Y1)] + [30 x (M2 – M1)] + (D2 – D1)
360
where:
falls;
65
will be 30
(vi)
if “30E/360 (ISDA)” is specified hereon, the number of days in the Calculation Period
divided by 360, calculated on a formula basis as follows:
[360 x (Y2 – Y1)] + [30 x (M2 – M1)] + (D2 – D1)
360
where:
falls;
will be 30
(vii)
if “Actual/Actual-ICMA” is specified hereon, (a) if the Calculation Period is equal to or
shorter than the Determination Period during which it falls, the number of days in the
Calculation Period divided by the product of (x) the number of days in such
Determination Period and (y) the number of Determination Periods normally ending in
any year; and (b) if the Calculation Period is longer than one Determination Period, the
sum of: (x) the number of days in such Calculation Period falling in the Determination
Period in which it begins divided by the product of (1) the number of days in such
any year; and (y) the number of days in such Calculation Period falling in the next
Determination Period divided by the product of (1) the number of days in such
any year where:
“Determination Period” means the period from and including a Determination Date in
any year to but excluding the next Determination Date; and
“Determination Date” means the date specified as such hereon or, if none is so
specified, the Interest Payment Date.
adopt the single currency in accordance with the Treaty establishing the European
Community as amended.
66
“Interest Amount” means:
(i)
in respect of an Interest Accrual Period, the amount of interest payable, per
Calculation Amount for that Interest Accrual Period and which, in the case of
Fixed Rate Notes, and unless otherwise specified hereon, shall mean the Fixed
Coupon Amount or Broken Amount, specified hereon as being payable on the
Interest Payment Date ending the Interest Period of which such Interest Accrual
Period forms part; and
(ii)
in respect of any other period, the amount of interest payable per Calculation
Amount for that period
specified hereon.
“Interest Determination Date” means, with respect to a Rate of Interest and Interest
Accrual Period, the date specified as such hereon or, if none is so specified, (i) the first
day of such Interest Accrual Period if the Specified Currency is Sterling or (ii) the day
falling two Business Days in London for the Specified Currency prior to the first day of
such Interest Accrual Period if the Specified Currency is neither Sterling nor EUR or
(iii) the day falling two TARGET Business Days prior to the first day of such Interested
Accrual Period if the Specified Currency is EUR.
“Interest Period Date” means each Interest Payment Date unless otherwise specified
hereon.
“ISDA Definitions” means the 2006 ISDA Definitions published by the International
Swaps and Derivatives Association, Inc., unless otherwise specified hereon.
“Number of Actual Calculation Periods” means, in relation to Day Count Fraction
above, the number of Actual Calculation Periods normally ending in any year.
“Rate of Interest” means the rate of interest payable from time to time in respect of this
Note and that is either specified or calculated in accordance with the provisions
hereon.
specified hereon.
“Reference Rate” means the rate specified as such hereon.
particular information service as may be specified hereon.
“Specified Currency” means the currency specified as such hereon or, if none is
specified, the currency in which the Notes are denominated.
(k)
Calculation Agent:
SNA12-4.1.13
The Issuer shall procure that there shall at all times be one or more Calculation Agents if
provision is made for them hereon and for so long as any Note is outstanding. Where more than
one Calculation Agent is appointed in respect of the Notes, references in these Conditions to the
Calculation Agent shall be construed as each Calculation Agent performing its respective duties
under the Conditions. If the Calculation Agent is unable or unwilling to act as such or if the
Calculation Agent fails duly to establish the Rate of Interest for an Interest Accrual Period or to
calculate any Interest Amount, Instalment Amount, Final Redemption Amount or Early Redemption
67
Amount, as the case may be, or to comply with any other requirement, the Issuer shall appoint a
leading bank or financial institution engaged in the interbank market (or, if appropriate, money, swap
or over-the-counter index options market) that is most closely connected with the calculation or
determination to be made by the Calculation Agent (acting through its principal London office or
any other office actively involved in such market) to act as such in its place. The Calculation Agent
may not resign its duties without a successor having been appointed as aforesaid.
5.
Redemption, Purchase and Options
(a)
Redemption of Senior Subordinated Notes:
(i)
Unless previously redeemed (with the consent of the CSSF), purchased and cancelled
as provided in this Condition 5 or the relevant Instalment Date (being one of the dates
so specified hereon) is extended pursuant to any Issuer’s option in accordance with
Condition 5(e) or (g), each Senior Subordinated Note that provides for Instalment Dates
and Instalment Amounts shall be partially redeemed on each Instalment Date at the
related Instalment Amount specified hereon. The outstanding nominal amount of each
such Senior Subordinated Note shall be reduced by the Instalment Amount (or, if such
Instalment Amount is calculated by reference to a proportion of the nominal amount of
such Senior Subordinated Note, such proportion) for all purposes with effect from the
related Instalment Date, unless payment of the Instalment Amount is improperly
withheld or refused on presentation of the related Receipt, in which case, such amount
shall remain outstanding until the Relevant Date relating to such Instalment Amount.
(ii)
Unless previously redeemed (with the consent of the CSSF), purchased and cancelled
as provided in this Condition 5 or its maturity is extended pursuant to any Issuer’s
option in accordance with Condition 5(e) or (g), each Senior Subordinated Note shall be
finally redeemed on the Maturity Date specified hereon at its Final Redemption Amount
(which, unless otherwise provided, is its nominal amount) or, in the case of a Senior
Subordinated Note falling within paragraph (i) above, its final Instalment Amount.
(b)
Redemption of Junior Subordinated Notes:
Subject to Condition 3(d), the Issuer will redeem all of the Junior Subordinated Notes that
have a Maturity Date specified hereon (“Dated Junior Subordinated Notes”) at their Final
Redemption Amount (together with all Arrears of Interest and all accrued Additional Interest, if any
and interest if any accrued to, but excluding, the date fixed for redemption) on such Maturity Date
provided that the CSSF has consented to such redemption on giving not less than 15 nor more
than 30 days’ irrevocable notice to the Noteholders in accordance with Condition 13. The Issuer
undertakes to seek the consent of the CSSF to redeem all of the Junior Subordinated Notes (or as
many of the Junior Subordinated Notes as the CSSF will consent to) not less than 40 days prior to
the Maturity Date. If the CSSF consents to the redemption of some (but not all) of the Junior
Subordinated Notes on the Maturity Date, the Issuer will redeem the Junior Subordinated Notes to
the extent permitted by the CSSF at their Final Redemption Amount (together with all Arrears of
Interest and all accrued Additional Interest, if any). The Junior Subordinated Notes to be redeemed
will be drawn by lot in accordance with Condition 5(e).
If the CSSF does not consent to the redemption of all of the Junior Subordinated Notes on
the Maturity Date (or any following Interest Payment Date) the Junior Subordinated Notes not so
redeemed shall be redeemed, subject as set out below, at their Final Redemption Amount (together
with all Arrears of Interest and all accrued Additional Interest, if any and interest if any accrued to,
but excluding, the date fixed for redemption) on the next following Interest Payment Date (each
such Interest Payment Date being a “New Maturity Date”). If the CSSF does not consent to the
redemption of any of the Junior Subordinated Notes on the Maturity Date or any following Interest
Payment Date, the Issuer shall give notice to the Noteholders to be published in accordance with
Condition 13 and for so long as the Junior Subordinated Notes are listed on the Official List of the
Luxembourg Stock Exchange, the Luxembourg Stock Exchange, at least 30 days before the
Maturity Date or the New Maturity Date, as the case may be, that redemption will not take place on
that date in respect of the Junior Subordinated Notes not permitted to be redeemed.
Until such time as the Issuer has obtained the consent of the CSSF to redeem all Junior
Subordinated Notes, the Issuer undertakes not less than 40 days prior to each New Maturity Date
to seek the consent of the CSSF to redeem all Junior Subordinated Notes in respect of which
consent for redemption from the CSSF has not been obtained. The Issuer will, subject to Condition
68
3(d), redeem all the Junior Subordinated Notes permitted to be redeemed by the CSSF on the next
New Maturity Date after such consent has been received at their Final Redemption Amount
together with all Arrears of Interest and all accrued Additional Interest, if any). If some only of the
Junior Subordinated Notes are permitted to be redeemed on a New Maturity Date, the Junior
Subordinated Notes to be redeemed will be drawn by lot in accordance with Condition 5(e).
Junior Subordinated Notes that do not have a Maturity Date specified hereon are undated
and accordingly have no final maturity date and are only redeemable or repayable in accordance
with the following provisions of this Condition 5 or Condition 9 and, in the case of Condition 5 only,
with the prior approval of the CSSF:
(c)
Early Redemption of Zero Coupon Senior Subordinated Notes:
(i)
The Early Redemption Amount payable in respect of any Zero Coupon Senior
Subordinated Note, the Early Redemption Amount of which is not linked to an index
and/or a formula, upon redemption of such Senior Subordinated Note pursuant to
Condition 5(d) with the prior consent of the CSSF or upon it becoming due and
payable as provided in Condition 9 shall be the Amortised Face Amount (calculated as
provided below) of such Senior Subordinated Note unless otherwise specified hereon.
(ii)
Subject to the provisions of sub-paragraph (C) below, the Amortised Face Amount of
any such Senior Subordinated Note shall be the scheduled Final Redemption Amount
of such Senior Subordinated Note on the Maturity Date discounted at a rate per annum
(expressed as a percentage) equal to the Amortisation Yield (which, if none is shown
hereon, shall be such rate as would produce an Amortised Face Amount equal to the
issue price of the Senior Subordinated Notes if they were discounted back to their
issue price on the Issue Date) compounded annually.
(iii)
If the Early Redemption Amount payable in respect of any such Senior Subordinated
Note upon its redemption pursuant to Condition 5(c) or upon it becoming due and
payable as provided in Condition 9 is not paid when due, the Early Redemption
Amount due and payable in respect of such Senior Subordinated Note shall be the
Amortised Face Amount of such Senior Subordinated Note as defined in
sub-paragraph (B) above, except that such sub-paragraph shall have effect as though
the date on which the Senior Subordinated Note becomes due and payable were the
Relevant Date. The calculation of the Amortised Face Amount in accordance with this
sub-paragraph shall continue to be made (both before and after judgment) until the
Relevant Date, unless the Relevant Date falls on or after the Maturity Date, in which
case the amount due and payable shall be the scheduled Final Redemption Amount of
such Note on the Maturity Date together with any interest that may accrue in
accordance with Conditions 4(a) and (c).
Where such calculation is to be made for a period of less than one year, it shall be made on
the basis of the Day Count Fraction shown hereon.
(d)
Redemption for Taxation Reasons:
The Notes may be redeemed at the option of the Issuer in whole, but not in part, (but subject
to consent thereto having been obtained from the CSSF), on any Interest Payment Date (if this Note
is either a Floating Rate Note or an Index Linked Note) or at any time (if this Note is neither a
Floating Rate Note nor an Index Linked Note), on giving not less than 30 nor more than 60 days’
notice to the Noteholders in accordance with Condition 13 (which notice shall be irrevocable), at
their Early Redemption Amount (as described in Condition 5(c) above) (together with all Arrears of
Interest, Accrued Additional Interest and interest accrued to the date fixed for redemption), if (i) the
Issuer has or would become obliged to pay additional amounts as provided or referred to in
Condition 7 as a result of any change in the laws or regulations of Luxembourg (or in the official
application of such laws or regulations) or any political subdivision or any authority thereof or
therein having power to tax, or any change in the application of such laws or regulations which
change or amendment becomes effective on or after the Issue Date, and (ii) such obligation cannot
be avoided by the Issuer taking reasonable measures available to it, provided that no such notice
of redemption shall be given earlier than 90 days prior to the earliest date on which the Issuer
would be obliged to pay such additional amounts were a payment in respect of the Notes then due.
Before 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 stating that the Issuer
69
is entitled to effect such redemption and setting forth a statement of facts showing that the
conditions precedent to the right of the Issuer so to redeem have occurred, and an opinion of
independent legal advisers of recognised standing to the effect that the Issuer has or will become
obliged to pay such additional amounts as a result of such change or amendment.
(e)
Redemption at the Option of the Issuer:
If Call Option is specified hereon (the details of which will be specified in the relevant Final
Terms), the Issuer may with the consent of the CSSF, on giving not less than 15 nor more than
30 days’ irrevocable notice to the Noteholders in accordance with Condition 13 (or such other
notice period as may be specified hereon) redeem all or, if so provided, some, of the Notes on any
Optional Redemption Date. Any such redemption of Notes shall be at their Optional Redemption
Amount together with all Arrears of Interest, accrued Additional Interest and interest accrued to the
date fixed for redemption. Any such redemption or exercise must relate to Notes of a nominal
amount at least equal to the Minimum Redemption Amount to be redeemed specified hereon and
no greater than the Maximum Redemption Amount to be redeemed specified hereon.
All Notes in respect of which any such notice is given shall be redeemed on the date
specified in such notice in accordance with this Condition.
In the case of a partial redemption, the notice to Noteholders shall also contain the certificate
numbers of the Bearer Notes or, in the case of Registered Notes, shall specify the nominal amount
of Registered Notes drawn and the holder(s) of such Registered Notes to be redeemed which shall
have been drawn in such place and in such manner as may be fair and reasonable in the
circumstances, taking account of prevailing market practices, subject to compliance with any
applicable laws and stock exchange requirements.
(f)
Partly-Paid Notes:
Partly-Paid Notes will be redeemed, whether at maturity, early redemption or otherwise, in
accordance with the provisions of this Condition and the provisions specified hereon.
(g)
Purchases:
In addition to Notes, Receipts or Coupons purchased in the ordinary course of dealing in
securities on behalf of third parties, the Issuer or any of its Subsidiaries may with the consent of the
CSSF at any time purchase Notes (provided that all unmatured Receipts and Coupons and
unexchanged Talons relating thereto are attached thereto or surrendered therewith) in the open
market or otherwise at any price in accordance with applicable law, if any. The Notes so purchased,
while held by or on behalf of the Issuer shall not entitle the holder to vote at any meetings of the
Noteholders and shall not be deemed to be outstanding for the purposes of calculating quorums at
meetings of the Noteholders or for the purposes of Condition 10(a). The Issuer undertakes to
procure that any Subsidiary which holds any Notes as principal, will not exercise its right to vote in
any meeting of the Noteholders in respect of such Notes provided that the Issuer and such
Subsidiary may vote in favour of a resolution requiring the unanimous consent of a Masse Meeting
(as defined in Condition 10) when all other Noteholders have voted or will vote in favour of that
resolution. “Subsidiary” means any company 50 per cent. or more of the equity share capital of
which is owned directly or indirectly by the Issuer. Such Notes may be reissued or resold by the
Issuer or its Subsidiaries.
(h)
Cancellation:
All Notes that are redeemed shall be cancelled forthwith (together with all unmatured
Receipts and Coupons and unexchanged Talons attached thereto or surrendered therewith) and
accordingly may not be reissued or resold.
6.
Payments and Talons
(a)
Bearer Notes:
SNA12-4.1.12
Payments of principal and interest in respect of Bearer Notes shall, subject as mentioned
below, be made against presentation and surrender of the relevant Receipts (in the case of
payments of Instalment Amounts other than on the due date for redemption and provided that the
Receipt is presented for payment together with its relative Note), Notes (in the case of all other
payments of principal and, in the case of interest, as specified in Condition 6(f)(vi)) or Coupons (in
the case of interest, save as specified in Condition 6(f)(vi)), as the case may be, at the specified
office of any Paying Agent outside the United States by a cheque payable in the relevant currency
70
drawn on, or, at the option of the holder, by transfer to an account denominated in such currency
with a Bank. “Bank” means a bank in the principal financial centre for such currency or, in the case
of EUR, in a city in which banks have access to the TARGET System.
(b)
Registered Notes:
(i)
Payments of principal (which for the purposes of this Condition 6(b) shall include final
Instalment Amounts but not other Instalment Amounts) in respect of Registered Notes
shall be made against presentation and surrender of the relevant Registered Note
Certificates at the specified office of any of the Transfer Agents or of the Registrar and
in the manner provided in paragraph (ii) below.
(ii)
Interest (which for the purpose of this Condition 6(b) shall include all Instalment
Amounts other than final Instalment Amounts) on Registered Notes shall be paid to the
persons shown on the Register at the close of business on the fifteenth day before the
due date for payment thereof (the “Record Date”). Payments of interest on each
Registered Note shall be made in the relevant currency in which such payments are
due by cheque drawn on a Bank and mailed to the holder (or to the first named of joint
holders) of such Note at its address appearing in the Register. Upon application by the
holder to the specified office of the Registrar or any Transfer Agent before the Record
Date, such payment of interest may be made by transfer to an account in the relevant
currency maintained by the payee with a Bank.
(c)
Payments in the United States:
Notwithstanding the foregoing, if any Bearer Notes are denominated in U.S. dollars,
payments in respect thereof may be made at the specified office of any Paying Agent in New York
City in the same manner as aforesaid if (i) the Issuer shall have appointed Paying Agents with
specified offices outside the United States with the reasonable expectation that such Paying Agents
would be able to make payment of the amounts on the Notes in the manner provided above when
due, (ii) payment in full of such amounts at all such offices is illegal or effectively precluded by
exchange controls or other similar restrictions and (iii) such payment is then permitted by United
States law, without involving, in the opinion of the Issuer, any adverse tax consequence to the
Issuer.
(d)
Payments Subject to Fiscal Laws:
directives, but without prejudice to the provisions of Condition 7. No commission or expenses shall
be charged to the Noteholders or Couponholders in respect of such payments.
(e)
Appointment of Agents:
The Fiscal Agent, the Paying Agents, the Registrars, the Transfer Agents and any Calculation
Agent initially appointed by the Issuer and their respective specified offices are listed below. The
Fiscal Agent, the Paying Agents, the Registrars, the Transfer Agents and the Calculation Agent act
solely as agents of the Issuer and do not assume any obligation or relationship of agency or trust
for or with any Noteholder or Couponholder. The Issuer reserves the right at any time to vary or
terminate the appointment of the Fiscal Agent, any other Paying Agent, any Registrar, any Transfer
Agent or the Calculation Agent and to appoint additional or other Paying Agents or Transfer Agents,
provided that the Issuer shall at all times maintain (i) a Fiscal Agent, (ii) a Registrar in relation to
Registered Notes, (iii) a Transfer Agent in relation to Registered Notes in Luxembourg, (iv) one or
more Calculation Agent(s) where the Conditions so require, (v) Paying Agents having specified
offices in at least two major European cities, (vi) such other agents as may be required by the rules
of any other stock exchange on which the Notes may be listed and (vii) to the extent not satisfied
by (v) or (vi) above, a Paying Agent with a specified office in a European Union member state that
will not be obliged to withhold or deduct tax pursuant to European Union Directive 2003/48/EC or
any other Directive implementing the conclusions of the ECOFIN Council meeting of 26-27
November, 2000. Notice of any such termination or appointment and of any change in the specified
office through which any Paying Agent acts will be given in accordance with Condition 13.
In addition, the Issuer shall forthwith appoint a Paying Agent in New York City in respect of any
Bearer Notes denominated in U.S. dollars in the circumstances described in paragraph (c) above.
Notice of any such change or any change of any specified office shall promptly be given to
the Noteholders.
71
(f)
Unmatured Coupons and Receipts and unexchanged Talons:
(i)
Upon the due date for redemption of Bearer Notes which comprise Fixed Rate Notes
(other than Dual Currency Notes or Index Linked Notes) should be surrendered for
payment together with all unmatured Coupons (if any) relating thereto, failing which an
amount equal to the face value of each missing unmatured Coupon (or, in the case of
payment not being made in full, that proportion of the amount of such missing
unmatured Coupon that the sum of principal so paid bears to the total principal due)
shall be deducted from the Final Redemption Amount or Early Redemption Amount, as
the case may be, due for payment. Any amount so deducted shall be paid in the
manner mentioned above against surrender of such missing Coupon within a period of
ten years from the Relevant Date for the payment of such principal (whether or not
such Coupon has become void pursuant to Condition 8).
(ii)
Upon the due date for redemption of any Bearer Note comprising a Floating Rate Note,
Dual Currency Interest Note or Index Linked Note, unmatured Coupons relating to such
Note (whether or not attached) shall become void and no payment shall be made in
respect of them.
(iii)
Upon the due date for redemption of any Bearer Note, any unexchanged Talon relating
to such Note (whether or not attached) shall become void and no Coupon shall be
delivered in respect of such Talon.
(iv)
Upon the due date for redemption of any Bearer Note that is redeemable in
instalments, all Receipts relating to such Note having an Instalment Date falling on or
after such due date (whether or not attached) shall become void and no payment shall
be made in respect of them.
(v)
Where any Bearer Note that provides that the relative unmatured Coupons are to
become void upon the due date for redemption of those Notes is presented for
redemption without all unmatured Coupons and where any Bearer Note is presented
for redemption without any unexchanged Talon relating to it, redemption shall be made
only against the provision of such indemnity as the Issuer may require.
(vi)
If the due date for redemption of any Note is not a due date for payment of interest,
interest accrued from the preceding due date for payment of interest or the Interest
Commencement Date, as the case may be, shall only be payable against presentation
(and surrender if appropriate) of the relevant Bearer Note or Registered Note Certificate
Interest accrued on a Note that only bears interest after its Maturity Date shall be payable on
redemption of such Note against presentation of the relevant Note or Registered Note Certificate
(g)
Talons:
issued in respect of any Bearer Note, the Talon forming part of such Coupon sheet may be
surrendered at the specified office of the Fiscal Agent in exchange for a further Coupon sheet (and
(h)
Non-Business Days:
If any date for payment in respect of any Note, Receipt or Coupon is not a business day, the
holder shall not be entitled to payment until the next following business day nor to any interest or
other sum in respect of such postponed payment. In this paragraph, “business day” means a day
(other than a Saturday or a Sunday) on which banks and foreign exchange markets are open for
business in the relevant place of presentation, in such jurisdictions as shall be specified as
“Additional Financial Centres” hereon and:
(i)
(in the case of a payment in a currency other than EUR) where payment is to be made
by transfer to an account maintained with a bank in the relevant currency, on which
foreign exchange transactions may be carried on in the relevant currency in the
principal financial centre of the country of such currency; or
(ii)
(in the case of a payment in EUR) which is a TARGET Business Day.
72
7.
Taxation
All payments of principal and interest in respect of the Notes, the Receipts and the Coupons
shall be made free and clear of, and without withholding or deduction for, or on account of, any
present or future taxes, duties, assessments or governmental charges of whatever nature imposed,
levied, collected, withheld or assessed by or on behalf of Luxembourg or any political sub-division
or any authority therein or thereof having power to tax, unless such withholding or deduction is
required by law. In that event, the Issuer shall pay such additional amounts as shall result in receipt
by the Noteholders and the Couponholders of such amounts as would have been received by them
had no such withholding or deduction been required, except that no such additional amounts shall
be payable with respect to any Note, Receipt or Coupon:
(a)
Other Connection:
to, or to a third party on behalf of, a holder who is liable to such taxes, duties,
assessments or governmental charges in respect of such Note, Receipt or Coupon by
reason of his having some connection with Luxembourg other than the mere holding of
the Note, Receipt or Coupon;
(b)
Lawful avoidance of withholding:
presented (or in respect of which the Registered Note Certificate representing it is
presented) for payment more than 30 days after the Relevant Date except to the extent
that the holder of it would have been entitled to such additional amounts on presenting
it for payment on the thirtieth such day;
(c)
Payment to individuals:
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 other
Directive implementing the conclusions of the ECOFIN Council meeting of 26-27
November, 2000 on the taxation of savings income or any law implementing or
complying with, or introduced in order to conform to, such Directive; or
(d)
Payment by another Paying Agent:
(except in the case of Registered Notes) presented for payment by or on behalf of a
holder who would have been able to avoid such withholding or deduction by
presenting the relevant Note, Receipt or Coupon to another Paying Agent in a Member
State of the European Union.
As used in these Conditions, “Relevant Date” in respect of any Note, Receipt or Coupon
means the date on which payment in respect of it first becomes due or (if any amount of the money
payable is improperly withheld or refused the date on which payment in full of the amount
outstanding is made or (if earlier) the date seven days after that on which notice is duly given to the
Noteholders that, upon further presentation of the Note (or relative Registered Note Certificate),
Receipt or Coupon being made in accordance with the Conditions, such payment will be made,
provided that payment is in fact made upon such presentation. References in these Conditions to
(i) “principal” shall be deemed to include any premium payable in respect of the Notes, all
Instalment Amounts, Final Redemption Amounts, Early Redemption Amounts, Amortised Face
Amounts and all other amounts in the nature of principal payable pursuant to Condition 5 or any
amendment or supplement to it, (ii) “interest” shall be deemed to include all Interest Amounts and
all other amounts payable pursuant to Condition 4 or any amendment or supplement to it and (iii)
“principal” and/or “interest” shall be deemed to include any additional amounts that may be
payable under this Condition.
8.
Prescription
Claims against the Issuer for payment in respect of the Notes, Receipts and Coupons (which
for this purpose shall not include Talons) shall be prescribed and become void unless made within
ten years (in the case of principal) or five years (in the case of interest) from the appropriate
Relevant Date in respect of them.
9.
Enforcement
(a)
Winding Up:
The holder of any Note may give written notice to the Fiscal Agent at its specified office that
such Note is due and payable, whereupon the Final Redemption Amount of such Note together
73
SNA5-4.7
with accrued interest (and Arrears of Interest and Additional Interest in the case of Junior
Subordinated Notes) to the date of payment shall become immediately due and payable if an order
is made or an effective resolution is passed for the dissolution (dissolution) or liquidation
(liquidation) of the Issuer.
(b)
Non-Payment:
If the Issuer does not make payment for a period of 7 days or more after the due date for
the payment of principal or for a period of 14 days or more after a Compulsory Interest Payment
Date in the case of Junior Subordinated Notes, or after an Interest Payment Date in the case of
Senior Subordinated Notes, for the payment of interest due in respect of any of the Notes on such
Compulsory Interest Payment Date or Interest Payment Date, as the case may be, any Noteholder
may ask the relevant authorities to institute proceedings in Luxembourg (but not elsewhere) in
accordance with Part IV of the law of 5 April, 1993 concerning the financial sector (loi du 5 avril
1993 relative au secteur financier) for the dissolution (dissolution) or liquidation (liquidation) of the
Issuer.
Although the relevant authorities may take into account a request from a Noteholder to
institute proceedings in Luxembourg for the dissolution or liquidation of the Issuer, they are not in
any way bound to do so following the receipt of such a request or on any other basis. In
determining whether to institute any such proceeding against the Issuer, the relevant authorities act
solely on the basis of their own discretion and in accordance with Luxembourg law. Subject to such
request from a Noteholder as described in this Condition 9(b), a Noteholder shall not be able to
take proceedings for the dissolution or liquidation of the Issuer.
(c)
Breach of Obligations:
To the extent permitted by applicable law and by these Conditions, a Noteholder may at its
discretion institute such proceedings against the Issuer as it may think fit to enforce any obligation,
condition, undertaking or provision binding on the Issuer under the Notes or the Coupons but the
institution of such proceedings shall not have the effect that the Issuer shall be obliged to pay any
sum or sums sooner than the same would otherwise have been payable by it.
(d)
Other Remedies:
No remedy against the Issuer other than the institution of the proceedings referred to in
Conditions 9(b) or (c) and the proving or claiming in any dissolution or liquidation of the Issuer, shall
be available to the Noteholders or the Couponholders whether for the recovery of amounts owing
in respect of the Notes or the Coupons or in respect of any breach by the Issuer of any other
obligation, condition or provision binding on it under the Notes or the Coupons.
10.
Meeting of Noteholders, Modifications and Substitution
(a)
Meetings of Noteholders and Representation:
Noteholders will belong to a masse (the “Masse”) created, among other things, for the
representation of their common interests pursuant to the provisions of the law of 10 August, 1915
on commercial companies, as amended (loi de 10 août 1915 concernant les sociétés commerciales,
telle qu’elle à été modifiée) (the “Luxembourg Company Law”). The discussion below is based on
the Luxembourg Company Law in effect on the Issue Date. Any subsequent amendments to the
relevant provisions of the Luxembourg Company Law may amend or modify the discussion below.
A general meeting of the Noteholders (the “Masse Meeting”) may appoint and determine the
powers of one or more representatives (the “Representatives”). Where Representatives have been
appointed, Noteholders may no longer individually exercise their rights against the Issuer. A Masse
Meeting may be called at any time by the Representatives (if any) or the Board of Directors of the
Issuer. The Representatives, provided an advance on expenses has been paid to them, or the
Board of Directors must convene the Masse Meeting if called upon to do so by holders of Notes
representing 5 per cent. or more of the Notes outstanding. All Masse Meetings shall be held at the
place specified in the notice calling the meeting and such notice must be published as provided in
Condition 13. All Noteholders have the right to attend and vote at the Masse Meeting either
personally or by proxy. The voting rights attached to the Notes are equal to the proportion of the
amount of the outstanding Notes represented by the amount of the Note or Notes held by the
relevant holder. A Masse Meeting may be called in the event of a merger involving the Issuer, may
approve certain changes in the rights of the Noteholders and may, generally, determine any
measures designed to ensure the defence of interests or the exercise of the rights of the
Noteholders in accordance with the provisions of the Luxembourg Company Law. A Masse Meeting
74
SNA5-4.10
may deliberate validly without a quorum and by vote of a simple majority of Noteholders attending
or represented at such Masse Meeting on the appointment and revocation of the Representatives,
the revocation of special representatives appointed by the Issuer and the approval of any measures
of a conservatory nature in the general interests of the Noteholders. On all other matters (except in
respect of certain matters, including a change in the nationality of the Issuer, where unanimous
consent is required) the Masse Meeting may deliberate validly on first convocation only if
Noteholders present or represented hold at least 50 per cent. of the Notes then outstanding. On
second convocation no quorum is required. Decisions at such meetings shall be taken by a majority
of 662/3 per cent. of the votes cast by Noteholders attending such meetings or represented thereat.
These Conditions may be amended, modified, or varied in relation to any Series of Notes by
(b)
(c)
Substitution:
Subject to the provisions of this Condition the Noteholders and the Couponholders by
subscribing to or purchasing any Notes or Coupons, expressly consent to the Issuer, or any
previous substituted company, at any time provided the prior approval of the CSSF is obtained,
substituting for itself as principal debtor under the Notes, the Receipts, the Coupons and the
Talons any Subsidiary of the Issuer or the successor company of the Issuer or jointly and severally
one or more companies to whom the Issuer has transferred all of its assets and business
undertakings (in each case the “Substitute”) provided that no payment in respect of the Notes, the
Receipts or the Coupons is at the relevant time overdue, no steps have been taken to admit the
Issuer to a regime of suspension of payments (sursis de paiement) and (except in the case of a
solvent reorganisation or amalgamation) no order has been made or resolution passed for the
dissolution (dissolution) or liquidation (liquidation) of the Issuer. Such substitution effected in
accordance with this Condition will release the Issuer or any previous substituted company and
the Noteholders and Couponholders expressly consent hereto. The substitution shall be made by
a written undertaking (the “Undertaking”) to be substantially in the form scheduled to the Agency
Agreement as Schedule 8 and may take place only if (i) the Substitute shall, by means of the
Undertaking, agree to indemnify each Noteholder and Couponholder against any tax, duty,
assessment, withholding, deduction or governmental charge which is imposed on it by (or by any
taxing authority in or of) the jurisdiction of the country of the Substitute’s residence for tax
purposes and, if different, of its incorporation with respect to any Note, Receipt, Coupon, Talon or
the Deed of Covenant and which would not have been so imposed had the substitution not been
made, as well as against any tax duty, assessment or governmental charge, and any cost or
expense, relating to the substitution; (ii) if the Substitute is a Subsidiary of the Issuer, the
obligations of the Substitute under the Undertaking, the Notes and the Coupons shall be
unconditionally and irrevocably guaranteed on a subordinated basis by the Issuer or its successor
or each of the companies to whom together the Issuer has transferred all of its assets and
business undertakings (each a “Guarantor”) (which shall be the same basis in respect of which
Notes originally issued by the Issuer were subordinated) by means of a guarantee substantially in
the form contained in the Undertaking (the “Guarantee”); (iii) all action, conditions and things
required to be taken, fulfilled and done (including the obtaining of any necessary consents) to
ensure that the Undertaking, the Notes, Coupons, Receipts, Talons and Deed of Covenant,
represent valid, legally binding and enforceable obligations of the Substitute and in the case of the
Guarantee of the Guarantor have been taken, fulfilled and done and are in full force and effect; (iv)
the Substitute shall have become party to the Agency Agreement, with any appropriate
consequential amendments, as if it had been an original party to it; (v) legal opinions addressed to
the Noteholders shall have been delivered to them (care of the Fiscal Agent) from a lawyer or firm
of lawyers with a leading securities practice in each jurisdiction referred to in (i) above as to the
fulfilment of the preceding conditions of this Condition 10(c) and the other matters specified in the
Undertaking; (vi) the substitution does not affect adversely the rating of the Notes by Moody’s
Investors Service Limited and Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc. or if any such rating agency does not exist at the relevant time any two existing
internationally recognised rating agencies and (vii) the Issuer shall have given at least 30 days’
75
prior notice of such substitution to the Noteholders, to be published in accordance with Condition
13 stating that copies, or pending execution the agreed text, of all documents in relation to the
substitution which are referred to above, or which might otherwise reasonably be regarded as
material to Noteholders, will be available for inspection at the specified office of each of the
Paying Agents. References in Condition 9 to obligations under the Notes shall be deemed to
include obligations under the Undertaking, and, where the Undertaking contains a Guarantee, the
events listed in Condition 9 shall be deemed to include such Guarantee not being (or being
claimed by the Guarantor not to be) in full force and effect and the Guarantee shall contain rights
of enforcement and clauses relating to the Guarantor in the form of Conditions 5(f) and (g).
11.
Replacement of Notes, Registered Note Certificates, Receipts, Coupons and Talons
If a Note, Registered Note Certificate, Receipt, Coupon or Talon is lost, stolen, mutilated,
defaced or destroyed, it may be replaced, subject to applicable laws, regulations and stock
exchange regulations, at the specified office of a Fiscal Agent (in the case of Bearer Notes,
Receipts, Coupons or Talons) and of the Registrar (in the case of Registered Note Certificates) or
such other Paying Agent or Transfer Agent, as the case may be, as may from time to time be
designated by the Issuer for the purpose and notice of whose designation is given to Noteholders,
in each case on payment by the claimant of the fees and costs incurred in connection therewith
and on such terms as to evidence, security and indemnity (which may provide, inter alia, that if the
allegedly lost, stolen or destroyed Note, Registered Note Certificate, Receipt, Coupon or Talon is
subsequently presented for payment or, as the case may be, for exchange for further Coupons,
there shall be paid to the issuer on demand the amount payable by the Issuer in respect of such
Notes, Registered Note Certificates, Receipts, Coupons or further Coupons) and otherwise as the
Issuer may require. Mutilated or defaced Notes, Registered Note Certificates, Receipts, Coupons or
Talons must be surrendered before replacements will be issued.
12.
Further Issues
Subject to the prior consent of the CSSF, the Issuer may from time to time without the
consent of the Noteholders or Couponholders create and issue further notes having the same terms
and conditions as the Notes (so that, for the avoidance of doubt, references in these Conditions to
“Issue Date” shall be to the first issue date of the Notes) and so that the same shall be
consolidated and form a single series with such Notes, and references in these Conditions to
“Notes” shall be construed accordingly.
13.
Notices
Notices to the holders of Registered Notes shall be mailed to them at their respective
addresses in the Register and deemed to have been given on the fourth weekday (being a day
other than a Saturday or a Sunday) after the date of mailing and for so long as the Registered
Notes are listed on the Official List of the Luxembourg Stock Exchange and the rules of that
exchange so require, such notices shall in addition be published in a daily newspaper with general
Luxembourg Stock Exchange (www.bourse.lu). Notices to the holders of Bearer Notes shall be valid
if published in a daily newspaper of general circulation in Luxembourg (which is expected to be the
Luxemburger Wort) except that for so long as the Notes are listed on the Official List of the
Luxembourg Stock Exchange and the rules of that exchange so require, such notices shall be
published in a daily newspaper with general circulation in Luxembourg (which is expected to be the
Luxemburger Wort) or on the website of the Luxembourg Stock Exchange (www.bourse.lu). If any
such publication is not practicable, notice shall be validly given if published in another leading daily
English language newspaper with general circulation in Europe. Any such notice shall be deemed to
have been given on the date of such publication or, if published more than once or on different
dates on the date of the first publication as provided above.
Couponholders shall be deemed for all purposes to have notice of the contents of any notice
given to the holders of Bearer Notes in accordance with this Condition.
14.
Currency Indemnity
Any amount received or recovered in a currency other than the currency in which payment
under the relevant Note, Coupon or Receipt is due (whether as a result of, or of the enforcement
of, a judgment or order of a court of any jurisdiction, in the winding-up or dissolution of the Issuer
or otherwise) by any Noteholder or Couponholder in respect of any sum expressed to be due to it
76
SNA5-5.2.2
from the Issuer shall only constitute a discharge to the Issuer to the extent of the amount in the
currency of payment under the relevant Note, Coupon or Receipt that the recipient is able to
purchase with the amount so received or recovered in that other currency on the date of that
receipt or recovery (or, if it is not practicable to make that purchase on that date, on the first date
on which it is practicable to do so). If the amount received or recovered is less than the amount
expressed to be due to the recipient under any Note, Coupon or Receipt, the Issuer shall indemnify
it against any loss sustained by it as a result. In any event, the Issuer shall indemnify the recipient
against the cost of making any such purchase. For the purposes of this Condition, it shall be
sufficient for the Noteholder or Couponholder, as the case may be, to demonstrate that it would
have suffered a loss had an actual purchase been made. These indemnities constitute a separate
and independent obligation from the Issuer’s other obligations, shall give rise to a separate and
independent cause of action, shall apply irrespective of any indulgence granted by any Noteholder
or Couponholder and shall continue in full force and effect despite any other judgment, order, claim
or proof for a liquidated amount in respect of any sum due under any Note, Coupon or Receipt or
any other judgment or order.
15.
(a)
Governing Law:
SNA12-4.1.3
with, the laws of Luxembourg.
(b)
Jurisdiction:
The courts of Luxembourg are to have jurisdiction to settle any disputes that may arise out of or
in connection with any Notes, Receipts, Coupons or Talons and accordingly any legal action or
proceedings arising out of or in connection with any Notes, Receipts, Coupons or Talons
(“Proceedings”) may be brought in such courts. The Issuer irrevocably submits to the jurisdiction of the
courts of Luxembourg and waives any objection to Proceedings in such courts on the ground of venue
or on the ground that the Proceedings have been brought in an inconvenient forum. This submission is
made for the benefit of each of the holders of the Notes, Receipts, Coupons and Talons.
77
SNA5-4.2
TERMS AND CONDITIONS OF THE CERTIFICATES
The following is the text of the Conditions that, subject to completion and amendment and as
supplemented or varied in accordance with the Terms set out in the relevant Final Terms for the
Certificates, shall be applicable to the Certificates. Either (i) the full text of these Conditions together
with the relevant provisions of the Final Terms for the Certificates or (ii) these Conditions as so
completed, amended, supplemented or varied (and subject to simplification by the deletion of nonapplicable provisions), shall be endorsed on such Certificates. All capitalised terms that are not
defined in these Conditions will have the meanings given to them in the relevant Final Terms for the
Certificates which shall be endorsed on the Certificates.
The Certificates are issued under the Programme of the Issuer for the issue of Euro Medium
Term Notes, Certificates and Warrants. Unless otherwise specified in the relevant Global Certificate
and Final Terms for the Certificates for the Certificates (as defined below), the Certificates of this
series (such Certificates being hereinafter referred to as the “Certificates”) are represented by one
or more global securities (each a “Global Certificate”).
Notes (the “Issue Date”) (the “Agency Agreement”) dated 3 April, 2009 between the Issuer acting
through its head office or through Dexia Banque Internationale à Luxembourg, société anonyme
Singapore Branch and the other agents named in it, has been entered into in relation to the
Certificates. The fiscal agent, the paying agents, the registrars, the transfer agents and the
calculation agent(s) for the time being (if any) are referred to below respectively as the “Fiscal
Agent”, the “Paying Agents” (which expression shall include the Fiscal Agent), the “Registrars”, the
“Transfer Agents” and the “Calculation Agent(s)”. The Certificateholders (as defined below), the
holders of the interest coupons (the “Coupons”) relating to interest bearing Certificates in bearer
form and, where applicable in the case of such Certificates, talons for further Coupons (the
“Talons”) (the “Couponholders”) and the holders of the receipts for the payment of instalments of
principal (the “Receipts”) relating to Certificates in bearer form of which the principal is payable in
instalments are deemed to have notice of all of the provisions of the Agency Agreement applicable
to them.
References in these Conditions to “Calculation Agent” are to the Calculation Agent (if any)
appointed in relation to the Certificates and specified in the Final Terms for the Certificates.
Each Global Certificate in CGN form has been deposited with a depositary (“Common
Depositary”) common to Euroclear Bank S.A./N.V. (“Euroclear”) and Clearstream Banking, société
anonyme (“Clearstream, Luxembourg”). Each Global Certificate in NGN form has been delivered to
a common safekeeper (“Common Safekeeper”) for Euroclear and Clearstream, Luxembourg. If so
specified in the applicable Final Terms for the Certificates, and for the purpose of allowing clearing
of Certificates in alternative systems, any series of Certificates may be issued in registered and
uncertificated form (“Certificates in Registered Form”) in accordance with all applicable laws of the
relevant jurisdiction of such alternative clearing system and the rules and regulations of such
alternative clearing system or any nominee thereof (“Local Clearing System Rules”).
In the event that both Euroclear and Clearstream, Luxembourg are closed for business for a
continuous period of 14 days (other than by reason of holiday, statutory or otherwise), and no
alternative clearing system satisfactory to the Issuer is available (i) Certificates in Registered Form
will be exchangeable in whole but not in part (free of charge to the Certificateholders) for definitive
certificates (“Registered Certificates”) in registered form and in which case the Issuer will deliver, or
arrange delivery of, Registered Certificates (in registered form), serially numbered to the
Certificateholders; or (ii) certificates represented by a permanent global certificate (“Permanent
Global Certificate”) will be exchangeable in whole but not in part (free of charge to the
Certificateholders) for definitive certificates (“Definitive Bearer Certificates” and together with the
Registered Certificates, the “Definitive Certificates”) in bearer form and in which the Issuer will
deliver, or arrange delivery of, Definitive Bearer Certificates in bearer form, serially numbered to the
Certificateholders. In such event, the Issuer shall give notice to the Certificateholders of such
additional terms that the Issuer considers appropriate in respect of the transfers of such Definitive
Certificates, the procedures and time for exercise and payment and/or delivery thereof or thereon
and such other matters as it deems necessary.
78
SNA12-4.1.7
SNA12-5.1.1
SNA5-4.6
SNA5-5.1.1
1.
Type, Title and Transfer
(a)
Type
SNA12-4.1.1
The Certificates are issued in bearer form (“Bearer Certificates”, which expression includes
Certificates that are specified to be Exchangeable Bearer Certificates), in registered form or in
bearer form exchangeable for Registered Certificates (“Exchangeable Bearer Certificates”) in each
case in the Specified Denomination(s) shown hereon.
Bearer Certificates are serially numbered and are issued with Coupons (and, where
appropriate, a Talon) attached.
The Certificates are Index Linked Certificates, Share Linked Certificates, Debt Linked
Certificates, Currency Linked Certificates, Commodity Linked Certificates, Interest Rate Linked
Certificates, Fund Linked Certificates or any other or further type of Certificates as is specified in
the applicable Final Terms for the Certificates or any combination thereof.
The applicable Final Terms for the Certificates will specify whether Certificates allow holders
to elect for redemption by way of cash payment or by way of physical delivery or by such other
settlement as specified in the applicable Final Terms for the Certificates. Certificates where the
holder has elected for cash payment will be “Cash Settled Certificates” and those Certificates
where the holder has elected for physical delivery will be “Physical Delivery Certificates”.
References in these Conditions, unless the context otherwise requires, to Cash Settled
Certificates shall be deemed to include references to Physical Delivery Certificates which include an
option (as set out in the applicable Final Terms for the Certificates) at the Issuer’s election to require
cash settlement of such Certificates and where Settlement is to be by way of cash. References in
these Conditions, unless the context otherwise requires, to Physical Delivery Certificates shall be
deemed to include references to Cash Settled Certificates which include an option (as set out in the
applicable Final Terms for the Certificates) at the Issuer’s election to request physical delivery of the
relevant underlying asset in settlement of such Certificate and where settlement is to be made by
way of physical delivery.
(b)
Title
Each person who is for the time being shown in the records of Euroclear or Clearstream,
Luxembourg as the holder of a particular amount of Certificates represented by a Global Certificate
(in which regard any certificate or other document issued by the Relevant Clearing System as to the
amount of Certificates standing to the account of any person shall be conclusive and binding for all
purposes, save in the case of manifest error) shall be, except as ordered by a court of competent
jurisdiction or as required by law, deemed to be and may be treated as its absolute owner for all
purposes, whether or not it is overdue and regardless of any notice of ownership, trust or an
interest in it, any writing on it or its theft or loss and no person shall be liable for so treating such
holders (and the expressions “Certificateholder” and “holder of Certificates” and related expressions
shall be construed accordingly).
In the case of Registered Certificates, the Issuer shall cause to be kept at the specified office
of the Registrar a register (the “Register”) on which shall be entered the names and addresses of
all holders of Registered Certificates, the number and type of the Registered Certificates held by
them and details of all transfers of Registered Certificates. The persons shown in the Register (each
a “Certificateholder”) shall (except as otherwise required by law) be treated as the absolute owners
of the relevant Registered Certificates for all purposes (regardless of any notice of ownership, trust
or any interest in it, any writing on it, or its theft or loss) and no person will be liable for so treating
such person (and the expressions “Certificateholders” and “holder of Certificates” and related
expressions shall be construed accordingly).
In the case of Definitive Bearer Certificate and the Receipts, Coupons and Talons, title passes
by delivery and the bearer of such Definitive Bearer Certificate (each a “Certificateholder”) shall
(except as otherwise required by law) be treated as the absolute owner of the relevant Definitive
Bearer Certificate for all purposes (regardless of any notice of ownership, trust or any interest in it,
any writing on it, or its theft or loss) and no person will be liable for so treating such person (and
the expressions “Certificateholders” and “holder of Certificates” and related expressions shall be
construed accordingly).
79
SNA5-4.1
(c)
Transfers of Certificates
All transactions (including transfers of Certificates) in the open market or otherwise must be
effected through, in the case of Certificates represented by a Global Certificate, an account at
Euroclear or Clearstream, Luxembourg subject to and in accordance with the rules and procedures
for the time being of Euroclear or Clearstream, Luxembourg, as the case may be and title will pass
upon registration of the transfer in the books of Euroclear or Clearstream, Luxembourg, as the case
may be. Transfers of Physical Delivery Certificates may not be effected after delivery of an Asset
Transfer Notice relating to such Certificates pursuant to Condition 4(c).
One or more Certificates in Registered Form may be transferred upon the surrender (at the
specified office of the Registrar or any Transfer Agent) of such Certificates in Registered Form to be
transferred, together with the Asset Transfer Notice relating to such Certificates.
2.
Status
The Certificates represent unsubordinated and unsecured contractual obligations of the
Issuer. The Certificates rank equally among themselves and, save for such exceptions as may be
provided by applicable legislation, pari passu with all other unsecured and unsubordinated
obligations of the Issuer.
3.
Interest
(a)
Interest Amount
If so specified in the applicable Final Terms for the Certificates, each Certificate pays interest
from and including the Interest Commencement Date of the Certificates at the Interest Rate payable
in arrear on each Interest Payment Date.
The amount of interest payable in respect of each Certificate on each Interest Payment Date
will amount to the Interest Amount (as defined below) for the Interest Period (as defined below)
ending on (but excluding) such Interest Payment Date.
If so specified in the applicable Final Terms for the Certificates, the payment and/or accrual
of any interest may be subject to certain events or conditions having or not having occurred
(“Conditional Interest”).
If interest is required to be calculated for a period ending other than on (but excluding) an
Interest Payment Date, it will be calculated on the basis of the number of days from and including
the most recent Interest Payment Date (or, if none, the Issue Date of the Certificates) to but
excluding the relevant payment date, and the relevant interest rate day count fraction as specified
in the applicable Final Terms for the Certificates (the “Interest Rate Day Count Fraction”).
Such Interest Rate and/or Interest Amount may be a fixed nominal interest rate (“Fixed Rate
Certificates”) or floating interest rate (“Floating Rate Certificates”) or it may be determined by
reference to, and the application of such Interest Rate and/or the payment of such Interest Amount
may be limited or affected by, the performance of an Index, a Share, a Debt Security, a Commodity,
an Inflation Index or any other underlying security or any combination thereof in the manner
specified in the applicable Final Terms for the Certificates (“Interest Indexed Certificates”) and, for
avoidance of doubt, the provisions in these Conditions relating to such Index, Share, Debt Security,
Commodity, Inflation Index or the other underlying security shall apply mutatis mutandis in the
manner specified in the applicable Final Terms for the Certificates.
(b)
Accrual of Interest
Unless otherwise provided in the applicable Final Terms for the Certificates, each Certificate
will cease to accrue interest from and including its due date for redemption unless payment of the
amount and/or delivery of any Entitlement due on redemption is improperly withheld or refused or
unless default is otherwise made in respect of the payment or delivery in which case interest shall
continue to accrue from the date such amount or delivery of such Entitlement was due until such
amount or delivery of such Entitlement is paid or delivered, as the case may be. For the avoidance
of doubt, no interest on the Certificates shall accrue beyond the Redemption Date (as defined
below) in the event that delivery of any Entitlement is postponed due to the occurrence of a
Settlement Disruption Event.
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SNA12-4.1.6
SNA5-4.5
(c)
Business Day Convention
If any date referred to in these Conditions that is specified to be subject to adjustment in
accordance with a Business Day Convention would otherwise fall on a day which is not a Business
Day, then, if the Business Day Convention specified is (i) the Floating Rate Business Day
Convention, such date shall be postponed to the next day that is a Business Day unless it would
thereby fall into the next calendar month, in which event (A) such date shall be brought forward to
the immediately preceding Business Day and (B) each subsequent such date shall be the last
Business Day of the month in which such date would have fallen had it not been subject to
adjustment, (ii) the Following Business Day Convention, such date shall be postponed to the next
day which is a Business Day, (iii) the Modified Following Business Day Convention, such date shall
be postponed to the next day which is a Business Day unless it would thereby fall into the next
calendar month, in which event such date shall be brought forward to the immediately preceding
Business Day or (iv) the Preceding Business Day Convention, such date shall be brought forward to
the immediately preceding Business Day.
(d)
Interest Rate on Floating Rate Certificates
The Interest Rate in respect of Floating Rate Certificates for each Interest Accrual Period shall
be determined in the manner specified in the applicable Final Terms for the Certificates and, except
as otherwise specified in the relevant Final Terms for the Certificates, the provisions below relating
to either ISDA Determination or Screen Rate Determination shall apply, depending upon which is
specified hereon.
(x)
ISDA Determination for Floating Rate Certificates
Where ISDA Determination is specified in the applicable Final Terms for the
Certificates as the manner in which the Interest Rate is to be determined, the
Interest Rate for each Interest Accrual Period shall be determined by the
Calculation Agent as a rate equal to the relevant ISDA Rate. For the purposes of
this sub-paragraph (x), “ISDA Rate” for an Interest Accrual Period means a rate
equal to the Floating Rate that would be determined by the Calculation Agent
under a Swap Transaction under the terms of an agreement incorporating the
ISDA Definitions (as defined below) and under which:
(i)
the Floating Rate Option is as specified in the applicable Final Terms for
the Certificates;
(ii)
the Designated Maturity is a period specified in the applicable Final Terms
for the Certificates; and
(iii)
the relevant Reset Date is the first day of that Interest Accrual Period,
unless otherwise specified in the applicable Final Terms for the
Certificates.
For the purposes of this sub-paragraph (x), “Floating Rate”, “Calculation Agent”,
“Floating Rate Option”, “Designated Maturity”, “Reset Date” and “Swap
Transaction” have the meanings given to those terms in the ISDA Definitions.
(y)
Screen Rate Determination for Floating Rate Certificates
(i)
Where Screen Rate Determination is specified in the applicable Final Terms
for the Certificates as the manner in which the Interest Rate is to be
determined, the Interest Rate for each Interest Accrual Period will, subject
as provided below, be either:
(a)
(b)
81
is specified hereon as being other than LIBOR or EURIBOR, the Rate of
Interest in respect of such Notes will be determined as provided in the
(ii)
if the Relevant Screen Page is not available or, if sub-paragraph (i)(a)
applies and no such offered quotation appears on the Relevant Screen
Page, or, if sub-paragraph (i)(b) above applies and fewer than three such
offered quotations appear on the Relevant Screen Page, in each case as
at the time specified above, subject as provided below, the Calculation
Agent shall request, if the Relevant Rate is LIBOR, the principal London
Interest Rates for such Interest Accrual Period shall be the arithmetic mean
of such offered quotations as determined by the Calculation Agent; and
(iii)
if paragraph (ii) above applies and the Calculation Agent determines that
fewer than two Reference Banks are providing offered quotations, then,
subject as provided below, the Interest Rate shall be the arithmetic mean
of the rates per annum (expressed as a percentage) as communicated to
(and at the request of) the Calculation Agent by the Reference Banks or
any two or more of them, at which such banks were offered, if the
Reference Rate is LIBOR, at approximately 11.00 a.m. (London time) or, if
the Reference Rate is EURIBOR, at approximately 11.00 a.m. (Brussels
time) on the relevant Interest Determination Date, deposits in the Specified
Currency for a period equal to that which would have been used for the
Reference Rate by leading banks in, if the Reference Rate is LIBOR, the
London inter-bank market or, if the Reference Rate is EURIBOR, the Eurozone inter-bank market, as the case may be, or, if fewer than two of the
Reference Banks provide the Calculation Agent with such offered rates,
the offered rate for deposits in the Specified Currency for a period equal
to that which would have been used for the Reference Rate, or the
arithmetic mean of the offered rates for deposits in the Specified Currency
for a period equal to that which would have been used for the Reference
Rate, at which, if the Reference Rate is LIBOR, at approximately 11.00
a.m. (London time) or, if the Reference Rate is EURIBOR, at approximately
11.00 a.m. (Brussels time), on the relevant Interest Determination Date, any
one or more banks (which bank or banks is or are in the opinion of the
Trustee and the Issuer suitable for such purpose) informs the Calculation
Agent it is quoting to leading banks in, if the Reference Rate is LIBOR, the
London inter-bank market or, if the Reference Rate is EURIBOR, the Eurozone inter-bank market, as the case may be, provided that, if the Rate of
Interest cannot be determined in accordance with the foregoing provisions
of this paragraph, the Rate of Interest shall be determined as at the last
preceding Interest Determination Date (though substituting, where a
different Margin or Maximum or Minimum Rate of Interest is to be applied
to the relevant Interest Accrual Period from that which applied to the last
preceding Interest Accrual Period, the Margin or Maximum or Minimum
Rate of Interest relating to the relevant Interest Accrual Period, in place of
the Margin or Maximum or Minimum Rate of Interest relating to that last
preceding Interest Accrual Period).
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(e)
(f)
Margin, Maximum/Minimum Interest Rates and Rounding
(i)
If any Margin is specified (either (x) generally, or (y) in relation to one or more
Interest Accrual Periods), an adjustment shall be made to all Interest Rates, in
the case of (x), or the Interest Rates for the specified Interest Accrual Periods, in
the case of (y), calculated in accordance with (iii) below by adding (if a positive
number) or subtracting the absolute value (if a negative number) of such Margin,
subject always to the next paragraph.
(ii)
If any Maximum or Minimum Interest Rate is specified hereon, then any Interest
Rate, shall be subject to such maximum or minimum, as the case may be.
(iii)
For the purposes of any calculations required pursuant to these Conditions
(unless otherwise specified), (x) all percentages resulting from such calculations
shall be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point (with halves being rounded up), (y) all figures will be rounded to
seven significant figures (with halves being rounded up) and (z) all currency
amounts that fall due and payable shall be rounded to the nearest unit of such
currency (with halves being rounded up), save in the case of yen, which shall be
rounded down to the nearest yen. For these purposes “unit” means the lowest
amount of such currency which is available as legal tender in the country or
countries of such currency and with respect to the euro, means 0.01 euro.
Calculations
The amount of interest payable in respect of any Certificate for any Interest Accrual Period
shall be equal to the product of the Interest Rate, the Nominal Amount of such Certificate and the
Day Count Fraction for such Interest Accrual Period, unless an Interest Amount (or a formula for its
calculation) is applicable to such Interest Accrual Period, in which case the amount of interest
payable in respect of such Certificate for such Interest Accrual Period shall equal such Interest
Amount (or be calculated in accordance with such formula). Where any Interest Period comprises
two or more Interest Accrual Periods, the amount of interest payable in respect of such Interest
Period shall be the sum of the Interest Amount payable in respect of each of those Interest Accrual
Periods. In respect of any other period for which interest is required to be calculated, the provisions
above shall apply save that the Day Count Fraction shall be for the period for which interest is
required to be calculated.
(g)
Determination and Publication of Interest Rates and Interest Amounts
The Calculation Agent shall, as soon as practicable on each Interest Determination Date or
such other time on such date as the Calculation Agent may be required to obtain any quote or make
any determination or calculation, determine the Interest Rate and calculate the relevant Interest
Amounts for the relevant Interest Accrual Period, obtain such quote or make such determination or
calculation, as the case may be, and cause the Interest Rate and the Interest Amount for each
Interest Accrual Period and the relevant Interest Payment Date to be notified to the Fiscal Agent and
the Issuer, the Certificateholders, and, if the Certificates are listed on a stock exchange and the rules
of such exchange so require, such exchange as soon as possible after their determination but in no
event later than (i) the commencement of the relevant Interest Period, if determined prior to such
time, in the case of notification to such stock exchange of an Interest Rate and Interest Amount, or
(ii) in all other cases, the fourth Business Day after such determination. Where any Interest Payment
Date or Interest Period Date is subject to adjustment pursuant to Condition 3(c), the Interest
Amounts and the Interest Payment Date so published may subsequently be amended (or appropriate
alternative arrangements made by way of adjustment) without notice in the event of an extension or
shortening of the Interest Period. The determination of each Interest Rate and Interest Amount, the
obtaining of each quote and the making of each determination or calculation by the Calculation
Agent shall (in the absence of manifest error) be final and binding upon all parties.
(h)
Definitions
Unless otherwise provided in the applicable Final Terms for the Certificates:
(i)
in the case of a specified currency other than euro, a day (other than a Saturday
or Sunday) on which commercial banks and foreign exchange markets settle
payments in the principal financial centre for that currency; and/or
83
(ii)
in the case of euro, a day on which the TARGET System is operating (a “TARGET
Business Day”); and/ or
(iii)
in the case of a specified currency and/or one or more specified financial
centres, a day (other than a Saturday or a Sunday) on which commercial banks
and foreign exchange markets settle payments in the specified currency in the
specified financial centre(s) or, if none is specified, generally in each of the
Business Centres so specified, and/or
(iv)
a day on which relevant clearing system(s) are operating.
“Day Count Fraction” means, in respect of the calculation of an amount of interest on
any Certificate for any period of time (from, and including, the first day of such period
to, but excluding the last) (whether or not constituting an Interest Period or an Interest
Accrual Period, the “Calculation Period”):
(i)
if “Actual/365” or “Actual/Actual-ISDA” is specified in the applicable Final Terms
for the Certificates, the actual number of days in the Calculation Period divided
by 365 (or, if any portion of that Calculation Period falls in a leap year, the sum
of (A) the actual number of days in that portion of the Calculation Period falling
in a leap year divided by 366 and (B) the actual number of days in that portion
of the Calculation Period falling in a non-leap year divided by 365);
(ii)
if “Actual/Actual-ICMA” is specified in the applicable Final Terms for the
Certificates,
(a)
if the Calculation Period is equal to or shorter than the Determination
Period during which it falls, the number of days in the Calculation Period
divided by the product of (x) the number of days in such Determination
Period and (y) the number of Determination Periods normally ending in any
year; and
(b)
if the Calculation Period is longer than one Determination Period, the sum
of:
(x)
the number of days in such Calculation Period falling in the Determination
Period in which it begins divided by the product of (1) the number of days
in such Determination Period and (2) the number of Determination Periods
normally ending in any year; and
(y)
the number of days in such Calculation Period falling in the next
Determination Period divided by the product of (1) the number of days in
such Determination Period and (2) the number of Determination Periods
normally ending in any year,
where
“Determination Period” means the period from, and including, a
Determination Date in any year to, but excluding, the next Determination
Date; and
“Determination Date” means the date specified as such hereon or, if none
is so specified, the Interest Payment Date;
(iii)
if “Actual/365 (Fixed)” is specified in the applicable Final Terms for the
Certificates, the actual number of days in the Calculation Period divided by 365;
(iv)
if “Actual/360” is specified in the applicable Final Terms for the Certificates, the
actual number of days in the Calculation Period divided by 360;
(v)
if “30/360”, “360/360” or “Bond Basis” is specified in the applicable Final Terms
for the Certificates, the number of days in the Calculation Period divided by 360
(the number of days to be calculated on the basis of a year of 360 days with
twelve 30-day months (unless (a) the last day of the Calculation Period is the
31st day of a month but the first day of the Calculation Period is a day other
than the 30th or 31st day of a month, in which case the month that includes that
last day shall not be considered to be shortened to a 30-day month, or (b) the
84
last day of the Calculation Period is the last day of the month of February, in
which case the month of February shall not be considered to be lengthened to a
30-day month)); and
(vi)
if “30E/360” or “Eurobond Basis” is specified in the applicable Final Terms for
the Certificates, the number of days in the Calculation Period divided by 360 (the
number of days to be calculated on the basis of a year of 360 days with twelve
30-day months, without regard to the date of the first day or last day of the
Calculation Period unless, in the case of a Calculation Period ending on the
Redemption Date, the Redemption Date is the last day of the month of February,
in which case the month of February shall not be considered to be lengthened to
a 30-day month).
“Effective Date” means, with respect to any Floating Rate to be determined on an
Interest Determination Date, the date specified as such in the applicable Final Terms for
the Certificates or, if none is so specified, the first day of the Interest Accrual Period to
which such Interest Determination Date relates. The Effective Date shall not be subject
to adjustment in accordance with any Business Day Convention unless specifically
provided in the relevant Final Terms for the Certificates.
adopt or have adopted the single currency in accordance with the Treaty establishing
the European Community, as amended.
“Interest Amount” means:
(i)
in respect of an Interest Accrual Period, the amount of interest payable in
respect of each Certificate for that Interest Accrual Period; and
(ii)
in respect of any other period, the amount of interest payable in respect of each
Certificate for that period.
specified in the applicable Final Terms for the Certificates.
“Interest Determination Date” means, with respect to an Interest Rate and Interest
Accrual Period, the date specified as such in the applicable Final Terms for the
Certificates or, if none is so specified, (i) the first day of such Interest Accrual Period if
the Relevant Currency is Sterling or (ii) the day falling two Business Days in London for
the Relevant Currency prior to the first day of such Interest Accrual Period if the
Relevant Currency is neither Sterling nor euro or (iii) the day falling two TARGET
Business Days prior to the first day of such Interest Accrual Period if the Relevant
Currency is euro.
“Interest Payment Date” means, in respect of each Certificate, the dates specified in
the applicable Final Terms for the Certificates for the payment of interest.
“Interest Period Date” means each Interest Payment Date unless otherwise specified in
the applicable Final Terms for the Certificates.
“Interest Rate” means the rate of interest payable from time to time in respect of the
Certificates and that is either specified or calculated in accordance with the provisions
in the applicable Final Terms for the Certificates.
“ISDA Definitions” means the 2006 ISDA Definitions, as published by the International
Swaps and Derivatives Association, Inc., unless otherwise specified in the applicable
Final Terms for the Certificates.
85
specified in the applicable Final Terms for the Certificates.
“Reference Rate” means the rate specified as such in the applicable Final Terms for the
Certificates.
“Relevant Currency” means the currency specified as such in the applicable Final
Terms for the Certificates or, if none is specified, the currency in which the Certificates
are denominated.
particular information service as may be specified in the applicable Final Terms for the
Certificates.
4.
Redemption, Payment and Physical Delivery
(a)
Redemption
Subject as provided in these Conditions and as specified in the applicable Final Terms for the
Certificates, each Certificate will be redeemed by the Issuer:
(i)
in the case of a Cash Settled Certificate, by payment of the Redemption Amount
as calculated as set out in the applicable Final Terms for the Certificates; or
(ii)
in the case of a Physical Delivery Certificate, subject as provided in this
Condition 4, by delivery of the Entitlement,
such redemption to occur in either case, subject as provided below, on such date as is
specified in the applicable Final Terms for the Certificates relating to such Certificate (the
“Redemption Date”). If, in respect of any redemption of a Certificate pursuant to this
Condition 4, (i) the date for payment of any amount in respect of the Certificates is not a
Business Day, the holder thereof shall not be entitled to payment until the next following
Business Day and shall not be entitled to any further payment in respect of such delay or (ii)
the date for delivery of any Entitlement in respect of the Certificates is not a Settlement
Business Day (as defined below), the Holder thereof shall not be entitled to delivery of the
Entitlement until the next following Settlement Business Day.
(b)
Automatic Early Redemption Event
If the applicable Final Terms for the Certificates specify that an Automatic Early Redemption
Event is applicable to the Certificates, then the Certificates may also be subject to automatic early
redemption on the Automatic Early Redemption Date upon the occurrence of such Automatic Early
Redemption Event as provided in the applicable Final Terms for the Certificates.
(c)
Issuer Call Option
If Issuer Call Option is specified in the applicable Final Terms for the Certificates, the Issuer
may, having given:
(i)
not less than 15 nor more than 30 days’ notice to the Certificateholders in
accordance with Condition 10; and
(ii)
not less than 15 days before the giving of the notice referred to in (i), notice to
the Paying Agent,
(which notices shall be irrevocable and shall specify the date fixed for redemption), redeem
all or some only of the Certificates then outstanding on any date fixed for redemption as
specified in the applicable Final Terms for the Certificates (an “Optional Redemption Date”)
and at an amount specified in, or determined in the manner specified in, the applicable Final
Terms for the Certificates (the “Optional Redemption Amount”) together, if appropriate, with
interest accrued to (but excluding) the relevant Optional Redemption Date.
86
SNA12-4.1.12
In the case of a partial redemption, the rights of Certificateholders represented by a Global
Certificate will, unless otherwise provided in the applicable Final Terms for the Certificates, be
governed by the standard procedures of Euroclear and/or Clearstream Luxembourg (to be
reflected in the records of Euroclear and Clearstream, Luxembourg as either a pool factor or
a reduction in nominal amount, at their discretion), or any Relevant Clearing System (as the
case may be).
(d)
Certificateholder Put Option
If a Certificateholder Put Option is specified in the applicable Final Terms for the Certificates,
upon the Certificateholder giving to the Issuer not less than 15 nor more than 30 days’ notice the
Issuer will, upon the expiry of such notice, redeem, subject to, and in accordance with, the terms
specified in the applicable Final Terms for the Certificates, in whole (but not in part), such Certificate
on the date fixed for redemption in the applicable Final Terms for the Certificates (the “Optional
Redemption Date”) and at an amount specified in, or determined in the manner specified in the
applicable Final Terms for the Certificates (the “Optional Redemption Amount” together, if
appropriate, with interest accrued to (but excluding) the Optional Redemption Date (each date and
amount as defined in the applicable Final Terms for the Certificates).
If the Certificate is held outside Euroclear and Clearstream, Luxembourg and/or any other
Relevant Clearing System, to exercise the right to require redemption of the Certificate, the
Certificateholder must deliver at the specified office of the Registrar or, as the case may be, the
Paying Agent at any time during normal business hours of such Registrar or Paying Agent falling
within the notice period, a duly completed and signed notice of exercise in the form (for the time
being current) obtainable from any specified office of the Registrar or the Paying Agent (a “Put
Notice”) and in which the Certificateholder must specify a bank account (or, if payment is required
to be made by cheque, an address) to which payment is to be made under this Condition 4(d),
accompanied by the Certificate or evidence satisfactory to the Registrar or the Paying Agent
concerned that the Certificate will, following delivery of the Put Notice, be held to its order or under
its control in a manner reasonably satisfactory to the Registrar or the Paying Agent concerned. If
the Certificate is held through Euroclear or Clearstream, Luxembourg and/or any other Relevant
Clearing System, to exercise the right to require redemption of the Certificate, the Certificateholder
must, within the notice period, give notice to the Registrar or the Paying Agent concerned of such
exercise in accordance with the standard procedures of Euroclear and Clearstream, Luxembourg
and/or any other Relevant Clearing System (which may include notice being given on his instruction
by Euroclear or Clearstream, Luxembourg and/or any other Relevant Clearing System or any
common depositary for them to the Registrar or the Paying Agent by electronic means) in a form
acceptable to Euroclear and Clearstream, Luxembourg and/or any other Relevant Clearing System
from time to time and, if the Certificate is represented by a Global Certificate in CGN form, at the
same time present or procure the presentation of the relevant Global Certificate to the relevant
Agent for notation accordingly. Where the Global Certificate is in NGN form, the Issuer shall procure
that details of such exercise shall be entered pro rata in the records of the Relevant Clearing
System and the nominal amount of the Certificates recorded in those records will be reduced
accordingly. Any Put Notice given by a Certificateholder of any Certificate pursuant to this
Condition 4 shall be irrevocable.
(e)
Payments
Subject as provided below, the Issuer shall pay or cause to be paid the Redemption Amount,
the Optional Redemption Amount or, as the case may be, the Automatic Early Redemption Amount
(if any) less any Expenses for each Certificate by credit or transfer to the holder’s account with the
Relevant Clearing System for value on the Redemption Date, the Optional Redemption Date or, as
the case may be the Automatic Early Redemption Date, such payment to be made in accordance
with the rules of such Clearing System.
The Issuer will be discharged by payment to, or to the order of, the Relevant Clearing System
in respect of the amount so paid. Each of the persons shown in the records of the Relevant
Clearing System as the holder of a particular amount of the Certificates must look solely to the
Relevant Clearing System for his share of each such payment so made to, or to the order of, such
Clearing System.
Payments will be subject in all cases to any fiscal or other laws and regulations applicable
thereto in the place of payment.
87
(f)
Physical Delivery
(i)
Asset Transfer Notices
In relation to Physical Delivery Certificates, in order to obtain delivery of the
Entitlement(s) in respect of any Certificate, the relevant holder must deliver to Euroclear
or Clearstream, Luxembourg, as the case may be, or, not later than 10.00 a.m.
Brussels or Luxembourg time (as appropriate) with a copy to the Transfer Agent not
later than 10.00 a.m. (Luxembourg time), the Optional Redemption Date on the date
(the “Cut-Off Date”) falling three Business Days prior to the Redemption Date or, as the
case may be the Automatic Early Redemption Date, a duly completed asset transfer
notice (an “Asset Transfer Notice”) in the form set out in Schedule 12 of the Agency
Agreement in accordance with the provisions set out in this Condition 4.
In the case of Global Certificates, an Asset Transfer Notice may only be delivered in
such manner as is acceptable to the Relevant Clearing System which is expected to be
by authenticated SWIFT message or tested telex.
(ii)
In the case of Global Certificates, the Asset Transfer Notice shall:
(A)
specify the name(s) of the Certificateholder(s) holding the Certificates;
(B)
specify the address(es) of the Certificateholder(s) holding the Certificates;
(C)
specify the series number of the Certificates;
(D)
specify the number of Certificates which are the subject of such Notice;
(E)
in the case of Certificates represented by a Global Certificate:
(I)
specify the number of the Certificateholder’s account at Euroclear
or Clearstream, Luxembourg, as the case may be, to be debited
with the Certificates which are the subject of such Notice; and
(II)
irrevocably instruct Euroclear or Clearstream, Luxembourg, as the
case may be, to debit on or before the Redemption Date, the
Optional Redemption Date, or, as the case may be, the Automatic
Early Redemption Date the Certificateholder’s account with the
Certificates which are the subject of such Notice;
(F)
include an undertaking to pay all costs, taxes, duties and/or expenses
including any applicable depositary charges, transaction or exercise
charges, stamp duty, stamp duty reserve tax, issue, registration, securities
transfer and/or other taxes or duties arising from the delivery or transfer of
the Entitlement pursuant to the terms of such Certificates (“Expenses”),
and in the case of Certificates represented by a Global Certificate, an
authority to Euroclear or Clearstream, Luxembourg to debit a specified
account of the Certificateholder at Euroclear or Clearstream, Luxembourg,
as the case may be, in respect thereof and to pay such Expenses to the
Issuer or as it may direct;
(G)
include such details as are required by the applicable Final Terms for the
Certificates for delivery of the Entitlement which may include account
details and/or the name and address of any person(s) into whose name
evidence of Entitlement is to be registered and/or any bank, broker or
agent to whom documents evidencing the Entitlement are to be delivered
and in the case of Certificates represented by a Global Certificate, specify
the name and the number of the Certificateholder’s account with Euroclear
or Clearstream, Luxembourg to be credited with any cash payable by the
Issuer, either in respect of any cash amount constituting the Entitlement or
any dividends relating to the Entitlement or as a result of the occurrence of
a Settlement Disruption Event or a Failure to Deliver due to Illiquidity and
the Issuer electing to pay the Disruption Cash Settlement Amount, the
Alternative Cash Settlement Amount or the Failure to Deliver Settlement
Amount;
88
(g)
(H)
include an undertaking to indemnify the Issuer and the Agents in respect
of their respective losses in respect of any transfer or attempt to transfer
such Certificates in or following the delivery of such Asset Transfer Notice;
(I)
in the case of Currency Linked Certificates only and, in the case of
Certificates represented by a Global Certificate, specify the number of the
Certificateholder’s account at Euroclear or Clearstream, Luxembourg to be
credited with the amount due upon redemption of the Certificates;
(J)
certify, where appropriate, that the beneficial owner of each Certificate
which are the subject of such Notice is not a U.S. person (as defined in
the Asset Transfer Notice) the Certificate is not being exercised in the
United States or on behalf of a U.S. person and no cash has been or will
be redeemed within the United States or on behalf of a U.S. person; and
(K)
authorise the production of such Asset Transfer Notice in any applicable
administrative or legal proceedings.
Verification of the Certificateholder
To the extent that the relevant rules and procedures of the Relevant Clearing System so
provide, upon receipt of an Asset Transfer Notice, the Relevant Clearing System shall verify that the
person delivering such notice is the holder of the Certificates described therein according to the
records of the Relevant Clearing System. Subject thereto, and by 10.00 a.m. (Luxembourg time) on
the Redemption Date, the Optional Redemption Date or, as the case may be, the Automatic Early
Redemption Date, the Relevant Clearing System or the Registrar, as the case may be, will confirm
by tested telex (or such other method as may be agreed from time to time) to the Transfer Agent
the series number and number of Certificates the subject of such notice, the name and address of
the person or bank or broker to whom the Entitlement is to be transferred and, if applicable, the
name and address of the person or bank or broker to whom the documents evidencing the
Entitlement are to be delivered. Upon receipt of such confirmation, the Transfer Agent will inform
the Issuer thereof.
The Relevant Clearing System will on or before the Redemption Date, the Optional
Redemption Date or, as the case may be, the Automatic Early Redemption Date, debit the account
of the relevant Certificateholder with the Certificates being redeemed.
(h)
Physical Settlement
Subject to payment of any Expenses, the Issuer shall on the Redemption Date, the Optional
Redemption Date or, as the case may be, the Automatic Early Redemption Date, (subject as
provided in Condition 4(a) above) deliver, or procure delivery on its behalf, the Entitlement to or to
the order of the Certificateholder as specified in the Asset Transfer Notice together with any
documents evidencing the Entitlement (if any). The Entitlement shall be evidenced by customary
documents of title in respect of the Relevant Asset, details of which are set out in the applicable
Final Terms for the Certificates.
(i)
Determinations
Any determination as to whether an Asset Transfer Notice is duly completed and in proper
form shall be made by the Relevant Clearing System or the Registrar, as the case may be, in
consultation with the Transfer Agent and shall be conclusive and binding on the Issuer, the Agents
and the relevant Certificateholder. Subject as set out below, if (i) the number of Certificates
specified in an Asset Transfer Notice exceeds the number of Certificates held in the relevant
account or (ii) any Asset Transfer Notice is determined to be incomplete or not in proper form, or is
not copied to the Transfer Agent immediately after being delivered or sent to the Relevant Clearing
System or Registrar, as the case may be, as provided in paragraph (c) above, such Asset Transfer
Notice shall be null and void.
If such Asset Transfer Notice is subsequently corrected to the satisfaction of the Relevant
Clearing System or the Registrar, as the case may be, in consultation with the Transfer Agent, or is
copied to the Transfer Agent, as the case may be, it shall be deemed to be a new Asset Transfer
Notice submitted at the time such correction was delivered to the Relevant Clearing System or the
Registrar, as the case may be, and the Transfer Agent or such time as the Asset Transfer Notice is
copied to the Transfer Agent, as the case may be.
89
The Relevant Clearing System or the Registrar, as the case may be, shall use its best efforts
promptly to notify the Certificateholder submitting an Asset Transfer Notice if, in consultation with
the Transfer Agent, it has determined that such Asset Transfer Notice is incomplete or not in proper
form. In the absence of negligence or wilful misconduct on its part, none of the Issuer, the Agents
and the Relevant Clearing System shall be liable to any person with respect to any action taken or
omitted to be taken by it in connection with such determination or the notification of such
determination to a Certificateholder.
(j)
Delivery of an Asset Transfer Notice
Delivery of an Asset Transfer Notice shall constitute an irrevocable election by the relevant
Certificateholder to receive the Entitlement in respect of the Certificates the subject of such notice.
After the delivery of such Asset Transfer Notice such Certificateholder may not otherwise transfer
such Certificates.
If any Certificateholder does so transfer or attempt to transfer such Certificates, such
Certificateholder will be liable to the Issuer for any losses, costs and expenses suffered or incurred
by the Issuer, including, without limitation, those suffered or incurred as a consequence of it having
terminated any related hedging operations in reliance on the relevant Asset Transfer Notice and
subsequently (i) entering into replacement hedging operations in respect of such Certificates or (ii)
paying any amount on the subsequent redemption of such Certificates without having entered into
any replacement hedging operations.
(k)
Delivery Risk
Delivery of the Entitlement in respect of any Physical Delivery Certificates is subject to all
applicable laws, regulations and practices in force on the relevant Redemption Date, the Optional
Redemption Date or, as the case may be, the Automatic Early Redemption Date and neither the
Issuer nor the Agents shall incur any liability whatsoever if it is unable to effect the transactions
contemplated, after using all reasonable efforts as a result of any such laws, regulations or
practices. Neither the Issuer nor any Dealer nor the Agents shall under any circumstances be liable
for any acts or defaults of the Relevant Clearing System in relation to the performance of their
duties in relation to the Certificates.
(l)
Settlement Disruption
(i)
SNA12-4.2.3
Settlement Disruption
If, in the opinion of the Calculation Agent, delivery of the Entitlement in respect of any
Physical Delivery Certificates using the method of delivery specified in the applicable
Final Terms for the Certificates is not practicable by reason of a Settlement Disruption
Event having occurred and continuing on any Redemption Date, the Optional
Redemption Date or, as the case may be, the Automatic Early Redemption Date, then
such Redemption Date, Optional Redemption Date or, as the case may be, the
Automatic Early Redemption Date, for such Certificates shall be postponed to the first
following Settlement Business Day in respect of which there is no such Settlement
Disruption Event PROVIDED THAT the Issuer may elect in its sole discretion to satisfy
its obligations in respect of the relevant Certificate by delivering the Entitlement using
such other commercially reasonable manner as it may select and in such event the
Redemption Date, the Optional Redemption Date or, as the case may be, the
Automatic Early Redemption Date, shall be such day as the Issuer deems appropriate
in connection with delivery of the Entitlement in such other commercially reasonable
manner. Where a Settlement Disruption Event affects some but not all of the Relevant
Assets comprising the Entitlement, the Redemption Date for the Relevant Assets not
affected by the Settlement Disruption Event will be the originally designated
Automatic Early Redemption Date. For so long as delivery of the Entitlement is not
practicable by reason of a Settlement Disruption Event, then in lieu of physical
settlement and notwithstanding any other provision hereof, the Issuer may elect in its
sole discretion to satisfy its obligations in respect of the relevant Certificate by payment
to the relevant Certificateholder of the Disruption Cash Settlement Amount on the third
Business Day following the date that notice of such election is given to the
Certificateholders in accordance with Condition 11. Payment of the Disruption Cash
Settlement Amount will be made in such manner as shall be notified to the
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Certificateholders in accordance with Condition 11. The Calculation Agent shall give
notice as soon as practicable to the Certificateholders in accordance with Condition 11
that a Settlement Disruption Event has occurred. No Certificateholder shall be entitled
to any payment in respect of the relevant Certificate in the event of any delay in the
delivery of the Entitlement due to the occurrence of a Settlement Disruption Event and
no liability in respect thereof shall attach to the Issuer.
(ii)
Failure to Deliver due to Illiquidity
If “Failure to Deliver due to Illiquidity” is specified as applicable in the applicable Final
Terms for the Certificates and following the exercise of Physical Delivery Certificates, in
the opinion of the Calculation Agent, it is impossible or impracticable to deliver, when
due, some or all of the Relevant Assets (the “Affected Relevant Assets”) comprising the
Entitlement, where such failure to deliver is due to illiquidity in the market for the
Relevant Assets, then:
(m)
(a)
subject as provided elsewhere in these Terms and Conditions as amended
by the applicable Final Terms for the Certificates, any Relevant Assets
which are not Affected Relevant Assets, will be delivered on the originally
designated Redemption Date, the Optional Redemption Date or, as the
case may be, the Automatic Early Redemption Date, in accordance with
Condition 4(m)(ii); and
(b)
in respect of any Affected Relevant Assets, in lieu of physical settlement
and notwithstanding any other provision hereof the Issuer may elect in its
sole discretion to satisfy its obligations in respect of the relevant
Certificate by payment to the relevant Certificateholder of the Failure to
Deliver Settlement Amount on the fifth Business Day following the date
that notice of such election is given to the Certificateholders in accordance
with Condition 11. Payment of the Failure to Deliver Settlement Amount
will be made in such manner as shall be notified to the Certificateholders
in accordance with Condition 11. The Calculation Agent shall give notice
as soon as practicable to the Certificateholders in accordance with
Condition 10 that the provisions of this Condition 4(m)(ii) apply.
Issuer’s Option to Vary Settlement
If the applicable Final Terms for the Certificates indicates that the Issuer has an option to vary
settlement in respect of the Physical Delivery Certificates, the Issuer may in its sole and absolute
discretion, in respect of each such Certificate, elect not to pay the relevant Certificateholders the
Redemption Amount, the Optional Redemption Amount or, as the case may be, the Automatic Early
Redemption Amount or to deliver or procure delivery of the Entitlement to the relevant
Certificateholders, as the case may be, but, in lieu thereof to deliver or procure delivery of the
Entitlement or make payment of the Alternative Cash Settlement Amount on the Redemption Date,
the Optional Redemption Date or, as the case may be, the Automatic Early Redemption Date to the
relevant Certificateholders, as the case may be. Notification of such election will be given to
Certificateholders no later than 10.00 a.m. (London time) on the second Business Day following the
Redemption Date, the Optional Redemption Date or, as the case may be, the Automatic Early
Redemption Date. In the event a Settlement Disruption Event had occurred or is continuing in the
period commencing on the Redemption Date, the Optional Redemption Date or, as the case may
be, the Automatic Early Redemption Date and ending on such second Business Day, notification of
such election may be postponed up to the earlier of (i) eight Business Days following the
Redemption Date so long as such Settlement Disruption Event is continuing, (ii) two Business Days
after the end of such Settlement Disruption Event, and (iii) one Business Day prior to the
Redemption Date (as may be adjusted in accordance with these Conditions in respect of such
Settlement Disruption Event).
(n)
SNA12-4.2.4
FX Disruption
(i)
Where the applicable Final Terms for the Certificates specifies that this Condition
4(n) is applicable and if the Calculation Agent determines that on any Valuation
Date an FX Disruption Event (as defined below) has occurred and is continuing,
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the date for determination of the FX Rate shall be postponed until the first
Business Day on which such FX Disruption Event ceases to exist (the “FX Date”),
provided that where on the tenth Business Day following the Valuation Date (the
“FX Cut-Off Date”) such FX Disruption Event continues to exist, the Issuer may
elect to terminate its obligations under the Certificate by (x) paying an amount in
a currency not subject to the FX Disruption Event; or (y) delivering or procuring
the delivery of an amount of Relevant Assets, to each Certificateholder the value
of which corresponds to the fair market value of each Certificate held by the
Certificateholder each as determined by the Calculation Agent in its sole and
absolute discretion.
(ii)
Where an FX Disruption Event occurs, the Redemption Date, the Optional
Redemption Date or, as the case may be, the Automatic Early Redemption Date,
in respect of the Certificates shall be postponed to the Business Day which falls
the same number of Business Days after the FX Date or the FX Cut-Off Date,
where the Issuer elects to terminate its obligations under the Certificate in
accordance with (l)(i) above, as the Redemption Date, the Optional Redemption
Date or, as the case may be, the Automatic Early Redemption Date, was
originally scheduled to be after the Valuation Date (the “Postponed Redemption
Date”).
(iii)
If an FX Disruption Event has occurred and is continuing on the Redemption
Date, the Optional Redemption Date or, as the case may be, the Automatic Early
Redemption Date, or the Postponed Redemption Date (including any
Automatic Early Redemption Date, postponed due to a prior FX Disruption
Event), then the Redemption Date, the Optional Redemption Date, the Automatic
Early Redemption Date or the Postponed Redemption Date, as the case may be,
shall be postponed until the first Business Day on which such FX Disruption
Event ceases to exist, provided that where on the tenth Business Day following
the Redemption Date, the Optional Redemption Date, the Automatic Early
Redemption Date or the Postponed Redemption Date, as the case may be, an
FX Disruption Event exists the Issuer may elect to terminate its obligations under
the Certificate by (x) paying an amount in a currency not subject to the FX
Disruption Event, or (y) delivering or procuring the delivery of an amount of
Relevant Assets, to each Certificateholder the value of which corresponds to the
fair market value of each Certificate held by the Certificateholder each as
determined by the Calculation Agent in its sole and absolute discretion.
For the avoidance of doubt, if an FX Disruption Event coincides with a Settlement Disruption
Event or a Failure to Deliver due to Illiquidity, the provisions of this Condition 4(n) shall take
effect only after such postponements or adjustments have been made as a result of such
(defined below) Settlement Disruption Event in accordance with Condition 4(l)(i) or a Failure to
Deliver due to Illiquidity in accordance with Condition 4(l)(ii), as the case may be, and,
notwithstanding the provisions of Condition 4(l), the Issuer's payment obligation of the
Redemption Amount or, as the case may be, the Automatic Early Redemption Amount shall
continue to be postponed in accordance with the provisions of this Condition 4(n).
For the purposes of this Condition 4(n):
“FX Disruption Event” means the occurrence of an event that makes it impossible through
legal channels for the Issuer or its affiliates to either:
(i)
convert the Relevant Currency into the Settlement Currency; or
(ii)
deliver the Settlement Currency from accounts within the Relevant Country to accounts
outside such jurisdiction; or
(iii)
deliver the Relevant Currency between accounts within the Relevant Country to a
person that is a non-resident of that jurisdiction;
“Relevant Country” has the meaning ascribed to it in the applicable Final Terms for the
Certificates; and
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“Relevant Currency” has the meaning ascribed to it in the applicable Final Terms for the
Certificates.
(o)
Failure to Deliver Asset Transfer Notice
If a holder fails to give an Asset Transfer Notice as provided herein with a copy to the
Transfer Agent, on or prior to the Cut-Off Date, then the Entitlement will be delivered as soon as
practicable after the Redemption Date, the Optional Redemption Date or, as the case may be, the
Automatic Early Redemption Date (in which case, such date of delivery shall be the Delivery Date)
at the risk of such Holder in the manner provided below. For the avoidance of doubt, in such
circumstances such Holder shall not be entitled to any payment, whether of interest or otherwise,
as a result of such Delivery Date falling after the Redemption Date, the Optional Redemption Date
or, as the case may be, the Automatic Early Redemption Date and no liability in respect thereof
shall attach to the Issuer.
The Issuer shall at the risk of the relevant Holder, deliver or procure the delivery of the
Entitlement for each Certificate, pursuant to the details specified in the Asset Transfer Notice or in
such commercially reasonable manner as the Calculation Agent shall in its sole discretion determine
and notify to the person designated by the Holder in the relevant Asset Transfer Notice. All
Expenses arising from the delivery of the Entitlement in respect of such Certificates shall be for the
account of the relevant Holder and no delivery of the Entitlement shall be made until all Expenses
have been paid to the satisfaction of the Issuer by the relevant Holder.
In the event that a Certificateholder does not so deliver an Asset Transfer Notice as aforesaid
by close of business (Brussels or Luxembourg local time) (as appropriate) on the first Business Day
falling on or before the 30th day after the Cut-off Date (the “Final Cut-Off Date”), the Issuer’s
obligations in respect of such Certificates shall be discharged and no further liability in respect
thereof shall attach to the Issuer.
(p)
(q)
General
(i)
None of the Calculation Agent, the Issuer or any Dealer Agents shall have any
responsibility for any errors or omissions in the calculation of any Redemption
Amount, the Optional Redemption Amount, Automatic Early Redemption
Amount, Alternative Cash Settlement Amount, Disruption Cash Settlement
Amount, Failure to Deliver Settlement Amount or of any Entitlement or other
amount whatsoever.
(ii)
The purchase of Certificates does not confer on the Certificateholder any rights
(whether in respect of voting, distributions or otherwise) attaching to the Relevant
Asset.
(iii)
All references in this Condition 4 to “Luxembourg or Brussels time” shall, where
Certificates are cleared through an additional or alternative clearing system, be
deemed to refer as appropriate to the time in the city where the relevant clearing
system is located.
(iv)
Certificates held by the same holder will be aggregated for the purpose of
determining the aggregate Entitlements in respect of such Certificates, provided
that the aggregate Entitlements in respect of the same holder will be rounded
down to the nearest whole unit of the Relevant Asset or each of the Relevant
Assets, as the case may be, in such manner as the Calculation Agent shall
determine. Therefore, fractions of the Relevant Asset or of each of the Relevant
Assets, as the case may be, will not be delivered and no cash adjustment will be
made in respect thereof.
Restrictions
If the Final Terms for the Certificates for the Physical Delivery Certificates so indicate, the
delivery of any Entitlement in respect of such Certificates will be conditional upon the holder
providing to the Transfer Agent, or such other person as may be specified, a certification in the
form set out in such Final Terms for the Certificates.
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5.
Payments and Talons
(a)
Bearer Certificate
Payments of principal and interest in respect of Bearer Certificates shall, subject as
mentioned below, be made against presentation and surrender of the relevant Receipts, Certificates
(in the case of all other payments of principal and, in the case of interest, as specified in Condition
5(f)(vi)) or Coupons (in the case of interest, save as specified in Condition 5(f)(vi)), as the case may
be, at the specified office of the Paying Agent by a cheque payable in the relevant currency drawn
on, or, at the option of the Certificateholder, by transfer to an account denominated in such
currency with a Bank. “Bank” means a bank in the principal financial centre for such currency or, in
the case of EUR, in a city in which banks have access to the TARGET System.
(b)
(c)
Certificates in Registered Form
(i)
Payments of principal in respect of Certificates in Registered Form shall be made
against presentation and surrender of the relevant Certificates at the specified
office of any of the Transfer Agents or of the Registrar and in the manner
provided in paragraph (ii) below.
(ii)
Interest on Certificates in Registered Form shall be paid to the person shown on
the Register at the close of business on the fifteenth day before the due date for
payment thereof (the “Record Date”). Payments of interest on each Certificate in
Registered Form shall be made in the relevant currency by cheque drawn on a
Bank and mailed to the Certificateholder of such Certificate at its address
appearing in the Register. Upon application by the Certificateholder to the
specified office of the Registrar or any Transfer Agent before the Record Date,
such payment of interest may be made by transfer to an account in the relevant
currency maintained by the payee with a Bank.
Payments Subject to Fiscal Laws
directives, but without prejudice to the provisions of Condition 12. No commission or expenses
shall be charged to the Certificateholders in respect of such payments.
(d)
Unmatured Coupons and Receipts and unexchanged Talons
(i)
Upon the due date for redemption of Bearer Certificates (other than Currency
Linked Certificates or Index Linked Certificates) which should be surrendered for
payment together with all unmatured Coupons (if any) relating thereto, failing
which an amount equal to the face value of each missing unmatured Coupon (or,
in the case of payment not being made in full, that proportion of the amount of
such missing unmatured Coupon that the sum of principal so paid bears to the
total principal due) shall be deducted from the Final Redemption Amount, Early
Redemption Amount or Optional Redemption Amount, as the case may be, due
for payment. Any amount so deducted shall be paid in the manner mentioned
above against surrender of such missing Coupon within a period of 10 years
from the Relevant Date for the payment of such principal (whether or not such
Coupon has become void pursuant to Condition 13).
(ii)
Upon the due date for redemption of any Bearer Certificate comprising an
Interest Rate Linked Certificate, Currency Linked Certificate or Index Linked
Certificate, unmatured Coupons relating to such Certificate (whether or not
attached) shall become void and no payment shall be made in respect of them.
(iii)
Upon the due date for redemption of any Bearer Certificate, any unexchanged
Talon relating to such Certificate (whether or not attached) shall become void and
no Coupon shall be delivered in respect of such Talon.
(iv)
Where any Bearer Certificate that provides that the relative unmatured Coupons
are to become void upon the due date for redemption of those Certificates is
presented for redemption without all unmatured Coupons, and where any Bearer
Certificate is presented for redemption without any unexchanged Talon relating
to it, redemption shall be made only against the provision of such indemnity as
the Issuer may require.
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(v)
If the due date for redemption of any Certificate is not a due date for payment
of interest, interest accrued from the preceding due date for payment of interest
or the Interest Commencement Date, to the due date for redemption, as the
case may be, shall only be payable against presentation (and surrender if
appropriate) of the relevant Bearer Certificate representing it, as the case may
be.
Interest accrued on a Certificate that only bears interest after its Maturity Date shall be
payable on redemption of such Certificate against presentation of the relevant Certificate
representing it.
(e)
Talons
issued in respect of any Bearer Certificate, the Talon forming part of such Coupon sheet may be
surrendered at the specified office of the Paying Agent in exchange for a further Coupon sheet (and
6.
Purchase by the Issuer
The Issuer may at any time purchase Certificates at any price in the open market or by
tender or private treaty. Any Certificates so purchased will be surrendered for cancellation and may
not be reissued or resold.
7.
Illegality
The Issuer shall have the right to terminate the Certificates, by giving notice to the
Certificateholders and any Calculation Agent appointed in relation to the Certificates, if it
determines in good faith that its performance thereunder has become unlawful in whole or in part
as a result of compliance in good faith by the Issuer with any applicable present or future law, rule,
regulation, judgment, order or directive of any governmental, administrative or judicial authority or
power (“Applicable Law”). In such circumstances, the Issuer will, however, if and to the extent
permitted by Applicable Law, cause to be paid to each Certificateholder in respect of each such
Certificate held by it an amount determined by the Issuer or, if a Calculation Agent has been
appointed for the Certificates, the Calculation Agent as representing the fair market value of such
Certificate immediately prior to such termination (ignoring any such illegality). The Issuer shall notify
the Certificateholder of the termination in accordance with the procedure set out in Condition 11.
Payment will be made to the Certificateholders in accordance with the procedures described in
Condition 4 or in such other manner as shall be notified to the Certificateholders.
8.
Replacement of Certificates
If a Certificate is lost, stolen, mutilated, defaced or destroyed, it may be replaced, subject to
applicable laws, regulations and stock exchange regulations, at the specified office of the Issuer or
specified office of such agent of the Issuer as may from time to time be designated by the Issuer
for the purpose and notice of whose designation is given to Certificateholder, in each case on
payment by the claimant of the fees and costs incurred in connection therewith and on such terms
as to evidence security and indemnity (which may provide, inter alia, that if the allegedly lost, stolen
or destroyed Certificate is subsequently presented for exercise or payment, there shall be paid to
the Issuer on demand the amount payable by the Issuer in respect of such Certificates) and
otherwise as the Issuer may require.
9.
Agents and Determination
(a)
Agents
The specified offices of the Agents are as set out below.
The Issuer reserves the right at any time to vary or terminate the appointment of any Agent
and to appoint further or additional Agents provided that no termination of appointment of the
Agents or the Registrar shall become effective until a replacement Agent or, as the case may be,
the Registrar shall have been appointed and provided that (i) so long as any of the Certificates are
listed on a stock exchange, there shall be a certificate agent having a specified office in each
location required by the rules and regulations of the relevant stock exchange. Notice of any
termination of appointment and of any changes in the specified office of any Agent will be given to
Certificateholders in accordance with Condition 11. Each Agent acts solely as agent of the Issuer
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and does not assume any obligation or duty to, or any relationship of agency or trust for or with,
the Certificateholders and any Certificate Agent’s determinations and calculations in respect of the
Certificates shall (save in the case of manifest error) be final and binding on the Issuer and the
Certificateholders.
(b)
SNA12-4.1.13
Calculation Agent
In relation to each issue of Certificates where there is a Calculation Agent (whether it be the
Issuer or a third party), it acts solely as agent of the Issuer and does not assume any obligation or
duty to, or any relationship of agency or trust for or with the Certificateholders.
All calculations and determinations made by the Calculation Agent shall (save in the case of
manifest error) be final, conclusive and binding on the Issuer and each Certificateholder. The
Calculation Agent may, with the consent of the Issuer, delegate any of its obligations and functions
to a third party as it deems appropriate. The Calculation Agent shall have no responsibility for errors
or omissions in any calculations and determinations made hereunder and all such calculations and
determinations shall (save in the case of manifest error) be final and binding on the Issuer and the
Certificateholders.
(c)
Determinations by the Issuer
Any determination made by the Issuer pursuant to these Conditions shall (save in the case of
manifest error) be final, conclusive and binding on the Issuer and each Certificateholder.
10.
Meetings of Certificateholders and Modification
(a)
Meetings
The Agency Agreement contains provisions for convening meetings of the Certificateholders
to consider any matter affecting their interests, including the sanctioning by Extraordinary
Resolution (as defined in the Agency Agreement) of a modification of these Conditions or the
Agency Agreement. At least 21 days’ notice (exclusive of the day on which the notice is given and
of the day on which the meeting is held) specifying the date, time and place of the meeting shall
be given to Certificateholders. Such a meeting may be convened by the Issuer or Certificateholders
holding not less than 10 per cent. (by number) of the Certificates for the time being remaining
outstanding. The quorum at a meeting of the Certificateholders (except for the purpose of passing
an Extraordinary Resolution) will be two or more persons holding or representing not less than 10
per cent. (by number) of the Certificates for the time being remaining outstanding, or at any
adjourned meeting two or more persons being, holding or representing Certificateholders whatever
the number of Certificates so held or represented. The quorum at a meeting of Certificateholders
for the purpose of passing an Extraordinary Resolution will be two or more persons holding or
representing not less than 25 per cent. (by number) of the Certificates for the time being remaining
outstanding or at any adjourned meeting two or more persons holding or representing not less than
10 per cent. (by number) of the Certificates for the time being remaining outstanding. A resolution
will be an Extraordinary Resolution when it has been passed at a duly convened meeting by not
less than 75 per cent. of the votes cast by Certificateholders at such meeting as, being entitled to
do so, vote in person or by proxy. An Extraordinary Resolution passed at any meeting of the
Certificateholders shall be binding on all the Certificateholders, whether or not they are present at
the meeting. Resolutions can be passed in writing if passed unanimously.
(b)
Modifications
The Issuer may modify these Conditions and/or any agreements executed for the purpose of
the issue of Certificates and/or any Final Terms for the Certificates without the consent of the
Certificateholders in any manner which the Issuer and/or the Calculation Agent may deem
necessary or desirable provided that such modification does not materially adversely affect the
interests of the Certificateholders or such modification is of a formal, minor or technical nature or
to correct a manifest error or to cure, correct or supplement any defective provision contained
herein and/or therein or to comply with any requirement of the Luxembourg Stock Exchange and/or
any stock exchange on which the Certificates may be listed. Notice of any such modification will be
given to the Certificateholders in accordance with Condition 11 but failure to give or non-receipt of,
such notice will not affect the validity of any such modification. In connection with such right of
modification neither the Issuer nor the Calculation Agent shall be obliged to have regard to the
consequences of the exercise of such right for individual Certificateholders resulting from their
being for any purpose domiciled or resident in, or otherwise connected with, or subject to the
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jurisdiction of, any particular territory, and no Certificateholder shall be entitled to claim from the
Issuer, the Guarantor or the Calculation Agent any indemnification or payment in respect of any tax
consequence of any such modification.
11.
Notices
All notices to Certificateholders where the relevant Certificates are Global Certificates will be
valid if (i) delivered to the Relevant Clearing System for communication by them to the
Certificateholders and (ii) in relation to Certificates listed on any stock exchange made in
accordance with any applicable rules and regulations of such stock exchange. In the case of
Certificates listed on the official list of the Luxembourg Stock Exchange only and so long as the
rules of the Luxembourg Stock Exchange so require, such notices shall be published in a daily
newspaper with general circulation in Luxembourg (which is expected to be the Luxemburger Wort)
or on the website of the Luxembourg Stock Exchange (www.bourse.lu). If any such publication is
not practicable, notice shall be validly given if published in another leading daily English language
newspaper. Any such notice shall be deemed to have been given on the date of such delivery to
the Relevant Clearing System or, if applicable, such publication on such website or, if published
more than once or on different dates, on the date of the first such publication.
12.
Taxation and Expenses
The Issuer shall not be liable for, or otherwise obliged to pay, any tax, duty, withholding or
other payment which may arise as a result of the issue, ownership, transfer, redemption or
enforcement of any Certificates and all payments made by the Issuer shall be made subject to any
such tax, duty, withholding or other payment which may be required to be made, paid, withheld or
deducted. A Certificateholder must pay all Expenses relating to such Certificates in accordance
with Condition 4(f).
All payments to be made by a Certificateholder shall be made without withholding or
deduction for or on account of tax or otherwise unless required by applicable law. If any such
withholding or deduction is required by applicable law, the Certificateholders shall not be entitled to
receive, and the Issuer shall not be required to pay, an additional amount in respect thereof.
13.
Prescription
Claims against the Issuer for payment in respect of the Receipts and Coupons (which for this
purpose shall not include Talons) shall be prescribed and become void unless made within 10 years
(in the case of principal) or five years (in the case of interest) from the appropriate Relevant Date in
respect of them.
14.
Further Issues
The Issuer shall be at liberty from time to time, without the consent of Certificateholders, to
create and issue further Certificates so as to form a single series with the Certificates.
15.
Substitution
The Issuer, or any previous substituted company, may at any time, without the consent of the
Certificateholders, substitute for itself as principal obligor under the Certificates, any Subsidiary of the
Issuer or the successor company of the Issuer or jointly and severally one or more companies to
whom the Issuer has transferred all of its assets and business undertakings (in each case the
“Substitute”) provided that no payment in respect of the Certificates is at the relevant time overdue,
no steps have been taken to admit the Issuer to a regime of suspension of payments (sursis de
paiement) and (except in the case of a solvent reorganisation or amalgamation) no order has been
made or resolution passed for the dissolution (dissolution) or liquidation (liquidation) of the Issuer.
Such substitution effected in accordance with this Condition will release the Issuer or any previous
substituted company and the Certificateholders expressly consent hereto. The substitution shall be
made by a deed poll (the “Deed Poll”), to be substantially in the form scheduled to the Agency
Agreement as Schedule 10A and may take place only if (i) the Substitute shall, by means of the Deed
Poll, agree to indemnify each Certificateholder against any tax, duty, assessment, withholding,
deduction or governmental charge which is imposed on it by (or by any taxing authority in or of) the
jurisdiction of the country of the Substitute’s residence for tax purposes and, if different, of its
incorporation with respect to any Certificate or the Deed of Covenant and which would not have been
so imposed had the substitution not been made, as well as against any tax, duty, assessment or
governmental charge, and any cost or expense, relating to the substitution; (ii) if the Substitute is a
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Subsidiary of the Issuer, the obligations of the Substitute under the Deed Poll and the Certificates
shall be unconditionally and irrevocably guaranteed by the Issuer or its successor or each of the
companies to whom together the Issuer has transferred all of its assets and business undertakings
(each a “Guarantor”) by means of a guarantee substantially in the form contained in the Deed Poll (the
“Guarantee”); (iii) all action, conditions and things required to be taken, fulfilled and done (including the
obtaining of any necessary consents) to ensure that the Deed Poll, the Certificates and Deed of
Covenant represent valid, legally binding and enforceable obligations of the Substitute and in the case
of the Deed Poll of the Guarantor have been taken, fulfilled and done and are in full force and effect;
(iv) the Substitute shall have become party to the Agency Agreement, with any appropriate
consequential amendments, as if it had been an original party to it; (v) legal opinions addressed to the
Certificateholders shall have been delivered to them (care of the Fiscal Agent) from a lawyer or firm of
lawyers with a leading securities practice in each jurisdiction referred to in (i) above as to the fulfilment
of the preceding conditions of this Condition 15 and the other matters specified in the Deed Poll; (vi)
the substitution does not affect adversely the rating of the Certificates by Moody’s Investors Service
Ltd. and Standard & Poor’s Rating Group or if any such rating agency does not exist at the relevant
time any two existing internationally recognised rating agencies and (vii) the Issuer shall have given at
least 30 days’ prior notice of such substitution to the Certificateholders, to be published in
accordance with Condition 11, stating that copies, or pending execution the agreed text, of all
documents in relation to the substitution which are referred to above, or which might otherwise
reasonably be regarded as material to Certificateholders, will be available for inspection at the
specified office of each of the Paying Agents. References to “outstanding” in relation to the
Certificates of any Series shall, on a substitution of the Issuer where the Guarantor guarantees the
Certificates, not include Certificates held by the Guarantor and its subsidiaries for the purposes of (i)
ascertaining the right to attend and vote at any meeting of the Certificateholders and (ii) the
determination of how many Certificates are outstanding for the purposes of Condition 10.
16.
(a)
Governing Law
SNA5-4.2
The Certificates, and any non-contractual obligations arising out of or in connection with
them, shall be governed by, and construed in accordance with, English law.
(b)
Jurisdiction
The Courts of England are to have jurisdiction to settle any disputes that may arise out of or
in connection with any Certificates and accordingly any legal action or proceedings (“Proceedings”)
arising out of or in connection with any Certificates may be brought in such courts. The Issuer
irrevocably submits to the jurisdiction of the courts of England and waives any objection to
Proceedings in such courts whether on the ground of venue or on the ground that the Proceedings
have been brought in an inconvenient forum. This submission is made for the benefit of each of the
Certificateholders and shall not limit the right of any of them to take Proceedings in any court of
by applicable law.
(c)
Service of Process
The Issuer irrevocably appoints Dexia Bank Belgium S.A., London Branch at Shackleton
House, Hay’s Galleria, 4 Battle Bridge Lane, London SE1 2GZ as its agent in England to receive,
for it and on its behalf, service of process in any Proceedings in England. For the avoidance of
doubt, service of process on the Issuer at the address specified in this Condition 16 will also
constitute service of process upon Dexia BIL Singapore. Such service shall be deemed completed
on delivery to such process agent (whether or not it is forwarded to and received by the Issuer). If
for any reason such process agent ceases to be able to act as such or no longer has an address
in London, the Issuer irrevocably agrees to appoint a substitute process agent and shall
immediately notify Certificateholders of such appointment in accordance with Condition 11. Nothing
shall affect the right to serve process in any manner permitted by law.
17.
Definitions
For the purposes of these Terms and Conditions, the following general definitions will apply:
“Alternative Cash Settlement Amount” means, in respect of any exercised Certificate, an
amount in the Settlement Currency equal to the fair market value of such Certificates, less the cost
to the Issuer or any Hedging Party of unwinding any related hedging arrangements, all as
determined by the Calculation Agent in its sole discretion;
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SNA12-4.1.3
“Automatic Early Redemption Amount” means, in relation to a Cash Settled Certificate, the
amount to which the Certificateholder is entitled in the Settlement Currency upon automatic early
redemption of such Certificate as determined by the Calculation Agent pursuant to Condition 4(b)
or as otherwise specified in the applicable Final Terms for the Certificates;
“Automatic Early Redemption Date” means, subject to Condition 4(a), the date specified in
the applicable Final Terms for the Certificates;
“Automatic Early Redemption Event” means the event(s) specified in the applicable Final
Terms for the Certificates;
“Basket of Commodities” means a basket of Commodities as specified in the applicable Final
“Basket Company” means a company whose shares are included in the Basket of Shares
and Basket Companies means all such companies;
“Basket of Debt Securities” means a basket of Debt Securities as specified in the applicable
Final Terms for the Certificates;
“Basket of Indices” means a basket of Indices as specified in the applicable Final Terms for
the Certificates;
“Basket of Shares” means a basket of Shares as specified in the applicable Final Terms for
the Certificates, and Basket Shares shall be interpreted accordingly;
“Basket of Subject Currencies” means a basket of Subject Currencies as specified in the
applicable Final Terms for the Certificates;
“Business Day” means a day (other than a Saturday or Sunday) on which commercial banks
and foreign exchange markets settle payments and are open for general business in the cities
specified in the applicable Final Terms for the Certificates;
“Cash Settled Certificate” means a Certificate which is redeemed by way of a cash payment;
“Clearance System Business Day” means, in respect of a Relevant Clearance System, any
day on which such Clearance System is (or, but for the occurrence of a Settlement Disruption
Event, would have been) open for the acceptance and execution of settlement instructions;
“Commodity” and “Commodities” means the commodity (or commodities) or futures contract
on a commodity (or commodities) specified in the applicable Final Terms for the Certificates;
“Commodity Business Day” means, in respect of each Commodities, a day that is a trading
day on the Related Exchange;
“Commodity Linked Certificates” means Certificates relating to a Commodity or a basket of
Commodities;
“Currency Linked Certificates” means Certificates relating to a specified currency or a basket
of currencies;
“Cut-off Date” shall have the meaning assigned thereto in Condition 4(f)(i);
“Debt Linked Certificates” means Certificates relating to a specified debt instrument or a
basket of debt instruments;
“Debt Security” means a debt instrument as specified in the applicable Final Terms for the
Certificates;
“Disruption Cash Settlement Amount” in respect of any relevant Certificate shall be the fair
market value of such Certificate (taking into account, where the Settlement Disruption Event
affected some, but not all of the Relevant Assets comprising the Entitlement and such non affected
Relevant Assets have been duly delivered as provided above, the value of such Relevant Assets),
less the cost to the Issuer of unwinding any underlying related hedging arrangements, all as
determined by the Issuer in its sole and absolute discretion;
“Entitlement” means, in relation to a Physical Delivery Certificate, the quantity of the Relevant
Asset or the Relevant Assets, as the case may be, which a Certificateholder is entitled to receive
on the Redemption Date in respect of each such Certificate following payment of any sums payable
99
(including expenses) rounded down to the nearest whole unit of the Relevant Asset or each of the
Relevant Assets, as the case may be, as determined by the Calculation Agent, including any
documents evidencing such Entitlement;
“euro” means the currency introduced at the start of the third stage of European Economic
and Monetary Union pursuant to the Treaty;
“Exchange” means (a) in respect of an Index relating to an Index Linked Warrant or
Commodity relating to a Commodity Linked Certificate, each exchange or quotation system
specified as such for such Index in the applicable Final Terms for the Certificates or any successor
to such exchange or quotation system selected by the Calculation Agent; and (b) in respect of a
Share relating to a Share Linked Certificate, each exchange or quotation system specified as such
for such Share in the applicable Final Terms for the Certificates or any successor to such exchange
or quotation system selected by the Calculation Agent, provided, however, that if the specified
Exchange ceases to list or otherwise include the relevant Share, the Calculation Agent will select
another exchange or quotation system (if any) in relation to such Share;
“Exchange Rate” means the applicable rate of exchange for conversion of any amount into
the relevant settlement currency for the purposes of determining the Cash Settlement Amount, as
“Failure to Deliver Settlement Amount” in respect of any relevant Certificate shall be the fair
market value of such Certificate (taking into account, the Relevant Assets comprising the
Entitlement which have been duly delivered as provided above), less the cost to the Issuer and/or
its Affiliates of unwinding any underlying related hedging arrangements (unless provided for
otherwise in the relevant Final Terms for the Certificates), all as determined by the Issuer in its sole
and absolute discretion;
“Final Cut-Off Date” has the meaning assigned thereto in Condition 4(o);
“FX Disruption Event” shall have the meaning assigned thereto in Condition 4(n);
“FX Rate” means, unless otherwise specified in the relevant Final Terms for the Certificates,
the exchange rate (determined by the Calculation Agent in good faith and in a commercially
reasonable manner) for the sale of Relevant Currency for Settlement Currency on the Valuation Date
or other date on which such exchange rate falls to be determined in accordance with the provisions
of Condition 4(o) expressed as a number of units of Relevant Currency per unit of Settlement
Currency;
“Hedging Party” means Dexia Banque Internationale à Luxembourg, société anonyme acting
through its head office or its Singapore branch or any of its subsidiaries or any holding company
thereof (excluding the Issuer) which has entered into a Hedging Position;
“Index” means the index as specified in the applicable Final Terms for the Certificates;
“Index Linked Certificate” means a Certificate relating to one or more specified indices;
“Interest Rate Linked Certificate” means a Certificate relating to a Subject Interest Rate;
“Issue Date” means the date specified in the applicable Final Terms for the Certificates;
“Minimum Trading Lot” shall be as specified in the Final Terms for the Certificates;
“New Issuer” shall have the meaning assigned thereto in Condition 15(a);
“Nominal Amount” means the nominal amount specified in the applicable Final Terms for the
Certificates;
“Optional Redemption Amount” means, in respect of a Cash Settled Certificate, the amount
to which the Certificateholder is entitled in the Settlement Currency upon exercise of the Issuer Call
Option or, as the case may be, the Certificateholder Put Option, as determined by the Calculation
Agent pursuant to Condition 4(c) or, as the case may be 4(d), or as otherwise specified in the
“Optional Redemption Date” means, subject to Condition 4(a), the date specified in the
“Physical Delivery Certificate” means a Certificate which is settled by way of physical delivery
of the Relevant Asset or Relevant Assets, as the case may be;
100
“Redemption Amount” means, in relation to a Cash Settled Certificate, the amount to which
the Certificateholder is entitled in the Settlement Currency upon redemption of such Certificate as
determined by the Calculation Agent pursuant to Condition 4(a) or as otherwise specified in the
“Redemption Date” means, subject to Condition 4(a), the date specified in the applicable
“Related Exchange” means in relation to an Index, a Share or a Commodity, as the case may
be, each exchange or quotation system, if any, on which options contracts or futures contracts on
the Index, Share or Commodity, as the case may be, are traded or quoted;
“Relevant Asset” or “Relevant Assets” means, in the case of Physical Delivery Certificates,
the relevant asset or relevant assets to which the Certificates relate as specified in the applicable
“Relevant Clearance System” means, in respect of a Relevant Asset the subject of a Physical
Delivery Certificate, the clearance system specified as such for such Relevant Asset in the Final
Terms for the Certificates, or any successor to such clearance system. If the Final Terms for the
Certificates does not specify a Relevant Clearance System, the Relevant Clearance System will be
the principal domestic clearance system customarily used for settling trades in the Relevant Asset.
If the Relevant Clearance System ceases to clear such Relevant Asset, the Calculation Agent shall
determine the manner of delivery of such Relevant Asset and shall promptly following such
determination, give notice thereof to the Certificates;
“Relevant Clearing System” means in respect of Certificates, as appropriate, Euroclear or
Clearstream, Luxembourg and/or such other clearing system, as the case may be, through which
interests in Certificates are to be held and through an account at which the Certificates are to be
cleared, as specified in the applicable Final Terms for the Certificates;
“Relevant Country” shall have the meaning assigned thereto in Condition 4(n);
“Relevant Currency” shall have the meaning assigned thereto in Condition 4(n);
“Relevant Date” in respect of any Receipt or Coupon means the date on which payment in
respect of it first becomes due or (if any amount of the money payable is improperly withheld or
refused) the date on which payment in full of the amount outstanding is made or (if earlier) the date
seven days after that on which notice is duly given to the Certificateholders that, upon further
presentation of the Certificate, Receipt or Coupon being made in accordance with the Conditions,
such payment will be made, provided that payment is in fact made upon such presentation.
References in these Conditions to (i) “principal” shall be deemed to include any premium payable
in respect of the Certificates, Final Redemption Amounts, Early Redemption Amounts, Optional
Redemption Amounts and all other amounts in the nature of principal payable pursuant to
Condition 4 or any amendment or supplement to it, (ii) “interest” shall be deemed to include all
Interest Amounts and all other amounts payable pursuant to Condition 3 or any amendment or
supplement to it and (iii) “principal” and/or “interest” shall be deemed to include any additional
amounts that may be payable under this Condition.
“Settlement Business Day” means a Business Day in the city specified in the applicable Final
“Settlement Currency” means the settlement currency for the payment of the Cash
Settlement Amount and Dividend Amount as set out in the applicable Final Terms for the
Certificates;
“Settlement Disruption Event” in relation to a Relevant Asset, means, in the opinion of the
Calculation Agent, an event beyond the control of the Issuer as a result of which either the Issuer
cannot make delivery of the Relevant Asset(s) using the method specified in the applicable Final
Terms for the Certificates or the Relevant Clearance System cannot clear the transfer of such
Relevant Asset;
“Shares” means the shares or a share of the relevant Basket Company;
“Share Linked Certificate” means a Certificate relating to one or more Shares as specified in
the applicable Final Terms for the Certificates;
101
“Subject Interest Rate” means the subject interest rate to which the Certificates relate as
“Treaty” means the treaty establishing the European Community, as amended;
“Valuation Date” means a date of valuation or determination in respect of a Certificate; and
“Valuation Time” means the time on the relevant Valuation Date, specified as such in the
applicable Final Terms for the Certificates or, if no such time is specified, the close of trading on the
relevant Exchange on the relevant Valuation Date in relation to each Index, Share, Commodities or
other underlying assets to be valued.
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GENERAL CONDITIONS OF THE BOOK-ENTRY WARRANTS
The following is the text of the General Conditions of the Book-entry Warrants that, subject to
completion and amendment and as supplemented or varied in accordance with the Terms set out in
the relevant Final Terms for the Warrants, shall be applicable to the Book-entry Warrants. All
capitalised terms that are not defined in these General Conditions will have the meanings given to
them in the relevant Final Terms for the Warrants. Those definitions will be included in the Terms,
which shall be endorsed on the Global Warrant. References in these Conditions to “Warrants” are
to the Book-entry Warrants of one Series only, not to all Book-entry Warrants that may be issued
under the Programme.
SNA12-4.1.7
SNA12-5.1.1
SNA5-4.6
SNA5-5.1.1
The Warrants are subject to these General Conditions, as modified and/or supplemented by
the terms of the Warrants (the “Terms”) set out in the Global Warrant or Global Warrants (each a
“Global Warrant”) by which they are represented. The form of the Global Warrant is set out in
Schedule 3 Part A to the Agency Agreement relating to the Programme of the Issuer for the issue
of Euro Medium Term Notes, Certificates and Warrants (as further amended or supplemented as at
the Issue Date) (the “Agency Agreement”) dated 9 November, 1995 as amended and restated on
3 April, 2009 between the Issuer acting through its head office or through Dexia Banque
Internationale à Luxembourg, société anonyme Singapore Branch and the other agents named in it.
Copies of the form of Global Warrant and the Agency Agreement will be available for inspection at
the specified office of the Issuer. The Warrantholders (as defined below) are bound by and are
deemed to have notice of all the provisions of the Agency Agreement and the relevant Global
Warrant. Expressions used herein and not defined shall have the meaning given to them in the
Terms. References in these General Conditions to “Calculation Agent” are to the Calculation Agent
(if any) appointed in relation to the Warrants and specified in the Terms.
1.
Form and Transfer
(a)
Form
SNA12-4.1.1
The Warrants will at all times be represented by a single Global Warrant (save in the case of
an issue of further Warrants pursuant to Condition 10, which further Warrants shall be represented
by a further Global Warrant), which will be deposited with a common depositary for Euroclear Bank
S.A./N.V., (“Euroclear”) and Clearstream banking, société anonyme (“Clearstream, Luxembourg”)
Warrants in definitive form will not be issued.
(b)
SNA5-4.1
SNA12.4.1.4
Title
The persons for the time being appearing in the books of Euroclear or Clearstream,
Luxembourg as holding Warrants shall be treated as holders of the Warrants (the “Warrantholders”)
and no person shall be liable for so treating such holders.
(c)
Transactions
Transfers and exercise of Warrants may only be effected through Euroclear or Clearstream,
Luxembourg. Title will pass upon registration of the transfer in the books of Euroclear or
Clearstream, Luxembourg, as the case may be.
2.
Status
The Warrants represent unsubordinated and unsecured contractual obligations of the Issuer.
The Warrants rank equally among themselves and, save for such exceptions as may be provided by
applicable legislation, pari passu with all other unsecured and unsubordinated obligations of the
Issuer.
3.
Exercise Rights
(a)
Exercise Period—American Style Warrants
Warrants designated in the relevant Terms as “American Style” are exercisable on any
Business Day during the period from, but excluding, the Issue Date to and including the Final
Exercise Date (such period, the “Exercise Period”) subject to prior termination of the Warrants as
provided in Condition 5.
(b)
Exercise Period—European Style Warrants
Warrants designated in the relevant Terms as “European Style” are exercisable on the
Exercise Date or Exercise Dates (or, if such a day is not a day on which Euroclear and Clearstream,
103
SNA12-4.1.6
SNA5-4.5
Luxembourg are open for business (an “Exercisable Business Day”), the next following such day)
(each, an “Exercise Date”, the latest such Exercise Date being the “Final Exercise Date”) subject to
prior termination of the Warrants as provided in Condition 5.
(c)
Entitlement
The rights attaching to each Warrant on exercise (including any provisions relating to
adjustments, market disruption and certain other matters) will be as set out in the relevant Terms.
(d)
Failure to Exercise
Any Warrant with respect to which no Exercise Notice has been delivered to Euroclear or
Clearstream, Luxembourg, as the case may be, and copied to the Issuer, in the manner set out in
Condition 4, at or prior to 10.00 a.m. (Brussels or Luxembourg time, as the case may be) on the
relevant Final Exercise Date shall become void.
4.
Exercise Procedure
(a)
Exercise Notice
Warrants may be exercised by delivery of a duly completed exercise notice in writing, or by
tested telex confirmed in writing, in the form (with such amendments as the Issuer may specify) set
out in the Agency Agreement (copies of which may be obtained from Euroclear, Clearstream,
Luxembourg or the Issuer) (an “Exercise Notice”) to Euroclear or Clearstream, Luxembourg, as the
case may be, with, as a further precondition to exercise, a copy to the Issuer at its specified office,
in each case (1) (in the case of American Style Warrants) not later than 10.00 a.m. (Brussels or
Luxembourg time, respectively) on any Business Day (the “Exercise Date”) during the Exercise
Period or (2) (in the case of European Style Warrants) at any time after 10.00 a.m. (Brussels or
Luxembourg time, respectively) on the Exercisable Business Day immediately preceding the relevant
Exercise Date but not later than 10.00 a.m. (Brussels or Luxembourg time, respectively) on the
relevant Exercise Date:
(i)
specifying the number of Warrants being exercised;
(ii)
specifying the number of the Warrantholder’s account at Euroclear or Clearstream,
Luxembourg, as the case may be, to be debited with the Warrants being exercised;
(iii)
irrevocably instructing Euroclear or Clearstream, Luxembourg, as the case may be, to
debit on or before the Settlement Date the account of the relevant holder with the
Warrants being exercised and to credit the account of the Issuer;
(iv)
including an irrevocable undertaking to pay any applicable stamp duty, stamp duty
reserve tax and/or other similar taxes or duties due by reason of the exercise of
Warrants by such Warrantholder and an authorisation to the Issuer to deduct any such
taxes or duties from the Settlement Amount or any other amount payable by the Issuer
to the Warrantholder in connection with the exercise of such Warrants;
(v)
specifying the name and the number of the Warrantholder’s account with Euroclear or
Clearstream, Luxembourg, as the case may be, to be credited with the Settlement
Amount or any other amount payable by the Issuer to the Warrantholder in connection
with the exercise of such Warrants;
(vi)
certifying that such Warrants are not being exercised by or on behalf of any U.S.
persons, that payment or delivery with respect to duly exercised Warrants will not be
made to, or for the account of, a U.S. person and that none of such Warrants was
purchased by the holder in the United States; and
(vii)
authorising the production of such certification in applicable administrative or legal
proceedings.
(b)
Verification of the Warrantholder
Upon receipt of an Exercise Notice, the Issuer shall request Euroclear or Clearstream,
Luxembourg, as the case may be, to verify that the person exercising the Warrants specified therein
was, as at 10.00 a.m. (Brussels or Luxembourg time, as the case may be) on the Exercise Date, the
holder thereof according to the books of Euroclear or Clearstream, Luxembourg, as the case may
be. If Euroclear or Clearstream, Luxembourg, as the case may be, is unable so to verify, such
Exercise Notice shall be deemed not to have been given. Euroclear or Clearstream, Luxembourg, as
104
SNA5-6.1.6
the case may be, will on or before the Settlement Date debit the Warrants being exercised from the
account of the Warrantholder specified in the Exercise Notice (but without prejudice to the accrued
rights of the relevant Warrantholder).
(c)
SNA12-4.1.12
Settlement
The issuer shall, for each Warrant being exercised, on the Settlement Date transfer or procure
the transfer of the Settlement Amount, or any other cash payment due in respect of each Warrant
in accordance with the relevant Terms, less any taxes or duties which the Issuer is authorised to
deduct under the Exercise Notice, to the Warrantholder’s account as specified in the relevant
Exercise Notice, for value on the Settlement Date.
(d)
Determination
Any determination as to whether an Exercise Notice is duly completed and in proper form
shall be made by the Issuer and shall be conclusive and binding on the Issuer, the Calculation
Agent (if any) and the Warrantholder. Any Exercise Notice so determined to be incomplete or not in
proper form, or which is not copied to the Issuer immediately after being sent to Euroclear or
Clearstream, Luxembourg, as the case may be, shall be void. If such Exercise Notice is
subsequently corrected to the satisfaction of the Issuer, it shall be deemed to be a new Exercise
Notice submitted at the time the correction is delivered.
(e)
Effect of Exercise Notice
Delivery of an Exercise Notice shall constitute an irrevocable election and undertaking by the
relevant Warrantholder to exercise the Warrants specified therein in the manner specified therein.
After delivery of such Exercise Notice, such exercising Warrantholder may not otherwise transfer
such Warrants. Notwithstanding this, if any Warrantholder does so transfer or attempts so to
transfer such Warrants, the Warrantholder will be liable to the Issuer for any loss, costs and
expenses suffered or incurred by the Issuer or any of its affiliates through whom it has hedged its
position, including those suffered or incurred as a consequence of the Issuer or any of its affiliates
through whom it has hedged its position having terminated or commenced any related hedging
operations in reliance on the relevant Exercise Notice and subsequently (i) entering into replacement
hedging operations in respect of such Warrants or (ii) paying any amount on the subsequent
exercise of such Warrants without having entered into any replacement hedging operations.
5.
Illegality
The Issuer shall have the right to terminate the Warrants, by giving notice to the
Warrantholders and any Calculation Agent appointed in relation to the Warrants, if it determines in
good faith that its performance thereunder has become unlawful in whole or in part as a result of
compliance in good faith by the Issuer with any applicable present or future law, rule, regulation,
judgment, order. or directive of any governmental, administrative or judicial authority or power
(“Applicable Law”). In such circumstances, the Issuer will, however, if and to the extent permitted
by Applicable Law, cause to be paid to each Warrantholder in respect of each such Warrant held
by it an amount determined by the Issuer or, if a Calculation Agent has been appointed for the
Warrants, the Calculation Agent as representing the fair market value of such Warrant immediately
prior to such termination (ignoring any such illegality). Payment will be made to Euroclear or
Clearstream, Luxembourg, as the case may be, in such manner as shall be notified to the
Warrantholders in accordance with the procedure set out in Condition 11.
6.
The Issuer may at any time purchase Warrants at any price in the open market or by tender
or private treaty. Any Warrants so purchased will be surrendered for cancellation and may not be
reissued or resold.
7.
Minimum Number of Warrants Exercisable
If a Minimum Exercise Number is specified in the relevant Terms, the Warrants may not be
exercised in a number less than the Minimum Exercise Number or such multiples in which such
Warrants may be exercised in accordance with the relevant Terms.
8.
Maximum Exercise of Warrants
If Warrants are designated in the relevant Terms as “American Style” and a Maximum
Exercise Number is specified in the relevant Terms, then if following any Exercise Date other than
the Final Exercise Date the Issuer determines that more than the Maximum Exercise Number of
105
Warrants (the “Quota”) were exercised on such Exercise Date by a single Warrantholder or a group
of Warrantholders, then the Issuer may deem the Valuation Date for the first Quota of such
Warrants exercised by such Warrantholder or group of Warrantholders to be the originally
applicable Valuation Date for Warrants exercised on such Exercise Date, and the Valuation Date for
each additional Quota of Warrants (or part thereof, in the case of the last amount) exercised by
such Warrantholder or group of Warrantholders to be the respective Valuation Dates applicable to
each succeeding date following such Exercise Date on which such Warrants could have been
exercised, until all such Warrants exercised on such Exercise Date by such Warrantholder or group
of Warrantholders have been given a Valuation Date. In any case where more than the Quota of
Warrants are so exercised on the same day by a Warrantholder or group of Warrantholders acting
in concert, the order of settlement in respect of such Warrants shall be at the discretion of the
Issuer. Notwithstanding the foregoing, the Issuer may, at any time, in its discretion, accept more
than the Quota of Warrants for exercise on any Exercise Date.
9.
Issuer’s Specified Office and the Calculation Agent
(a)
Changes in Specified Office or Calculation Agent
The specified office of the Issuer is set out at the foot of these General Conditions. The Issuer
reserves the right at any time to change its specified office or to vary or terminate the appointment of
any Calculation Agent appointed for the Warrants and to appoint other or additional Calculation
Agents, provided that there will always be a Calculation Agent where so required by the Terms. Notice
of any variation or termination of appointment and of any changes in the specified office of the Issuer
or Calculation Agent will be given to the Warrantholders in accordance with the procedures set out in
Condition 11. The Calculation Agents are acting solely as agents of the Issuer and do not assume any
obligations or duty to, or any relationship of agency or trust for or with, the Warrantholders.
(b)
Amendments to Agency Agreement
The Agency Agreement may be amended by the parties thereto without the consent of the
Warrantholders if, in the opinion of such parties, the amendment will not materially and adversely
affect the interests of the Warrantholders.
(c)
Calculation Agent
All calculation functions required of the Calculation Agent under these Conditions and any
Global Warrant may be delegated to any such person as the Calculation Agent, in its absolute
discretion, may decide.
(d)
SNA12-4.1.13
Calculations
The Calculation Agent shall have no responsibility for errors or omissions in any calculations
and determinations made hereunder and all such calculations and determinations shall (save in the
case of manifest error) be final and binding on the Issuer and the Warrantholders.
10.
Further Issues
The Issuer shall be at liberty from time to time without the consent of the Warrantholders to
create and issue further Warrants so as to form a single series with the Warrants.
11.
Notices
All notices to Warrantholders will be valid if delivered to Euroclear and Clearstream,
Luxembourg for communication by them to entitled account holders and, so long as the Warrants
are listed on the Official List of the Luxembourg Stock Exchange and the rules of that exchange so
require, if published in a daily newspaper with general circulation in Luxembourg (which is expected
to be the Luxemburger Wort) or on the website of the Luxembourg Stock Exchange (www.bourse.lu).
Any such notice shall be deemed to have been given on the date of such delivery and publication
or, if so delivered and published more than once or on different dates, on the date of the first such
delivery and publication.
Taxation
The Issuer will not be liable for or otherwise obliged to pay any tax, duty, withholding or other
payment which may arise as a result of the ownership, transfer or exercise of any Warrants.
SNA5-5.2.2
SNA12-5.2.2
12.
106
SNA12-4.1.14
13.
(a)
Governing Law:
The Global Warrants and any non-contractual obligations arising out of or in connection with
them shall be governed by, and construed in accordance with, the laws of England.
(b)
Jurisdiction:
The Courts of England are to have jurisdiction to settle any disputes that may arise out of or
in connection with any Warrants and accordingly any legal action or proceedings (“Proceedings”)
arising out of or in connection with any Warrants may be brought in such courts. The Issuer
irrevocably submits to the jurisdiction of the courts of England and waives any objection to
Proceedings in such courts whether on the ground of venue or on the ground that the Proceedings
have been brought in an inconvenient forum. This submission is made for the benefit of each of the
Warrantholders and shall not limit the right of any of them to take Proceedings in any court of
by applicable law.
The Issuer has appointed Dexia Bank Belgium S.A., London Branch at Shackleton House,
Hay’s Galleria, 4 Battle Bridge Lane, London SE1 2GZ as its agent in England to receive service of
process in any Proceedings in England based on any of the Warrants. If for any reason such
process agent ceases to act as such or no longer has an address in England, the Issuer agrees to
appoint a substitute process agent and to notify Warrantholders of such appointment.
14.
Contracts (Rights of Third Parties) Act 1999
No person shall have any right to enforce any term or condition of the Warrants under the
Contracts (Rights of Third Parties) Act 1999.
107
SNA12-4.1.3
SNA5-4.2
GENERAL CONDITIONS OF THE BEARER WARRANTS
SNA12-4.1.7
The following is the text of the General Conditions of the Bearer Warrants that, subject to
completion and amendment and as supplemented or varied in accordance with the Terms set out in
the relevant Final Terms for the Warrants, shall be applicable to the Bearer Warrants. Either (i) the
full text of these General Conditions together with the relevant provisions of the Final Terms for the
Warrants or (ii) these General Conditions as so completed, amended, supplemented or varied (and
subject to simplification by the deletion of non-applicable provisions), shall be endorsed on such
Definitive Warrants. All capitalised terms that are not defined in these General Conditions will have
the meanings given to them in the relevant Final Terms for the Warrants. Those definitions will be
included in the Terms, which shall be endorsed on the Bearer Warrants. References in these
Conditions to “Warrants” are to the Bearer Warrants of one Series only, not to all Bearer Warrants
that may be issued under the Programme.
SNA12-5.1.1
SNA5-4.6
SNA5-5.1.1
The Warrants are subject to these General Conditions, as modified and/or supplemented by
the terms of the Warrants (the “Terms”) endorsed hereon. The Warrants are issued under the
Programme of the Issuer for the issue of Euro Medium Term Notes, Certificates and Warrants.
Expressions used herein and not defined shall have the meaning given to them in the Terms.
References in these General Conditions to “Calculation Agent” are to the Calculation Agent (if any)
appointed in relation to the Warrants and specified in the Terms.
1.
Form and Title
(a)
Form
SNA12-4.1.1
SNA5-4.1
The Warrants are issued in bearer form.
(b)
Title
Title to the Warrants shall pass by delivery. Except as ordered by a court of competent
jurisdiction or as required by law, the holder of any Warrant shall be deemed to be and may be
treated as its absolute owner for all purposes, whether or not it is overdue and regardless of any
notice of ownership, trust or an interest in it, any writing on it or its theft or loss and no person shall
be liable for so treating such holders.
In these General Conditions, “Warrantholder” and “holder” mean the bearer of any Warrant.
2.
Status
The Warrants represent unsubordinated and unsecured contractual obligations of the Issuer.
The Warrants rank equally among themselves and, save for such exceptions as may be provided by
applicable legislation, pari passu with all other unsecured and unsubordinated obligations of the
Issuer.
3.
SNA12-4.1.6
SNA5-4.5
Exercise Rights
(a)
Exercise Period—American Style Warrants
Warrants designated in the relevant Terms as “American Style” are exercisable on any
Business Day during the period from, but excluding, the Issue Date to and including the Final
Exercise Date (such period, the “Exercise Period”) subject to prior termination of the Warrants as
provided in Condition 5.
(b)
Exercise Period—European Style Warrants
Warrants designated in the relevant Terms as “European Style” are exercisable on the
Exercise Date or Exercise Dates (or, if such a day is not a day on which Euroclear and Clearstream,
Luxembourg are open for business (an “Exercisable Business Day”), the next following such day)
(each an “Exercise Date”, the latest such Exercise Date being the “Final Exercise Date”) subject to
prior termination of the Warrants as provided in Condition 5.
(c)
Entitlement
The rights attaching to each Warrant on exercise (including any provisions relating to
adjustments, market disruption and certain other matters) will be as set out in the relevant Terms.
(d)
Failure to Exercise
Any Warrant with respect to which no Exercise Notice has been delivered to the Issuer in the
manner set out in Condition 4, at or prior to 10.00 a.m. (Luxembourg time) on the relevant Final
Exercise Date shall become void.
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SNA12-4.1.11
4.
Exercise Procedure
(a)
Exercise Notice
Each Warrant may be exercised by presentation and surrender of such Warrant together
with a duly completed exercise notice in writing (copies of which may be obtained from the
specified office of the Issuer) (an “Exercise Notice”) to the Issuer at its specified office (1) (in the
case of American Style Warrants) not later than 10.00 a.m. (Luxembourg time) on any Business
Day (the “Exercise Date”) during the Exercise Period or (2) (in the case of European Style
Warrants) at any time after 10.00 a.m. (Luxembourg time) on the Exercisable Business Day
immediately preceding the relevant Exercise Date but not later than 10.00 a.m. (Luxembourg time)
on the relevant Exercise Date: (i) specifying the number of Warrants being exercised; (ii) including
an irrevocable undertaking to pay any applicable stamp duty, stamp duty reserve tax and/or other
similar taxes or duties due by reason of the exercise of Warrants by such Warrantholder and an
authorisation to the Issuer to deduct any such taxes or duties from the Settlement Amount or any
other amount payable by the Issuer to the Warrantholder in connection with the exercise of such
Warrants; (iii) certifying that such Warrants are not being exercised by or on behalf of any
U.S. persons, that payment or delivery with respect to duly exercised Warrants will not be made
to, or for the account of, a U.S. person and that none of such Warrants was purchased by the
holder in the United States; and (iv) authorising the production of such certification in applicable
administrative or legal proceedings.
(b)
Settlement
The Issuer shall, for each Warrant being exercised, pay the Settlement Amount, or any other
cash payment due in respect of each Warrant in accordance with the relevant Terms, less any taxes
or duties which the Issuer is authorised to deduct under the Exercise Notice, in accordance with
Condition 9 on the Settlement Date.
(c)
Determination
Any determination as to whether an Exercise Notice is duly completed and in proper form
and accompanied by the correct Warrants shall be made by the Issuer and shall be conclusive and
binding on the Issuer, the Calculation Agent (if any) and the Warrantholder. Any Exercise Notice so
determined to be incomplete or not in proper form shall be void. If such Exercise Notice is
subsequently corrected to the satisfaction of the Issuer, it shall be deemed to be a new Exercise
Notice submitted at the time the correction is delivered.
(d)
Effect of Exercise Notice
Delivery of an Exercise Notice together with the surrender of one or more Warrants shall
constitute an irrevocable election and undertaking by the relevant Warrantholder to exercise the
Warrants so delivered and surrendered and specified in the Exercise Notice in the manner specified
in the Exercise Notice.
5.
Illegality
The Issuer shall have the right to terminate the Warrants, by giving notice to the
Warrantholders and any Calculation Agent appointed in relation to the Warrants, if it determines in
good faith that its performance thereunder has become unlawful in whole or in part as a result of
compliance in good faith by the Issuer with any applicable present or future law, rule, regulation,
judgment, order or directive of any governmental, administrative or judicial authority or power
(“Applicable Law”). In such circumstances, the Issuer will, however, if and to the extent permitted
by Applicable Law, cause to be paid to each Warrantholder in respect of each such Warrant held
by it an amount determined by the Issuer or, if a Calculation Agent has been appointed for the
Warrants, the Calculation Agent as representing the fair market value of such Warrant immediately
prior to such termination (ignoring any such illegality). The Issuer shall notify the Warrantholders of
the termination in accordance with the procedure set out in Condition 13. Payment will be made to
the Warrantholders in accordance with the procedures described in Condition 9 or in such other
manner as shall be notified to the Warrantholders.
6.
The Issuer may at any time purchase Warrants at any price in the open market or by tender
or private treaty. Any Warrants so purchased will be surrendered for cancellation and may not be
reissued or resold.
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SNA5-5.1.6
SNA12-4.1.12
7.
Minimum Number of Warrants Exercisable
If a Minimum Exercise Number is specified in the relevant Terms, the Warrants may not be
exercised in a number less than the Minimum Exercise Number or such multiples in which such
Warrants may be exercised in accordance with the relevant Terms.
8.
Maximum Exercise of Warrants
If Warrants are designated in the relevant Terms as “American Style” and a Maximum
Exercise Number is specified in the relevant Terms, then if following any Exercise Date other than
the Final Exercise Date the Issuer determines that more than the Maximum Exercise Number of
Warrants (the “Quota”) were exercised on such Exercise Date by a single Warrantholder or a group
of Warrantholders, then the Issuer may deem the Valuation Date for the first Quota of such
Warrants exercised by such Warrantholder or group of Warrantholders to be the originally
applicable Valuation Date for Warrants exercised on such Exercise Date, and the Valuation Date for
each additional Quota of Warrants (or part thereof, in the case of the last amount) exercised by
such Warrantholder or group of Warrantholders to be the respective Valuation Dates applicable to
each succeeding date following such Exercise Date on which such Warrants could have been
exercised, until all such Warrants exercised on such Exercise Date by such Warrantholder or group
of Warrantholders have been given a Valuation Date. In any case where more than the Quota of
Warrants are so exercised on the same day by a Warrantholder or group of Warrantholders acting
in concert, the order of settlement in respect of such Warrants shall be at the discretion of the
Issuer. Notwithstanding the foregoing, the Issuer may, at any time, in its discretion, accept more
than the Quota of Warrants for exercise on any Exercise Date.
9.
Payments
Payments of the Settlement Amount and any other amounts due in respect of the Warrants
shall be made against presentation and surrender of the relevant Warrants at the specified office of
the Issuer on the Settlement Date by a cheque payable in the currency in which such payment is
due drawn on, or at the option of the holder, by transfer to an account denominated in that
currency with, a bank in the principal financial centre for that currency; provided that, in the case of
payment in Japanese yen to a non- resident of Japan, the transfer shall be to a non-resident
Japanese yen account with an authorised foreign exchange bank.
10.
Replacement of Warrants
If a Warrant is lost, stolen, mutilated, defaced or destroyed, it may be replaced, subject to
applicable laws, regulations and stock exchange regulations, at the specified office of the Issuer or
specified office of such agent of the Issuer as may from time to time be designated by the Issuer
for the purpose and notice of whose designation is given to Warrantholders, in each case on
payment by the claimant of the fees and costs incurred in connection therewith and on such terms
as to evidence security and indemnity (which may provide, inter alia, that if the allegedly lost, stolen
or destroyed Warrant is subsequently presented for exercise or payment, there shall be paid to the
Issuer on demand the amount payable by the Issuer in respect of such Warrants) and otherwise as
the Issuer may require. Mutilated or defaced Warrants must be surrendered before replacements
will be issued.
11.
Issuer’s Specified Office and the Calculation Agent
(a)
Changes in Specified Office or Calculation Agent
The specified office of the Issuer is set out at the foot of these General Conditions. The
Issuer reserves the right at any time to change its specified office or to vary or terminate the
appointment of any Calculation Agent appointed for the Warrants and to appoint other or additional
Calculation Agents, provided that there will always be a Calculation Agent (which may be the Issuer)
where so required by the Terms. Notice of any variation or termination of appointment and of any
changes in the specified office of the Issuer or Calculation Agent will be given to the Warrantholders
in accordance with the procedures set out in Condition 13. The Calculation Agents are acting solely
as agents of the Issuer and do not assume any obligations or duty to, or any relationship of agency
or trust for or with, the Warrantholders.
(b)
Calculation Agent
All calculation functions required of the Calculation Agent under these Conditions and any
Warrant may be delegated to any such person as the Calculation Agent, in its absolute discretion,
may decide.
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(c)
Calculations
The Calculation Agent shall have no responsibility for errors or omissions in any calculations
and determinations made hereunder and all such calculations and determinations shall (save in the
case of manifest error) be final and binding on the Issuer and the Warrantholders.
SNA12-4.1.13
12.
Further Issues
The Issuer shall be at liberty from time to time without the consent of the Warrantholders to
create and issue further Warrants so as to form a single series with the Warrants.
13.
Notices
All notices to Warrantholders will be valid if published in a daily newspaper of general
circulation in Luxembourg (which is expected to be the Luxemburger Wort) except that for so long
as the Warrants are listed on the Official List of the Luxembourg Stock Exchange and the rules of
that exchange so require, such notices shall be published in a daily newspaper with general
Luxembourg Stock Exchange (www.bourse.lu). If any such publication is not practicable, notice
shall be validly given if published in another leading daily English language newspaper with general
circulation in Europe. Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once or on different dates, on the date of the first such
publication.
Taxation
The Issuer will not be liable for or otherwise obliged to pay any tax, duty, withholding or other
payment which may arise as a result of the ownership, transfer or exercise of any Warrants.
SNA12-5.2.2
SNA5-5.2.2
14.
15.
SNA12-4.1.14
(a)
Governing Law:
The Warrants, and any non-contractual obligations arising out of or in connection with them,
shall be governed by, and construed in accordance with, the laws of Luxembourg.
(b)
Jurisdiction:
The Courts of Luxembourg are to have jurisdiction to settle any disputes that may arise out
of or in connection with any Warrants and accordingly any legal action or proceedings
(“Proceedings”) arising out of or in connection with any Warrants may be brought in such courts.
The Issuer irrevocably submits to the jurisdiction of the courts of Luxembourg and waives any
objection to Proceedings in such courts whether on the ground of venue or on the ground that the
Proceedings have been brought in an inconvenient forum. This submission is made for the benefit
of each of the Warrantholders and shall not limit the right of any of them to take Proceedings in any
court of competent jurisdiction nor shall the taking of Proceedings in one or more jurisdictions
preclude the taking of Proceedings in any other jurisdiction (whether concurrently or not) to the
extent permitted by applicable law.
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SNA12-4.1.3
SNA5-4.2
SUMMARY OF PROVISIONS RELATING TO THE NOTES
WHILE IN GLOBAL FORM
Initial Issue of Notes
If the Global Notes are stated in the applicable Final Terms to be issued in respect of Senior
Notes and issued in NGN form, the Global Notes will be delivered on or prior to the original issue
date of the Tranche to a Common Safekeeper. Depositing the Global Notes with the Common
Safekeeper does not necessarily mean that the Notes will be recognised as eligible collateral for
Eurosystem monetary policy and intra-day credit operations by the Eurosystem either upon issue,
or at any or all times during their life. Such recognition will depend upon satisfaction of the
Eurosystem eligibility criteria.
Global Notes which are issued in CGN form and Registered Note Certificates may be
delivered on or prior to the original issue date of the Tranche to a Common Depositary.
If the Global Note is a CGN, upon the initial deposit of a Global Note with a common
depositary for Euroclear and Clearstream, Luxembourg (the “Common Depositary”) or registration of
Registered Notes in the name of any nominee for Euroclear and Clearstream, Luxembourg and
delivery of the relative Registered Note Global Certificate to the Common Depositary, Euroclear or
Clearstream, Luxembourg will credit each subscriber with a nominal amount of Notes equal to the
nominal amount thereof for which it has subscribed and paid. If the Global Note is a NGN, the
nominal amount of the Notes shall be the aggregate amount from time to time entered in the
records of Euroclear or Clearstream, Luxembourg. The records of such clearing system shall be
conclusive evidence of the nominal amount of Notes represented by the Global Note and a
statement issued by such clearing system at any time shall be conclusive evidence of the records
of the relevant clearing system at that time.
Notes that are initially deposited with the Common Depositary may also be credited to the
accounts of subscribers with (if indicated in the relevant Final Terms) other clearing systems through
direct or indirect accounts with Euroclear and Clearstream, Luxembourg held by such other clearing
systems. Conversely, Notes that are initially deposited with any other clearing system may similarly
be credited to the accounts of subscribers with Euroclear, Clearstream, Luxembourg or other
clearing systems.
Relationship of Accountholders with Clearing Systems
Each of the persons shown in the records of Euroclear, Clearstream, Luxembourg, or any
other permitted clearing system (an “Alternative Clearing System”) as the holder of a Note
represented by a Registered Note Global Note or a Global Certificate must look solely to Euroclear,
Clearstream, Luxembourg or such Alternative Clearing System (as the case may be) for his share of
each payment made by the Issuer to the bearer of such Global Note or the holder of the underlying
Registered Notes, as the case may be, and in relation to all other rights arising under the
Registered Note Global Notes or Global Certificates, subject to and in accordance with the
respective rules and procedures of Euroclear, Clearstream, Luxembourg or such Alternative Clearing
System. Such persons shall have no claim directly against the Issuer in respect of payments due
on the Notes for so long as the Notes are represented by such Registered Note Global Note or
Global Certificate and such obligations of the Issuer will be discharged by payment to the bearer of
such Global Note or the holder of the underlying Registered Notes, as the case may be, in respect
of each amount so paid.
Exchange
1.
Temporary Global Notes
Each temporary Global Note will be exchangeable, free of charge to the holder, on or after its
Exchange Date:
(i)
if the relevant Final Terms indicates that such Global Note is issued in compliance with
the C Rules or in a transaction to which TEFRA is not applicable (as to which, see
“Summary of the Programme—Selling Restrictions”), in whole, but not in part, for the
Definitive Notes defined and described below; and
(ii)
otherwise, in whole or in part upon certification as to non-U.S. beneficial ownership in
the form set out in the Agency Agreement for interests in a permanent Global Note or,
if so provided in the relevant Final Terms, for Definitive Notes.
112
Each temporary Global Note that is also an Exchangeable Bearer Note will be exchangeable
for Registered Notes in accordance with the Conditions in addition to any permanent Global Note
or Definitive Notes for which it may be exchangeable and, before its Exchange Date, will also be
exchangeable in whole or in part for Registered Notes only.
2.
Permanent Global Notes
Each permanent Global Note will be exchangeable, free of charge to the holder, on or after
its Exchange Date in whole but not, except as provided below, in part for Definitive Notes or, in the
case of (iii) below, Registered Notes:
(i)
unless principal in respect of any Notes is not paid when due, by the Issuer giving
notice to the Noteholders and the Fiscal Agent of its intention to effect such exchange;
(ii)
if the relevant Final Terms provides that such Global Note is exchangeable at the
request of the holder, by the holder giving notice to the Fiscal Agent of its election for
such exchange;
(iii)
if the permanent Global Note is an Exchangeable Bearer Note, by the holder giving
notice to the Fiscal Agent of its election to exchange the whole or a part of such
Global Note for Registered Notes; and
(iv)
otherwise, (1) if the permanent Global Note is held on behalf of Euroclear or
Clearstream, Luxembourg or an Alternative Clearing System and any such clearing
system is closed for business for a continuous period of 14 days (other than by reason
of holidays, statutory or otherwise) or announces an intention permanently to cease
business or in fact does so, (2) if principal in respect of any Notes is not paid when
due by the holder giving notice to the Fiscal Agent of its election for such exchange or
(3) in such circumstances as are specified in the relevant Final Terms.
3.
Registered Note Global Certificates
If the Final Terms state that the Notes are to be represented by a permanent Registered Note
Global Certificate on issue, transfers of the holding of Notes represented by any Registered
Note Global Certificate pursuant to Condition 2(b) (Transfers of Registered Notes) may only be
made in part:
(i)
if the Notes represented by the Registered Note Global Certificate are held on behalf of
Euroclear or Clearstream, Luxembourg or an Alternative Clearing System and any such
clearing system is closed for business for a continuous period of 14 days (other than
by reason of holidays, statutory or otherwise) or announces an intention permanently to
cease business or does in fact do so; or
(ii)
if principal in respect of any Notes is not paid when due; or
(iii)
in such circumstances as are specified in the relevant Final Terms; or
(iv)
with the consent of the Issuer,
provided that, in the case of the first transfer of part of a holding pursuant to (i) or (ii) above, the
Registered Holder has given the Registrar not less than 30 days’ notice at its specified office of the
Registered Holder’s intention to effect such transfer.
4.
Partial Exchange of Permanent Global Notes
For so long as a permanent Global Note is held on behalf of a clearing system and the rules
of that clearing system permit, such permanent Global Note will be exchangeable in part on one or
more occasions (1) for Registered Notes if the permanent Global Note is an Exchangeable Bearer
Note and the part submitted for exchange is to be exchanged for Registered Notes, or (2) for
Definitive Notes (i) if principal in respect of any Notes is not paid when due or (ii) if so provided in,
and in accordance with, the Conditions (which will be set out in the relevant Final Terms) relating to
Partly-Paid Notes.
5.
Delivery of Notes
If the Global Note is a CGN, on or after any due date for exchange the holder of a Global
Note may surrender such Global Note or, in the case of a partial exchange, present it for
endorsement to or to the order of the Fiscal Agent. In exchange for any Global Note, or the part
thereof to be exchanged, the Issuer will (i) in the case of a temporary Global Note exchangeable for
113
a permanent Global Note, deliver, or procure the delivery of, a permanent Global Note in an
aggregate nominal amount equal to that of the whole or that part of a temporary Global Note that
is being exchanged or, in the case of a subsequent exchange, endorse, or procure the endorsement
of, a permanent Global Note to reflect such exchange or (ii) in the case of a Global Note
exchangeable for Definitive Notes or Registered Notes, deliver, or procure the delivery of, an equal
aggregate nominal amount of duly executed and authenticated Definitive Notes and/or Registered
Note Certificates, as the case may be, or if the Global Note is a NGN, the Issuer will procure that
details of such exchange be entered pro rata in the records of the relevant clearing system. In this
Prospectus, “Definitive Notes” means, in relation to any Global Note, the definitive Bearer Notes for
which such Global Note may be exchanged (if appropriate, having attached to them all Coupons
and Receipts in respect of interest or Instalment Amounts that have not already been paid on the
Global Note and a Talon). Definitive Notes will be security printed and Registered Note Certificates
will be printed in accordance with any applicable legal and stock exchange requirements in or
substantially in the form set out in the Schedules to the Agency Agreement. On exchange in full of
each permanent Global Note, the Issuer will, if the holder so requests, procure that it is cancelled
and returned to the holder together with the relevant Definitive Notes.
6.
Exchange Date
“Exchange Date” means, in relation to a temporary Global Note, the day falling after the
expiry of 40 days after its issue date and, in relation to a permanent Global Note, a day falling not
less than 60 days, or in the case of an exchange for Registered Notes five days, or in the case of
failure to pay principal in respect of any Notes when due 30 days after that on which the notice
requiring exchange is given and on which banks are open for business in the city in which the
specified office of the Fiscal Agent is located and in the city in which the relevant clearing system
is located.
Amendment to Conditions
The temporary Global Notes, permanent Global Notes and Registered Note Global
Certificates contain provisions that apply to the Notes that they represent, some of which modify
the effect of the terms and conditions of the Notes set out in this Prospectus. The following is a
summary of certain of those provisions:
1.
Payments
No payment falling due after the Exchange Date will be made on any Global Note unless
exchange for an interest in a permanent Global Note or for Definitive Notes or Registered Notes is
improperly withheld or refused. Payments on any temporary Global Note issued in compliance with
the D Rules before the Exchange Date will only be made against presentation of certification as to
non-U.S. beneficial ownership in the form set out in the Agency Agreement. All payments in respect
of Notes represented by a Global Note in CGN form, will be made against presentation for
endorsement and, if no further payment falls to be made in respect of the Notes, surrender of that
Global Note to or to the order of the Fiscal Agent or such other Paying Agent as shall have been
notified to the Noteholders for such purpose. If the Global Note is a CGN, a record of each
payment so made will be endorsed on each Global Note, which endorsement will be prima facie
evidence that such payment has been made in respect of the Notes. Condition 7(e)(vii) and
Condition 8(d) of the terms and conditions (in relation to Senior Notes) and Condition 6(e)(vii) and
Condition 7(d) of the terms and conditions (in relation to Subordinated Notes) will apply to the
Definitive Notes only. If the Global Note is a NGN, the Issuer shall procure the details of each such
payment shall be entered pro rata in the records of the relevant clearing system and in the case of
payments of principal, the nominal amount of the Notes recorded in the records of the relevant
clearing system and represented by the Global Note will be reduced accordingly. Payments under
the NGN will be made to its holder. Each payment so made will discharge the Issuer’s obligations
in respect thereof. Any failure to make the entries in the records of the relevant clearing system
shall not affect such discharge.
2.
Prescription
Claims against the Issuer in respect of Notes that are represented by a permanent Global
Note will become void unless it is presented for payment within a period of ten years (in the case
of principal) and five years (in the case of interest) from the appropriate Relevant Date (as defined
in Condition 9 in the case of the Senior Notes and in Condition 8 in the case of the Subordinated
Notes).
114
3.
Meetings
The holder of a permanent Global Note or of the Notes represented by a Registered Note
Global Certificate shall (unless such permanent Global Note or Registered Note Global Certificate
represents only one Note) be treated as being two persons for the purposes of any quorum
requirements of a meeting of Noteholders and, at any such meeting, the holder of a permanent
Global Note shall be treated as having one vote in respect of each minimum Specified
Denomination of Notes for which such Global Note may be exchanged. (All holders of Registered
Notes are entitled to one vote in respect of each Note comprising such Noteholder’s holding,
whether or not represented by a Registered Note Global Certificate.)
4.
Cancellation
Cancellation of any Note represented by a permanent Global Note that is required by the
Conditions to be cancelled (other than upon its redemption) will be effected by reduction in the
nominal amount of the relevant permanent Global Note.
5.
Purchase
Notes represented by a permanent Global Note may only be purchased by the Issuer or any
of its subsidiaries if they are purchased together with the rights to receive all future payments of
interest and Instalment Amounts (if any) thereon.
6.
Issuer’s Option
Any option of the Issuer provided for in the Conditions of any Notes while such Notes are
represented by a permanent Global Note shall be exercised by the Issuer giving notice to the
Noteholders within the time limits set out in and containing the information required by the
Conditions, except that the notice shall not be required to contain the serial numbers of Notes
drawn in the case of a partial exercise of an option and accordingly no drawing of Notes shall be
required. In the event that any option of the Issuer is exercised in respect of some but not all of the
Notes of any Series, the rights of accountholders with a clearing system in respect of the Notes will
be governed by the standard procedures of Euroclear, Clearstream, Luxembourg, Euroclear France
(to be reflected in the records of Euroclear, Clearstream, Luxembourg and/or Euroclear, France as
either a pool factor or a reduction in nominal amount, at their discretion or any other Alternative
Clearing System (as the case may be).
7.
Noteholders’ Options
Any option of the Noteholders provided for in the Conditions of any Notes while such Notes
are represented by a permanent Global Note may be exercised by the holder of the permanent
Global Note giving notice to the Fiscal Agent within the time limits relating to the deposit of Notes
with a Paying Agent set out in the Conditions substantially in the form of the notice available from
any Paying Agent, except that the notice shall not be required to contain the serial numbers of the
Notes in respect of which the option has been exercised, and stating the nominal amount of Notes
in respect of which the option is exercised and at the same time, where the permanent Global Note
is a CGN, presenting the permanent Global Note to the Fiscal Agent, or to a Paying Agent acting
on behalf of the Fiscal Agent, for notation. Where the Global Note is a NGN, the Issuer shall
procure that details of such exercise shall be entered pro rata in the records of the relevant clearing
system and the nominal amount of the Notes recorded in those records will be reduced accordingly.
8
NGN nominal amount
Where the Global Note is a NGN, the Issuer shall procure that any exchange, payment,
cancellation, exercise of any option or any right under the Notes, as the case may be, in addition
to the circumstances set out above shall be entered in the records of the relevant clearing systems
and upon any such entry being made, in respect of payments of principal, the nominal amount of
the Notes represented by such Global Note shall be adjusted accordingly.
9.
Events of Default
Each Global Note provides that the holder may cause such Global Note, or a portion of it, to
become due and repayable in the circumstances described in Condition 10 of the Senior Notes or
Condition 9 of the Subordinated Notes by stating in the notice to the Fiscal Agent the nominal
amount of such Global Note that is becoming due and repayable. If principal in respect of any Note
is not paid when due, the holder of a Global Note or Registered Notes represented by a Registered
Note Global Certificate may elect for direct enforcement rights against the Issuer to come into
115
effect in relation to the whole or a part of such Global Note or one or more Registered Notes in
favour of the persons entitled to such part of such Global Note or such Registered Notes, as the
case may be, as accountholders with a clearing system under the terms of an amended and
restated Deed of Covenant executed as a deed by the Issuer acting through its head office and
through Dexia Banque Internationale à Luxembourg, société anonyme Singapore Branch on 3 April,
2009 in relation to Senior Notes and Certificates that are not denominated in Luxembourg francs or
EUR, and under the terms of an amended and restated Undertaking governed by Luxembourg law
executed by the Issuer acting through its head office and through Dexia Banque Internationale à
Luxembourg, société anonyme Singapore Branch on 3 April, 2009 in relation to Senior Notes that
are denominated in Luxembourg francs or EUR and, in the case of Dexia BIL, Subordinated Notes.
Following any such acquisition of direct rights, the Global Note or, as the case may be, the
Registered Note Global Certificate and the corresponding entry in the register kept by the Registrar
will become void as to the specified portion or Registered Notes, as the case may be. However, no
such election may be made in respect of Notes represented by a Registered Note Global Certificate
unless the transfer of the whole or a part of the holding of Notes represented by that Registered
Note Global Certificate shall have been improperly withheld or refused.
10.
Notices
So long as any Notes are represented by a Global Note and such Global Note is held on
behalf of a clearing system, notices to the holders of Notes of that Series may be given by delivery
of the relevant notice to that clearing system for communication by it to entitled accountholders in
substitution for publication as required by the Conditions or by delivery of the relevant notice to the
holder of the Global Note except that so long as the Notes are listed on the Official List of the
Luxembourg Stock Exchange and the rules of that exchange so require, notices shall also be
published in a leading newspaper having general circulation in Luxembourg (which is expected to
be the Luxemburger Wort) or on the website of the Luxembourg Stock Exchange (www.bourse.lu).
Partly-Paid Notes
The provisions relating to Partly-Paid Notes are not set out in this Prospectus, but will be
contained in the relevant Final Terms and thereby in the Global Notes. For so long as any
instalments of the subscription moneys due from the holder of Partly-Paid Notes are overdue, no
interest in a Global Note representing such Notes may be exchanged for an interest in a permanent
Global Note or for Definitive Notes (as the case may be). In the event that any Noteholder fails to
pay any instalment due on any Partly-Paid Notes within the time specified, the Issuer may be
entitled to forfeit such Notes and shall have no further obligation to their holder in respect of them.
116
THE STATE GUARANTEE
On 9 December 2008: (a) Dexia SA, the parent company of the Dexia Group, on behalf of
itself and certain other Dexia Group entities, (b) the Belgian State, (c) the French State and (d) the
Luxembourg State entered into a First Demand Guarantee Agreement to severally but not jointly
guarantee (the “State Guarantee”) specified obligations (“State Guaranteed Obligations”) of
certain Dexia group entities, including the Dexia Banque Internationale a Luxembourg, Societe
Anonyme (the “Dexia Eligible Entities”), as more fully described in the State Guarantee Agreement
below. Senior Notes issued under the Programme may benefit from the State Guarantee if so
specified in the relevant Final Terms (“State Guaranteed Notes”), subject to compliance with the
terms of the State Guarantee Agreement. See, in particular, “State Quota and Maximum of the
Guarantee” and “Conditions for Benefitting from Guarantee”. The following is the text of the
non-binding English translation of the State Guarantee Agreement followed by the binding French
language original version of the State Guarantee Agreement.
First Demand Guarantee Agreement
Between the following Parties, hereinafter the “Parties”:
1.
The Belgian State, represented by Mr Didier Reynders, Minister of Finance, duly authorised
by the Royal Decree of 16 October 2008 adopted pursuant to Article 117 bis of the Law of
2 August 2002 relating to the supervision of the financial sector and to financial services;
hereinafter the “Belgian State”;
2.
The French State, represented by Mrs Christine Lagarde, Minister of the Economy, Industry
and Employment, duly authorised by IV of Article 6 of the amended finance Law No 20081061 dated 16 October 2008 for the financing of the economy published in the Official
Journal of the French Republic on 17 October 2008;
hereinafter the “French State”;
3.
The Luxembourg State, represented by Mr Luc Frieden, Minister of the Treasury and the
Budget, duly authorised by the Grand Ducal Regulation of 10 October 2008 authorising the
Government to grant a financial guarantee to the Dexia banking group;
hereinafter the “Luxembourg State”;
hereinafter collectively the “States”; and
4.
Dexia SA, a limited company under Belgian Law having its registered office in 1210 Brussels,
11 Place Rogier, Company nbr RPM Brussels VAT BE 0458.548.296; represented by Benoît
Debroise, member of the Executive committee and proxyholder;
hereinafter “Dexia”;
acting on its own behalf and on behalf of all the Guaranteed Entities and, more generally and
to the extent applicable, all of its subsidiaries;
applying for a State Guarantee in order to facilitate the renewal of its existing financing;
and which accepts the terms of the present Agreement.
I
Whereas:
(a)
On 9 October 2008, the Kingdom of Belgium, the Republic of France and the
Grand Duchy of Luxembourg entered into a Protocol, in the presence of Dexia,
with a view to establishing a Guarantee mechanism in favour of the latter and its
subsidiaries Dexia Bank Belgium, Dexia Banque Internationale à Luxembourg,
limited company and Dexia Crédit Local (hereinafter the “Protocol”).
(b)
The States acknowledge that Dexia was recapitalised on 3 October 2008.
(c)
The States acknowledge that the interests of the Belgian, French and
Luxembourg economies and the protection of all depositors justify the
establishment of a first demand guarantee mechanism in favour of Dexia and its
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A6.1
A6.2
subsidiaries Dexia Bank Belgium, Dexia Banque Internationale à Luxembourg,
limited company and Dexia Crédit Local.
(d)
II
In establishing this guarantee mechanism, the three States agreed severally but
not jointly to give their guarantee to all of the Guaranteed Entities of the Dexia
Group, as defined in Article 3. Although, for practical reasons, this Agreement
may provide that each State deals in certain cases with a specific entity of the
Dexia Group established on its own territory, this may in no case be interpreted
as any mitigation whatsoever of the principle according to which each of the
three States, together with the other two, but on a several and not joint basis,
gives its guarantee to all the Guaranteed Entities of the Dexia Group, as defined
in Article 3.
Now, therefore, the Parties agree:
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Part 1 - Definitions and General Rules
1.
Definitions
In this Agreement, unless stated otherwise, the following capitalised terms shall have the
meaning ascribed to them below:
“Guarantee Call” shall have the meaning given in Articles 7.2.1 and 7.2.2 or in Article 9.2.1,
respectively, depending on whether it applies to Securities and Financial Instruments on the
one hand and to Contracts on the other hand;
“Agreement” shall mean this Agreement as well as its appendices which shall form an
integral part of it;
“Contracts” shall mean unsubordinated Guaranteed Obligations in the form of loans and
deposits and in any other form that does not constitute a Security or a Financial Instrument,
and the creditor of which is a Third Party Beneficiary;
“Security Holders” shall mean the holders of Securities and Financial Instruments other than
Third Party Beneficiaries;
“Guaranteed Entities” shall mean the Guaranteed Entities as defined in Article 3;
“Guarantee” shall have the meaning given in Article 3;
“Day” shall mean a calendar day;
“Business Day” shall mean a Day, other than a Saturday or a Sunday, when the banks are
open in France, Belgium and Luxembourg;
“Guaranteed Obligations” shall mean the obligations of the Guaranteed Entities defined in
Article 3;
“Monthly Period” shall mean each successive period of one calendar month after and
excluding 9 October 2008;
“Protocol” shall have the meaning given in the preamble;
“Third Party Beneficiaries” shall mean the entities referred to in Appendix 1; and
“Securities and Financial Instruments” and/or “Securit(y)(ies) or Financial Instrument(s)”,
as applicable, shall mean Guaranteed Obligations in the form of securities and financial
instruments of which the unit face value amounts to at least € 25,000.
2.
Objectives of the Guarantee
The objective of the present guarantee mechanism shall be to facilitate the renewal of the
existing financing of Dexia and to enable it, by its intermediation activity, to contribute to the
financing of the economic activity. Having regard to point 27 of the European Commission
Communication “on the application of the State aid rules to measures taken in relation to
financial institutions in the context of the current global financial crisis” (OJEC 2008, C 270,
p. 8), Dexia undertakes (a) not to abuse the competitive situation resulting from the guarantee
and shall among other things refrain from using the guarantee for purely arbitrage
transactions or in any advertising campaign emphasising the existence of the guarantee; (b)
to limit the growth of its balance sheet (as compared with the situation as at 30 June 2008)
to the highest of (i) the average of the growth of the Belgian, French and Luxembourg GDP
during the year 2007, (ii) the average of the annual balance sheet growth of the Belgian,
French and Luxembourg financial sector in the period 1987-2007 and (iii) the balance sheet
growth of the European financial sector in the period April-September 2008; and (c) not to
offer remuneration terms for deposits from individuals that would rank among the three most
attractive remunerations offered by the ten banks occupying the most important market share
for deposits from individuals in each of the three States individually.
3.
Object of the Guarantee
Without prejudice to Article 20.2, and in accordance with the Protocol, the Belgian State, the
French State and the Luxembourg State severally, but not jointly, each to the extent of its
quota indicated in Article 5 and according to the terms and conditions of the present
Agreement, guarantee the performance by Dexia SA, Dexia Banque Internationale à
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Luxembourg, limited company, Dexia Bank Belgium and Dexia Crédit Local (including their
foreign branches listed in Appendix 3) and their issuance vehicles under Belgian, French and
Luxembourg Law (the “Guaranteed Entities”) (the “Guarantee”) of their repayment
obligations to Third Party Beneficiaries (in principal, interest and incidental amounts) in any
currency, resulting from financings in the form of Contracts, Securities or Financial
Instruments initially raised with Third Party Beneficiaries, consistent with the criteria provided
in Appendix 2 of the Agreement, contracted or issued between 9 October 2008 inclusive and
31 October 2009 inclusive, and maturing at the latest on 31 October 2011 inclusive
(hereinafter the “Guaranteed Obligations”).
4.
Nature of the Guarantee
The guarantee is an autonomous demand guarantee and is payable upon first demand. In the
event of a Guarantee Call, the States waive their right (without prejudice to their rights vis-àvis the Guaranteed Entities) to invoke any exceptions that the Guaranteed Entities could
assert against the Third Party Beneficiaries or Security Holders to refuse payment.
All the Guaranteed Obligations of the Guaranteed Entities shall be severally, but not jointly,
guaranteed by the States. The Guarantee granted by each of the States is therefore not
limited to the Guaranteed Entities established on its own territory but shall also apply for
Guaranteed Entities established outside its territory.
5.
State Quotas and Global Maximum of the Guarantee
5.1 Each of the States shall guarantee the repayment obligations of the Guaranteed
Entities within the meaning of Article 3 up to the amount of their quota, which is
established at:
•
60.5% for the Belgian State;
•
36.5% for the French State; and
•
3.0% for the Luxembourg State.
This quota shall be understood to be per Guaranteed Obligation (within the meaning of
Article 3) and per Guarantee Call within the meaning of Articles 7.2.1, 7.2.2 and 9.2.1.
5.2
The Aggregate Commitment by the States pursuant to the Guarantee may not exceed
a maximum of € 150 billion, or:
•
€ 90.75 billion for the Belgian State;
•
€ 54.75 billion for the French State; and
•
€ 4.5 billion for the Luxembourg State.
Aggregate Commitment shall be understood as the total Guaranteed Obligations
outstanding at any moment during the term of this Agreement. Dexia undertakes, for
itself and on behalf of the Guaranteed Entities, to respect the maximum fixed at the
global undertaking.
Any non-compliance by the Guaranteed Entities with the maximum established at the
Aggregate Commitment shall not affect the rights of Third Party Beneficiaries and
Security Holders under the Guarantee if these rights were vested prior to the exceeding
of the maximum.
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Part 2 - Guarantee of Securities and Financial Instruments
6.
7.
Determination of the Guaranteed Securities and Financial Instruments
6.1 Without the need for any formality, and notwithstanding any obligation of the
Guaranteed Entities necessary for the implementation of the Guarantee, the Guarantee
shall cover any Security or Financial Instrument initially issued to Third Party
Beneficiaries, which meet the criteria set out in Appendix 2 of the Agreement, matures
at the latest on 31 October 2011 inclusive, and is issued by one of the Guaranteed
Entities between 9 October 2008 inclusive and 31 October 2009 inclusive. It is
expressly agreed, moreover, that the Guarantee shall continue to apply to the
Securities or Financial Instruments, under the same conditions and within the same
limits, notwithstanding their sale or transfer to any other Third Party Beneficiary or
Security Holder. Consequently, Security Holders may also make a Guarantee Call under
the conditions provided in this Agreement. Notwithstanding Articles 6.2, 6.3, 6.4, 17.2
and 18.2, Securities and Financial Instruments with no fixed maturity cease to be
guaranteed on 31 October 2009 inclusive.
6.2
The Guaranteed Entities however reserve the right to issue Securities or Financial
Instruments without the benefit of the Guarantee, provided (i) that an express statement
to that effect is affixed to the documentation relating to the Security or the Financial
Instrument which is not guaranteed, (ii) that such waiver of the benefit of the Guarantee
is irrevocable and (iii) that the information provided by Dexia for the purposes of
calculating the Guarantee remuneration permits identification of those transactions
which Dexia has chosen to issue without the benefit of the Guarantee. Consequently,
Securities or Financial Instruments, for which the documentation expressly includes at
the time of entering into or issuance, an irrevocable waiver of the benefit of the
Guarantee shall not constitute Guaranteed Obligations for the application of this
Agreement. The monthly reporting by Dexia for the purposes of calculation of the
remuneration shall, on the request of the States, take account of and identify the
Securities and Financial Instruments not covered by the Guarantee.
6.3
The Guaranteed Entities shall notify the States in accordance with the procedures set
forth in Article 20.6 prior to any issuance of Securities or Financial Instruments referred
to in Article 6.2. The issuance for which notification is given may not be launched in the
event of any justified objection from one of the States. The States have three Business
Days as of receipt of the notification to raise any such objection.
6.4
The Guaranteed Entities acting jointly may waive the benefit of the Guarantee for all
Securities or Financial Instruments with a maturity of less than three months. Any
waiver of the benefit of the Guarantee for all Securities or Financial Instruments with a
maturity of less than three months shall be expressly agreed by the three States. This
waiver shall apply to issuances of Securities or Financial Instruments with a maturity of
less than three months as of the date of the waiver, for all the Guaranteed Entities
jointly. This waiver does not affect Securities and Financial Instruments issued before
the date of the waiver, which continue to benefit from the guarantee until they mature,
without prejudice to acquired rights.
6.5
It is Dexia’s responsibility to ensure, through suitable drafting of the legal
documentation with respect to the relevant issuance, to ensure the eligibility to the
Guarantee of Securities or Financial Instruments issued by it. None of the States will
incur any liability vis-à-vis any Third Party Beneficiary or Security Holder, if a Security
or Financial Instrument presented by Dexia as benefiting from the Guarantee does not
actually benefit from it.
Guarantee Call relating to Securities or Financial Instruments
7.1 Conditions of the Guarantee Call for Securities and Financial Instruments
Within the meaning of this Article 7, the Guarantee may be called:
•
by Dexia, only if Dexia claims that (i) any of the Guaranteed Entities is unable to
pay on its due date any sum (in principal, interest or incidental amounts)
pursuant to a Security or Financial Instrument or that (ii) the call upon the
121
Guarantee is necessary to ensure the continuity of its operations or those of the
relevant Guaranteed Entity.
•
7.2
by any Third Party Beneficiary or Security Holder insofar as he claims that (i) the
sums (in principal, interest or incidental amounts) due by a Guaranteed Entity in
its capacity as issuer have not been paid to it on the scheduled payment date
and (ii) the failure to pay is attributable to that same Guaranteed Entity.
Terms of the Guarantee Call for Securities and Financial Instruments
7.2.1 Any Guarantee Call by Dexia within the meaning of Article 7.1 shall be made by
means of a notice addressed immediately to each of the States (the “Guarantee
Call”). The Guarantee Call gives rise to the performance of the Guarantee
provided under Article 11.1.
7.2.2 Any Guarantee Call by a Third Party Beneficiary or a Security Holder, within the
meaning of Article 7.1, shall be made by means of a notice addressed
immediately to each of the States (the “Guarantee Call”) substantially in the
form set forth in Appendix 4. The Guarantee Call gives rise to the performance
of the Guarantee in accordance with the terms provided under Article 11.1 as
soon as the payment obligations linked to the Security or the Financial
Instrument as defined in Article 3 have not been performed upon maturity.
7.2.3 In order to be valid, the Guarantee Call by Dexia, a Third Party Beneficiary or a
Security Holder within the meaning of Article 7.1 must be accompanied, in the
notice to each of the States by (i) the identification of the Securities or Financial
Instruments, (ii) a copy of the contractual documentation relating thereto, (iii) the
amount for which the Guarantee Call is made (specifying the amounts in
principal, interest and incidental amounts unpaid at the date of the Guarantee
Call), (iv) the reason for the Guarantee Call and (v) a description of the terms of
payment of the Securities or Financial Instruments, substantially in the forms set
forth in Appendix 4.
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Part 3 - Guarantee of Contracts
8.
9.
Determination of the Guaranteed Contracts
8.1 Without the need for any formality, the Guarantee shall cover any Contract satisfying
the criteria set out in Appendix 2 of the Agreement, and which matures before
31 October 2011 inclusive, provided it has been entered into by one of the Guaranteed
Entities between 9 October 2008 inclusive and 31 October 2009 inclusive. Contracts
with no fixed maturity, such as demand deposits, in existence on 9 October 2008 are
deemed to have been entered into on that date and benefit from the Guarantee.
Notwithstanding Articles 8.3, 17.2 and 18.2, Contracts with no fixed maturity are
deemed to mature on 31 October 2009.
8.2
Dexia shall, under its own responsibility, ensure the eligibility to the Guarantee of the
Contracts which it enters into. None of the States shall incur any liability vis-à-vis any
Third Party Beneficiary if a Contract presented by Dexia as benefiting from the
Guarantee does not actually benefit from it.
8.3
At the end of each Monthly Period, Dexia shall be entitled to waive the Guarantee for
all Contracts entered into or renewed from the Day of the waiver, including Contracts
with no fixed maturity. Such waiver shall apply to all the Guaranteed Entities jointly. The
Guarantee continues to cover Contracts entered into prior to such date until they
mature, without prejudice to acquired rights.
8.4
The Guaranteed Entities, acting jointly, shall be entitled to waive the Guarantee for all
Contracts with a maturity of less than one month. Any waiver of the benefit of the
Guarantee for all Contracts with a maturity of less than one month shall be expressly
agreed by the three States. This waiver shall apply to Contracts with a maturity of less
than one month as of the date of the waiver, for all the Guaranteed Entities jointly. This
waiver does not affect Contracts entered into before the date of the waiver, which
continue to benefit from the guarantee until they mature, without prejudice to acquired
rights.
Conditions of the Guarantee Call – Contracts
9.1 The Guarantee may only be called by Dexia and only if Dexia claims that (i) any of the
Guaranteed Entities is unable to pay on its due date any sum (in principal, interest or
incidental amounts) owed pursuant to a Contract or that (ii) the call upon the Guarantee
is necessary to ensure the continuity of its operations or those of the Guaranteed Entity
concerned.
9.2
Terms of the Guarantee Call for Contracts
9.2.1 Any Guarantee Call by Dexia shall be made by means of notice addressed
promptly to each of the States (the “Guarantee Call”). The Guarantee Call shall
give rise to performance of the Guarantee provided in Article 11.
9.2.2 In order to be valid, the Guarantee Call must be accompanied, in the notice to
each of the States by (i) the identification of the Contracts, (ii) a copy of the
contractual documentation relating thereto, (iii) the amount for which the
Guarantee Call is made (specifying the maturities in principal, interest and
incidental amounts unpaid at the date of the Guarantee Call), (iv) the reasons for
the Guarantee Call and (v) a description of the terms of payment of the Contract,
substantially in the form set forth in Appendix 4.
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Part 4 - Common Provisions
10.
Guarantee Call: Specific Case of the Bankruptcy of a Guaranteed Entity
From the moment that the bankruptcy of a Guaranteed Entity is declared, or a judicial
liquidation procedure is commenced with respect to a Guaranteed Entity, Third Party
Beneficiaries which are creditors of the relevant Guaranteed Entity or Holders of Securities
issued by the relevant Guaranteed Entity may immediately and directly call the Guarantee in
accordance with the terms of Article 7.2 and Article 9.2.
11.
Performance of the Guarantee
11.1 Performance of the Guarantee by the States
11.1.1 The Guaranteed Entity shall use its best efforts to ensure that the States have
the information necessary for the proper performance of the payments within the
deadlines provided in respect of the Guaranteed Obligation, which Dexia shall
procure. As regards Guarantee Calls within the meaning of Article 7.1, 1st indent
and Article 9.1, Dexia shall inform the States of the Guarantee Call before the
maturity date rendering the Guarantee Call necessary, within the same deadlines
referred to in Article 11.1.2.
11.1.2 Each of the States shall, up to the amount of its quota, pay in favour of the Third
Party Beneficiaries or Security Holders the amount due and called pursuant to
any Guarantee Call in accordance with the provisions of this Agreement.
Payments shall be made in accordance with the following deadlines:
•
within the three days following the Guarantee Call for amounts of less than
€ 1 billion;
•
within the five days following the Guarantee Call for amounts between
€ 1 and 3 billion;
•
within the seven days following the Guarantee Call for amounts between
€ 3 and 5 billion;
•
within the ten days following the Guarantee Call for amounts in excess of
€ 5 billion.
11.1.3 Payments shall be made via any appropriate clearing system or institutional
service mechanism or, by default, directly.
11.2 Effects of the performance of the Guarantee by the States and subrogation of the
States in the rights of the Third Party Beneficiary or Security Holder
11.2.1 In all cases, each State shall be entitled, from the time when that State has paid
any sum pursuant to the Guarantee, to reimbursement by the Guaranteed Entity
concerned, and the latter shall have no right to invoke against the State the
exceptions resulting from the underlying transactions between itself and the
Third Party Beneficiaries or the Security Holders. Dexia shall procure compliance
with this obligation of reimbursement by the Guaranteed Entities. In addition,
each State shall immediately and automatically be subrogated in all of the rights
of the Third Party Beneficiaries or Security Holders against the Guaranteed Entity
concerned pursuant to the Guaranteed Obligation concerned, up to the amount
of the sum paid.
11.2.2 Notwithstanding the above statement, any sum paid by a State pursuant to the
Guarantee shall bear interest at the EONIA rate plus 200 basis points per annum,
starting from the date of payment to the Third Party Beneficiaries or Security
Holders by the State concerned until the date of repayment by the Guaranteed
Entity to the State concerned, payable on the said date of repayment.
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12.
Guarantee Remuneration
12.1 The Guarantee remuneration shall consist of a fee which Dexia must pay monthly on
the outstanding amounts pro rata temporis calculated as follows:
•
until 15 February 2009, and without prejudice to a potential extension of this
period with the authorisation of the European Commission after the notification
mentioned in Article 20.2, for all Guaranteed Obligations in the form of Contracts,
Securities and Financial Instruments with a maturity of less than one month, as
well as, for a maximum amount of EUR 4 billion, for the callable deposits, in
particular by fiduciaries, this fee shall be equal to 25 basis points on an annual
basis calculated on the average amount outstanding on Guaranteed Obligations
in the form of Contracts, Securities and Financial Instruments with a maturity of
less than one month as well as, for a maximum amount of EUR 4 billion, for the
callable deposits, in particular by fiduciaries, and benefiting from the Guarantee
during the last Monthly Period;
•
for all Guaranteed Obligations with a maturity of less than twelve (12) months
inclusive, including Guaranteed Obligations with no fixed maturity, and excluding
the Guaranteed Obligations referred to under the first indent of this Article until
15 February 2009 and without prejudice to a potential extension of this period
with the authorisation of the European Commission, this commission shall be
equal to 50 basis points on an annual basis calculated on the average amount
outstanding on Guaranteed Obligations with a maturity of less than twelve (12)
months inclusive and benefiting from the Guarantee during the last Monthly
Period;
•
for all Guaranteed Obligations with a maturity strictly longer than one year, the
Guarantee remuneration shall be equal to 50 basis points on an annual basis,
increased by the lowest of the following two values, applied to each Guaranteed
Obligation: either the median of the Dexia CDS 5 years spreads calculated on
the period beginning on 1 January 2007 and ending on 31 August 2008
(provided that these spreads are representative), or the median of the 5 years
CDS spreads of all credit institutions with a long-term credit rating equivalent to
that of Dexia, calculated over the same period, the rate being applied to the
average amount outstanding on Guaranteed Obligations with a maturity strictly
longer than one year and benefiting from the Guarantee during the last Monthly
Period.
The States may revise this fee by mutual agreement as a result of the evolution
of market conditions.
12.2 At the latest on the eleventh (11th) day of each calendar month, Dexia shall send a
statement of the aggregate amounts guaranteed, indicating their evolution over the
entire past Monthly Period, as well as details of the global amount per Guaranteed
Entity. Dexia shall calculate the fee due on the basis of Article 12.1. Each of the States
shall receive a proportion of the total fee equal to the quota of its contribution to the
Guarantee as defined in Article 5.1 of the present Agreement. Subject to acceptance of
the calculation of the fee by each of the States, Dexia shall, at the latest on the
fourteenth (14th) day of each calendar month, pay to each State, in the name and on
behalf of all Guaranteed Entities, the fee due to it pursuant to the present Agreement.
The premiums shall be received in each of the States by the institution designated to
that effect by each State.
13.
Information to the States
13.1 In addition to the information referred to in Article 12.2, Dexia must, in the name and
on behalf of all of the Guaranteed Entities, indicate to each State, at any time and upon
request by that State, the total amount of the sums guaranteed by it, or any
information necessary for implementation or verification of the proper performance of
this Agreement.
13.2 Without prejudice to the generality of the foregoing, Dexia must immediately inform the
States upon the occurrence of any fact or the occurrence of any event which might as
a consequence justify a Guarantee Call.
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13.3 Each of the States must promptly communicate to the other two States any
information of which it may become aware and which could affect the implementation
of the terms of the Protocol or of this Agreement.
13.4 The Parties undertake to coordinate their communication regarding the Protocol of
Agreement, the present Agreement and their application vis-à-vis the international
authorities, supranational authorities (European Commission, European Central Bank,
etc.) and foreign authorities.
14.
Internal control by Dexia
Dexia must ensure that its internal control environment enables it to ensure that the objective
of this Agreement as defined in Article 2 is respected.
15.
Term of the Guarantee
Notwithstanding Articles 6, 7.2, 8.3, 9.2, 17 and 18, the Guarantee only covers Guaranteed
Obligations which expire at the latest on 31 October 2011.
16.
Extension of the Guarantee
The Guarantee may be extended by mutual agreement among the States for a period of one
year.
17.
Termination of the Guarantee
17.1 If an improvement of the market conditions renders the Guarantee mechanism
unnecessary, or if one of the provisions of the present Agreement is not respected by
a Guaranteed Entity and/or Dexia, each State reserves the right to terminate this
Agreement, without prejudice to acquired rights. Such termination must be the subject
of prior consultation and, unless agreed otherwise between the States, be subject to a
prior notice of one month. The markets shall be notified of such termination.
17.2 The termination of this Agreement by only one of the States shall have the effect that
the Contracts, Securities and/or Financial Instruments referred to in Article 3 entered
into, issued, or deemed entered into or issued pursuant to Article 6.1 or Article 8.1, by
all the Guaranteed Entities as of the day after the Day of the termination, including
Contracts, Securities and Financial Instruments without fixed maturity, shall not or no
longer benefit from the Guarantee. The termination of the Guarantee may in no case
have a retroactive effect and may not therefore rescind the Guarantee benefiting
Contracts, Securities or Financial Instruments covered by the Guarantee until their
maturity. The States not wishing to terminate the Guarantee may nonetheless decide to
maintain their Guarantee for all or some of the Guaranteed Entities or Guaranteed
Obligations.
18.
Amendment of the Present Agreement
18.1 Depending upon the circumstances, the States jointly reserve the right, without
prejudice to acquired rights, to amend certain provisions of this Agreement. In
particular, in the event that (a) modifications should be necessary to ensure that this
Agreement complies with European rules on State aid or (b) a European guarantee plan
enters into force, or in the event of European harmonisation, the States reserve the
right to modify this Agreement and/or adjust their joint Guarantee in line with this plan.
18.2 Within this context, the amendment of certain provisions of this Agreement may in no
case have a retroactive effect and may not therefore rescind the Guarantee benefiting
Contracts, Securities or Financial Instruments already covered by the Guarantee, or
amend the conditions of the Guarantee Call for those Contracts, Securities or Financial
Instruments. However, should an amendment be necessary to ensure that this
Agreement complies with European rules on State aid, this amendment may have a
retroactive effect without causing prejudice to the rights of the Third Party Beneficiaries
and the Security Holders.
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19.
Confidentiality Clause
Any information exchanged or received in the context of the implementation of this
Agreement must be treated confidentially by all the Parties, unless it is already in the public
domain. Nevertheless, the Parties stipulate that relevant information may be communicated to
national, international and supranational authorities (notably the European Central Bank and
the European Commission).
20.
Miscellaneous
20.1 Entry into force of the Agreement
This Agreement shall enter into force on the date of its signature by the States and by
Dexia and take effect as from 9 October 2008 inclusive.
20.2 Period during which the Guaranteed Obligations can be issued
The right for Dexia to issue Guaranteed Obligations under the conditions mentioned in
article 12.1, first indent ends on 15 February 2009. This period may be extended
subject to the prior authorisation of the European Commission to the extent that
exceptional circumstances justify such extension. Dexia’s right to issue other
Guaranteed Obligations shall end six months after the entry into force of this
Agreement. This period may be extended subject to the prior authorisation of the
European Commission. Dexia understands and accepts that such an agreement can
only be given after the approval by the European Commission of a business plan
aimed at ensuring the viability of Dexia.
20.3 Structure of the financing of Dexia
Within three months from the entry into force of this Agreement, Dexia undertakes:
•
to the extent that market conditions so allow, to undertake all necessary efforts
in order to change the structure of its financing covered by the Guaranteed
Obligations so that the Guaranteed Obligations with a maturity of less than 1
month do not represent more than 50% of obligations with a maturity of less
than one month at the date of execution of this Agreement;
•
to ensure that in any event the Guaranteed Obligations with a maturity of less
than one month do not represent more than 75% of obligations with a maturity
of less than one month at the date of execution of this Agreement.
These objectives may be reviewed six weeks after the entry into force of this
Agreement, in function of market conditions by the three States and the European
Commission acting jointly. Non-compliance with these undertakings by Dexia will in no
event affect the rights acquired by Third Party Beneficiaries or in Security and Financial
Instrument Holders.
20.4 Publicity
Notwithstanding Article 19, Dexia shall be authorised to bring the present Agreement to
the attention of Third Party Beneficiaries and the public.
20.5 Assignment of rights and obligations
The rights and obligations of the Guaranteed Entities arising out of the present
Agreement shall not be assignable to a third party other than a Guaranteed Entity, even
if that third party undertakes to act in the name and on behalf of a Guaranteed Entity.
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20.6 Notifications
20.6.1 Any notification to be served in performance of the present Agreement must be
served by electronic mail or fax sent to the following addresses and numbers (or
to any other address which might have been communicated in advance by one
Party to another Party) accompanied by a simultaneous transmission by
registered post with acknowledgement of receipt (it being understood that, for
the determination of the deadlines referred in the present Agreement, any
deadline shall run from the date of the first of the electronic mails or faxes):
Belgian State:
Minister of Finance
For the attention of M. le Directeur de la Cellule
Stratégique Finances
12 Rue de la Loi
1000 Brussels
Fax: +32 2 233 80 93
With a copy to:
National Bank of Belgium
For the attention of the Governor
14, Boulevard de Berlaimont
1000 Brussels
Fax: +32 2 221 32 10
French State:
Minister of the Economy, Industry and
Employment
For the attention of M. le Directeur Général du
Trésor et de la Politique Economiqu
139 Rue de Bercy
75 572 PARIS Cedex 12
With a copy to:
Bank of France
31 Rue Croix des petits champs
75001 PARIS
Luxembourg State:
Treasury Director
3 Rue de la Congrégation
L-2931 Luxembourg
Fax: +352 466212
e-mail: [email protected]
With a copy to:
Central Bank of Luxembourg
2, Boulevard Royal
L-2983 Luxembourg
A copy of any notification made pursuant to the present Article, must also be
sent to:
DEXIA S.A.
11, Place Rogier
1210 Brussels
Attn:
128
20.7 Execution of the Agreement
The parties may execute this Agreement in multiple counterparts, each of which shall
be deemed to be an original by the party executing such counterpart, and all of which
shall be considered one Agreement. The signatures of all parties should not necessarily
appear on the same counterpart. The delivery of executed counterparts by facsimile or
by email will be as effective as the in person delivery of the counterpart.
21.
Applicable Law and litigation
21.1 This Agreement (including its entering into, its validity, its performance, its effects, its
interpretation and its termination) shall be governed by Belgian law both among the
Parties and with regard to Third Party Beneficiaries and Security Holders.
21.2 Any dispute in relation to this Agreement (including its entering into, its validity, its
performance, its effects, its interpretation and its termination) shall be within the
exclusive competence of the courts of Brussels.
129
List of Appendices
Appendix 1:
Third Party Beneficiaries;
Appendix 2:
Guaranteed Obligations (referred to in Article 3);
Appendix 3:
List of foreign branches of Guaranteed Entities;
Appendix 4:
Sample Guarantee Call form.
130
Appendix 1
Third Party Beneficiaries
“Third Party Beneficiaries” must be understood as:
(a)
all central banks.
(b)
all credit institutions as defined by Directive 2006/48/EC of the European Parliament
and of the Council of 14 June 2006 relating to the taking up and pursuit of the business
of credit institutions, namely: “a) an undertaking whose business is to receive deposits
or other repayable funds from the public and to grant credits for its own account; or b)
an electronic money institution within the meaning of Directive 2000/46/EC” whether or
not established in the European Economic Area.
(c)
other institutional or professional investors:
Institutional or professional investors must be understood as investment firms, other
approved or regulated financial establishments, insurance companies, undertakings for
collective investment and their management companies, professional retirement
institutions and their management companies, intermediaries in investment instruments
in commodity futures, public companies, public authorities and supranational and
international institutions.
excluding the Guaranteed Entities.
131
Appendix 2
Guaranteed Obligations
The Guarantee covers all financings initially raised with Third Party Beneficiaries, either in the
form of loan Contracts or deposits with the Guaranteed Entities or in the form of Securities or
Financial Instruments, with a face value of at least € 25,000, in each case unsecured and
unsubordinated, the subscription for which is restricted to Third Party Beneficiaries and provided
that they are issued by the Guaranteed Entities, irrespective of currency, as long as such financings
mature before 31 October 2011 inclusive, provided that they have been entered into or issued by
the Guaranteed Entities between 9 October 2008 inclusive and 31 October 2009 inclusive.
The following are expressly included in the Guaranteed Obligations under the conditions set
forth in the previous paragraph:
•
the following Contracts: interbank deposits and advances, fixed-term deposits by
fiduciaries and callable deposits by fiduciaries, deposits by central banks, institutional
deposits;
•
the following Securities and Financial Instruments: commercial paper, certificates of
deposit, negotiable debt instruments, bonds and Medium Term Notes
to the exclusion of:
•
real estate bonds and securities or other borrowings secured by collateral or a
contractual mechanism for the same purposes (for example “covered bonds”, “bilateral
and tripartite Repos”);
•
subordinated loans, securities and financial instruments;
•
equity and hybrid equity securities and financial instruments; and
•
any derivative instruments (particularly interest rate or foreign exchange).
Financings which are not listed above will be subject to a case by case review.
132
Appendix 3
List of foreign branches of the Guaranteed Entities
Great Britain:
Dexia Bank Belgium London branch (branch of Dexia Bank Belgium)
Dexia Public Finance Bank (branch of Dexia Crédit Local)
Japan:
Dexia Crédit Local Bank Tokyo branch (branch of Dexia Crédit Local)
Singapore:
Dexia Banque Internationale à Luxembourg, société anonyme, Singapore Branch (branch
of Dexia Banque Internationale à Luxembourg, sociéte anonyme)
USA:
Dexia Crédit Local New York branch (branch of Dexia Crédit Local)
133
Appendix 4
Sample Guarantee Call form
Guarantee Agreement between the Kingdom of Belgium, the Republic of France and the
Grand Duchy of Luxembourg, on the one hand (the “States”) and Dexia SA on the other hand,
dated 20 November 2008.
Intended for:
Belgian State:
Minister of Finance
For the attention of M. le Directeur de la Cellule
12 Rue de la Loi
1000 Brussels
Fax: +32 2 233 80 93
With a copy to:
National Bank of Belgium
14, Boulevard de Berlaimont
1000 Brussels
Fax: +32 2 221 32 10
French State:
Minister of the Economy, Industry and
Employment
For the attention of M. le Directeur Général du
Trésor et de la Politique Economique
139 Rue de Bercy
With a copy to:
Bank of France
75001 PARIS
Luxembourg State:
Treasury Director
3 Rue de la Congrégation
L-2931 Luxembourg
Fax: +352 466212
With a copy to:
Central Bank of Luxembourg
2, Boulevard Royal
L-2983 Luxembourg
134
Dear Madam,
Dear Sirs,
1.
We refer to the Guarantee agreement between the Belgian State, the French State and
the Luxembourg State as well as Dexia SA. The terms defined in that Agreement have
the same meaning in this Call.
2.
This is a Guarantee Call.
3.
This Guarantee Call relates to the following Guaranteed Obligation:
Guaranteed Entity:
Name
Registered Office
Description of the Guaranteed Obligation:
Nature of the product (deposit, commercial paper,…):
Currency:
Amount:
Fixed rate:
Floating rate:
Other characteristics:
4.
We hereby inform you that the Guaranteed Entity has defaulted at maturity on the
following payments in relation to the Guaranteed Obligation:
Nature of the Guaranteed Obligation:
Principal
Interest
Incidental amounts
Currency:
Amount:
Reason for the Guarantee Call:
Maturity:
5.
We request payment of these amounts pursuant to the above referenced Guarantee
Agreement.
6.
These amounts must be paid to account (insert payment instructions).
7.
We enclose the following documents: (list of documents).
Yours faithfully
Authorised signature(s)
135
CONVENTION DE GARANTIE AUTONOME
ENTRE LES PARTIES SUIVANTES, ci-après « LES PARTIES » :
1
L’Etat belge, représenté par Monsieur Didier Reynders, Ministre des Finances, habilité
à cet effet par l’Arrêté Royal du 16 octobre 2008 pris en exécution de l’article 117 bis
de la loi du 2 août 2002 relative à la surveillance du secteur financier et aux services
financiers;
Ci-après l’« Etat belge » ;
2
L’Etat français, représenté par Madame Christine Lagarde, Ministre de l’Economie, de
l’Industrie et de l’Emploi, autorisée à cet effet par le IV de l’article 6 de la loi n°20081061 du 16 octobre 2008 de finances rectificative pour le financement de l’économie
publiée au Journal Officiel de la République Française du 17 octobre 2008;
Ci-après l’« Etat français » ;
3
L’Etat luxembourgeois, représenté par Monsieur Luc Frieden, Ministre du Trésor et du
Budget, habilité à cet effet par le Règlement grand-ducal du 10 octobre 2008
autorisant le Gouvernement à octroyer une garantie financière au groupe bancaire
Dexia ;
Ci-après l’« Etat luxembourgeois » ;
Ci-après collectivement « les Etats » .
ainsi que,
4
Dexia SA, société anonyme de droit belge dont le siège social est établi à
1210 Bruxelles, 11 Place Rogier, n° d’entreprise RPM Bruxelles TVA BE 0458.548.296;
Représenté par Monsieur Benoît Debroise, membre du comité exécutif et mandataire;
Ci-après « Dexia » ;
Agissant pour son compte et pour le compte de l’ensemble des Entités Garanties et,
plus généralement et en tant que de besoin, pour l’ensemble de ses filiales;
Demandeur d’une Garantie des Etats pour faciliter le renouvellement de son
financement existant;
Et qui accepte les termes de la Présente Convention.
I. – IL EST PREALABLEMENT EXPOSE QUE:
(A)
Le Royaume de Belgique, la République Française et le Grand-Duché de
Luxembourg ont conclu, le 9 octobre 2008, en présence de Dexia, un Protocole
d’Accord en vue d’instaurer un mécanisme de Garantie en faveur de cette
dernière et de ses filiales Dexia Banque Belgique, Dexia Banque Internationale à
Luxembourg, société anonyme et Dexia Crédit Local (ci-après le « Protocole
d’Accord »).
(B)
Les Etats constatent que Dexia a été recapitalisé en date du 3 octobre 2008.
(C)
Les Etats constatent que l’intérêt des économies belge, française et
luxembourgeoise et la protection de l’ensemble des déposants justifient
l’instauration d’un mécanisme de garantie autonome en faveur de Dexia et de
ses filiales Dexia Banque Belgique, Dexia Banque Internationale à Luxembourg,
société anonyme et Dexia Crédit Local.
(D)
En instaurant ce mécanisme de garantie, les trois Etats sont convenus de donner
conjointement et sans solidarité leur garantie à l’ensemble des Entités Garanties
du groupe Dexia, telles que définies à l’article 3. Si, pour des raisons pratiques,
la présente Convention prévoit que chaque Etat traite en certains cas avec une
entité spécifique du groupe Dexia qui se trouve sur son propre territoire, cela ne
peut en aucun cas être interprété comme une quelconque atténuation du
principe selon lequel chacun des trois Etats donne, conjointement avec les deux
autres, mais sans solidarité, sa garantie à l’ensemble des Entités Garanties du
groupe Dexia, telles que définies à l’article 3.
136
II. – IL EST DES LORS CONVENU CE QUI SUIT:
PARTIE 1 – DEFINITIONS ET REGLES GENERALES:
1
DEFINITIONS
Dans le cadre de la présente Convention, les termes suivants ont, sauf stipulation
contraire, la signification qui leur est donnée ci-après lorsqu’ils sont utilisés avec une
majuscule:
« Appel à la Garantie » a la signification donnée aux articles 7.2.1 et 7.2.2 ou 9.2.1
selon qu’il s’applique aux Titres et Instruments Financiers d’une part et aux Contrats
d’autre part;
« Convention » signifie la présente Convention ainsi que ses annexes qui en font partie
intégrante;
« Contrats » signifie les Obligations Garanties sous forme de prêts et de dépôts et
sous toute autre forme qui ne constitue pas un Titre ou Instrument Financier,
non-subordonnées, et dont le créancier est un Tiers Bénéficiaire;
« Détenteurs de Titres » signifie les détenteurs de Titres et Instruments Financiers
autres que les Tiers Bénéficiaires;
« Entités Garanties » signifie les Entités Garanties telles que définies à l’article 3;
« Garantie » a la signification donnée a Particle 3;
« Jour » signifie un jour calendaire;
« Jour Ouvrable » signifie un Jour, autre qu’un samedi ou dimanche, où les banques
sont ouvertes en France, en Belgique et au Luxembourg;
« Obligations Garanties » signifie les engagements des Entités Garanties définis à
l’article 3;
« Période Mensuelle »: signifie chaque période de 1 mois calendaire se succédant à
partir du 9 octobre 2008 exclu;
« Protocole d’Accord » a la signification donnée au préambule; « Tiers Bénéficiaires »
signifie les entités visées à l’Annexe 1;
« Titres et Instruments Financiers » et/ou « Titre(s) ou Instrument(s) Financier(s) »,
selon le cas, signifie les Obligations Garanties sous forme de titres et d’instruments
financiers dont la valeur nominale unitaire s’élève au moins à 25 000 € .
2
OBJECTIFS POURSUIVIS PAR LA GARANTIE
L’objectif poursuivi par le présent mécanisme de garantie est de faciliter le
renouvellement du financement existant de Dexia et de lui permettre ainsi d’assurer,
par son activité d’intermédiation, sa contribution au financement de l’activité
économique. Ayant égard au point 27 de la Communication de la Commission
européenne « sur l’application des règles en matière d’aides d’État aux mesures prises
en rapport avec les institutions financières dans le contexte de la crise financière
mondiale » (JOCE 2008, C 270, p. 8), Dexia s’engage à (a) ne pas faire d’utilisation
abusive de la situation concurrentielle engendrée par la garantie, et s’interdit
notamment d’utiliser la garantie pour de pures opérations d’arbitrage ou dans toute
campagne de publicité mettant en avant l’existence de la garantie; (b) limiter la
croissance de son bilan (par rapport à la situation au 30 juin 2008) au plus haut de (i)
la moyenne de la croissance du PIB belge, français et luxembourgeois pendant l’année
2007, (ii) la moyenne de la croissance bilantaire annuelle du secteur financier belge,
français et luxembourgeois dans la période 1987-2007 et (iii) la croissance bilantaire du
secteur financier européen dans la période avril-septembre 2008; et (c) ne pas offrir
des conditions de rémunération des dépôts de particuliers qui se situeraient parmi les
trois rémunérations les plus attractives offertes par les dix banques ayant la part de
marché la plus importante sur les dépôts aux particuliers dans chacun des trois Etats
individuellement.
137
3
OBJET DE LA GARANTIE
Sans préjudice de l’article 20.2, et conformément au Protocole d’Accord, l’Etat belge,
l’Etat français et l’Etat luxembourgeois garantissent conjointement, mais nonsolidairement, chacun à la hauteur de sa quote-part mentionnée à l’article 5 et selon
les modalités et conditions fixées par la présente Convention (la « Garantie »),
l’exécution par Dexia SA, Dexia Banque Internationale à Luxembourg, société
anonyme, Dexia Banque Belgique et Dexia Crédit Local (en ce compris leurs
succursales étrangères énumérées à l’annexe 3) et leurs véhicules d’émission de droit
belge, français et luxembourgeois, (les « Entités Garanties ») de leurs obligations de
remboursement (en principal, intérêts et accessoires) quelle qu’en soit la devise,
résultant de financements sous forme de Contrats, de Titres ou d’Instruments
Financiers initialement levés auprès de Tiers Bénéficiaires répondant aux critères
prévus par l’Annexe 2 de la Convention et contractés ou émis entre le 9 octobre 2008
inclus et le 31 octobre 2009 inclus, et venant à échéance au plus tard le 31 octobre
2011 inclus (ci-après les « Obligations Garanties »).
4
NATURE DE LA GARANTIE
La Garantie est autonome et payable à première demande. En cas d’Appel à la
Garantie, les Etats renoncent dès lors (sans préjudice de leurs droits envers les Entités
Garanties) à invoquer les exceptions que les Entités Garanties pourraient faire valoir
envers les Tiers Bénéficiaires ou les Détenteurs de Titres pour en refuser le paiement.
L’ensemble des Obligations Garanties des Entités Garanties sont conjointement, mais
non-solidairement, garanties par les Etats. La Garantie octroyée par chacun des Etats
n’est donc pas limitée aux Entités Garanties établies sur son propre territoire mais vaut
également pour les Entités Garanties établies en dehors de son territoire.
5
QUOTE-PART DES ETATS ET PLAFOND GLOBAL DE LA GARANTIE
5.1 Chacun des Etats garantit les obligations de remboursement des Entités
Garanties au sens de l’article 3 à hauteur d’une quote-part qui est fixée à:
•
60,5% pour l’Etat belge;
•
36,5 % pour l’Etat français; et
•
3,0 % pour l’Etat luxembourgeois.
Cette quote-part s’entend par Obligation Garantie (au sens de l’article 3) et par
Appel à la Garantie au sens des articles 7.2.1, 7.2.2 et 9.2.1.
5.2
L’Engagement Global des Etats au titre de la Garantie ne peut excéder un
plafond de € 150 milliards, soit
•
€ 90,75 milliards pour l’Etat belge;
•
€ 54,75 milliards pour l’Etat français; et
•
€ 4,5 milliards pour l’Etat luxembourgeois.
Par Engagement Global, il est entendu la totalité de l’encours des Obligations
Garanties et ce a tout moment pendant la durée de la présente Convention.
Dexia s’engage, pour lui et pour le compte des Entités Garanties, à respecter le
plafond fixé à l’engagement global.
L’éventuel non respect par les Entités Garanties du plafond fixé à l’Engagement
Global des Etats n’affectera pas les droits au titre de la Garantie dont bénéficient
les Tiers Bénéficiaires et Détenteurs de Titres dès lors que ces droits sont nés
antérieurement au dépassement du plafond.
138
PARTIE 2 – GARANTIE DES TITRES ET INSTRUMENTS FINANCIERS
6
DETERMINATION DES TITRES ET INSTRUMENTS FINANCIERS GARANTIS
6.1 Sans qu’il soit besoin d’aucune formalité, nonobstant toute obligation dans le
chef des Entités Garanties nécessaire à la mise en œuvre de la Garantie, la
Garantie couvre tout Titre ou Instrument Financier initialement émis à destination
de Tiers Bénéficiaires, répondant aux critères prévus par l’Annexe 2 de la
Convention, venant à échéance au plus tard le 31 octobre 2011 inclus, et émis
par une des Entités Garanties entre le 9 octobre 2008 inclus et le 31 octobre
2009 inclus. Il est par ailleurs expressément convenu que la Garantie restera
attachée aux Titres ou Instruments Financiers, selon les mêmes conditions et
dans les mêmes limites, nonobstant leur cession ou transmission à tout autre
Tiers Bénéficiaire ou Détenteur de Titres. Les Détenteurs de Titres pourront dès
lors également faire Appel à la Garantie dans les conditions prévues à la
présente Convention. Sans préjudice des articles 6.2, 6.3, 6.4, 17.2 et 18.2, les
Titres et Instruments Financiers à échéance indéterminée cessent d’être garantis
à la date du 31 octobre 2009 inclus.
6.2
Les Entités Garanties se réservent toutefois le droit d’émettre des Titres ou
Instruments Financiers sans bénéfice de la Garantie pour autant (i) qu’une
mention explicite en ce sens soit apposée sur la documentation relative au Titre
ou à l’Instrument Financier non-garanti (ii) que cette renonciation au bénéfice de
la garantie soit irrévocable et (iii) que l’information fournie par Dexia aux fins du
calcul de la rémunération de la Garantie permette l’identification des ces
transactions pour lesquelles Dexia aura choisi une émission sans le bénéfice de
la Garantie. Les Titres ou Instruments Financiers dont la documentation prévoit
expressément, dès leur conclusion ou émission, une renonciation irrévocable au
bénéfice de la Garantie, ne constituent dès lors pas des Obligations Garanties
pour l’application de la présente Convention. Le reporting mensuel effectué par
Dexia aux fins de calcul de la rémunération tiendra compte et identifiera à la
demande des Etats les Titres et Instruments Financiers non couverts par la
Garantie.
6.3
Les Entités Garanties notifient les Etats suivant les modalités définies à l’article
20.6 préalablement à toute émission de Titres ou Instruments Financiers visés à
l’article 6.2. L’émission qui fait l’objet de la notification ne peut être lancée en
cas d’objection motivée de l’un des Etats. Les Etats ont trois jours ouvrables à
compter de la réception de la notification pour se prononcer.
6.4
Les Entités Garanties agissant conjointement ont la possibilité de renoncer au
bénéfice de la Garantie pour l’ensemble des Titres ou Instruments Financiers
ayant une échéance inférieure à trois (3) mois. Toute renonciation au bénéfice de
la Garantie pour l’ensemble des Titres ou Instruments Financiers ayant une
échéance inférieure à 3 mois devra faire l’objet d’un accord explicite des trois
Etats. Cette renonciation s’applique aux émissions de Titres ou Instruments
Financiers ayant une échéance inférieure à 3 mois à partir de la date de la
renonciation, pour toutes les Entités Garanties conjointement. Cette renonciation
n’a pas d’effet sur les Titres et Instruments Financiers émis avant la date de la
renonciation, qui continuent à bénéficier de la garantie et ce jusqu’à leur terme,
dans le respect des droits acquis.
6.5
Il appartient à Dexia de s’assurer, par une rédaction appropriée de la
documentation juridique relative a remission, de l’éligibilité à la Garantie des
Titres ou Instruments Financiers qu’elle émet. Aucun des Etats ne saurait
encourir la moindre responsabilité vis-à-vis d’un Tiers Bénéficiaire ou d’un
Détenteur de Titres quel qu’il soit dans le cas où un Titre ou Instrument Financier
présenté par Dexia comme bénéficiant de la Garantie ne pourrait en bénéficier.
139
7
APPEL A LA GARANTIE PORTANT SUR DES TITRES OU INSTRUMENTS
FINANCIERS
7.1
7.2
Conditions de l’Appel à la Garantie pour les Titres et Instruments
Financiers
Au sens de cet article 7, la Garantie peut être appelée :
•
par Dexia, uniquement si Dexia invoque que (i) l’une quelconque des Entités
Garanties est dans l’impossibilité de payer, à son échéance, une quelconque
somme (en principal, intérêts ou accessoire) au titre d’un Titre ou Instrument
Financier ou que (ii) la mise en jeu de la Garantie est nécessaire pour assurer
la continuité de son exploitation ou celle de l’Entité Garantie concernée.
•
par tout Tiers Bénéficiaire ou Détenteur de Titre pour autant qu’il invoque
que (i) les sommes (en principal, intérêts ou accessoire) dues par une Entité
Garantie en sa qualité d’émetteur ne lui aient pas été versées à leur date de
paiement prévue et que (ii) ce défaut de paiement soit imputable à cette mê
me Entité Garantie.
Modalités de l’Appel à la Garantie pour les Titres et Instruments Financiers
7.2.1 Tout Appel à la Garantie par Dexia au sens de l’article 7.1 s’effectue par
une notification adressée sans délai à chacun des Etats, (l’ « Appel à la
Garantie »). L’Appel à la Garantie donne lieu à exécution de la Garantie
dans les conditions prévues à l’article 11.1.
7.2.2 Tout Appel à la Garantie par un Tiers Bénéficiaire ou un Détenteur de
Titres, au sens de l’article 7.1, s’effectue par une notification adressée
sans délai à chacun des Etats (l’« Appel à la Garantie ») substantiellement
sous la forme figurant en Annexe 4. L’Appel à la Garantie donne lieu à
exécution de la Garantie dans les conditions prévues à l’article 11. 1dès
que les obligations de paiement liées au Titre ou Instrument Financier
telles que définies à l’article 3 ne sont pas exécutées a leur date de
paiement prévue.
7.2.3 Pour être valable, l’Appel à la Garantie par Dexia, par un Tiers Bénéficiaire
ou un Détenteur de Titres au sens de l’article 7.1. doit être accompagné,
dans la notification à chacun des Etats (i) de l’identification des Titres ou
Instruments Financiers, (ii) d’une copie de la documentation contractuelle y
afférente, (iii) du montant pour lequel il est fait Appel à la Garantie (en
spécifiant les montants en principal, intérêts et accessoires impayés à la
date de l’Appel à la Garantie), (iv) du motif de l’Appel à la Garantie et
(v) d’une description des modalités de paiement des Titres ou Instruments
Financiers, substantiellement dans les formes figurant en Annexe 4.
140
PARTIE 3 : GARANTIE DES CONTRATS
8
9
DETERMINATION DES CONTRATS GARANTIS
8.1 Sans qu’il soit besoin d’aucune formalité, la Garantie couvre tout Contrat
répondant aux critères prévus par l’Annexe 2 de la Convention, et venant à
échéance avant le 31 octobre 2011 inclus, pour autant que celui-ci ait été conclu
par une des Entités Garanties entre le 9 octobre 2008 inclus et le 31 octobre
2009 inclus. Par hypothèse, les Contrats à échéance indéterminée, tels par
exemple les dépôts à vue, existant au 9 octobre 2008 sont supposés avoir été
conclus à cette date et bénéficient de la Garantie. Sans préjudice des articles
8.3,17.2 et 18.2, les Contrats à échéance indéterminée sont réputés venir à
échéance le 31 octobre 2009.
8.2
Il appartient à Dexia, sous sa seule responsabilité, de s’assurer de l’éligibilité à la
Garantie des Contrats qu’elle conclut. Aucun des Etats ne saurait encourir la
moindre responsabilité vis-à-vis d’un Tiers Bénéficiaire quel qu’il soit dans le cas
où un Contrat présenté par Dexia comme bénéficiant de la Garantie ne pourrait
en bénéficier.
8.3
Dexia dispose, à la fin de chaque Période Mensuelle, de la faculté de renoncer à
la Garantie pour l’ensemble des Contrats conclus ou renouvelés à compter du
Jour de la renonciation, en ce compris les Contrats à échéance indéterminée.
Cette renonciation s’applique à toutes les Entités Garanties conjointement. La
Garantie continue à couvrir les Contrats conclus antérieurement à cette date
et ce jusqu’à leur terme, dans le respect des droits acquis.
8.4
Les Entités Garanties agissant conjointement ont la possibilité de renoncer au
bénéfice de la Garantie pour l’ensemble des Contrats ayant une échéance
inférieure à un (1) mois. Toute renonciation au bénéfice de la Garantie pour
l’ensemble des Contrats ayant une échéance inférieure à un (1) mois devra faire
l’objet d’un accord explicite des trois Etats. Cette renonciation s’applique aux
Contrats ayant une échéance inférieure à 1 mois à partir de la date de la
renonciation, pour toutes les Entités Garanties conjointement. Cette renonciation
n’a pas d’effet sur les Contrats conclus avant la date de la renonciation, qui
continuent à bénéficier de la garantie jusqu’à leur terme, dans le respect des
droits acquis.
CONDITIONS DE L’APPEL A LA GARANTIE – CONTRATS
9.1 La Garantie ne peut être appelée que par Dexia et uniquement si Dexia invoque
que (i) l’une quelconque des Entités Garanties est dans l’impossibilité de payer,
à son échéance, une quelconque somme (en principal, intérêts ou accessoire) au
titre d’un Contrat ou que (ii) la mise en jeu de la Garantie est nécessaire pour
assurer la continuité de son exploitation ou celle de l’Entité Garantie concernée.
9.2
Modalités de l’Appel à la Garantie pour les Contrats
9.2.1 Tout Appel à la Garantie par Dexia s’effectue par une notification adressée sans
délai à chacun des Etats (l’« Appel à la Garantie »). L’Appel à la Garantie donne
lieu à exécution de la Garantie prévue au 11.
9.2.2 Pour être valable, l’Appel à la Garantie doit être accompagné, dans la notification
a chacun des Etats (i) de l’identification des Contrats, (ii) d’une copie de la
documentation contractuelle y afférente, (iii) du montant pour lequel il est fait
Appel à la Garantie (en spécifiant les échéances en principal intérêts et
accessoires impayés à la date de l’Appel à la Garantie), (iv) du motif de l’Appel
à la Garantie et (v) d’une description des modalités de paiement du Contrat,
substantiellement dans les formes figurant en Annexe 4.
141
PARTIE 4 : DISPOSITIONS COMMUNES
10
APPEL A LA GARANTIE: CAS SPECIFIQUE DE FAILLITE D’UNE ENTITE
GARANTIE
Dès le moment où la faillite d’une Entité Garantie est prononcée, ou où une procédure
de liquidation judiciaire est ouverte à l’égard d’une Entité Garantie, les Tiers
Bénéficiaires créanciers de l’Entité Garantie en question ou les Détenteurs de Titres
émis par l’Entité Garantie en question peuvent appeler immédiatement et directement
la Garantie selon les modalités fixées à l’article 7.2 et à l’article 9.2.
11
EXECUTION DE LA GARANTIE
11.1 EXÉCUTION DE LA GARANTIE PAR LES ETATS
11.1.1L’Entité Garantie fera ses meilleurs efforts pour que les Etats disposent de
l’information nécessaire à la bonne exécution des paiements dans les
délais prévus au titre de l’Obligation Garantie, ce dont Dexia se porte fort.
En ce qui concerne les Appels à la Garantie au sens des articles 7.1, 1er
tiret, et 9.1, Dexia s’engage à prévenir les Etats de l’Appel à la Garantie
dans un délai précédant la date d’échéance rendant l’Appel à la Garantie
nécessaire égal aux délais visés à l’article 11.1.2.
11.1.2Chacun des Etats procède au règlement, à concurrence de sa part, au
profit des Tiers Bénéficiaires ou des Détenteurs de Titres du montant dû
appelé au titre de tout Appel à la Garantie conformément aux dispositions
de la présente Convention. Les règlements auront lieu selon les délais
suivants:
•
dans les trois jours suivants la réception de l’Appel à la Garantie pour
les montants inférieurs à € 1 milliard;
•
dans les cinq jours suivants la réception de l’Appel à la Garantie pour
les montants entre € 1 et 3 milliards;
•
dans les sept jours suivants la réception de l’Appel à la Garantie pour
les montants entre € 3 et 5 milliards;
•
dans les dix jours suivants la réception de l’Appel à la Garantie pour
les montants supérieurs à € 5 milliards.
11.1.3Les paiements effectués le seront par l’intermédiaire de tout système
decompensation approprié ou mécanisme de services institutionnels ou, à
défaut, directement.
11.2 Effets de l’exécution de la Garantie par les Etats et subrogation des Etats dans
les droits du Tiers Bénéficiaire ou du Détenteur de Titres
11.2.1Dans tous les cas, chaque Etat pourra, dès le moment où il aura payé une
quelconque somme au titre de la Garantie, en obtenir le remboursement
par l’Entité Garantie concernée sans que cette dernière puisse lui opposer
les exceptions résultant des transactions sous-jacentes entre elle-même et
les Tiers Bénéficiaires ou les Détenteurs de Titres. Dexia se porte fort du
respect de l’obligation de remboursement des Entités Garanties. En outre,
chaque Etat sera immédiatement et de plein droit subrogé dans la totalité
des droits des Tiers Bénéficiaires ou des Détenteurs de Titres à l’encontre
de l’Entité Garantie concernée au titre de l’Obligation Garantie concernée,
à concurrence de la somme payée par lui.
11.2.2Sans préjudice de ce qui précède, toute somme payée par un Etat au titre
de la Garantie portera intérêt au taux EONIA augmenté de 200 points de
base l’an, à compter de sa date de paiement aux Tiers Bénéficiaires ou au
Détenteur de Titres par l’Etat concerné jusqu’à sa date de remboursement
par l’Entité Garantie à l’Etat concerné, payable à ladite date de
remboursement.
142
12
Rémunération de la Garantie
12.1 La rémunération de la Garantie sera constituée par une commission que Dexia
devra acquitter mensuellement sur les encours pro-rata temporis calculés
comme suit:
•
jusqu’au 15 février 2009, et sans préjudice d’une éventuelle prolongation de
ce délai avec l’autorisation de la Commission européenne après la
notification visée à l’article 20.2, pour toutes les Obligations Garanties sous
forme de Contrats, Titres et Instruments Financiers à terme de moins de un
mois ainsi que, à concurrence d’un montant de maximum € 4 milliards, pour
les dépôts à préavis, notamment de fiduciaires, cette commission sera égale
à 25 points de base sur base annuelle calculés sur le montant moyen de
l’encours des Obligations Garanties sous forme de Contrats, Titres et
Instruments Financiers à terme de moins de un mois ainsi que, à
concurrence un montant de maximum € 4 milliards, des dépôts à préavis,
notamment de fiduciaires, et bénéficiant de la Garantie au cours de la
dernière Période Mensuelle.
•
pour toutes les Obligations Garanties ayant une échéance inférieure à douze
(12) mois inclus, en ce compris les Obligations Garanties à échéance
indéterminée, et à l’exclusion des Obligations Garanties visées au premier
tiret jusqu’au 15 février 2009 et sans préjudice d’une éventuelle prolongation
de ce délai avec l’autorisation de la Commission européenne, cette
commission sera égale à 50 points de base sur base annuelle calculés sur le
montant moyen de l’encours des Obligations Garanties ayant une échéance
inférieure à douze (12) mois inclus et bénéficiant de la Garantie au cours de
la dernière Période Mensuelle.
•
pour toutes les Obligations Garanties ayant une échéance strictement
supérieure à un an, la rémunération de la Garantie sera égale à 50 points de
base sur base annuelle, augmentée de la plus basse des deux valeurs
suivantes, appliquée à chaque Obligation Garantie: soit la médiane des CDS
spreads de Dexia à 5 ans calculée sur la période débutant le 1er janvier 2007
et s’achevant le 31 août 2008 (à condition que ces spreads soient
représentatifs), soit la médiane des CDS spreads à 5 ans de l’ensemble des
établissements de crédit ayant une notation de crédit à long terme
équivalente à celle de Dexia, calculée sur la même période, le taux étant
appliqué sur le montant moyen de l’encours des Obligations Garanties ayant
une échéance strictement supérieure à un an et bénéficiant de la Garantie au
cours de la dernière Période Mensuelle.
Les Etats peuvent de commun accord revoir cette commission en fonction de
l’évolution des conditions de marché.
12.2 Dexia adresse au plus tard le onze (11) de chaque mois calendaire un état des
sommes globales garanties en indiquant leur évolution sur l’ensemble de la
Période Mensuelle écoulée, ainsi qu’un détail du montant global par Entité
Garantie. Dexia effectue un calcul de la commission due sur base de l’article
12.1. Chacun des Etats perçoit une quote-part de la commission totale égale à
la quote-part de sa contribution à la Garantie telle que définie à l’article 5.1 de la
présente Convention. Sous réserve de l’acceptation du calcul de la commission
par chacun des Etats, Dexia procède, au plus tard le quatorze (14) de chaque
mois calendaire, au nom et pour le compte de l’ensemble des Entités Garanties,
au versement à chaque Etat de la commission qui lui est due au titre de la
présente Convention. Les primes sont perçues dans chacun des Etats par
l’institution désignée à cet effet par chaque Etat.
13
INFORMATION DES ETATS
13.1 En plus des informations visées à l’article 12.2, Dexia est tenue d’indiquer, au
nom et pour le compte de l’ensemble des Entités Garanties, à chaque Etat, à
tout moment et sur simple requête de cet Etat, le montant total des sommes
143
garanties par lui ou toute information nécessaire à la mise en œuvre ou au
contrôle de la bonne exécution de la présente Convention.
13.2 Sans préjudice de la généralité de ce qui précède, Dexia doit informer
immédiatement les Etats de la survenance de tout fait ou de tout évènement qui
pourrait avoir pour conséquence de justifier un Appel à la Garantie.
13.3 Chacun des Etats doit communiquer sans délai aux deux autres Etats toute
information dont il aurait connaissance et qui pourrait affecter la mise en œuvre
des termes du Protocole d’Accord ou de la présente Convention.
13.4 Les Parties s’engagent à coordonner leur communication concernant le
Protocole d’Accord, la présente Convention et leur application vis-à-vis des
autorités internationales, supranationales (Commission Européenne, Banque
Centrale Européenne, etc.) et autorités étrangères.
14
CONTROLE INTERNE PAR DEXIA
Dexia doit s’assurer que son environnement de contrôle interne lui permet de garantir
que l’objectif de cette Convention tel que défini à l’article 2 est respecté.
15
DUREE DE LA GARANTIE
Sans préjudice des articles 6, 7.2, 8.3, 9.2, 17 et 18 la Garantie ne couvre que les
Obligations Garanties qui expirent le 31 octobre 2011 au plus tard.
16
PROLONGATION DE LA GARANTIE
La Garantie peut être prolongée d’un commun accord entre les Etats pour une durée
de un an.
17
RÉSILIATION DE LA GARANTIE
17.1 Si l’amélioration des conditions de marché devait rendre inutile le mécanisme de
Garantie, ou si l’une des dispositions de la présente Convention n’est pas
respectée par une Entité Garantie et/ou Dexia, chaque Etat se réserve le droit de
résilier la présente Convention, moyennant le respect des droits acquis. Cette
résiliation devra faire l’objet d’une concertation préalable et, sauf accord
contraire entre les Etats, faire l’objet d’un préavis de 1 mois. Cette résiliation sera
notifiée aux marchés.
17.2 La résiliation par l’un seulement des Etats de la présente Convention aura pour
effet que les Contrats, Titres et ou Instruments Financiers visés à l’article 3
conclus, émis ou supposés tels conformément à l’article 6.1 ou à l’article 8.1 par
l’ensemble des Entités Garanties à dater du lendemain du Jour de la résiliation,
en ce compris les Contrats, Titres et Instruments Financiers sans échéance
définie, ne bénéficieront pas ou plus de la Garantie. La résiliation de la Garantie
ne peut en aucun cas avoir un effet rétroactif et ne peut donc supprimer la
Garantie dont bénéficient des Contrats et des Titres ou Instruments Financiers
couverts par la Garantie jusqu’à leur échéance. Les Etats ne désirant pas résilier
la Garantie peuvent néanmoins décider de maintenir leur Garantie pour tout ou
partie des Entités Garanties ou des Obligations Garanties.
18
REVISION DE LA PRESENTE CONVENTION
18.1 En fonction des circonstances, les Etats se réservent conjointement, moyennant
le respect des droits acquis, le droit de revoir certaines dispositions de la
présente Convention. En particulier, dans l’hypothèse où (a) des modifications
devraient être nécessaire afin d’assurer la conformité de la présente Convention
avec les règles européennes relatives aux aides d’Etat ou (b) un plan de garantie
européen entrerait en application, ou en cas d’harmonisation européenne, les
Etats se réservent le droit de modifier la présente Convention et/ou d’adapter
leur Garantie conjointe en fonction de ce plan.
18.2 Dans ce cadre, la révision de certaines dispositions de la présente Convention
ne peut en aucun cas avoir un effet rétroactif et ne peut donc supprimer la
Garantie dont bénéficient des Contrats, Titres ou Instruments Financiers déjà
144
couverts par la Garantie, ou modifier les conditions d’Appel à la Garantie pour
ces Contrats, Titres ou Instruments Financiers. Cependant, dans le cas où une
révision devrait être nécessaire afin d’assurer la conformité de la présente
Convention avec les règles européennes relatives aux aides d’Etat, cette révision
pourrait avoir un effet rétroactif sans porter préjudice aux droits des Tiers
Bénéficiaires et des Détenteurs de Titres.
19
CLAUSE DE CONFIDENTIALITE
Toute information échangée ou reçue dans le cadre de l’application de la présente
Convention doit être traitée confidentiellement par toutes les Parties, sauf si elle est
déjà publiquement disponible. Les Parties prévoient néanmoins que les informations
pertinentes peuvent être communiquées aux autorités nationales, internationales et
supranationales (notamment à la Banque Centrale Européenne et à la Commission
Européenne).
20
DIVERS
20.1 Entrée en vigueur de la Convention
La présente Convention entre en vigueur à la date de sa signature par les Etats
et par Dexia et produit ses effets à compter du 9 octobre 2008 inclus.
20.2 Période pendant laquelle des Obligations Garanties peuvent être émises
Le droit de Dexia d’émettre des Obligations Garanties aux conditions visées à
l’article 12.1 premier tiret prend fin au 15 février 2009. Cette période pourra être
prolongée moyennant l’autorisation préalable de la Commission européenne dès
lors que des circonstances exceptionnelles justifient cette prolongation. Le droit
de Dexia d’émettre des autres Obligations Garanties prend fin six mois suivant
l’entrée en vigueur de la présente Convention. Cette période pourra être
prolongée moyennant l’autorisation préalable de la Commission européenne.
Dexia comprend et accepte qu’un tel accord ne peut être donné que suivant
l’approbation par la Commission européenne d’un plan d’affaires visant à assurer
la viabilité de Dexia.
20.3 Structure du financement de Dexia
Dans les trois mois suivant l’entrée en vigueur de la présente Convention, Dexia
s’engage,
•
dans la mesure où les conditions de marché le permettent, à fournir tous les
efforts nécessaires en vue de modifier la structure de son financement
couvert par les Obligations Garanties afin que les Obligations Garanties ayant
une échéance inférieure à 1 mois ne représentent pas plus de 50 % des
obligations ayant une échéance inférieure à 1 mois au moment de la
signature de la présente convention;
•
à assurer qu’en tout état de cause les Obligations Garanties ayant une
échéance inférieure à 1 mois ne représentent pas plus de 75 % des
obligations ayant une échéance inférieure à 1 mois au moment de la
signature de la présente convention.
Ces objectifs pourront être revus six semaines après l’entrée en vigueur de la
présente Convention, en fonction des circonstances de marché par les trois
Etats et la Commission Européenne conjointement. Le non-respect de ces
engagements par Dexia ne pourra en aucun cas affecter les droits acquis par les
Tiers Bénéficiaires et par les Détenteurs de Titres et Instruments Financiers.
20.4 Publicité
Sans préjudice de l’article 19, Dexia est autorisée à porter la présente
Convention à la connaissance des Tiers Bénéficiaires et du public.
20.5 Cession des droits et des obligations
Les droits et obligations des Entités Garanties résultant de la présente
Convention ne sont pas cessibles à un tiers autre qu’une Entité Garantie, même
si ce tiers s’engage à agir au nom et pour le compte d’une Entité Garantie.
145
20.6 Notifications
20.6.1Toute notification à effectuer en exécution de la présente Convention doit
être effectuée au moyen d’un courrier électronique ou d’une télécopie
adressé aux adresses et numéros suivants (ou à toute autre adresse qui
aurait été communiquée au préalable par une Partie à l’autre Partie)
accompagné d’un envoi simultané par courrier recommandé à la poste
avec accusé de réception (étant entendu que, pour la computation des
délais visés par la présente Convention, tout délai se compte à la date du
premier des courriers électronique ou télécopié):
Etat belge:
Ministre des Finances
A l’attention de M. le Directeur de la
Cellule Stratégique Finances
Rue de la loi, 12
1000 Bruxelles
Fax : + 32 2 233 80 93
Avec copie à:
Banque Nationale de Belgique
A l’attention de Monsieur le Gouverneur
Boulevard de Berlaimont, 14
1000 Bruxelles
Fax : +32 2 221 32 10
Etat français:
Ministre de l’Econom ie, des Finances et de
l’Emploi A l’attention de M. le Directeur Général
du Trésor et de la Politique Economique.
139 Rue de Bercy
Avec copie à:
Banque de France A l’attention de M. le
Gouverneur 31 Rue Croix des petits champs
75001 PARIS
Etat luxembourgeois:
Directeur du Trésor
3, rue de la Congrégation
L-2931 Luxembourg
Fax : +352 466212
e-mail : [email protected]
Avec copie à:
Banque centrale du Luxembourg
2, boulevard Royal
L-2983 Luxembourg
[email protected]
Toute notification au titre du présent article devra être assortie d’une copie
à Dexia
DEXIA S.A
11, Place Rogier
1210 Bruxelles
20.7 Signature de la Convention
Les parties peuvent signer la présente Convention en de multiples exemplaires,
chacun desquels constituant un original à l’égard de la partie qui l’a signé, et
l’ensemble desquels constituant une seule Convention. Les signatures de toutes
les parties ne doivent pas nécessairement apparaître sur le même exemplaire. La
remise d’exemplaires signés par facsimile ou par e-mail est tout aussi effective
que la remise en personne de l’exemplaire.
146
21
DROIT APPLICABLE ET LITIGE
21.1 La présente Convention (en ce compris sa conclusion, sa validité, son exécution,
ses effets, son interprétation et sa dissolution) est régie par le droit belge tant
entre les Parties qu’à l’égard des Tiers Bénéficiaires et des Détenteurs de Titres.
21.2 Tout différend en relation avec la présente Convention (en ce compris sa
conclusion, sa validité, son exécution, ses effets, son interprétation et sa
dissolution) sera de la compétence exclusive des cours et tribunaux de
l’arrondissement judiciaire de Bruxelles.
- la page de signature suit -
147
Liste des Annexes
Annexe 1:
Liste des Tiers Bénéficiaires;
Annexe 2:
Obligations Garanties (visées à l’article 3);
Annexe 3:
Liste de succursales étrangères des Entités Garanties;
Annexe 4:
Modèle de formulaire d’Appel à la Garantie;
148
Annexe 1
Tiers Bénéficiaires
Par Tiers Bénéficiaires, il y a lieu d’entendre
(a)
toutes les banques centrales
(b)
tous les établissements de crédit tels que définis par la directive 2006/48/CE du
Parlement Européen et du Conseil du 14 juin 2006 concernant l’accès à l’activité des
établissements de crédit et son exercice, à savoir : « a) une entreprise dont l’activité
consiste à recevoir du public des dépôts ou d’autres fonds remboursables et à octroyer
des crédits pour son propre compte, ou b) un établissement de monnaie électronique
au sens de la directive 2000/46/CE. » établis ou non dans l’Espace Economique
Européen
(c)
les autres investisseurs institutionnels ou professionnels:
Par investisseurs institutionnels ou professionnels, il y a lieu d’entendre les entreprises
d’investissement, les autres établissements financiers agréés ou réglementés, les
entreprises d’assurances, les organismes de placement collectif et leurs sociétés de
gestion, les institutions de retraite professionnelle et leurs sociétés de gestion, les
intermédiaires en instruments de placement à terme sur matière première, les
entreprises publiques, les autorités publiques, et les institutions supranationales et
internationales.
a l’exclusion des Entités Garanties.
149
Annexe 2
Obligations Garanties
La Garantie porte sur l’intégralité des financements initialement levés auprès de Tiers
Bénéficiaires, soit sous forme de Contrats de prêt ou de dépôt auprès des Entités Garanties
soit sous forme de Titres ou Instruments Financiers, dont la valeur nominale unitaire s’élève
au moins à € 25 000, dans chaque cas non assortis de sûretés réelles et non-subordonnés,
dont la souscription est restreinte aux Tiers Bénéficiaires et pour autant qu’ils aient été émis
par les Entités Garanties, quelle qu’en soit la devise, dès lors que ces financements viennent
à échéance avant le 31 octobre 2011 inclus et ont été conclus ou émis par les Entités
Garanties entre le 9 octobre 2008 inclus et le 31 octobre 2009 inclus.
Sont explicitement inclus dans les Obligations Garanties aux conditions définies à l’alinéa
précédent:
•
les Contrats suivants : les dépôts et avances interbancaires, les dépôts à terme fixe
de fiduciaires et les dépôts à préavis de fiduciaires, les dépôts des banques
centrales, les dépôts d’institutionnels;
•
les Titres et Instruments Financiers suivants : les commercial papers, les
certificates of deposit, les titres de créances négociables, les obligations et les
Medium Term Notes
à l’exclusion :
•
des obligations foncières et titres ou emprunts assimilés bénéficiant d’un privilège
légal ou d’un mécanisme contractuel visant aux mêmes fins (par exemple,
« covered bonds », « Repos bilatéraux et tripartites ») ;
•
des prêts, titres et instruments financiers subordonnés,
•
des titres et instruments financiers de capital hybride et de capital, et
•
de tout instrument dérivé (notamment de taux et de change)
Les financements qui ne sont pas énumérés ci-dessus devront faire l’objet d’un
examen au cas par cas.
150
Annexe 3
Liste de succursales étrangères des Entités Garanties
Grande Bretagne:
Dexia Bank Belgium London branch (succursale de
Dexia Public Finance Bank (succursale de Dexia Crédit Local)
Dexia
Banque
Japon:
Dexia Crédit Local Bank Tokyo branch (succursale de Dexia Crédit Local)
Singapour:
Dexia Banque Internationale à Luxembourg, société anonyme, Singapore Branch
(succursale de Dexia Banque Internaltionale à Luxembourg)
USA:
Dexia Crédit Local New York branch (succursale de Dexia Crédit Local)
151
Belgique)
Annexe 4
Modèle de formulaire d’Appel à la Garantie:
Convention de Garantie entre le Royaume de Belgique, la République Française et le
Grand-Duché de Luxembourg, d’une par t (« les Etats ») et Dexia SA d’autre part, datée
du 20 novembre 2008.
Destinataires :
Etat belge:
Ministre des Finances
A l’attention de M. le Directeur de la Cellule
Rue de la loi, 12
1000 Bruxelles
Fax: + 32 2 233 80 93
Avec copie à
Banque Nationale de Belgique
A l’attention de Monsieur le Gouverneur
Boulevard de Berlaimont, 14
1000 Bruxelles
Fax: +32 2 221 32 10
Etat français:
Ministre de l’Economie, des Finances et de
l’Emploi
A l’attention de M. le Directeur Général du Trésor
et de la Politique Economique
139 Rue de Bercy
Avec copie à
Banque de France
A l’attention de M. le Gouverneur
75001 PARIS
Etat luxembourgeois:
Directeur du Trésor
3, rue de la Congrégation
L-2931 Luxembourg
Fax: +352 466212
Avec copie à:
Banque centrale du Luxembourg
2, boulevard Royal
L-2983 Luxembourg
[email protected]
152
Madame, Messieurs,
1
Nous nous référons à la convention de Garantie entre l’Etat belge, l’Etat français l’Etat
Luxembourgeois ainsi que Dexia SA. Les termes définis dans cette convention ont les
mêmes significations dans cet Appel.
2
Ceci est un Appel à la Garantie.
3
Cet Appel à la Garantie concerne l’Obligation Garantie suivante:
Entité Garantie:
Nom
Siège social
Description de l’Obligation Garantie:
Nature du produit (dépôt, commercial paper,,...):
Devise:
Montant:
Taux fixe:
Taux variable:
Autres caractéristiques:
4
Par la présente nous vous notifions que l’Entité Garantie a fait défaut à l’échéance sur
les paiements suivants en relation avec l’Obligation Garantie:
Nature de l’Obligation Garantie:
Capital
Intérêt
Accessoire
Devise:
Montant:
Motif de l’Appel en Garantie:
Echéance:
5
Nous vous demandons de bien vouloir nous payer ces montants en application de la
Convention de Garantie précitée.
6
Ces montants doivent être versés sur le compte (insérer les instructions de paiement).
7
Nous joignons les documents suivants : (liste des documents).
Nous vous prions d’agreer...
Signature(s) autorisée(s)
153
USE OF PROCEEDS
The net proceeds of the issue of the Notes, Certificates and Warrants will be used for the
general financing purposes of the Issuer. If, in respect of any particular issue, there is a particular
identified use of proceeds, this will be stated in the applicable Final Terms, Final Terms for the
Certificates or Final Terms for the Warrants, as the case may be.
154
SNA12-3.2
SNA5-3.2
Dexia Banque Internationale à Luxembourg, société anonyme (the “Issuer”, “Dexia BIL” or the
“Bank”), together with Dexia Belgium in Belgium and Dexia Crédit Local in France, is a member of
the European banking group Dexia (“Dexia Group” or “the Group”). Dexia BIL’s main business
activities cover the fields of commercial banking, private banking, financial banking, asset
management and investment fund administration services.
RDA11-4.1.1
RDA11-6.1
RDA11-5.3
RDA11-13.2
RDA11-5.1.1
RDA11-5.1.4
Introduction
Dexia BIL was incorporated in Luxembourg on 8 March, 1856 in the form of a société
anonyme (limited liability company), governed by Luxembourg law. Its registered office is located at
69, route d’Esch, Luxembourg, L-1470 Luxembourg, telephone number +352 45901. Dexia BIL is
registered in the Luxembourg Register of Commerce and Companies under number B-6307.
RDA11-4.1.2
RDA11-4.1.3
RDA11-4.1.4
Dexia BIL’s duration is unlimited.
Objects
Dexia BIL’s statuts (articles of incorporation) were approved by the royal grand ducal decrees
of 8 March and 14 April, 1856 and have been amended from time to time. Amendments to the
statuts are published in the Mémorial C, Recueil des Sociétés et Associations (the “Mémorial”). The
most recent amendment was made on 27 March, 2007.
The objects of Dexia BIL are to undertake all banking and financial operations of whatsoever
kind, and, inter alia, to accept deposits from the public or any other person or institutions and to
grant credit for its own account. It may also undertake all activities reserved for investment firms
and to other professionals in the financial sector and all financial, administrative, management and
advisory operations directly or indirectly related to its activities. It may establish subsidiaries,
branches and agencies in or outside Luxembourg and participate in all financial, commercial and
industrial operations.
History
Dexia BIL is a leading bank in the Luxembourg financial centre in terms of total assets and
number of employees and is also the oldest bank in the Grand Duchy of Luxembourg. Since it was
founded, it has played an active role in shaping the development of Luxembourg’s economy.
RDA11-5.1.1
RDA11-5.1.4
RDA11-6.1
RDA11-5.1.4
In 1991 Crédit Communal de Belgique became the Bank’s principal shareholder, owning
51 per cent. of its capital. In 1996, the Dexia Group was created by a cross-border merger of Crédit
Communal de Belgique and Crédit local de France. Currently the Dexia Group holds 99.94 per cent.
of the shares in Dexia BIL.
To underline its importance within the Dexia Group, Banque Internationale à Luxembourg
changed its trading name to Dexia Banque Internationale à Luxembourg, société anonyme on
27 May, 2000. The Dexia logo is now used by all the Group’s operating companies. Crédit
Communal de Belgique has been Dexia Banque since 21 May, 2000 and Crédit Local de France is
now Dexia Crédit Local. The signs on Dexia buildings are shared worldwide and strengthen the
coherence of the Group’s brand image.
Commercial banking
Dexia BIL has approximately forty retail branches in Luxembourg offering a fast and efficient
service and providing customers with a simple and comprehensive range of products at
competitive rates.
Dexia BIL’s commitment to quality of service manifests itself in the modernisation of network
facilities and the creation of automatic branches in the form of servibank terminals offering a range
of banking activities at each branch, which allows Dexia BIL to position itself favourably in an
evolving financial world.
Private banking
Dexia BIL has private banking centres across Luxembourg and beyond. Several entities and
joint ventures have been acquired in a number of European countries such as Spain, Denmark and
Switzerland. These bring together, in one institution, a team of investment specialists who provide
seamless solutions to clients looking for a discreet and customised service.
155
RDA11-5.1.1
RDA11-5.1.3
Dexia BIL’s financial advisers have considerable expertise in the financial, legal or tax aspects
of wealth management. The services offered cover everything from discretionary management,
advisory investment management to the analysis and engineering of the client’s whole estate. The
range of investment solutions opens opportunities for investments in Sicavs and other types of
collective investment funds (including FCPs, UCITS and UCIs), alternative management products,
life insurance products and guaranteed capital products.
Financial banking
Through its membership of the Dexia Group, Dexia BIL has built up its activities in the capital
markets. It pursues an aggressive international lending strategy with creditworthy partners.
Dexia BIL has a key role to play in the Dexia Group’s capital market business. Under the
name of Dexia Capital Markets, it aims to provide a complete range of financing services not only
to members of the Dexia Group as well as providing funding and balance sheet-management
solutions, but also to all other clients, by exploiting the opportunities offered by the markets.
Asset management
For several years the Dexia Group, primarily through Dexia BIL and its subsidiaries, has been
developing asset management services for its private clients.
Created in Luxembourg in 1999, Dexia Asset Management brings together the various asset
management teams within Dexia.
Today, Dexia Asset Management is one of the largest asset management companies in
Europe. The company offers a broad range of equity, bond and speciality funds for private and
institutional investors. In the Sustainable and Responsible Investment (SRI) segment, Dexia Asset
Management is market leader in Europe.
Investment fund administration services
Dexia BIL is a market leader in Luxembourg in Undertakings for Collective Investment (UCIs)
in terms of the number of UCIs handled according to Fitzrovia.
RDA11-5.1.4
Today, Dexia BIL, through RBC Dexia Investor Services, is a key player in Europe and Asia in
the fields of global custody, trustee and administration of investment funds, pension funds and
managed accounts.
RBC Dexia Investor Services offers institutional investors worldwide an integrated suite of
products. RBC Dexia Investor Services ranks among the 10 largest custodian banks worldwide
(Fininfo).
RBC Dexia Investor Services is a joint venture equally owned by Royal Bank of Canada and
RDA11-5.1.4
Dexia.
Risk Management
Monitoring of the risks relating to the Issuer and its operations and the banking industry is
performed jointly by the appropriate committees and the Risk Management department, with the
help of tools that it develops, in compliance with the guidelines established by the Dexia Group and
all legal constraints and rules of prudence. As regards the supervision of risks in the subsidiaries
and branches, the Issuer has its own local risk management structure. The risk management
structures are strictly independent of the front-offices and reporting to the Issuer’s Local Risk
Management department either directly (branches) or functionally (subsidiaries). The Issuer's control
and management of credit risk is the responsibility of Credit Risks, which comes under the
management of Finance and Risks. Credit Risks sets out the risk policy and credit procedures,
monitors adherence to the regulations of the Manuel de Procédures et de Politique de Crédit
(MPPC – Credit Policy and Procedures Manual) and oversees the Dexia group’s credit risk policies
relating to counterparty risk. Credit Risks plays an active part in taking decisions in various
specialised risk committees at both local and group level.
Shareholders
Dexia BIL’s majority shareholder is Dexia S.A. which holds a direct participation in Dexia BIL’s
capital (57.68 per cent.) and an indirect participation via Dexia Participation Luxembourg S.A.
(42.23 per cent.).
156
RDA11-10.1
Principal Subsidiaries
At 31 December, 2008, Dexia BIL held a direct interest of at least 20 per cent. in the capital
of the following undertakings:
Proportion of
Capital held directly
Name of Company
Registered Office
Albacora Investments Ltd Partnership
Grand Cayman, Cayman Islands 99.98%
Albacora Invest Sarl
Luxembourg
100.00%
BIL Invest N.V.
Curaçao, Netherlands Antilles
100.00%
BIL RE S.A.
Luxembourg
BIL Trust Ltd
St Peter Port, Guernsey
Compagnie Financière BIL S.A. & Cie S.e.c.s.
Luxembourg
99.99%
Dexia Asset Management Luxembourg S.A.
Luxembourg
51.00%
Dexia Bank Denmark A/S
Copenhagen, Denmark
100.00%
Dexia Banque Privée (Suisse)
Zurich, Switzerland
100.00%
Dexia BIL Asia Singapore Ltd
Singapore
100.00%
Dexia EFM Holdings Ltd
London, UK
100.00%
Dexia LdG Banque S.A.
Luxembourg
100.00%
Dexia Private Bank Jersey Ltd
St. Helier, Jersey
100.00%
Dexia Private Bank Monaco
Monaco
99.996%
Dexia Private Financial Services SAM
Monaco
99.99%
Dexia Securities France Holding S.A.
Paris, France
100.00%
Europay Luxembourg S.C.
Luxembourg
28.80%
Experta Corporate and Trust Services S.A.
Luxembourg
100.00%
Experta Trust Services Jersey Ltd
St. Helier, Jersey
99.99%
I.B. Finance S.A.
Luxembourg
99.95%
Jolnir SARL
Luxembourg
100.00%
Marais Investissement S.à.r.l.
Paris, France
100.00%
Neracaise de Participations S.A.
Paris, France
34.00%
Nexis S.A.
Panama
Popular Banca Privada S.A.
Madrid, Spain
Primavera (Gibraltar) Ltd
Gibraltar
100.00%
PRIVATE ONE SICAV-FIS
Luxembourg
100.00%
RBC Dexia Investor Services Ltd
London, UK
50.00%
Société de la Bourse de Luxembourg S.A.
Luxembourg
21.41%
Société Luxembourgeoise de Leasing - BIL Lease S.A.
Luxembourg
99.99%
SURTLA SARL
Luxembourg
100.00%
Truswell S.I.T.C
Taipei, Taiwan
157
99.99%
100.00%
100.00%
40.00%
20.00%
Board of Directors and Management
Dexia BIL is managed by a Board of Directors.
RDA11-9.1
Board of Directors
François Narmon, Chairman of the Board of Directors of Dexia BIL, Brussels
Gaston Schwertzer, Vice Chairman of the Board of Directors of Dexia BIL, Medingen
Frank Wagener, CEO, Chairman of the Management Board of Dexia BIL, Brouch
Philippe Bourguignon, Vice Chairman of Revolution Resorts, Washington
Jean-Luc Dehaene, Chairman of the Board of Dexia SA, Brussels
Jean Duschène, Chairman of the Employees’ Delegation, Dudelange
Fernand Fischer, Member of the Employees’ Delegation, Bertrange
Pierre Mariani, Chairman of the Management Board of Dexia, CEO, Paris
Luc Onclin, Doctor of Law, Brussels
Jacques Rogge, Chairman of the International Olympic Committee, Lausanne
Serge Schimoff, Vice-Chairman of the Employees’ Delegation, Olm
René Steichen, Chairman of the Board of Directors of SES Global, Diekirch
Donny Wagner, Member of the Employees’ Delegation, Aspelt
Fernand Welschbillig, Member of the Employees’ Delegation, Wecker
Management Board
Frank Wagener, Chairman
Thierry Delroisse, Member
André Lecoq, Member
Eric Le Vernoy, Member
Pierre Malevez, Member
Christian Scharff, Member
Benoît Holzem, Adviser
Bernard Mommens, Advisor
Dexia BIL is not aware of any potential conflict of interest between the duties to Dexia BIL of
the Directors and their private interests or other duties.
RDA11-9.2
RDA11-9.1
The business address of each of the Directors is 69, route d’Esch, Luxembourg, L-1470
Luxembourg.
Fiscal Year and Accounts
Dexia BIL’s fiscal year corresponds to the calendar year. For the financial years starting
1 January 2006, 1 January 2007 and 1 January 2008, the consolidated financial statements of
Dexia BIL have been prepared in accordance with International Financial Reporting Standards
(“IFRS”) as adopted by the EU.
Auditors
The auditors of Dexia BIL for the years ended 31 December 2006 and 2007 were
PricewaterhouseCoopers S.à r.l., 400 route d’Esch, B.P. 1443, L-1014 Luxembourg. Since 1 January
2008, the auditors of the Issuer have been Deloitte SA, 560 rue de Neudorf, L-2220 Luxembourg.
158
RDA11-2.1
CONSOLIDATED FINANCIAL HIGHLIGHTS
These financial highlights have been extracted without material adjustment from the audited
consolidated financial statements of the Issuer as at and for the years ended 31 December 2007
and 2008 prepared in accordance with IFRS as adopted by the EU.
Consolidated Balance Sheet Information
Assets
Cash, balances with central banks & loans
due from banks . . . . . . . . . . . . . . . . . . . . . .
Loans & advances to customers . . . . . . . . .
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . .
Other assets . . . . . . . . . . . . . . . . . . . . . . . . .
Total assets. . . . . . . . . . . . . . . . . . . . . . . . . .
Liabilities
Due to banks . . . . . . . . . . . . . . . . . . . . . . . .
Due to customers & debt securities . . . . . .
Provisions . . . . . . . . . . . . . . . . . . . . . . . . . .
Loan capital . . . . . . . . . . . . . . . . . . . . . . . . .
Share capital & reserves . . . . . . . . . . . . . . .
Result for the financial year . . . . . . . . . . . . .
Other liabilities . . . . . . . . . . . . . . . . . . . . . . .
Total liabilities . . . . . . . . . . . . . . . . . . . . . . . .
31 December,
2006
31 December,
2007
31 December,
2008
555555
555555
555555
(in EUR)
(in EUR)
(in EUR)
26,013,833,417
9,155,223,622
24,188,936,379
4,383,062,089
26,870,993,404
10,203,443,508
31,115,522,282
3,630,676,731
23,349,245,283
19,719,504,114
19,526,167,024
3,968,263,738
555555
555555
555555
63,741,055,507
71,820,635,925
555555
555555
66,563,180,159
555555
22,371,152,920
34,120,979,874
192,293,027
882,692,548
1,750,428,926
638,427,414
3,785,080,798
29,686,399,582
35,447,225,673
173,680,010
942,197,974
2,115,363,252
525,922,988
2,929,846,446
29,758,417,983
30,370,219,078
199,076,985
910,512,221
1,378,367,757
52,789,256
3,893,796,879
555555
555555
555555
63,741,055,507
555555
71,820,635,925
555555
66,563,180,159
555555
159
DEXIA BANQUE INTERNATIONALE A LUXEMBOURG, SINGAPORE BRANCH
Introduction
Dexia Banque Internationale a Luxembourg S.A. Singapore Branch (“Dexia BIL Singapore”)
commenced operations in Singapore on August 1, 1989. Prior to the establishment of Dexia BIL
Singapore, Dexia BIL had operated in Singapore solely through its subsidiary, Dexia BIL Asia
Singapore Limited from early 1982.
Dexia BIL Singapore holds an Offshore Bank license under the Banking Act, Chapter 19 of
Singapore. It can engage in commercial banking activities, which includes deposit taking, the
provision of cheque services and lending. It can also carry on any other businesses that are
regulated by the Monetary Authority of Singapore under the Securities and Futures Act, Chapter
289 of Singapore and the Financial Advisers Act, Chapter 110 of Singapore.
Principal activities
The principal activities of Dexia BIL Singapore are:
•
Cash and Liquidity Management;
•
Long Term Funding/Sales and Distribution; and
•
Portfolio Management.
The Cash and Liquidity Management department (“CLM”) and the Long Term Funding/Sales
and Distribution department (“LFT/Sales”) act as entry points for the Dexia Group in Asia Pacific
(ex Japan) in their respective activities. The CLM is focused on short-tem money market activities
whereas the LFT/Sales desk supports the medium to longer funding initiatives of the Dexia Group.
The Sales and Distribution activity complements the LTF platform as well as facilitates the balance
sheet management activities of the Dexia Group in Asia.
The Portfolio Management team manages the Credit Spread Portfolio (“CSP”) and the Public
Sector Portfolio (“PSP”) of Dexia BIL Singapore in line with the global CSP/PSP activity line under
the Dexia Treasury & Financial Markets division. The CSP is invested in standardised and high
credit quality investments, including senior Residential Mortgage-Backed Securities and AssetBacked Securities, as well as securities in the banking and sovereign sectors. The PSP is invested
in bonds related to public and project financing businesses including Private Finance Initiatives
projects and government-linked companies.
Corporate governance and organisation
Shadow Board of Dexia BIL Singapore
The Shadow Board of Dexia BIL Singapore has been established by the Head Office (“HO”)
and oversees the operations of Dexia BIL Singapore. It has the overall responsibility to review the
activities as well as to provide Dexia BIL Singapore with the overall business direction in line with
HO’s business strategy. The Shadow Board meets three times a year.
Executive Committee
The General Manager of Dexia BIL Singapore has the overall responsibility for Dexia BIL
Singapore. He, together with the Executive Committee (total of three members), reviews the
strategic, financial and managerial aspects of all activities of both Dexia BIL Singapore and the
commercial bank. The Executive Committee holds meetings monthly, where feasible.
Credit Committee
The Credit Committee consists of three designated Executive Committee members, and has
been delegated authority from HO to approve credit facilities within the limits. Credit facilities which
exceed the local Credit Committee authorisation limits must be submitted to the HO Credit
Committee for approval.
Default Committee
The mandate of the Default Committee of Dexia BIL Singapore is to identify counterparties in
default (or impaired) in accordance with Dexia Group guidelines. The Default Committee comprises
three members.
160
Market risk
The Risk Management department monitors and controls the market risk of treasury
activities. In addition, it also monitors the counterparty and country limit exposures, and the hedge
effectiveness of the fixed income portfolio whenever the structure is hedged against fixed rate
exposures.
Compliance
The Compliance department conducts compliance and regulatory risk monitoring and liaises
with Central Compliance department in the HO to ensure that both Singapore and Luxembourg’s
regulatory compliance requirements are complied with.
Legal Status
Dexia BIL Singapore has been established as a branch of Dexia BIL to conduct commercial
banking activities as an offshore bank. Dexia BIL Singapore is not a separately incorporated legal
entity and its capital is not represented by shares.
161
DEXIA GROUP
A European bank, leader in local public finance
Dexia was born in 1996 from the alliance of two top-level operators in local public sector
financing in Europe: Crédit Communal de Belgique and Crédit Local de France.
It was the result of one of the very first cross-border mergers in the European banking sector
and is classified among the twenty largest financial institutions in the euro zone (Fininfo) and builds
its strategy on two pillars: retail banking in Europe (Belgium, Luxembourg, Slovakia, Turkey) and a
world leadership in providing financial services to the local public sector and project finance.
Two pillars: retail banking in Europe and public & project finance at global level
Dexia is a European bank operating in two fields: public finance and retail banking. In the
field of public finance, Dexia provides all local public sector actors with solutions enabling them to
finance their investments.
In the field of retail banking, Dexia principally develops its commercial franchise in Belgium,
Luxembourg and Turkey. The bank offers a complete range of banking and insurance products.
Dexia also operates in the fields of insurance, asset management, and investor services.
Dexia’s success rests not only on its renown and its distribution capacities, but also on its
ability to design sophisticated products and to develop innovative solutions responding the financial
needs of its clientele.
100%
100%
99.9%
Dexia
Crédit Local
Dexia
Bank Belgium
Dexia Banque
Internationale
à Luxembourg
France
Belgium
Luxembourg
99.7%
99.8%
Financial Security
Assurance
Denizbank
United States
Turkey
Treasury and financial markets
Based on its strategic business lines and as a result of the large volumes of its long-term bond
issues – the majority of which are rated AAA – the Group also has an intensive global presence in
treasury and financial markets, providing its customers with international access to funding and
providing the Group with funding and balance sheet-management solutions. This area also functions
as an important profit centre for the Group, generating substantial earnings.
Most Dexia Group companies are rated AA or AAA.
Asset Management, Insurance and Investor Services
Dexia Asset Management today distributes more than a third of its product to institutions and
through third-party channels. Dexia Insurance Services supplies all the life and non-life insurance
products sold in the retail networks of the Group in Belgium, Luxembourg and France. As for
investor services, RBC Dexia Investor Services was set up as a joint venture with Royal Bank of
Canada in 2006 and today, ranks among the 10 largest custodian banks worldwide (Fininfo).
162
RDA11-6.1
163
164
165
166
167
168
169
170
171
172
173
174
175
DESCRIPTION OF THE STATE GUARANTORS
A6.3
Kingdom of Belgium
General Information
The legal name is the Kingdom of Belgium with contact address: Belgian Debt Agency,
Federal Public Service Finance Avenue des Arts, 30 B-1040 Brussels
A16.3.1
A16.3.2
A16.3.4
Kingdom of Belgium economy
a)
the structure of the economy with details of the main sectors of the economy,
This modern, private-enterprise economy has capitalized on its central geographic location,
highly developed transport network, and diversified industrial and commercial base. Industry
is concentrated mainly in the populous Flemish area in the north. With few natural resources,
Belgium must import substantial quantities of raw materials and export a large volume of
manufactures, making its economy unusually dependent on the state of world markets.
Roughly three-quarters of its trade is with other EU countries. Public debt accounts for
86.0% of GDP in 2008 (BNB estimate) and is expected to account for 86.1% of GDP in 2009
(BNB estimates. On the positive side, the government succeeded in balancing its budget
during the 2000-2007 period. For 2008, Belgium has shown a deficit of 1.1% of GDP while
it is expected to show a deficit of 3.5% of GDP in 2009 due to the worldwide financial and
economic crisis. Inflation figures are expected to drop down drastically from 4.5% in 2008 to
1.5% due to base effect on the commodities price and lower economic growth.
Real GDP growth amounted to 2.6% in 2007 and 1.1% in 2008.
expected to show a negative growth (-0.6%).
Historical GDP figures
GDP (EUR millions)
GDP growth
Private Consumption
Public Consumption
Investment
Exports
Imports
For 2009, Belgium is
2006
2007
2008 (est)
318,803
3.0%
2.1%
0.1%
4.8%
2.7%
2.7%
327,088
2.6%
2.0%
2.3%
6.1%
3.9%
4.4%
330,686
1.1%
N/A
N/A
N/A
N/A
N/A
Source: National Bank of Belgium
b)
gross domestic product with a breakdown by the Kingdom of Belgium’s economic sectors
over for the previous two fiscal years.
Primary sector
Secondary sector
Tertiary sector
2007
2008 (est)
0.8%
24.3%
74.9%
0.8%
24.2%
75.0%
Agriculture – products: sugar beets, fresh vegetables, fruits, grain, tobacco; beef, veal, pork, milk
Industries: engineering and metal products, motor vehicle assembly, transportation equipment,
scientific instruments, processed food and beverages, chemicals, basic metals, textiles, glass,
petroleum.
There are no recent events relevant to the evaluation of Belgium’s insolvency.
General description of the Kingdom of Belgium’s political system and government including
details of the governing body of the Kingdom of Belgium
Belgium is a constitutional, popular monarchy and a parliamentary democracy.
Current Prime Minister Herman Van Rompuy.
The federal bicameral parliament is composed of a Senate and a Chamber of
Representatives. The former is made up of 40 directly elected politicians and 21 representatives
176
A16.3.3
A16.6.1
A16.3.5
appointed by the 3 community parliaments, 10 coopted senators and the children of the king, as
senators by Right who in practice do not cast their vote. The Chamber’s 150 representatives are
elected under a proportional voting system from 11 electoral districts.
The King (currently Albert II) is the head of state, though with limited prerogatives. He
appoints ministers, including a Prime Minister, that have the confidence of the Chamber of
Representatives to form the federal government.
Belgium’s political institutions are complex; most political power is organized around the need
to represent the main cultural communities.
Belgium is a founding member state of the European Union and its predecessor entities.
Communities and Regions
Since 1970, Belgium has gradually transformed itself into a federal state. Specifically, Belgium
recognises the existence in the country of 3 Regions (the Flemish Region in the North, the Walloon
Region in the South and the Brussels Capital Region in the centre).
Another form of federalism in Belgium lies in the creation of 3 bodies responsible for cultural
matters and mainly for education (schools and universities). The creation of a second layer of
federalism can be explained by the existence of the bilingual region Brussels and of a German
speaking minority inside the Walloon region. Since the geographical spread of the different linguistic
groups does not correspond to the territory of the Regions, a second layer of sub-national
government was needed.
These 3 bodies are called ‘Communities’, hence the Flemish Community, the French
Community and the German-speaking Community.
Each of these 3 Regions and Communities has its own government and parliament and
determines its own budget (including the possibility to raise debt). In addition, the Regions have the
authority to raise certain taxes.
The Dutch-speaking part of Belgium has merged the sub-national levels of Regions and
Communities. The Flemish Community has taken over the competencies of the Region of Flanders,
creating one unique government, parliament and budget at the Flemish level.
The process of decentralising the Belgian State involved the gradual transfer of competencies
to the regional and community entities. The main stages in this process were as follows:
1)
1970: establishment of the Flemish and Walloon region, and of the Communities;
2)
1989: creation of the Brussels Capital Region, definition of funding structure for the
communities and regions;
3)
1993: Sint Michiels reform, which set up the administrative structure for the regional
and community entities and defined the competencies and powers of these bodies and
how they are financed;
4)
2001: Lambermont and Sint Elooi agreements: redefinition of
competencies, definition of regional and community funding modes.
177
the
regional
The competencies are thus shared as follows:
Table 1: Distribution of Competencies in the Belgian federal system
Entities concerned
Competencies
Federal government
Public Finances
Defense
Security
Justice
Social security
Public health
Domestic and International politics
Railways and airport and communication
Regions
Economic development and co-operation
Public infrastructure
Town and country planning
Environment
Energy
Control and organisation of local governments
Agriculture
Foreign trade
Road infrastructure and local public transport
Communities
Pre-school to university education
Culture
Language issues
Protection of children
Public health (prevention)
Occupational training
Source: Belgian government
Information on the following for the two fiscal years prior to the date of the registration
document
a)
the tax and budgetary systems,
Two of the five criteria for membership into the first-tier group of the Economic and Monetary
Union of the European Union (EMU) under the Maastricht treaty (1992) were to attain a
budget deficit of 3%, and an accumulated debt percentage of 60% of the GDP. In 1992,
Belgium had a 7,1% budget deficit that brought the accumulated debt to 137, 9% of its GDP
in 1993, its highest level ever. It soon became clear that Belgium could not attain the 60%
accumulated debt percentage goal. Nevertheless, Belgium was allowed membership on
condition that it made “substantial progress” on its debt problems. This became the main
objective of Belgian Government economic policy, and was able to bring down the (annual)
budget deficit in 1999 (federal, regional plus social security) back to 1.2% of GDP. This
represented a substantial decrease from the 7.1% deficit recorded in 1992, as well as a
significant difference from the expected figure of 2%, well within the Maastricht criterion.
After Belgium gained this membership, it continued this policy, bringing the accumulated debt
percentage in 2008 to 86.0% of GDP (2008 est.).
178
A16.4
b)
gross public debt including a summary of the debt, the maturity structure of outstanding debt
(particularly noting debt with a residual maturity of less than one year) and debt payment
record, and of the parts of debt denominated in the domestic currency of the Kingdom of
Belgium and in foreign currencies.
Echéance
Vervaldag
Maturity
Code ISIN
ISIN Code
19.02.2009
19.03.2009
16.04.2009
14.05.2009
18.06.2009
16.07.2009
13.08.2009
17.09.2009
15.10.2009
19.11.2009
17.12.2009
14.01.2010
BE0312640098
BE0312641104
BE0312642110
BE0312643126
BE0312644132
BE0312645147
BE0312646152
BE0312647168
BE0312648174
BE0312649180
BE0312650196
BE0312651202
Net
Netto
6,115,440,526.39
5,213,861,940.35
6,912,619,413.91
5,406,616,007.83
5,879,484,323.96
2,584,602,526.21
1,563,682,646.42
2,455,099,669.23
1,867,254,624.05
2,159,362,118.02
2,065,921,943.89
2,236,526,003.24
Nominal
Nominaal
EUR
EUR
EUR
EUR
EUR
EUR
EUR
EUR
EUR
EUR
EUR
EUR
44,460,471,743.50 EUR
6,227,000,000.00
5,315,000,000.00
7,023,000,000.00
5,507,000,000.00
6,022,000,000.00
2,666,000,000.00
1,632,000,000.00
2,540,000,000.00
1,928,000,000.00
2,218,000,000.00
2,112,000,000.00
2,272,000,000.00
EUR
EUR
EUR
EUR
EUR
EUR
EUR
EUR
EUR
EUR
EUR
EUR
45,462,000,000.00 EUR
(Source: Belgium Debt Agency, .be Portal. Belgian Federal Government)
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
2022
2028
2035
Echéance
Vervaldag
Maturity
Coupon
28/03/2009
28/03/2010
28/09/2010
28/03/2011
22/06/2011
28/09/2011
28/09/2012
24/12/2012
28/03/2013
28/09/2013
28/03/2014
28/09/2014
28/03/2015
28/09/2015
28/09/2016
28/03/2017
28/09/2017
28/03/2018
28/03/2019
28/03/2022
28/03/2028
28/03/2035
3.75
3.00
5.75
3.50
FRN**
5
5
8
4.00
4.25
4.00
4.25
8
3.75
3.25
4.00
5.50
4.00
4.00
4.00
5.5
5
ISIN Code
Code ISIN
N°
Nr
BE0000292012
BE0000305145
BE0000295049
BE0000313222
BE0000311200
BE0000296054
BE0000298076
BE0000262684
BE0000310194
BE0000301102
BE0000314238
BE0000303124
BE0000282880
BE0000306150
BE0000307166
BE0000309188
BE0000300096
BE0000312216
BE0000315243
BE0000308172
BE0000291972
BE0000304130
32*
45
35
53
51
36
38
12
50
41
54
43
23
46
47
49
40
52
55
48
31
44
A16.8
Uitstaand bedrag
Encours
Outstanding
18,762,419,400.00
8,848,000,000.00
15,844,200,000.00
10,005,000,000.00
3,000,000,000.00
11,385,400,000.00
11,736,900,000.00
8,546,896,081.16
11,057,000,000.00
12,975,200,000.00
9,497,000,000.00
12,149,915,000.00
6,220,187,157.66
11,294,000,000.00
12,175,000,000.00
11,176,000,000.00
8,437,637,800.00
10,103,000,000.00
4,000,000,000.00
9,455,000,000.00
12,175,939,136.01
13,582,692,800.00
EUR
EUR
EUR
EUR
EUR
EUR
EUR
EUR
EUR
EUR
EUR
EUR
EUR
EUR
EUR
EUR
EUR
EUR
EUR
EUR
EUR
EUR
232,427,387,374.83 EUR
179
Issuer
Kingdom of Belgium
Kingdom of Belgium
Kingdom of Belgium
Maturity
Date
Tranche Value
Euro (Face)
Currency
Code
Deal Value $
(Face)
Jan-11
28-Jun-10
3-Sep-13
212,062,092
424,124,184
1,286,214,991
USD
USD
USD
250,000,000
500,000,000
2,000,000,000
c)
foreign trade and balance of payment figures,
Monthly movement of foreign trade of Belgium according to the EU community concept
(millions of euros)
Periods
Export
Total
Intra-EU Extra-EU
Import
Trade Balance
Total Intra-EU Extra-EU
Total Intra-EU Extra-EU
12/31/2008
11/30/2008
10/31/2008
9/30/2008
8/31/2008
7/31/2008
6/30/2008
5/31/2008
4/30/2008
3/31/2008
2/29/2008
1/31/2008
12/31/2007
21,637.1
23,836.6
28,721.7
29,330.6
23,652.7
28,377.5
30,184.0
26,671.5
29,167.6
27,540.5
27,217.5
26,938.2
23,268.5
16,424.3
18,732.8
22,545.0
22,568.8
18,359.7
21,240.6
23,466.9
20,310.5
22,145.2
21,393.0
21,251.0
21,124.7
17,514.8
21,835.4
24,250.0
28,519.4
28,987.9
24,794.0
27,713.9
29,578.3
25,759.8
28,271.9
26,901.3
25,232.0
26,892.2
23,993.2
5,212.8
5,103.8
6,176.7
6,761.7
5,293.1
7,137.0
6,717.1
6,361.0
7,022.4
6,147.5
5,966.5
5,813.6
5,753.7
180
15,057.9
17,330.2
20,027.2
19,878.9
16,758.7
18,812.7
21,270.3
17,917.2
20,013.6
19,413.3
19,039.1
18,730.3
17,228.1
6,777.6 (198.3) 1,366.4 (1,564.8)
6,919.8 (413.4) 1,402.6 (1,816.0)
8,492.2
202.3 2,517.8 (2,315.5)
9,109.0
342.7 2,689.9 (2,347.3)
8,035.3 (1,141.3) 1,601.0 (2,742.2)
8,901.2
663.6 2,427.9 (1,764.2)
8,308.0
605.7 2,196.6 (1,590.9)
7,842.6
911.7 2,393.3 (1,481.6)
8,258.3
895.7 2,131.6 (1,235.9)
7,488.0
639.2 1,979.7 (1,340.5)
6,192.9 1,985.5 2,211.9 (226.4)
8,161.9
46.0 2,394.4 (2,348.3)
6,765.2 (724.7) 286.7 (1,011.5)
d)
2009
2008
2008
2008
2008
2008
2008
2008
2008
2008
2008
2008
2008
2007
2007
2007
2007
2007
2007
2007
2007
2007
2007
2007
2007
foreign exchange reserves including any potential encumbrances to such foreign exchange
reserves as forward contracts or derivatives.
Jan
Dec
Nov
Oct
Sep
Aug
Jul
Jun
May
Apr
Mar
Feb
Jan
Dec
Nov
Oct
Sep
Aug
Jul
Jun
May
Apr
Mar
Feb
Jan
Outstanding
amounts at the
end of the period
(stocks), Financial
account, Official
reserve assets,
Extra Euro area,
Euro
Outstanding
amounts at the
end of the period
(stocks), Financial
account, Official
reserve assets,
foreign exchange
(including financial
derivatives), Extra
Euro area, Euro
Outstanding
amounts at the
end of the period
(stocks), Financial
account, Official
reserve assets,
foreign currency
reserves (in
convertible foreign
currencies,
excluding financial
derivatives), Extra
Euro area, Euro
Outstanding
amounts at the
end of the period
(stocks), Financial
account, Reserves
assets, foreign
exchange,
Securities, Extra
Euro area, Euro
Outstanding
amounts at the
end of the
period (stocks),
Financial account,
Official reserve
assets, foreign
currency reserves
(in convertible
foreign currencies),
total currency and
deposits with
other national
central banks, BIS
and IMF, Extra
Euro area, Euro
12,347.00
11,241.00
11,781.00
10,926.00
10,680.00
10,575.00
10,859.00
10,577.00
10,767.00
11,019.00
11,106.00
11,483.00
11,242.00
11,212.00
10,794.00
10,883.00
10,667.00
10,133.00
10,360.00
9,973.00
10,117.00
10,066.00
10,166.00
10,557.00
10,416.00
5,929.00
5,581.00
5,963.00
5,909.00
5,315.00
5,670.00
5,814.00
5,464.00
5,797.00
6,178.00
6,062.00
6,070.00
5,958.00
6,316.00
6,134.00
6,145.00
6,097.00
5,778.00
6,022.00
5,675.00
5,751.00
5,638.00
5,727.00
6,005.00
5,875.00
6,000.00
5,551.00
6,021.00
5,950.00
5,353.00
5,799.00
5,504.00
5,393.00
5,813.00
6,143.00
5,879.00
5,944.00
5,896.00
6,259.00
6,002.00
6,024.00
6,009.00
5,659.00
5,987.00
5,679.00
5,751.00
5,559.00
5,683.00
5,987.00
5,912.00
5,240.00
4,904.00
5,396.00
5,180.00
4,281.00
4,094.00
3,889.00
3,718.00
3,889.00
3,885.00
3,883.00
3,966.00
4,005.00
3,994.00
4,173.00
4,303.00
4,205.00
4,321.00
4,285.00
4,153.00
4,149.00
4,027.00
4,317.00
4,458.00
4,101.00
630.00
516.00
588.00
692.00
696.00
535.00
507.00
648.00
504.00
521.00
505.00
545.00
544.00
558.00
396.00
417.00
464.00
466.00
449.00
595.00
474.00
546.00
498.00
416.00
639.00
Source: Eurostat
181
Outstanding
amounts at the
end of the perod
(stocks), Financial
account, Official
reserve assets,
foreign currency
reserves (in
convertible foreign
currencies),
total currency and
deposits with
banks, Extra Euro
area, Euro
130.00
131.00
37.00
78.00
376.00
1,170.00
1,108.00
1,027.00
1,420.00
1,737.00
1,491.00
1,433.00
1,347.00
1,707.00
1,433.00
1,304.00
1,340.00
872.00
1,253.00
931.00
1,128.00
986.00
868.00
1,113.00
1,172.00
e)
financial position and resources including liquid deposits available in domestic currency.
International Investment Position
(Belgium in billions of euro)
Assets
Direct investment
Portfolio investment
Equity securities
Debt securities
Other investment
Reserve assets
Liabilities
Direct investment
Equity securities
Debt securities
Other investment
Net
2007
2006
2005
2004
2003
2002
1,621.0
403.0
563.0
216.0
347.0
644.0
11.0
1,525.0
508.0
268.0
50.0
218.0
749.0
96.0
1,429.0
366.0
488.0
188.0
300.0
565.0
10.0
1,338.0
470.0
216.0
44.0
173.0
652.0
91.0
1,317.0
321.0
470.0
173.0
297.0
516.0
10.0
1,215.0
405.0
207.0
36.0
171.0
603.0
102.0
1,100.0
271.0
392.0
126.0
266.0
427.0
10.0
1,019.0
346.0
191.0
32.0
158.0
482.0
81.0
984.0
249.0
361.0
116.0
245.0
363.0
11.0
884.0
283.0
177.0
22.0
155.0
424.0
100.0
878.0
214.0
335.0
100.0
235.0
315.0
14.0
780.0
244.0
160.0
17.0
143.0
376.0
98.0
2007
2008
160,946.9
145,022.5
15,924.4
162,063.0
139,402.5
12,988.0
9,672.5
(1,116.1)
11,871.9
167,218.6
150,512.1
16,706.5
171,104.1
148,881.5
13,093.1
9,129.5
(3,885.5)
9,207.6
f)
Income and expenditure figures
EUR millions
Receipts
Fiscal and parafiscal receipts
Non-Fiscal and non-parafiscal receipts
Expenditures
Current expenditures Excluding interest charges
Interest charges
Capital Expenditures
Net lending (+) or borrowing (-)
Primary balance
Additional Information
To the best of our knowledge, during the previous 12 months, there are no relevant legal or
arbitration proceedings pending or threatened.
The Belgian State does not enjoy immunity from judgments rendered against it by the Courts
of Belgium. However, the Belgian State benefits from immunity from enforcement, attachment or
seizure, subject to exceptions set forth in Article 1412bis of the Belgian Judicial Code (“Code
Judiciaire” / “Gerechtelijk Wetboek”) or established by case law. Under certain conditions, Article
1412bis allows attachment of property specifically identified by the Belgian State or, if no such
property has been identified or the proceeds thereof are insufficient, property which is manifestly
not useful for the performance of its tasks as a State or for the continuity of public service.
Further information is available at http://www.ejustice.just.fgov.be/loi/loi.htm
A16.6.1
A16.6.2
A6.4.1
A16.8
There is no statement or report attributed to a person as an expert which is included in the
registration document.
A16.7
Further information is available at http://mineco.fgov.be and http://www.nbb.be/pub/index.htm
A16.8
182
Grand Duchy of Luxembourg
A6.3
Général Information
The legal name is the Grand Duchy of Luxembourg with contact address: Trésorerie de l’Etat
3 rue St Esprit L- 1475 Luxembourg
A16.3.1
A16.3.2
A16.3.4
Grand Duchy of Luxembourg economy
a)
Luxembourg, one of the smallest European Union Member States, is located between
Germany, France and Belgium. It has an area of 2,586 square kilometres and approximately
484,000 inhabitants (2008 figure. Due to the country’s strategic geographical location, its
continuous development of external relations and its integration into larger economic bodies,
Luxembourg’s economy and local market considerably exceed the country’s actual size.
The economy is largely dominated by the service sector and especially the financial sector,
since it accounted for about 28% of the GDP in 2008. The industrial sector first dominated
by the steel sector is now more diversified. Sectors like chemicals, rubber, and high
technology are now part of Luxembourg’s economy. Agriculture’s contribution to the GDP is
rather small. The economy depends on foreign and cross-border workers for about 60% of
its labor force.
More than 85% of its trade is with other EU countries. Public debt accounted for 7.0% of
GDP in 2007. Over the past ten years, the Luxembourg economy has grown consistently at
a higher growth rate than the Eurozone and is expected to be over the Eurozone one in 2009.
Luxembourg has one of the lowest unemployment rates in the Eurozone. The IMF forecasts
that unemployment will remain relatively low in 2009. GDP growth is expected to amount to
0.5% in 2009.
GDP (EUR millions)
GDP growth
2006
2007
2008 (est)
33,921
6.4%
36,277
5.2%
37,003
2.0%
Source: Statec
b)
gross domestic product with a breakdown by the Grand Duchy of Luxembourg’s economic
sectors over for the previous two fiscal years.
Primary sector
Secondary sector
Tertiary sector
2007
2008 (est)
0.4%
13.6%
86.0%
0.4%
13.5%
86.1%
Source: Statec
There are no recent events relevant to the evaluation of Luxembourg’s insolvency.
General description of the Grand Duchy of Luxembourg’s political system and government
including details of the governing body of the Grand Duchy of Luxembourg
Luxembourg is a constitutional monarchy and a parliamentary democracy. The monarchy is
hereditary (Nassau family). Luxembourg is a sovereign and independent state since 1839.
The legislative power is exercised by the Chamber of Deputies, the Government and the
State Council. The Grand Duke Henri and the government are the executive power.
The Grand Duchy of Luxembourg is unicameral parliamentary system (60 seats). Each law
cannot be approved without the consent of the Chamber of Deputies and the Grand Duke.
Following popular elections to the Chamber of Deputies, the leader of the majority party of the
leader of the majority coalition is usually appointed Prime Minister by the Grand Duke. The
elections take place every 5 years.
The current Prime minister is Jean-Claude Juncker.
183
A16.3.3
A16.6.1
A16.3.5
document
a)
Two of the five criteria for membership into the first-tier group of the Economic and Monetary
Union of the European Union (EMU) under the Maastricht treaty (1992) were to attain a budget
deficit of 3%, and an accumulated debt percentage of 60% of the GDP. The public debt burden is
negligible and therefore compares very favorably with the country’s payments capacity; hence,
there is no doubt about general government debt affordability and no concern about debt
dynamics. The social security system generates important surpluses, and the government’s
adjustment capacity is very large, with no major constraints on the government’s ability to generate
additional revenue or restrain expenditures and ready access to finance in the event of need.
Recent revisions – after overestimation of government expenditures – generated substantial
upward shifts of general government balances since 2005 and resulted in a balanced budget for
that year and important fiscal surpluses thereafter. The fiscal surplus widened to 3.1% of nominal
GDP in 2007 due to large revenue windfalls. Projections for 2008 and onward point to further fiscal
surpluses, even though nearly halved due to the economic growth slowdown and income tax cuts
which will weigh on the revenue side. Indeed, the government cannot rely on the continuation of
very high fiscal inflows. It has therefore increased efforts to control government expenditure.
Expected ongoing fiscal surpluses will keep general government debt at very low levels.
During years of strong economic growth and high fiscal revenues, fiscal policy was prudent
insofar as excess revenues (as compared to the budget) had been used to increase reserves and
to allocate resources to special off-budget funds, helping to implement an anti-cyclical fiscal policy.
These funds enabled the government to maintain public investment at a high level during years of
economic weakness without having to rely on debt financing.
Authorities plan to hold on to their high level of public investment, mainly in the areas of
transport infrastructure, education, research and health, with investment expenditure accounting for
some 12% of total public expenditures over the period 2005-2008. In order to benefit from low
interest rates and to deliver a high degree of liquidity with respect to multi-annual spending plans,
the government has issued new debt. As a consequence, the general government debt in relation
to nominal GDP will be slightly higher than in past years. However, at around 7%, it will remain one
of the lowest public debt ratios in the EU, and the government’s net financial assets, including
social security reserves, remain substantial.
The surpluses of the social security system have dominated the general government budget
outcome since 1990. They have been used to build up sizeable reserves which are estimated to
have reached around 35% of GDP.
b)
(particularly noting debt with a residual maturity of less than one year – Treasury Bills) and
debt payment record, and of the parts of debt denominated in the domestic currency of the
Grand Duchy of Luxembourg and in foreign currencies.
Outstanding Medium and Long term debt
Debt
Type
Grand Duché 3.75%
BCEE 3.693%
BCEE 3.616%
BCEE 3.616%
BCEE 4.56%
BCEE 4.318%
BCEE 4.935%
BCEE 4.935%
Bond
Banking
Banking
Banking
Banking
Banking
Banking
Banking
loan
loan
loan
loan
loan
loan
loan
Currency
Maturity
Outstanding
amount (EUR)
EUR
EUR
EUR
EUR
EUR
EUR
EUR
EUR
04/12/2013
15/02/2016
15/02/2016
22/02/2016
22/05/2027
08/02/2018
02/10/2018
02/10/2018
2,000,000,000
50,000,000
150,000,000
200,000,000
132,000,000
200,000,000
200,000,000
300,000,000
2,232,000,000
Source: Trésor de l’Etat du Grand Duché de Luxembourg
184
A16.4
Treasury Bills
Beneficiary
Currency
BAsD
BERD
Bio Carbon Fund
Community Development Carbon Fund
General Environment Fund
FAsD
International Development Association
Multilateral Investment Guarantee Agency
International Fund for Agricultural Development
EUR
EUR
USD
USD
SDR/EUR
EUR
EUR
USD
EUR
Outstanding (EUR Equivalent)
0
67,500.00
1,761,802.97
6,062,429.30
3,838,075.00
2,734,344.25
82,020,000.00
96,644.24
227,500.00
96,808,295.76
Source: Trésor de l’Etat du Grand Duché de Luxembourg
185
c)
Total
Period
EU27
*EMU15
Value
Rate
Value
Rate
Value
Rate
(4,337.2)
72%
(4,507.6)
68%
(5,160.8)
62%
2006
Year
2007
Jan
Feb
Mar
(218.7)
(334.5)
(380.6)
82%
75%
75%
(272.0)
(345.4)
(397.1)
76%
71%
71%
(332.7)
(393.4)
(463.7)
70%
65%
65%
T1
(933.8)
77%
(1,014.5)
73%
(1,189.8)
66%
Apr
May
Jun
(364.5)
(523.2)
(356.8)
73%
66%
74%
(365.4)
(411.6)
(382.1)
70%
67%
70%
(415.0)
(470.4)
(445.4)
64%
61%
63%
(1,244.5)
71%
(1,159.1)
69%
(1,330.9)
63%
(362.1)
(453.9)
(328.8)
73%
65%
74%
(425.0)
(334.2)
(353.9)
66%
68%
70%
(477.9)
(399.3)
(419.1)
60%
60%
63%
(1,144.8)
71%
(1,113.1)
68%
(1,296.4)
61%
(334.3)
(378.1)
(446.2)
76%
72%
65%
(395.2)
(424.5)
(506.4)
70%
67%
58%
(465.7)
(485.7)
(553.2)
63%
61%
52%
T4
(1,158.6)
71%
(1,326.0)
65%
(1,504.5)
59%
Year
(4,481.7)
72%
(4,612.6)
69%
(5,321.6)
62%
(245.2)
(371.2)
(419.9)
81%
73%
71%
(315.5)
(423.7)
(458.1)
74%
68%
66%
(383.1)
(477.7)
(505.6)
67%
62%
60%
(1,036.3)
75%
(1,197.3)
69%
(1,366.3)
63%
(438.6)
(486.1)
(391.9)
72%
68%
74%
(488.9)
(499.2)
(451.1)
67%
64%
69%
(534.9)
(543.2)
(511.2)
61%
59%
62%
(1,316.7)
71%
(1,439.2)
66%
(1,589.3)
61%
(594.9)
(426.3)
(442.0)
65%
67%
71%
(506.8)
(484.0)
(467.1)
65%
60%
67%
(551.5)
(520.5)
(497.1)
60%
55%
62%
(1,463.2)
68%
(1,458.0)
64%
(1,569.1)
59%
(463.6)
(591.6)
(486.6)
69%
59%
60%
(514.9)
(608.4)
(510.1)
64%
55%
55%
(547.3)
(647.6)
(544.2)
58%
49%
49%
T4
(1,541.8)
63%
(1,633.3)
58%
(1,739.0)
53%
Year
(5,357.9)
69%
(5,727.8)
65%
(6,263.8)
59%
T2
Jul
Aug
Sep
T3
Oct
Nov
Dec
2008
Jan
Feb
Mar
T1
Apr
May
Jun
T2
Jul
Aug
Sep
T3
Oct
Nov
Dec
Source: Statec
186
d)
2009
2008
2008
2008
2008
2008
2008
2008
2008
2008
2008
2008
2008
2007
2007
2007
2007
2007
2007
2007
2007
2007
2007
2007
2007
Outstanding
amounts at the
end of the period
(stocks), Financial
account, Official
reserve assets,
Extra Euro area,
Euro
Outstanding
amounts at the
end of the period
(stocks), Financial
account, Official
reserve assets,
foreign exchange
derivatives), Extra
Euro area, Euro
Outstanding
amounts at the
end of the period
(stocks), Financial
account, Official
reserve assets,
foreign currency
reserves (in
convertible foreign
currencies), total
currency and
deposits with
other national
central banks, BIS
and IMF, Extra
Euro area, Euro
Outstanding
amounts at the
end of the period
(stocks), Financial
account, Official
reserve assets,
IMF reserve
position, Extra
Euro area, Euro
Outstanding
amounts at the
end of the period
(stocks), Financial
account, Official
reserve assets,
SDRs, Extra Euro
area, Euro
Outstanding
amounts at the
end of the period
(stocks), Financial
account, Official
reserve assets,
gold (including
gold deposits and,
if appropriate, gold
swapped), Extra
Euro area, Euro
319.00
287.00
488.00
273.00
499.00
242.00
362.00
366.00
553.00
477.00
461.00
331.00
198.00
140.00
185.00
188.00
209.00
196.00
195.00
192.00
193.00
192.00
194.00
199.00
200.00
212.00
186.00
398.00
202.00
422.00
168.00
287.00
288.00
475.00
402.00
385.00
250.00
118.00
64.00
111.00
114.00
136.00
124.00
122.00
118.00
118.00
117.00
119.00
119.00
121.00
18.00
17.00
218.00
24.00
265.00
15.00
142.00
145.00
330.00
256.00
279.00
140.00
57.00
4.00
46.00
9.00
25.00
34.00
13.00
12.00
11.00
4.00
4.00
2.00
2.00
42.00
41.00
32.00
18.00
19.00
20.00
20.00
22.00
22.00
21.00
18.00
20.00
20.00
20.00
20.00
20.00
21.00
22.00
22.00
24.00
24.00
24.00
24.00
28.00
28.00
15.00
15.00
12.00
12.00
12.00
13.00
13.00
14.00
14.00
14.00
14.00
14.00
14.00
14.00
14.00
14.00
14.00
14.00
14.00
14.00
14.00
14.00
14.00
14.00
14.00
49.00
45.00
47.00
42.00
46.00
42.00
43.00
43.00
42.00
41.00
44.00
47.00
46.00
42.00
40.00
40.00
39.00
36.00
36.00
36.00
36.00
37.00
37.00
38.00
37.00
Jan
Dec
Nov
Oct
Sep
Aug
Jul
Jun
May
Apr
Mar
Feb
Jan
Dec
Nov
Oct
Sep
Aug
Jul
Jun
May
Apr
Mar
Feb
Jan
Source: Eurostat
187
e)
financial position and resources including liquid deposits available in domestic currency
(EUR millions).
Total
Direct investment
Net position
Assets
Liabilities
Net
Assets
Liabilities
2
3
4
5
6
7
2007
1st quarter (p)
2nd quarter (p)
3rd quarter (p)
4th quarter (p)
44,607
39,871
34,697
37,956
3,802,091
3,972,166
4,045,965
4,136,500
3,757,484
3,932,296
4,011,268
4,098,544
(67,168)
(60,133)
(16,656)
(14,881)
858,563
876,109
934,626
991,875
925,731
936,242
951,281
1,006,756
2008
1st quarter (p)
2nd quarter (p)
3rd quarter (p)
34,008
43,443
38,957
4,042,462
4,075,878
4,048,086
4,008,454
4,032,435
4,009,129
(13,100)
(22,109)
(44,209)
1,026,141
1,029,297
1,031,598
1,039,240
1,051,406
1,075,807
Assets
Liabilities
Financial
derivatives
1
Source: Banque Centrale du Luxembourg
Net
1
8
9
10
11
2007
1st quarter (p)
2nd quarter (p)
3rd quarter (p)
4th quarter (p)
(76,350)
(80,506)
(174,047)
(192,918)
1,914,450
2,031,152
1,982,665
1,958,160
1,990,800
2,111,657
2,156,712
2,151,077
4,652
(4,870)
2,218
(7,039)
2008
1st quarter (p)
2nd quarter (p)
3rd quarter (p)
(196,718)
(188,817)
(163,589)
1,813,293
1,824,962
1,748,246
2,010,011
2,013,780
1,911,835
(3,446)
(337)
4,201
Other investment
Assets
Liabilities
Reserve
Asset
Net
1
12
13
14
15
2007
1st quarter (p)
2nd quarter (p)
3rd quarter (p)
4th quarter (p)
183,279
185,186
222,971
252,654
1,018,056
1,053,519
1,116,809
1,176,759
834,777
868,333
893,837
924,106
194
192
209
140
2008
1st quarter (p)
2nd quarter (p)
3rd quarter (p)
246,811
254,339
242,050
1,191,083
1,201,982
1,250,232
944,272
947,643
1,008,182
461
366
505
188
f)
EUR millions
Current Budget
Current Revenues
Current Expenditures
Current Balance
Capital Budget
Capital Revenues
Capital Balance
Total Budget
Total Revenues
Total Expenditures
Total Balance
2008
2009
(estimated)
8,355.4
7,631.3
724.1
8,968.7
8,107.1
861.6
82.6
827.2
(744.6)
88.2
936.6
(848.4)
8,438.0
8,458.5
(20.5)
9,056.9
9,043.8
13.2
Source: Ministry of finance, Grand Duchy of Luxembourg
arbitration proceedings pending or threatened.
A16.6.1
The Luxembourg State does not enjoy immunity from judgments rendered against it by the
Courts of Belgium. However, the Luxembourg State benefits from immunity from enforcement,
attachment or seizure.
A16.6.2
Further information is available at www.legilux.lu
Further information is available at http://www.mf.public.lu
189
A6.4.1
A16.8
A16.7
A16.8
French Republic
A6.3
General Information
The legal name of the guarantor is the French Republic with contact address Ministère de
l’Economie, des Finances et de l’Emploi, Agence France Trésor 139 rue de Bercy 75572 Paris
Cedex 12.
A16.3.1
A16.3.2
A16.3.4
French Republic economy
a)
Republic of France is one of the 6 countries which founded the European Union. It is the
biggest country in Europe (approx 643.000 sq. km) with 64 million inhabitants (2008 figures).
The country has a key place between Northern and Southern Europe thanks to its location
between Spain, Italy, Switzerland, Belgium and Germany. The country also benefits from a
strong access to the Atlantic and Mediterranean Sea.
The economy (5th in the world in 2008) is widely diversified with a strong agricultural sector
(with 3.9% of the local GDP, France weights on the European Agricultural decisions) and
industry (21% of the GDP) with exporting industrial players (mostly in the transport field:
trains, planes and cars). The economy is also service-oriented, giving a strong importance to
the capital city, Paris. The country is mostly a Europe-oriented exporting country as Germany
is its main commercial partner (biggest client and supplier with EUR 140bn of goods
exchanged in 2007).
The country is a democracy with 2 chambers directly and indirectly elected and a president.
The unemployment rate is 7.8% and the debt burden reached 65% of the GDP. IMF expects
the country to know a recession in 2009.
GDP (EUR billions)
GDP growth
2006
2007
1,807.5
2.2%
1,892.2
2.2%
Source: INSEE
b)
gross domestic product with a breakdown by the French Republic’s economic sectors over
for the previous two fiscal years.
Primary sector
Secondary sector
Tertiary sector
2007
2008 (est)
2.2%
20.2%
77.5%
2.2%
20.3%
77.4%
Source: INSEE
There are no recent events relevant to the evaluation of France’s insolvency.
General description of the French Republic’s political system and government including
details of the governing body of the French Republic
The political body of the Republic of France is based on the direct democracy, with respect
of the Human Rights and the separation of the three powers. Every five years, inhabitants can vote
directly for the president and the assembly. A second chamber is elected every eight years
indirectly to represent the weight of the local authorities within the country.
This process gives a strong stability to the country with laws review by three different bodies.
The governing body is set up as key economic issues are clearly separated: Treasury issues,
tax, exports and industrial policies depend on different ministries what increases the coherence of
the policies.
190
A16.3.3
A16.6.1
A16.3.5
document
a)
The Republic of France signed the Economic and Monetary Union under the Maastricht treaty
in 1992. The public deficit is limited to 3% of the GDP and the debt burden to 60% of the
GDP. France is expected to slightly exceed that limits in 2009 and 2010.
Budget revenues are mostly based on consumption in France (with a high VAT rate), while
corporate and income taxes are comparable to its peers. The outstanding debt reached 65%
of the GDP in 2008 as the weight of the industry adversely hit the French economy over the
past years.
The high tax pressure is due to a modern health care system based on solidarity, in particular
with the patrimonial tax.
b)
(particularly noting debt with a residual maturity of less than one year) and debt payment
record, and of the parts of debt denominated in the domestic currency of the French
Republic and in foreign currencies.
BTAN (“Bon du Trésor à Intérêts Annuels”) au 31 janvier 2009/Treasury notes (“BTAN”) at
January 31, 2009
Coefficient
d’indexation
Valeur
Encours/
Indexation
nominale/
CODE ISIN
Emprunt/Bond
Outstanding
coefficent
face value
FR0106841887
FR0110979178
Échéance 2009
BTAN 3.5% 12 July 2009
BTAN 4% 12 September 2009
31,160,000,000
17,908,000,000
13,252,000,000
FR0107369672
FR0107674006
FR01086640551
FR0113872776
Échéance 2010
BTAN 3% 12 January 2010
BTAN 2.5% 12 July 2010
BTAN 1.25% 25 July 2010
BTAN 3.75% 12 September 2010
62,001,067,500
18,626,000,000
20,387,000,000
10,070,067,500
12,918,000,000
FR0108354806
FR0108847049
Échéance 2011
BTAN 3% 12 January 2011
BTAN 3.5% 12 July 2011
37,689,000,000
19,063,000,000
18,626,000,000
FR0109970386
FR0110979186
Échéance 2012
BTAN 3.75% 12 January 2012
BTAN 4.5% 12 July 2012
27,277,000,000
13,721,000,000
13,556,000,000
FR0113087466
FR0114683842
Échéance 2013
BTAN 4.5% 12 July 2013
27,695,000,000
15,718,000,000
11,977,000,000
FR0116114978
Échéance 2014
3,393,000,000
3,393,000,000
191
(1)1,0799
9,325,000,000
A16.4
BTF (“Bon Trésor Français”) au 31 janvier 2009/Treasury bills (“BTF”) at January 31, 2009
Encours/
Échéance/Maturity
Outstanding
BTF
BTF
BTF
BTF
5 February 2009
12 February 2009
19 February 2009
26 February 2009
6,647,000,000
6,991,000,000
8,192,000,000
8,779,000,000
BTF
BTF
BTF
BTF
5 March 2009
12 March 2009
19 March 2009
26 March 2009
7,465,000,000
8,777,000,000
7,131,000,000
7,975,000,000
BTF
BTF
BTF
BTF
2 April 2009
9 April 2009
16 April 2009
23 April 2009
4,483,000,000
7,014,000,000
6,790,000,000
6,767,000,000
BTF
30 April 2009
3,219,000,000
BTF
BTF
7 May 2009
20 May 2009
7,300,000,000
6,364,000,000
BTF
BTF
4 June 2009
18 June 2009
5,909,000,000
4,511,000,000
BTF
BTF
BTF
2 July 2009
16 July 2009
30 July 2009
4,951,000,000
4,270,000,000
4,334,000,000
BTF
27 August 2009
5,122,000,000
BTF
24 September 2009
6,822,000,000
BTF
19 November 2009
5,463,000,000
BTF
14 January 2010
4,543,000,000
Source: Agence France Trésor
192
c)
Balance des paiements
Compte de transactions courantes
Biens
Services
Revenus
Transferts courants
Compte de capital
Transferts en capital
Acquisitions d’actifs non financiers (brevets)
Compte financier
Investissements directs
Français à l'étranger
Etrangers en France
Investissements de portefeuille
Avoirs (résidents sur titres émis par des non-résidents)
Engagements (non-résidents sur titres émis par résidents)
Produits financiers dérivés
Autres investissements
Avoirs
Engagements
Avoirs de réserve
Erreurs et omissions nettes
2005(r)
en milliards d’euros
2006(r)
2007(p)
(10.9)
(22.5)
13.3
20.2
(21.9)
0.5
0.5
0.1
(1.6)
(24.1)
(92.5)
68.3
(14.6)
(195.7)
181.1
5.2
24.9
(227.0)
251.9
7.1
12.0
(12.3)
(29.4)
9.9
28.8
(21.6)
(0.2)
0.2
(0.4)
70.5
(34.4)
(96.7)
62.3
(59.4)
(270.5)
211.0
3.4
169.8
(122.2)
291.9
(8.8)
(58.0)
r : données révisées.
p : données provisoires.
nd : résultat non disponible.
Champ : France (territoire statistique de la Balance des paiements).
Source: Banque de France
193
(22.3)
(39.7)
11.0
28.5
(22.1)
1.9
0.9
0.9
22.2
(48.7)
(164.1)
115.4
(131.9)
(161.1)
29.2
42.0
161.3
(197.4)
358.7
(0.5)
(1.7)
d)
2009Jan
2008Dec
2008Nov
2008Oct
2008Sep
2008Aug
2008Jul
2008Jun
2008May
2008Apr
2008Mar
2008Feb
2008Jan
2007Dec
2007Nov
2007Oct
2007Sep
2007Aug
2007Jul
2007Jun
2007May
2007Apr
2007Mar
2007Feb
2007Jan
Outstanding
amounts at the
end of the period
(stocks), Financial
account, Official
reserve assets,
Extra Euro area,
Euro
Outstanding
amounts at the
end of the period
(stocks), Financial
account, Official
reserve assets,
foreign exchange
derivatives), Extra
Euro area, Euro
Outstanding
amounts at the
end of the period
(stocks), Financial
account, Official
reserve assets,
foreign currency
reserves (in
convertible foreign
currencies,
excluding financial
derivatives), Extra
Euro area, Euro
Outstanding
amounts at the
end of the period
(stocks), Financial
account, Reserves
assets, foreign
exchange,
Securities, Extra
Euro area, Euro
Outstanding
amounts at the
end of the period
(stocks), Financial
account, Official
reserve assets,
foreign currency
reserves (in
convertible foreign
currencies), total
currency and
deposits with
other national
central banks, BIS
and IMF, Extra
Euro area, Euro
78,981.00
73,960.00
80,802.00
78,516.00
79,979.00
76,728.00
79,713.00
77,614.00
77,114.00
77,506.00
80,351.00
82,621.00
86,424.00
78,613.00
78,978.00
82,036.00
79,064.00
76,875.00
75,138.00
73,085.00
73,862.00
75,489.00
76,044.00
76,846.00
76,470.00
19,141.00
21,831.00
27,078.00
30,792.00
27,469.00
28,950.00
30,358.00
27,591.00
28,510.00
30,138.00
30,033.00
28,202.00
33,479.00
29,609.00
33,038.00
34,366.00
33,339.00
33,462.00
32,123.00
30,283.00
29,987.00
30,853.00
31,334.00
31,546.00
30,693.00
19,141.00
21,831.00
27,078.00
30,792.00
27,469.00
28,950.00
30,358.00
27,591.00
28,510.00
30,138.00
30,033.00
28,202.00
33,479.00
29,609.00
33,038.00
34,366.00
33,339.00
33,462.00
32,123.00
30,283.00
29,987.00
30,853.00
31,334.00
31,546.00
30,693.00
15,470.00
17,025.00
20,701.00
20,549.00
18,472.00
18,375.00
18,776.00
17,531.00
17,445.00
18,931.00
18,236.00
17,604.00
20,473.00
19,518.00
20,941.00
20,705.00
20,666.00
19,816.00
20,183.00
18,942.00
21,194.00
22,560.00
20,313.00
22,857.00
25,560.00
346.00
223.00
1,044.00
1,367.00
1,509.00
1,687.00
1,400.00
1,201.00
1,413.00
1,019.00
1,406.00
1,042.00
868.00
879.00
842.00
1,063.00
877.00
863.00
625.00
506.00
544.00
493.00
403.00
451.00
493.00
Source: Eurostat
194
Outstanding
amounts at the
end of the period
(stocks), Financial
account, Official
reserve assets,
foreign currency
reserves (in
convertible foreign
currencies), total
currency and
deposits with
banks, Extra Euro
area, Euro
3,325.00
4,584.00
5,333.00
8,876.00
7,489.00
8,887.00
10,183.00
8,858.00
9,652.00
10,188.00
10,390.00
9,556.00
12,138.00
9,212.00
11,255.00
12,598.00
11,796.00
12,782.00
11,314.00
10,836.00
8,249.00
7,800.00
10,618.00
8,238.00
4,640.00
e)
financial position and resources including liquid deposits available in domestic currency
(EUR millions).
International Investment Position from 2005 to 2007
Stocks at the end of the year in EUR billion
2005*
Direct investment, net
at book value (a)
203.8
at market value (b)
443.4
Portfolio investment, net
(176.9)
Assets
1,587.9
Liabilities
(1,764.8)
Memorandum: French Treasury securities held by non-residents
(541.6)
Financial derivatives, net
(22.9)
Assets
124.5
Liabilities
(147.4)
Other investment, net
(135.0)
Reserve assets
63.0
Total assets
with direct investment at book value
3,573.5
with direct investment at market value
4,128.2
Total liabilities
(3,641.4)
(3,956.5)
Net international investment position
(67.9)
171.7
2006*
2007
215.1
521.6
(154.5)
1,863.2
(2,017.7)
(541.0)
(29.7)
159.2
(188.9)
(295.8)
74.6
253.3
565.7
112.6
2,046.9
(1,934.3)
(561.6)
(71.7)
158.5
(230.2)
(430.7)
78.6
4,061.9
4,765.6
4,556.5
5,269.9
(4,252.2)
(4,649.4)
(4,614.4)
(5,015.5)
(190.4)
116.2
(57.9)
254.4
* revised
(a)
Direct investment stocks at book value at end-2007 are estimated on the basis of stocks at
end-2006, balance of payment's financial flows and by taking account exchange rate
changes between end-
(b)
Direct investment stocks at market are estimated on the basis of stocks at end-2006 and
balance of payment’s financial flows. Flows and stocks are revalued for exchange rate
changes and for price changes - with representative.
(c)
Other sectors include households, non profit institutions, non financial companies, insurance
companies, non monetary
Source: Banque de France
f)
EUR billions
Current Budget
Current Revenues
Current Expenditures
Current Balance
Capital Budget
Capital Revenues
Capital Balance
Total Budget
Total Revenues
Total Expenditures
Total Balance
Source: INSEE
195
2006
2007
834.2
381.4
452.8
860.3
399.3
461.0
74.8
571.1
(496.3)
79.9
591.7
(511.8)
952.5
909.1
(43.4)
991.0
940.4
(50.6)
Additional Information
arbitration proceeding pending or threatened.
The French Republic does not enjoy immunity from judgments rendered against it, recognized
and enforced by the courts in France in accordance with the provisions of the Council Regulation
(EU) n° 44-2001 of December 22, 2001. However, pursuant to Article L. 2311-1 of the Code Général
de la Propriété des Personnes Publiques, the French Republic benefits from immunity from
attachment or seizure of its assets. The enforcement of the judgments against the French Republic
is subject to a special procedure established by Articles L. and R. 911-1 and seq. of the Code de
Justice Administrative and Act n° 80-539 of July 16, 1980, whereby the French Republic is required
to pay the amount fixed by the court within two months as from the notification of the judgment or
four months if the necessary credits have to be created in the Finance Act (loi de finances).
Further information is available at http://www.legifrance.gouv.fr
Further information is available at http://www.comptes-publics.gouv.fr/themes/finances_etat/
comptes/index.htm
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A16.6.1
A16.6.2
A16.8
A16.7
A6.4.1
A16.8
TAXATION
The matters described below do not constitute, and should not be considered as, legal or tax
advice to prospective purchasers. Prospective purchasers should consult legal or tax advisers in the
country of their citizenship, residence or domicile to determine the possible tax or other
consequences of purchasing, holding and redeeming Notes and/or Certificates and/or Warrants, as
the case may be, under the laws of the relevant jurisdiction.
Luxembourg Tax Consequences
The following is a summary discussion of certain material Luxembourg tax consequences with
respect to the Notes Certificates. The summary does not purport to be a comprehensive description
of all of the tax considerations that may be relevant to any particular holder of Notes or Certificates,
and does not purport to include tax considerations that arise from rules of general application or
that are generally assumed to be known to holders of Notes Certificates. It is not intended to be,
nor should it be construed to be, legal or tax advice. This discussion is based on Luxembourg laws
and regulations as they stand on the date of this prospectus and is subject to any change in law or
regulations or changes in interpretation or application thereof that may take effect after such date.
Prospective investors in the Notes Certificates should therefore consult their own professional
advisers as to the effects of state, local or foreign laws and regulations, including Luxembourg tax
law and regulations, to which they may be subject.
Withholding Tax
Non-Residents
Under Luxembourg tax law currently in effect and except as provided for by the laws of
21 June, 2005 (the “2005 Laws”) implementing the Directive 2003/48/EC on taxation of savings
income in the form of interest payments (the “EU Savings Directive”), there is no withholding tax for
non-resident holders of the Notes and Certificates on payments of interest (including accrued but
unpaid interest) and on payments received upon redemption or repayment of the principal or upon
an exchange of the Notes and Certificates.
On 3 June, 2003, the European Council approved the EU Savings Directive and under the
related Accords with certain dependent or associated territories and certain non-EU Member States
(together the “relevant States”), EU Member States will be required to provide to the fiscal
authorities of another EU Member State and all the relevant States details of payments of interest
or similar income made by a person within its jurisdiction to an individual resident in that other
EU Member State or a State, except that Austria, Belgium and Luxembourg will instead operate a
withholding system for a transitional period in relation to such payments unless during such period
they elect otherwise.
Under the 2005 Law and under the relevant Accords payments of interest or similar income
made or ascribed by a paying agent established in Luxembourg to or for the immediate benefit of
an individual or certain residual entities, who as a result of an identification procedure implemented
by the paying agent are identified as residents or are deemed to be residents of an EU Member
State or a relevant State other than Luxembourg, will be subject to a withholding tax unless the
relevant beneficiary has adequately instructed the relevant paying agent to provide details of the
relevant payments of interest or similar income to the fiscal authorities of his/her country of
residence or deemed residence or has provided a tax certificate from his/her fiscal authority in the
format required by law to the relevant paying agent.
Where withholding tax is applied, payments of interest and similar income will be subject to
a withholding at a rate of 20 per cent. until June 2011 and at a rate of 35 per cent. thereafter.
When used in the preceding three paragraphs “interest”, “paying agent”, and “residual entity”
have the meaning given thereto in the 2005 Laws or the relevant Accords. “Interest” will include
accrued or capitalised interest at the sale, repayment or redemption of the Notes and Certificates.
“Paying agent” is defined broadly for this purpose and in the context of the Notes and Certificates
means any economic operator established in Luxembourg who pays interest on the Notes and
Certificates to or ascribes the payment of such interest to or for the immediate benefit of the
beneficial owner, whether the operator is, or acts on behalf of, the Issuer or is instructed by the
beneficial owner to collect such payment of interest.
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SNA12-4.1.14
SNA5-4.14
SNA5-4.14
Payments of interest or similar income under the Notes and Certificates to the clearing
systems and payments by or on behalf of Clearstream, Luxembourg, to financial intermediaries will
not give rise to a withholding tax under Luxembourg law.
Residents
Interest on Notes or Certificates paid by a Luxembourg paying agent to an individual holder
who is a resident of Luxembourg or to a foreign residual entity securing the payment for the benefit
of such individual holder will be subject to a withholding tax of 10 per cent.. If the individual holder
does not hold the Notes or the certificates as business assets, the aforementioned 10 per cent.
withholding tax will operate a full discharge of income tax due on such payments. In case interest
is paid on the Notes or the Certificates to Luxembourg resident individuals or to foreign residual
entities securing the payment for the benefit of such individuals by a paying agent established in a
Member State of the EU or the EEA other than Luxembourg or in a State party to an international
convention linked to the EU Savings Directive, the beneficiary may opt for the application of the
aforementioned 10 per cent. withholding tax in accordance with the provisions of the law of
23 December 2005. In such case the beneficiary is responsible for the related payment and
declaration obligations. This withholding tax represents the final tax liability for Luxembourg
individual resident taxpayers acting in the course of the management of their private wealth.
Interest on Notes and Certificates paid by Luxembourg paying agent to Luxembourg
Noteholders which are not individuals will not be subject to any withholding tax.
Income deriving from the Notes and Certificates
Non-Resident Holders
Non-Luxembourg holders of the Notes and Certificates who are non-resident of Luxembourg
and who do not hold the Notes and Certificates through a permanent establishment in Luxembourg
are not liable to any Luxembourg income tax, whether they receive payments of principal, payments
of interest (including accrued but unpaid interest), payments received upon redemption, repurchase
or exchange of the Notes and Certificates, or realize capital gains on the sale of the Notes and
Certificates.
Resident Holders – General
Holders of the Notes and Certificates will not become residents, or be deemed to be resident
in Luxembourg by reason only of the holding of the Notes and Certificates.
Holders of the Notes and Certificates who are tax resident in Luxembourg, or non-resident
holders of the Notes and Certificates who have a permanent establishment or permanent
representative in Luxembourg to which or to whom the Notes and Certificates are attributable, must
for income tax purposes include any interest and other income received or accrued on the Notes
and Certificates in their taxable income unless an individual holder holds the Notes or certificates in
the frame of the management of its private wealth. If in this last case the aforementioned 10 per
cent. withholding tax has been levied it can be credited against the overall income tax liability. They
will not be liable to any Luxembourg income tax on repayment of principal.
Luxembourg Resident Individuals
Luxembourg resident individual holders of the Notes and Certificates who do not hold Notes
and Certificates as business assets are not subject to taxation on capital gains upon the disposal
of the Notes and Certificates, unless their disposal precedes their acquisition or they are disposed
of within six months of the date of their acquisition. Upon a repurchase, redemption or exchange of
Notes and Certificates, the portion of repurchase, redemption or exchange price corresponding to
accrued but unpaid interest is subject to the aforementioned 10 per cent. withholding tax.
Luxembourg resident individual holders of Notes and Certificates who hold Notes and Certificates
as business assets are subject to tax as described in relation to “Luxembourg Resident
Companies” below.
Luxembourg Resident Companies
Unless they benefit from an exemption under Luxembourg tax law, Luxembourg resident
companies (organismes à caractére collectif), holding Notes or Certificates, or foreign entities of the
same type who have a permanent establishment or permanent representative in Luxembourg to
which or to whom the Notes or Certificates are attributable, must include in their taxable income
interests accrued in the Notes or Certificates and, on a sale repurchase, redemption or exchange,
198
the difference between the sale, repurchase, redemption or exchange price (including accrued but
unpaid interest) and the lower of the cost or book value of the Notes or Certificates sold,
repurchased, redeemed or exchanged.
Net Wealth Tax
Unless they benefit from an exemption under Luxembourg tax law, Luxembourg net wealth
tax will not be levied on a holder of the Notes and Certificates, unless (i) such Notes and
Certificates are attributable to a business enterprise or part thereof or which is carried on in
Luxembourg or through a permanent establishment or a permanent representative of a non-resident
company in Luxembourg. In such a case, the holder of Notes and Certificates must take the Notes
and Certificates into account for the purposes of Luxembourg wealth tax.
Other Tax Consequences
Stamp Taxes and Transfer Taxes
There is no Luxembourg registration tax, stamp duty or any other similar tax or duty payable
in Luxembourg by the holders of Notes and Certificates as a consequence of the issuance of the
Notes and Certificates, nor will any of these taxes be payable as a consequence of a subsequent
transfer, repurchase or redemption of the Notes and Certificates.
Gift Taxes
No estate or inheritance tax is levied on the transfer of Notes or Certificates upon death of a
holder of Notes or Certificates in cases where the deceased was not a resident of Luxembourg for
inheritance tax purposes and no gift tax is levied upon a gift of Notes or Certificates if the gift is
not passed before a Luxembourg notary or recorded in a deed registered in Luxembourg. Where a
holder of Notes or Certificates is a resident for tax purposes of Luxembourg at the time of his
death, the Notes or Certificates are included in its taxable estate for inheritance tax or estate tax
purposes.
Warrants
Non-residents Warrant Holders
Under the existing laws of Luxembourg, the exercise or sale of Warrants by a non-resident
Holder does not give raise to taxable income in Luxembourg, unless such Warrants were held as
business assets by such non-resident within a permanent establishment in Luxembourg.
Residents Warrant Holders
Individuals
The profit made by a resident individual Warrant Holder not holding the Warrants as business
assets, on the sale of Warrants or upon the exercise thereof against payment of a cash amount is
taxable in Luxembourg if such Warrant is sold or exercised within a period of 6 months following
the acquisition by such person. The exercise by such a Holder of Warrants against physical
settlement does not give raise to taxation in Luxembourg, provided that the disposal of the assets
acquired upon such exercise will be taxable in Luxembourg in the same circumstances as would be
a sale of a Warrant or the exercise thereof against payment of a cash amount and that the holding
period of 6 months referred to above will start on the date of acquisition of such assets following
the exercise of such Warrant.
If Warrants are held by a resident individual Warrant Holder as a business asset, they are
subject to Luxembourg tax as described in the paragraph “Luxembourg Resident Companies” here
below.
Luxembourg Resident Companies
Save where the Warrant Holder is exempt from taxation under Luxembourg law, an Holder
who is an organism with a collective character resident of Luxembourg, or a non-resident Holder of
the same type who has a permanent establishment in Luxembourg with which the holding of the
Warrants is connected must include in his taxable income the profit made on the sale of Warrants
or upon the exercise thereof against payment of a cash amount. The exercise by a Holder of
Warrants against physical settlement does not give raise to taxation in Luxembourg, provided that
the disposal of the assets acquired upon such exercise will be taxable in Luxembourg in the same
circumstances as would be a sale of a Warrant or the exercise thereof against payment of a cash
amount.
199
Other Taxes
Luxembourg net wealth tax will not be levied on a Warrant Holder, unless the Holder is an
organism with a collective character resident in Luxembourg; or the Warrants are attributable to the
permanent establishment in Luxembourg of a foreign entity of the same type as a Luxembourg
organism with a collective character.
There is no Luxembourg registration tax, capital tax, stamp duty or any other similar tax or
duty payable in Luxembourg in respect of or in connection with the execution and delivery of the
Warrants or the performance of the Issuer’s obligations under the Warrants, except that courts
proceedings in a Luxembourg court or the representation of the Warrants to an “autorité
constituée”, could imply registration of the Warrants at a fixed registration duty.
Singapore Tax Consequences
The statements below are general in nature and are based on certain aspects of current tax
laws in Singapore, announced budget measures in the 2009 Budget and administrative guidelines
issued by the Monetary Authority of Singapore (“MAS”) in force as at the date of this Prospectus and
are subject to enactment of such budget measures and to any changes in such laws or administrative
guidelines, or the interpretation of those laws or guidelines, occurring after such date, which changes
could be made on a retroactive basis. Neither these statements nor any other statements in this
Prospectus are to be regarded as advice on the tax position of any holder of the Warrants, Notes or
Certificates or of any person acquiring, selling or otherwise dealing with the Warrants, Notes or
Certificates or on any tax implications arising from the acquisition, sale or other dealings in respect of
the Warrants, Notes or Certificates. The statements do not purport to be a comprehensive description
of all the tax considerations that may be relevant to a decision to purchase, own or dispose of the
Warrants, Notes or Certificates and do not purport to deal with the tax consequences applicable to all
categories of investors, some of which (such as dealers in securities) may be subject to special rules.
There may be additional taxation issues arising from complex structured products such as the
Warrants, Notes or Certificates which have not been addressed in this section. Prospective holders of
the Warrants, Notes or Certificates who are in doubt about their respective tax positions or any such
tax implications of the purchase, ownership or transfer of Warrants, Notes or Certificates or who may
be subject to tax in a jurisdiction other than Singapore should consult their own professional advisers.
Interest and Other Payments
Subject to the following paragraphs, under Section 12(6) of the Income Tax Act, Chapter 134
of Singapore (“ITA”), the following payments are deemed to be derived from Singapore:
(a)
any interest, commission, fee or any other payment in connection with any loan or
indebtedness or with any arrangement, management, guarantee, or service relating to
any loan or indebtedness which is (i) borne, directly or indirectly, by a person resident
in Singapore or a permanent establishment in Singapore (except in respect of any
business carried on outside Singapore through a permanent establishment outside
Singapore or any immovable property situated outside Singapore) or (ii) deductible
against any income accruing in or derived from Singapore; or
(b)
any income derived from loans where the funds provided by such loans are brought
into or used in Singapore.
Such payments, where made to a person not known to Dexia BIL Singapore to be a resident
in Singapore for tax purposes, are generally subject to withholding tax in Singapore. The rate at
which tax is to be withheld for such payments (other than those subject to the 15 per cent. final
withholding tax described below) to non-resident persons other than non-resident individuals is
18 per cent. for the year of assessment 2009 and (pursuant to the 2009 Budget) is expected to be
17 per cent. with effect from year of assessment 2010. The applicable rate for non-resident
individuals is 20 per cent.. However, if the payment is derived by a person not resident in Singapore
otherwise than from any trade, business, profession or vocation carried on or exercised by such
person in Singapore and is not effectively connected with any permanent establishment in
Singapore of that person, the payment is subject to a final withholding tax of 15 per cent. The rate
of 15 per cent. may be reduced by applicable tax treaties.
However, interest, discount income (not including discount income arising from secondary
trading), prepayment fee, redemption premium and break cost from debt securities issued by Dexia
BIL Singapore and derived by individuals will be exempted from tax, except where such income is
200
derived through a partnership in Singapore or is considered as gains or profits derived from the
carrying on of a trade, business or profession.
However, where the dealer for more than half of each Tranche of the Notes or the Certificates
is a Financial Sector Incentive (Bond Market) Company (as defined in the ITA), and where such
Notes or such Certificates are debt securities issued before 31st December 2013 (hereinafter known
as “Relevant Notes” or “Relevant Certificates”), Relevant Notes or Relevant Certificates will be
“qualifying debt securities” for the purposes of the ITA to which the following treatments apply:
(a)
subject to certain prescribed conditions having been fulfilled (including the furnishing
by the Issuer, or such other person as the Comptroller of Income Tax in Singapore (the
“Comptroller”) may direct, of a return on debt securities in respect of Relevant Notes
or Relevant Certificates within such period as the Comptroller may specify and such
other particulars in connection with the Relevant Notes or Relevant Certificates as the
Comptroller may require to the Comptroller and the MAS and the inclusion by the
Issuer in all offering documents relating to Relevant Notes and Relevant Certificates of
a statement to the effect that where interest, discount income, prepayment fee,
redemption premium or break cost is derived by a person who is not resident in
Singapore and who carries on any operation in Singapore through a permanent
establishment in Singapore, the tax exemption shall not apply if the non-resident
person acquires Relevant Notes or Relevant Certificates using funds from that person’s
operations through the Singapore permanent establishment), interest, discount income
(not including discount income arising from secondary trading), prepayment fee,
redemption premium and break cost (collectively, the “Qualifying Income”) derived from
Relevant Notes or Relevant Certificates by a holder who is not resident in Singapore
and (aa) who does not have any permanent establishment in Singapore or (bb) carries
on any operation in Singapore through a permanent establishment in Singapore but the
funds used by that person to acquire Relevant Notes or Relevant Certificates are not
obtained from the operation, are exempt from Singapore tax;
(b)
subject to certain conditions having been fulfilled (including the furnishing by the Issuer,
or such other person as the Comptroller may direct, of a return on debt securities in
respect of Relevant Notes or Relevant Certificates within such period as the
Comptroller may specify and such other particulars in connection with Relevant Notes
or Relevant Certificates as the Comptroller may require to the Comptroller and the
MAS), Qualifying Income derived from Relevant Notes or Relevant Certificates by any
company is subject to tax at a concessionary rate of 10 per cent.;
(c)
Qualifying Income derived from Relevant Notes or Relevant Certificates by a body of
persons (as defined in the ITA) in Singapore are subject to tax at a concessionary rate
of 10 per cent.; and
(d)
subject to:
(i)
the Issuer including in all offering documents relating to Relevant Notes and
Relevant Certificates a statement to the effect that any person whose interest,
discount income, prepayment fee, redemption premium or break cost derived
from Relevant Notes and Relevant Certificates is not exempt from tax shall
include such income in a return of income made under the ITA;
(ii)
the Issuer, or such other person as the Comptroller may direct, furnishing to the
Comptroller and MAS a return on debt securities in respect of Relevant Notes or
Relevant Certificates within such period as the Comptroller may specify and
such other particulars in connection with Relevant Notes or Relevant Certificates
as the Comptroller may require; and
(iii)
Qualifying Income derived from the Relevant Notes or Relevant Certificates is not
subject to withholding of tax by the Issuer.
However, notwithstanding the foregoing:
(a)
if during the primary launch of Relevant Notes or Relevant Certificates, Relevant Notes
or Relevant Certificates are issued to less than four persons and 50 per cent. or more
of the principal amount of Relevant Notes or Relevant Certificates is beneficially held or
201
funded, directly or indirectly, by related parties of the Issuer, Relevant Notes or
Relevant Certificates would not qualify as “qualifying debt securities”; and
(b)
even though Relevant Notes or Relevant Certificates are “qualifying debt securities”, if
at any time during the tenure of Relevant Notes or Relevant Certificates, 50 per cent.
or more of the principal amount of Relevant Notes or Relevant Certificates is
beneficially held or funded, directly or indirectly, by any related party(ies) of the Issuer,
Qualifying Income derived from Relevant Notes or Relevant Certificates held by
(1)
any related party of the Issuer; or
(2)
any other person where the funds used by such person to acquire Relevant
Notes or Relevant Certificates are obtained, directly or indirectly, from any related
party of the Issuer,
shall not be eligible for the tax exemption or concessionary tax rate of 10 per cent.
described above.
The term “related party”, in relation to a person, means any other person who, directly or
indirectly, controls that person, or is controlled, directly or indirectly, by that person, or where he
and that other person, directly or indirectly, are under the control of a common person.
Notwithstanding that the Issuer is permitted to make payment of Qualifying Income in respect
of Relevant Notes or Relevant Certificates without deduction or withholding for tax under Section
45 or Section 45A of the ITA, any person whose interest, discount income, prepayment fee,
redemption premium or break cost derived from Relevant Notes or Relevant Certificates is not
exempt from tax is required to include such income in a return of income made under the ITA.
The terms “break cost”, “prepayment fee” and “redemption premium” are defined in the ITA
as follows:
“break cost”, in relation to debt securities and qualifying debt securities, means any fee
payable by the issuer of the securities on the early redemption of the securities, the amount
of which is determined by any loss or liability incurred by the holder of the securities in
connection with such redemption;
“prepayment fee”, in relation to debt securities and qualifying debt securities, means any fee
payable by the issuer of the securities on the early redemption of the securities, the amount
of which is determined by the terms of the issuance of the securities; and
“redemption premium”, in relation to debt securities and qualifying debt securities, means
any premium payable by the issuer of the securities on the redemption of the securities upon
their maturity.
References to “break cost”, “prepayment fee” and “redemption premium” in this Singapore
tax disclosure have the same meaning as defined in the ITA.
The Qualifying Debt Securities Plus Scheme (“QDS Plus Scheme”) has also been introduced
as an enhancement of the Qualifying Debt Securities Scheme. Under the QDS Plus Scheme,
subject to certain conditions and qualifications, income tax exemption is granted on interest,
discount income, prepayment fee, redemption premium or break cost derived by any investor from
qualifying debt securities (excluding Singapore Government Securities) which:(a)
are issued during the period from 16 February 2008 to 31 December 2013;
(b)
have an original maturity date of not less than 10 years;
(c)
cannot be redeemed, converted, called or exchanged within 10 years from the date of
their issue; and
(d)
cannot be re-opened with a resulting tenure of less than 10 years to the original
maturity date.
All foreign-sourced income received in Singapore on or after 1 January 2004 by individuals
will be exempted from tax, provided such foreign-sourced income is not received through a
partnership in Singapore.
Capital Gains
Singapore imposes a tax on income but does not impose tax on gains that are considered
202
capital in nature. There are no specific statutes or regulations which deal with the characterisation
of whether a gain is income or capital and the question of whether a gain from the disposal of
Warrants, Notes or Certificates, or the exercise or expiry of a Warrant is income or capital is a
question of fact dependent on the holder’s specific circumstances.
Any gains considered to be in the nature of capital made from the sale of the Warrants,
Notes and Certificates will not be taxable in Singapore. However, any gains from the sale of the
Warrants, Notes and Certificates which are gains from any trade, business, profession or vocation
carried on by that person, if accruing in or derived from Singapore, may be taxable as such gains
are considered revenue in nature.
Holders of the Warrants, Notes and Certificates who are adopting Singapore Financial
Reporting Standard 39 (“FRS 39”), may for Singapore income tax purposes be required to
recognise gains or losses on the Warrants, Notes and Certificates, irrespective of disposal, in
accordance with Section 34A of the ITA. Please see the section below on “Adoption of FRS 39
treatment for Singapore income tax purposes”.
Holders of the Warrants, Notes or Certificates should consult their own tax advisers if they
are in any doubt as to the treatment that would be applicable to them.
Adoption of FRS 39 treatment for Singapore income tax purposes
On 30 December 2005, the Inland Revenue Authority of Singapore issued a circular entitled
“Income Tax Implications arising from the adoption of FRS 39 – Financial Instruments: Recognition
and Measurement” (the “FRS 39 Circular”).
The FRS 39 Circular generally applies, subject to certain “opt-out” provisions, to taxpayers
who are required to comply with FRS 39 for financial reporting purposes.
Holders of the Warrants, Notes and Certificates who may be subject to the tax treatment
under the FRS 39 Circular should consult their own accounting and tax advisers regarding the
Singapore income tax consequences of their acquisition, holding, conversion or disposal of the
Warrants, Notes or Certificates.
Goods and Services Tax
Under the Goods and Services Tax Act, Chapter 117A of Singapore (“GST Act”), the following
are examples of exempt supplies not subject to Goods and Services Tax (“GST”) under the Fourth
Schedule to the GST Act:(a)
The exchange or grant of an option for the exchange of currency (whether effected by
exchange of bank notes, currency notes or coin, by crediting or debiting accounts, or
otherwise) other than the supply of a note or a coin as a collector’s item, investment
article or item of numismatic interest;
(b)
the issue, allotment or transfer of ownership of an equity security (i.e. any interest in or
right to a share in the capital of a body corporate or any option to acquire any such
interest or right);
(c)
the issue, allotment, transfer of ownership, drawing, acceptance or endorsements of a
debt security (i.e. any interest in or right to be paid money that is, or is to be, owing
by any person or any option to acquire any such interest or right but excludes a
contract of insurance and an estate or interest in land, other than an estate or interest
as mortgagee or chargeholder); or
(d)
the renewal or variation of an equity security or debt security.
The GST Act does not, however, contain any specific provision relating to the GST treatment
of all kinds of warrants (e.g. warrants relating to a basket of securities or an index rather than a
particular security or cash-settled warrants). The Issuer is nevertheless of the view that the issue,
allotment, transfer of ownership, renewal or variation of such warrants should in practice not be
subject to GST and this position appears to be consistent with that indicated in the GST Handbook
for Banks which had been drawn up jointly between the IRAS and the Association of Banks in
Singapore.
Estate Duty
Estate duty has been abolished with respect to all deaths occurring on or after 15 February
2008.
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PLAN OF DlSTRIBUTION
Summary of Distribution Agreement
Subject to the terms and on the conditions contained in a Distribution Agreement (as further
amended and supplemented as at the date of issue of the Notes) (the “Distribution Agreement”)
dated 9 November, 1995 as amended and restated on 3 April, 2009 between the Issuer acting
through its head office and through Dexia Banque Internationale à Luxembourg, société anonyme
Singapore Branch, the Permanent Dealers and the Arranger, the Notes, the Certificates and the
Warrants will be offered on a continuous basis by the Issuer to the Permanent Dealers. However, the
Issuer has reserved the right to sell Notes, Certificates and Warrants directly on its own behalf to
Dealers that are not Permanent Dealers and to sell Notes, Certificates and Warrants directly in its
capacity as a Dealer. The Notes, the Certificates and the Warrants may be resold at prevailing market
prices, or at prices related thereto, at the time of such resale, as determined by the relevant Dealer.
The Notes, the Certificates and the Warrants may also be sold by the Issuer through the Dealers,
acting as agents of the issuer. The Distribution Agreement also provides for Notes, Certificates and
Warrants to be issued in syndicated Tranches that are jointly and severally underwritten by two or
more Dealers.
The Issuer will pay each relevant Dealer a commission in respect of Notes, Certificates or
Warrants subscribed by it. The Issuer has agreed to reimburse the Arranger for certain of its
expenses incurred in connection with the update of the Programme and the Dealers for certain of
their activities in connection with the Programme. The commission in respect of an issue of Notes,
Certificates or Warrants on a syndicated basis will be stated in the relevant Final Terms, Final Terms
for the Certificates or Final Terms for the Warrants, as applicable.
The Issuer has agreed to indemnify the Dealers against certain liabilities in connection with
the offer and sale of the Notes, the Certificates and the Warrants. The Distribution Agreement
entitles the Dealers to terminate any agreement that they make to subscribe Notes, Certificates or
Warrants in certain circumstances prior to payment for such Notes, Certificates or Warrants being
made to the Issuer.
Selling Restrictions in respect of the Notes, the Certificates and the Warrants
United States
The Notes, the Certificates and the State Guarantee have not been and will not be registered
under the U.S. Securities Act of 1933 as amended (the “Securities Act”) and may not be offered or
sold within the United States or to, or for the account or benefit of, U.S. persons except in
accordance with Regulation S under the Securities Act (Regulation S) or pursuant to an exemption
from the registration requirements of the Securities Act. Terms used in this paragraph have the
meanings given to them by Regulation S under the Securities Act.
Notes and Certificates in bearer form having a maturity of more than one year are subject to
U.S. tax law requirements and may not be offered, sold or delivered within the United States or its
possessions or to a United States person, except in certain transactions permitted by U.S. tax
regulations. Terms used in this paragraph have the meanings given to them by the U.S. Internal
Revenue Code and regulations thereunder.
Each Dealer has agreed that, except as permitted by the Distribution Agreement, it will not
offer, sell or in the case of Notes or Certificates in bearer form, deliver the Notes or Certificates of
any identifiable tranche (i) as part of their distribution at any time or (ii) otherwise until 40 days after
completion of the distribution of such tranche as determined, and certified to each Relevant Dealer,
by the issuer, or in the case of Notes or Certificates issued on a syndicated basis, the Lead
Manager, within the United States or to, or for the account or benefit of, U.S. persons, and it will
have sent to each dealer to which it sells Notes or Certificates during the distribution compliance
period a confirmation or other notice setting forth the restrictions on offers and sales of the Notes
or Certificates within the United States or to, or for the account or benefit of, U.S. persons. Terms
used in this paragraph have the meanings given to them by Regulation S.
The Notes and Certificates are being offered and sold outside the United States to non-U.S.
persons in reliance on Regulation S.
In addition, until 40 days after the commencement of the offering, an offer or sale of Notes
or Certificates within the United States by any dealer (not participating in the offering) may violate
the registration requirements of the Securities Act.
204
SNA12-4.1.10
SNA5-4.13
SNA5-5.2.1
SNA5-5.2.2
SNA5-5.1.8
SNA12-5.2.2
SNA12-5.2.1
The Warrants have not been and will not be registered under the Securities Act and may not
be offered or sold within the United States or to, or for the account or benefit of, U.S. persons.
Each Dealer has represented and agreed that it has not offered or sold, and agrees that it will not
offer or sell, any Warrants constituting part of its allotment within the United States. Terms used in
this paragraph have the meanings given to them by Regulation S under the Securities Act.
Furthermore, neither the sale of nor trading in Warrants which relate to currencies, commodity
prices or indices has been approved by the United States Commodity Futures Trading Commission
under the United States Commodity Exchange Act and no U.S. person may at any time purchase,
trade or maintain a position in such Warrants.
Public Offer Selling Restrictions under the Prospectus Directive
In relation to each Member State of the European Economic Area which has implemented the
Prospectus Directive (each, a “Relevant Member State”), each Dealer has represented and agreed
that with effect from and including the date on which the Prospectus Directive is implemented in
that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not
make an offer of Notes, Certificates or Warrants which are the subject of the offering contemplated
by this Prospectus as completed by the relevant Final Terms, Final Terms for the Certificates or
Final Terms for the Warrants in relation thereto, as the case may be, to the public in that Relevant
Member State except that it may, with effect from and including the Relevant Implementation Date,
make an offer of Notes, Certificates or Warrants to the public in that Relevant Member State:
(a)
if the Final Terms, Final Terms for the Certificates or Final Terms for the Warrants
specify that an offer of those Notes, Certificates or Warrants, as the case may be, may
be made other than pursuant to Article 3(2) of the Prospectus Directive in that Relevant
Member State (a “Non-exempt Offer”), following the date of publication of a prospectus
in relation to such Notes, Certificates or Warrants, as the case may be, which has been
approved by the competent authority in that Relevant Member State or, where
appropriate, approved in another Relevant Member State and notified to the competent
authority in that Relevant Member State, provided that any such prospectus has
subsequently been completed by the Final Terms, Final Terms for the Certificates or
Final Terms for the Warrants contemplating such Non-exempt Offer, in accordance with
the Prospectus Directive, in the period beginning and ending on the dates specified in
such prospectus or Final Terms, Final Terms for the Certificates or Final Terms for the
Warrants, as applicable;
(b)
at any time to legal entities which are authorised or regulated to operate in the financial
markets or, if not so authorised or regulated, whose corporate purpose is solely to
invest in securities;
(c)
at any time to any legal entity which has two or more of (1) an average of at least
250 employees during the last financial year; (2) a total balance sheet of more than
a43,000,000; and (3) an annual net turnover of more than a50,000,000, as shown in its
last annual or consolidated accounts;
(d)
at any time to fewer than 100 natural or legal persons (other than qualified investors as
defined in the Prospectus Directive) subject to obtaining the prior consent of the
Relevant Dealer or Dealers nominated by the Issuer for any such offer; or
(e)
at any time in any other circumstances falling within Article 3(2) of the Prospectus
Directive
provided that no such offer of Notes, Certificates or Warrants, as the case may be, referred
to in (b) to (e) above shall require the Issuer or any Dealer to publish a prospectus pursuant
to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of
the Prospectus Directive.
For the purposes of this provision, the expression an “offer of Notes or Warrants to the
public” in relation to any Notes, Certificates or Warrants in any Relevant Member State means the
communication in any form and by any means of sufficient information on the terms of the offer and
the Notes, Certificates or Warrants to be offered so as to enable an investor to decide to purchase
or subscribe the Notes, Certificates or Warrants, as the same may be varied in that Member State
205
by any measure implementing the Prospectus Directive in that Member State and the expression
“Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing
measure in each Relevant Member State.
United Kingdom
Each Dealer has represented and agreed that:
1.
in relation to Notes and Certificates which have a maturity of less than one year from
the date of their issue, (i) it is a person whose ordinary activities involve it in acquiring,
holding, managing or disposing of investments (as principal or agent) for the purposes
of its business and (ii) it has not offered or sold and will not offer or sell any Notes,
Certificates or Warrants other than to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or agent) for the
purposes of their businesses or who it is reasonable to expect will acquire, hold,
manage or dispose of investments (as principal or agent) for the purposes of their
businesses where the issue of the Notes, Certificates or Warrants would otherwise
constitute a contravention of section 19 of the Financial Services and Markets Act 2000
(the “FSMA”) by the Issuer;
2.
it has only communicated or caused to be communicated and will only communicate
or cause to be communicated any invitation or inducement to engage in investment
activity (within the meaning of section 21 of the FSMA) received by it in connection
with the issue or sale of such Notes, Certificates or Warrants in circumstances in which
section 21(1) of the FSMA does not apply to the Issuer; and
3.
it has complied with and will comply with all applicable provisions of the FSMA with
respect to anything done by it in relation to the Notes, Certificates or Warrants in, from
or otherwise involving the United Kingdom.
France
Each Dealer and the Issuer has represented and agreed that the Notes, Certificates and the
Warrants are being issued outside the Republic of France and, in connection with their initial
distribution, that (i) it has not offered or sold and will not offer or sell, directly or indirectly, any
Notes, Certificates or Warrants to the public in the Republic of France; (ii) such offers, sales have
been and will only be made in the Republic of France to qualified investors (investisseurs qualifiés)
in accordance with Article L.411-1 and L.411-2 and D.411-1 to D.411-3 of the French Code
monétaire et financier and/or to persons providing investment services relating to portfolio
management for the account of third parties; and (ii) it has not distributed and will not distribute or
cause to be distributed to the public in the Republic of France this Prospectus or any other offering
material relating to the Notes, Certificates or the Warrants, except to the investors to whom offers
and sales of Notes, Certificates and Warrants in the Republic of France may be made as described
above.
Germany
Each Dealer has represented and agreed that it has only offered or sold and that it shall only
offer or sell Notes and Certificates in the Federal Republic of Germany in compliance with the
provisions of the German Securities Prospectus Act (Wertpapierprospektgesetz) and any other laws
applicable in the Federal Republic of Germany governing the issue, sale and offering of Securities.
Japan
None of the Notes, the Certificates or the Warrants have been or will be registered under the
Financial Instruments and Exchange Act of Japan (the “Financial Instruments and Exchange Act”)
and, accordingly, each of the Dealers has undertaken that it will not offer or sell any Notes,
Certificates or Warrants, directly or indirectly, in Japan or to, or for the benefit of, any Japanese
Person or to others for re-offering or resale, directly or indirectly, in Japan or to, or for the benefit
of, any Japanese Person except pursuant to an exemption from the registration requirements of,
and otherwise in compliance with the Financial Instruments and Exchange Act and all other relevant
laws and regulations promulgated by the relevant Japanese governmental and regulatory authorities
and in effect at the relevant time. For the purposes of this paragraph, “Japanese Person” shall
mean any person resident in Japan, including any corporation or other entity organised under the
laws of Japan.
206
Singapore
This Prospectus has not been registered as a prospectus with the MAS. Accordingly, this
Prospectus and any other document or material in connection with the offer or sale, or invitation for
subscription or purchase, of the Notes, the Certificates or the Warrants may not be circulated or
distributed, nor may the Notes, the Certificates or the Warrants be offered or sold, or be made the
subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in
Singapore other than (i) to an institutional investor under Section 274 of the Securities and Futures
Act, Chapter 289 of Singapore (the “SFA”), (ii) to a relevant person pursuant to Section 275(1), or
any person pursuant to Section 275(1A), and in accordance with the conditions specified in Section
275, of the SFA, or (iii) otherwise pursuant to, and in accordance with the conditions of, any other
applicable provision of the SFA.
Where the Notes, the Certificates or the Warrants are subscribed or purchased under Section
275, by a relevant person which is:
(a)
a corporation (which is not an accredited investor (as defined in Section 4A of the
SFA)) the sole business of which is to hold investments and the entire share
capital of which is owned by one or more individuals, each of whom is an
accredited investor; or
(b)
a trust (where the trustee is not an accredited investor) whose sole purpose is to
hold investments and each beneficiary of the trust is an individual who is an
accredited investor,
shares, debentures and units of shares and debentures of that corporation or the
beneficiaries’ rights and interest (howsoever described) in that trust shall not be
transferred within six months after that corporation or that trust has acquired the Notes,
the Certificates or the Warrants pursuant to an offer made under Section 275 except:
(1)
to an institutional investor (for corporations, under Section 274 of the SFA) or to
a relevant person defined in Section 275(2) of the SFA, or to any person pursuant
to an offer that is made on terms that such shares, debentures and units of
shares and debentures of that corporation or such rights and interest in that trust
are acquired at a consideration of not less than S$200,000 (or its equivalent in a
foreign currency) for each transaction, whether such amount is to be paid for in
cash or by exchange of securities or other assets, and further for corporations,
in accordance with the conditions specified in Section 275 of the SFA;
(2)
where no consideration is or will be given for the transfer; or
(3)
where the transfer is by operation of law.
The Netherlands
Zero coupon Notes in definitive form and other Notes and Certificates in definitive form on
which interest does not become due and payable during their term but only at maturity (savings
certificates or spaarbewijzen as defined in the Dutch Savings Certificates Act or Wet inzake
spaarbewijzen, the "SCA") may only be transferred and accepted, directly or indirectly, within, from
or into the Netherlands through the mediation of either the Issuer or a member of Euronext
Amsterdam N.V. with due observance of the provisions of the SCA and its implementing regulations
(which include registration requirements). No such mediation is required, however, in respect of (i)
the initial issue of such Notes or Certificates to the first holders thereof, (ii) the transfer and
acceptance by individuals who do not act in the conduct of a profession or business, and (iii) the
issue and trading of such Notes and Certificates if they are physically issued outside The
Netherlands and are not immediately thereafter distributed in The Netherlands.
State Guaranteed Notes
State Guaranteed Notes may only be initially subscribed by “Third Party Beneficiaries” (Tiers
Bénéficiares) as defined in Appendix 1 of the binding French version of the State Guarantee
Agreement (as set out herein), the non-binding English translation of which is set out as follows:
(a)
all central banks;
(b)
all credit institutions as defined by Directive 2006/48/EC of the European Parliament
and of the Council of 14 June 2006 relating to the taking up and pursuit of the
207
business of credit institutions, namely: “a) an undertaking whose business is to receive
deposits or other repayable funds from the public and to grant credits for its own
account; or b) an electronic money institution within the meaning of Directive
2000/46/EC” whether or not established in the European Economic Area;
(c)
other institutional or professional investors:
Institutional or professional investors must be understood as investment firms, other
approved or regulated financial establishments, insurance companies, undertakings for
collective investment and their management companies, professional retirement
institutions and their management companies, intermediaries in investment instruments
in commodity futures, public entities (enterprises publiques), public authorities and
supranational and international institutions;
excluding Dexia SA, Dexia Banque Internationale à Luxembourg, société anonyme, Dexia
Bank Belgium and Dexia Crédit Local (including their foreign branches listed in Appendix 3 to
the State Guarantee Agreement) and their issuance vehicles under Belgian, French and
Luxembourg Law.
Any additional selling restrictions for State Guaranteed Notes will be set out in the relevant
final terms.
General
These selling restrictions may be modified by the agreement of the Issuer and the Dealers
following a change in a relevant law, regulation or directive. Any such modification will be set out in
the Final Terms, Final Terms for the Certificates or Final Terms for the Warrants issued in respect of
the issue of Notes, Certificates or Warrants, as the case may be, to which it relates or in a
supplement to this Prospectus.
Other than with respect to the listing of the Notes, Certificates and the Warrants, no action
has been taken in any jurisdiction that would permit a public offering of any of the Notes,
Certificates or the Warrants, or possession or distribution of the Prospectus or any other offering
material or any Final Terms, Final Terms for the Certificates or Final Terms for the Warrants, in any
country or jurisdiction where action for that purpose is required.
Each Dealer has agreed that it will, to the best of its knowledge, comply with all
relevant laws, regulations and directives in each jurisdiction in which it purchases, offers,
sells or delivers Notes, Certificates or Warrants or has in its possession or distributes the
Prospectus, any other offering material or any Final Terms, Final Terms for the Certificates or
Final Terms for the Warrants and neither the Issuer nor any other Dealer shall have
responsibility therefor.
208
FORM OF FINAL TERMS
Set out below is the form of Final Terms which will be completed for
each Tranche of Notes issued under the Programme.
Final Terms dated [•]
(incorporated with limited liability in Luxembourg)
SNA5-5.1.1
SNA12-5.1.1
SNA5-5.1.7
SNA12-5.1.1
PR2.2.9
PR2.2.10
Dexia Banque Internationale à Luxembourg, société anonyme Singapore Branch
Issue of [Aggregate Nominal Amount of Tranche] [Title of Notes]
[Guaranteed by the States of France, Belgium and Luxembourg pursuant to the
State Guarantee Agreement]/[For the avoidance of doubt, the Notes do not,
and are not intended to, benefit from any state guarantee]
under the a10,000,000,000
Euro Medium Term Note, Certificate and Warrant Programme
PART A – CONTRACTUAL TERMS
Terms used herein shall be deemed to be defined as such for the purposes of the Conditions
set forth in the Prospectus dated [date] [and the supplement to the Prospectus dated [•]] which
[together] constitute[s] a Prospectus for the purposes of the Prospectus Directive (Directive
2003/71/EC) (the “Prospectus Directive”). This document constitutes the Final Terms of the Notes
described herein for the purposes of Article 5.4 of the Prospectus Directive and must be read in
conjunction with such Prospectus [as so supplemented]. Full information on the Issuer and the offer
of the Notes is only available on the basis of the combination of these Final Terms and the Prospectus
[as so supplemented]. The Prospectus [and the supplement to the Prospectus] [is] [are] available for
inspection at the office of the Agent and the office of the Issuer and are available to view on the
Luxembourg Stock Exchange Website (www.bourse.lu).
[In the case of Notes NOT guaranteed by the State Guarantees: For the avoidance of doubt, the
Notes do not, and are not intended to, benefit from any state guarantee]
[The following alternative language applies if the first tranche of an issue which is being
increased was issued under a Prospectus (or equivalent) with an earlier date.
(the “Conditions”) set forth in the [Offering Circular]1 [Prospectus] dated [original date] [and the
supplement to the [Offering Circular]1 [Prospectus] dated [•]]. This document constitutes the Final
Terms of the Notes described herein for the purposes of Article 5.4 of the Prospectus Directive
(Directive 2003/71/EC) (the “Prospectus Directive”) and must be read in conjunction with the
Prospectus dated [current date] [and the supplement to the Prospectus dated [•] which together,
constitute[s] a Prospectus for the purposes of the Prospectus Directive, save in respect of the
Conditions which are extracted from the [Offering Circular]1[Prospectus] dated [original date] [and the
supplement to the Prospectus dated [•]] and are attached hereto. Full information on the Issuer and
the offer of the Notes is only available on the basis of the combination of these Final Terms and the
[Offering Circular dated [original date] and the Prospectus dated [current date]1 [Prospectuses dated
[original date] and [current date]] [and supplement to the [Prospectus] [Prospectuses]]. The [Offering
Circular dated [original date] and the Prospectus dated [current date]1[Prospectuses] [and any
supplement to the [Prospectus [Prospectuses]] are available for inspection at the office of the Fiscal
Agent and the office of the Issuer.] [Further tranches of State Guaranteed Notes must be initially
subscribed by entities falling within the definition of “Third Party Beneficiaries” as such is defined in
the State Guarantee Agreement and comply in all other respects with the requirements for State
Guaranteed Notes set out in the State Guarantee Agreement.]
[Dexia Banque Internationale à Luxembourg, société anonyme Singapore Branch, as issuer of
Senior Notes, is subject to restrictions on the acceptance of deposits in Singapore Dollars. The Senior
Notes do not constitute or evidence a debt repayable by Dexia Banque Internationale à Luxembourg,
société anonyme Singapore Branch on demand to the holder of the Senior Notes. The holder of the
209
SNA5-5.1.1
SNA12-5.1.2
Art14.2PD
Arts.26 and
33PR
Senior Notes may recover the principal sum from Dexia Banque Internationale à Luxembourg, société
anonyme Singapore Branch as issuer subject to the Terms and Conditions of the Senior Notes as set
out in the Prospectus. The value of the Senior Notes, if sold on the secondary market, is subject to
the market conditions prevailing at the time of the sale.]2
[Include whichever of the following apply or specify as “Not Applicable” (N/A). Note that the
numbering should remain as set out below, even if “Not Applicable” is indicated for individual
paragraphs or sub-paragraphs. Italics denote guidance for completing the Final Terms.]
[When completing any final terms, or adding any other final terms or information, consideration
should be given as to whether such terms or information constitute “significant new factors" and
consequently trigger the need for a supplement to the Prospectus under Article 16 of the Prospectus
Directive.]
[Where interest, discount income, prepayment fee, redemption premium or break cost is derived
from any of the Notes issued by Dexia Banque Internationale à Luxembourg, société anonyme
Singapore Branch, by any person who (i) is not resident in Singapore and (ii) carries on any operations
in Singapore through a permanent establishment in Singapore, the tax exemption available (subject to
certain conditions) under the Income Tax Act, Chapter 134 of Singapore (the “Income Tax Act”) shall
not apply if such person acquires such Notes using the funds and profits of such person’s operations
through a permanent establishment in Singapore. Any person whose interest, discount income,
prepayment fee, redemption premium or break cost derived from the Notes is not exempt from tax
(including for the reasons described above) shall include such income in a return of income made under
the Income Tax Act.]3
1.
2.
(i)
Issuer:
[(ii)]
State Guarantee Applicable:
[Yes/No]
[(iii)]
Acting through Singapore Branch:
[Yes/No]
[(i)]
Series Number:
[_]
[(ii)
Tranche Number:
[_]
(If fungible with an existing Series, details of
that Series, including the date on which the
Notes become fungible).]
3.
Specified Currency or Currencies:
[_]
SNA5-4.4
4.
Aggregate Nominal Amount:
[_]
SNA5-5.1.2
SNA12-5.1.2
[(i)]
Series:
[_]
[(ii)
Tranche:
[_]]
5.
Issue Price:
[_] per cent. of the Aggregate Nominal Amount
[plus accrued interest from [insert date] (in the
case of fungible issues only, if applicable)]
SNA5-5.3.1
6.
(i)
Specified Denominations:
[_]
SNA5-5.1.5
(ii)
Calculation Amount:
[_]
[(i)]
Issue Date:
[_]
[(ii)]
Interest Commencement Date:
[_]
7.
8.
9.
Maturity Date:
[specify date or (for Floating Rate Notes or any
other rate where the Interest Period end date(s)
are adjusted) Interest Payment Date falling in or
nearest to the relevant month and year]
Interest Basis:
[[_] per cent. Fixed Rate]
[[LIBOR/EURIBOR] +/– [_] per cent. Floating
Rate]
[Zero Coupon]
[Index Linked Interest]
210
SNA12-4.1.9
SNA5-4.12
SNA5-5.1.3
SNA5-4.7
SNA12-4.1.11
SNA5-4.8
SNA5-4.7
SNA12-4.1.13
[Dual Currency Interest]
[Other (specify)]
(further particulars specified below)
10.
Redemption/Payment Basis:
[Redemption at par]
[Index Linked Redemption]
SNA5-4.8
[Dual Currency]
[Partly Paid]
[Instalment]
[Other (specify)]
If the Final Redemption Amount is different from
100 per cent. of the nominal value the Notes
will be derivative securities for the purposes of
the Prospectus Directive and the requirements
of Annex XII to the Prospectus Directive
Regulation No. 809/2004 will apply and the
Issuer will prepare and publish a supplement to
the Prospectus
11.
Change of Interest or Redemption/Payment [Specify details of any provision for convertibility
Basis:
of Notes into another interest or redemption/
payment basis]
12.
Put/Call Options:
SNA12-4.2.1
[Put]
[Call]
[(further particulars specified below)]
13.
[(i)]
Status of the Notes:
[(ii)] [Date [Board] approval for issuance of
Notes obtained:
[Senior/[Dated/Undated]/Subordinated]
[subordinated Notes may not be issued by the
Issuer through its Singapore Branch.]
SNA5-4.5
[_] [and [_], respectively]
SNA5-4.11
(N.B. Only relevant where Board (or similar)
authorisation is required for the particular
tranche of Notes)]
14.
Method of distribution:
[Syndicated/Non-syndicated]
PROVISIONS RELATING TO INTEREST (IF ANY) PAYABLE
15. Fixed Rate Note Provisions
[Applicable/Not Applicable]
(If not applicable, delete the
sub-paragraphs of this paragraph)
SNA5-4.7
remaining
(i)
Rate[(s)] of Interest:
[_] per cent. per annum [payable [annually/
semi-annually/quarterly/monthly] in arrear]
(ii)
Interest Payment Date(s):
[_] in each year [adjusted in accordance with
[specify Business Day Convention and any
applicable Business Centre(s) for the definition
of “Business Day”]/[not adjusted]
(iii)
Fixed Coupon Amount[(s)]:
[_] per Calculation Amount
(iv)
Broken Amount(s):
[ ] per Calculation Amount, payable on the
Interest Payment Date falling [in/on] [ ]
(v)
Day Count Fraction:
[30/360 / Actual/Actual (ICMA /ISDA) / other]
(vi)
Determination Dates:
[_] in each year (insert regular interest payment
dates, ignoring issue date or maturity date in
211
the case of a long or short first or last coupon.
N.B. only relevant where Day Count Fraction is
Actual/Actual (ICMA))
(vii)
16.
Other terms relating to the method
of calculating interest for Fixed
Rate Notes:
[Not Applicable/give details]
Floating Rate Note Provisions
SNA5-4.7
remaining
(i)
Interest Period(s):
[_]
(ii)
Specified Interest Payment Dates:
[_]
(iii)
First Interest Payment Date:
[]
(iv)
Interest Period Date:
[]
(Not applicable unless different from Interest
Payment Date)
(v)
[Floating Rate Convention/ Following Business
Day Convention/ Modified Following Business
Day Convention/ Preceding Business Day
Convention/ other (give details)]
(vi)
Business Centre(s):
[_]
(vii)
Manner in which the Rate(s) of
Interest is/are to be determined:
(viii)
(ix)
(x)
[Screen Rate Determination/ISDA
Determination/other (give details)]
Party responsible for calculating the
Rate(s) of Interest and Interest
Amount(s) (if not the Calculation
Agent):
[_]
Screen Rate Determination:
– Reference Rate:
[_]
– Interest Determination Date(s):
[_]
– Relevant Screen Page:
[_]
ISDA Determination:
– Floating Rate Option:
[_]
– Designated Maturity:
[_]
– Reset Date:
[_]
(xi)
Margin(s):
[+/-][_] per cent. per annum
(xii)
Minimum Rate of Interest:
[_] per cent. per annum
(xiii)
Maximum Rate of Interest:
(xiv)
Day Count Fraction:
[_]
(xv)
Fall back provisions, rounding
provisions, denominator and any
other terms relating to the method
of calculating interest on Floating
Rate Notes, if different from those
set out in the Conditions:
[_]
212
17.
Zero Coupon Note Provisions
18.
(i)
Amortisation Yield:
(ii)
Any other formula/basis of
determining amount payable:
[_]
Index Linked Interest Note/other
variable-linked interest Note Provisions
remaining
(i)
Index/Formula/other variable:
[give or annex details]
(ii)
Calculation Agent responsible for
calculating the interest due:
[_]
Provisions for determining Coupon
where calculated by reference to
Index and/or Formula and/or other
variable:
[_]
(iv)
Interest Determination Date(s):
[_]
(v)
Provisions for determining Coupon
where calculation by reference to
Index and/or Formula and/or other
variable is impossible or
impracticable or otherwise disrupted: [_]
(vi)
Interest or Interest Accrual Period(s):
[_]
(vii)
Specified Interest Payment Dates:
[_]
(viii)
[Floating Rate Convention/Following Business
Day Convention/Modified Following Business
Day Convention/Preceding Business Day
Convention/other (give details)]
(ix)
Business Centre(s):
[_]
(x)
Minimum Rate of Interest:
(xi)
Maximum Rate of Interest:
(xii)
Day Count Fraction:
[_]
(iii)
19.
remaining
Dual Currency Note Provisions
SNA5-4.7
(i)
Rate of Exchange/method of
calculating Rate of Exchange:
(ii)
Calculation Agent, if any, responsible
for calculating the principal and/or
interest due:
[_]
(iii)
Provisions applicable where
calculation by reference to Rate of
Exchange impossible or impracticable: [_]
(iv)
Person at whose option Specified
Currency(ies) is/are payable:
remaining
[give details]
[_]
213
SNA5-4.7
PROVISIONS RELATING TO REDEMPTION
20. Call Option:
(i)
Optional Redemption Date(s):
[_]
(ii)
Optional Redemption Amount(s) of
each Note and method, if any, of
calculation of such amount(s):
(iii)
(iv)
21.
If redeemable in part:
(a) Minimum Redemption Amount:
(b) Maximum Redemption Amount:
Notice period:
[_] (If setting notice periods which are different
to those provided in the terms and conditions,
the Issuer is advised to consider the
practicalities of distribution of information
through intermediaries, for example, clearing
systems and custodians, as well as any other
notice requirements which may apply, for
example, as between the Issuer and Agent.)
Put Option:
(i)
[_]
(ii)
Optional Redemption Amount(s) of
each Note and method, if any, of
calculation of such amount(s):
(iii)
22.
remaining
Notice period:
remaining
[_] (If setting notice periods which are different
notice requirements which may apply, for
example, as between the Issuer and Agent)
Final Redemption Amount of each Note:
[[_] per Calculation Amount
[If the Final Redemption Amount is different
from 100 per cent. of the nominal value the
Notes will be derivative securities for the
purposes of the Prospectus Directive and the
requirements of Annex XII to the Prospectus
Directive Regulation No. 809/2004 will apply
and the Issuer will prepare and publish a
supplement to the Prospectus]
In cases where the Final Redemption Amount
is Index Linked or other variable-linked:
(i)
Index/Formula/variable:
[give or annex details]
(ii)
Calculation Agent responsible for
calculating the Final Redemption
Amount:
[_]
(iii)
Provisions for determining Final
Redemption Amount where calculated
214
SNA5-4.8
by reference to Index and/or Formula
and/or other variable:
[_]
23.
(iv)
Determination Date(s):
[ ]
(v)
Provisions for determining Final
Redemption Amount where calculation
by reference to Index and/or
Formula and/or other variable is
impossible or impracticable or
otherwise disrupted:
[_]
(vi)
Payment date of Final Redemption
Amount:
[_]
(vii)
Minimum Final Redemption Amount:
(viii)
Maximum Final Redemption Amount: [_] per Calculation Amount
SNA5-4.8
Early Redemption Amount:
Early Redemption Amount(s) per
Calculation Amount payable on redemption
for taxation reasons or on event of default
or other early redemption and/or the
method of calculating the same (if required
or if different from that set out in the
Conditions):
[_]
GENERAL PROVISIONS APPLICABLE TO THE NOTES
24. Form of Notes:
[Bearer Notes/Exchangeable
Registered Notes]
25.
New Global Note:
Bearer
Notes/
SNA5-4.3
[Yes] [No]
[Temporary Global Note exchangeable for a
Permanent Global Note which is exchangeable
for Definitive Notes on [ ] days’ notice/at any
time/in the limited circumstances specified in
the Permanent Global Note]
[Temporary Global Note exchangeable
Definitive Notes on [ ] days’ notice]
for
[Permanent Global Note exchangeable for
Definitive Notes on [ ] days’ notice/at any
time/in the limited circumstances specified in
the Permanent Global Note]
26.
Financial Centre(s) or other special
provisions relating to payment dates:
27.
Talons for future Coupons or Receipts to
be attached to Definitive Notes (and dates
on which such Talons mature):
28.
[Not Applicable/give details. Note that this
paragraph relates to the date and place of
payment, and not interest period end dates, to
which sub-paragraphs 15(ii), 16(v) and 18(ix)
relate]
[Yes/No. If yes, give details]
Details relating to Partly Paid Notes:
amount of each payment comprising the
Issue Price and date on which each
payment is to be made [and consequences
(if any) of failure to pay, including any right
of the Issuer to forfeit the Notes and interest
due on late payment]:
215
SNA5-4.8
29.
Details relating to Instalment Notes: amount
of each instalment, date on which each
payment is to be made:
30.
Redenomination, renominalisation and
reconventioning provisions:
[Not Applicable/The provisions in Condition [•]
apply]
31.
Consolidation provisions:
[Not Applicable/The provisions in Condition [•]
apply]
32.
Other final terms:
(When
adding
any
other
final
terms
consideration should be given as to whether
such terms constitute “significant new factors”
and consequently trigger the need for a
supplement to the Prospectus under Article 16
of the Prospectus Directive.)
33.
Governing law:
[English/Luxembourg]
[Senior
Notes
de-nominated in euro may be governed by
Luxembourg law. All Senior Notes denominated
in euro and not governed by Luxembourg law
will be governed by English law. All other Senior
Notes will be governed by English law. All
Subordinated Notes will be governed by
Luxembourg law.]
DISTRIBUTION
34. (i)
If syndicated, names [and addresses]4
of Managers [and underwriting
commitments]:4
[Not Applicable/give names, addresses and
underwriting commitments]
SNA5-5.4.1
SNA5-5.4.3
SNA12-5.4.1
SNA12-5.4.2
(Include names and addresses of entities
agreeing to underwrite the issue on a firm
commitment basis and names and addresses of
the entities agreeing to place the issue without
a firm commitment or on a “best efforts” basis
if such entities are not the same as the
Managers.)
35.
[(ii)
Date of Subscription Agreement:
[_]]4
(iii)
Stabilising Manager(s) (if any):
[Not Applicable/give names]
If non-syndicated, name and address of
Dealer:
[Not Applicable/give name and address]
36.
Total commission and concession:
[_] per cent. of the Aggregate Nominal Amount
37.
U.S. Selling Restrictions:
[Reg.S Compliance Category; TEFRA
C/TEFRA D/TEFRA not applicable]
38.
Additional Selling Restrictions:
SNA12-5.4.4
SNA5-5.4.4
SNA5-5.4.3
PURPOSE OF FINAL TERMS
These Final Terms comprise the final terms required to list and have admitted to trading the
issue of Notes described herein pursuant to the a10,000,000,000 Programme for the issuance of
Euro Medium Term Notes, Certificates and Warrants of Dexia Banque Internationale à Luxembourg,
société anonyme and Dexia Banque Internationale à Luxembourg, société anonyme Singapore
Branch.]
216
RESPONSIBILITY
The Issuer accepts responsibility for the information contained in these Final Terms. [[_] has
been extracted from [_]. The Issuer confirms that such information has been accurately reproduced
and that, so far as it is aware, and is able to ascertain from information published by [_], no facts
have been omitted which would render the reproduced information inaccurate or misleading.]
Signed on behalf of the Issuer:
By: ________________________
Duly authorised
217
SNA5-1.1
SNA5-1.2
SNA5-7.4
RDA11-13.2
PART B – OTHER INFORMATION*
1
LISTING AND ADMISSION TO TRADING
(i)
Listing:
(ii)
Admission to trading:
SNA5-6.1
[The official list of the Luxembourg Stock
Exchange/other (specify)/None]
[Application has been made for the Notes to be
admitted to trading on [_] with effect from [_].]
[Not Applicable.]
(Where documenting a fungible issue need to
indicate that the original notes are already
admitted to trading.)
[(iii)
2
Estimate of total expenses related
to admission to trading:
SNA5-6.2
SNA12-6.2
[_]]5
RATINGS
Ratings:
[In the case of Notes other than the State
Guaranteed Notes:
SNA5-7.5
The Notes to be issued have been rated:
[S & P: [_]]
[Moody’s: [_]]
[Fitch: [_]]
[[Other]: [_]]]
[In the case of State Guaranteed Notes:
The Notes to be issued have been rated:
[S & P: [_]]
[Moody’s: [_]]
[Fitch: [_]]
[[Other]: [_]]]
[Need to include a brief explanation of the
meaning of the ratings if this has previously
been published by the rating provider.]
(The above disclosure should reflect the rating
allocated to Notes of the type being issued
under the Programme generally or, where the
issue has been specifically rated, that rating.)
3
[NOTIFICATION
The Commission de Surveillance du Secteur Financíer [has been requested to provide/has
provided - include first alternative for an issue which is contemporaneous with the establishment or
update of the Programme and the second alternative for subsequent issues] the [include names of
competent authorities of host Member States] with a certificate of approval attesting that the
Prospectus has been drawn up in accordance with the Prospectus Directive.]
[(When adding any other description, consideration should be given as to whether such
matters described constitute “significant new factors” and consequently trigger the need for a
supplement to the Prospectus under Article 16 of the Prospectus Directive.)]
4
INTERESTS OF NATURAL AND LEGAL PERSONS INVOLVED IN THE ISSUE
“So far as the Issuer is aware, no person involved in the offer of the Notes has an interest
material to the offer.” – Amend as appropriate.
218
SNA5-3.1
SNA12-3.1
5
REASONS FOR THE OFFER, ESTIMATED NET PROCEEDS AND TOTAL EXPENSES4
[(i)
Reasons for the offer:
[_]
SNA5-3.2
SNA12-3.2
(See “Use of Proceeds” wording in Prospectus
– if reasons for offer different from general
funding purposes of the Issuer, will need to
include those reasons here.)]
[(ii)]
Estimated net proceeds:
[_]
(If proceeds are intended for more than one use
will need to split out and present in order of
priority. If proceeds insufficient to fund all
proposed uses state amount and sources of
other funding.)
[(iii)]
Estimated total expenses:
[_] [Include breakdown of expenses.]
(If the Notes are derivative securities to which
Annex XII of the Prospectus Directive
Regulation applies it is only necessary to
include disclosure of net proceeds and total
expenses at (ii) and (iii) above where disclosure
is included at (i) above.)
6
SNA5-4.9
[Fixed Rate Notes only – YIELD
Indication of yield:
[_]
Calculated as [include details of method of
calculation in summary form] on the Issue Date.
As set out above, the yield is calculated at the
Issue Date on the basis of the Issue Price. It is
not an indication of future yield.]
7
[Floating Rate Notes only – HISTORIC INTEREST RATES4
Details of historic [LIBOR/EURIBOR/other] rates can be obtained from [Reuters].]
8
[Index Linked or other variable-linked Notes only – PERFORMANCE OF
INDEX/FORMULA/OTHER VARIABLE, EXPLANATION OF EFFECT ON VALUE OF INVESTMENT
AND ASSOCIATED RISKS, A DESCRIPTION OF ANY MARKET DISRUPTION AND/OR
SETTLEMENT DISRUPTION EVENTS THAT AFFECT THE UNDERLYING, A DESCRIPTION OF
ANY ADJUSTMENT RULES WITH RELATION TO EVENTS CONCERNING THE UNDERLYING
AND OTHER INFORMATION CONCERNING THE UNDERLYING6
Need to include details of where past and future performance and volatility of the
index/formula/other variable can be obtained and a clear and comprehensive explanation of how the
value of the investment is affected by the underlying and the circumstances when the risks are most
evident.[Where the underlying is an index need to include the name of the index and a description
if composed by the Issuer and if the index is not composed by the Issuer need to include details of
where the information about the index can be obtained. Where the underlying is not an index need
to include equivalent information. Where the underlying is a security need to include the name of
the issuer of the security and the International Securities Identification Number (ISIN) or equivalent
identification number. Where the underlying is an interest rate need to include a description of the
interest rate. Where the underlying is a basket of underlyings, need to include the relevant
weightings of each underlying in the basket.] Include any other information concerning the
underlying required by paragraph 4.2 above of Annex XII of the Prospectus Directive Regulation].
SNA5-4.7
The Issuer [intends to provide post-issuance information [specify what information will be
reported and where it can be obtained]] [does not intend to provide post-issuance information
except where required by applicable laws and regulations].
SNA12-7.5
219
SNA12-4.2.3
SNA12-4.2.4
SNA12-4.1.2
SNA12-4.2.2
9
[Dual Currency Notes only – PERFORMANCE OF RATE[S] OF EXCHANGE AND
EXPLANATION OF EFFECT ON VALUE OF INVESTMENT6
Need to include details of where past and future performance and volatility of the relevant
rate[s] can be obtained and a clear and comprehensive explanation of how the value of the
investment is affected by the underlying and the circumstances when the risks are most evident.]
SNA5-4.7
10
OPERATIONAL INFORMATION
Intended to be held in a manner which
would allow Eurosystem eligibility:
[Yes] [No] (Only applicable for Senior Notes)
[Note that the designation “yes” simply means
that the Notes are intended upon issue to be
deposited with one of the ICSDs as Common
Safekeeper and does not necessarily mean that
the Notes will be recognised as eligible
collateral for Eurosystem monetary policy and
intra-day credit operations by the Eurosystem
either upon issue or at any or all times during
their life. Such recognition will depend upon
satisfaction of the Eurosystem eligibility criteria.]
[include this text if “yes” selected in which case
the Notes must be issued in NGN form]
ISIN Code:
[_]
Common Code:
[_]
Any clearing system(s) other than
Euroclear Bank S.A./N.V. or Clearstream
Banking, société anonyme and the
relevant identification number(s):
11
SNA12-4.1.1
SNA5-4.1
[Not Applicable/give name(s) and number(s)
[and address(es)]]
Delivery:
Delivery [against/free of] payment
Names and addresses of initial
Paying Agents:
[_]
Names and addresses of additional
Paying Agents (if any):
[_]
SNA5-5.4.2
TERMS AND CONDITIONS OF THE OFFER4
Offer Price:
[Issue Price][specify]
SNA12-5.3
SNA5-5.3.1
Conditions to which the offer is subject:
Description of the application process:
SNA5-5.1.1
SNA5-5.1.3
SNA12-5.1.5
SNA12-5.1.3
Description of possibility to reduce
subscriptions and manner for refunding
excess amount paid by applicants:
SNA5-5.1.4
[Not Applicable/give detail]
SNA5-5.1.5
SNA12-5.1.4
Details of the minimum and/or maximum
amount of application:
SNA5-5.1.6
SNA5-5.1.5
Details of the method and time limits for
paying up and delivering the Notes:
Manner in and date on which results of the
offer are to be made public:
220
SNA5-5.1.7
SNA12-5.1.6
Procedure for exercise of any right of
pre-emption, negotiability of subscription
rights and treatment of subscription rights
not exercised:
SNA5-5.1.8
Categories of potential investors to which
the Notes are offered and whether tranche(s)
have been reserved for certain countries:
SNA5-5.2.1
Process for notification to applicants of the
amount allotted and the indication whether
dealing may begin before notification
is made:
SNA5-5.2.2
SNA12-5.2.2
Amount of any expenses and taxes
specifically charged to the subscriber
or purchaser:
SNA5-5.3.1
Name(s) and address(es), to the extent
known to the Issuer, of the placers in
the various countries where the offer
takes place.
SNA12-5.3
[None/give details]
Notes
*
If an issue of Notes is (i) NOT admitted to trading on a regulated market within the European Economic area and (ii)
only offered in the European Economic Area in circumstances where a prospectus is not required to be published
under the Prospectus Directive, the Issuer may elect to amend and/or delete certain of the above paragraphs of
Part B.
1
Delete unless the Issue Date of the first tranche of an issue which is being increased was prior to 22 November, 2005.
2
To be inserted when the Senior Notes are issued by Dexia Banque Internationale à Luxembourg, société anonyme
Singapore Branch, denominated in Singapore Dollars, issued to sophisticated investors (as defined in the Guidelines
for operation of Offshore Banks issued by the Monetary Authority of Singapore) or their nominees and Dexia Banque
Internationale à Luxembourg, société anonyme Singapore Branch reasonably expects or foresees that the Senior Notes
will not be held at all times by persons who are sophisticated investors.
3
To be inserted when the Notes are “qualifying debt securities” under the Income Tax Act and the Notes are issued by
Dexia Banque Internationale à Luxembourg, société anonyme Singapore Branch.
4
Delete if the minimum Specified Denomination is at least a50,000 or its equivalent in other currencies.
5
Include if the minimum Specified Denomination is at least a50,000 or its equivalent in other currencies.
6
Requried for derivative securities to which Annex XII to the Prospectus Directive applies.
221
FORM OF FINAL TERMS FOR THE CERTIFICATES
Set out below is the form of Final Terms for the Certificates which will be completed for
each Tranche of Certificates issued under the Programme.
Final Terms for the Certificates dated [•]
(incorporated with limited liability in Luxembourg)
Dexia Banque Internationale à Luxembourg, société anonyme Singapore Branch
Issue of [Aggregate Nominal Amount of Tranche] [Title of Certificates]
under the Euro 10,000,000,000
Euro Medium Term Note, Certificate and Warrant Programme
PART A – CONTRACTUAL TERMS
set forth in the Prospectus dated [•] [and the supplement to the Prospectus dated [•]] which
[together] constitute[s] a base prospectus for the purposes of the Directive 2003/71/EC (the
“Prospectus Directive”). This document constitutes the Final Terms for the Certificates described
herein for the purposes of Article 5.4 of the Prospectus Directive and must be read in conjunction
with such Prospectus [as so supplemented]. Full information on the Issuer and the offer of the
Certificates is only available on the basis of the combination of these Final Terms for the
Certificates and the Prospectus [as so supplemented]. The Prospectus [and the supplement to the
Prospectus] [is] [are] available for inspection at the office of the Agent and the office of the Issuer
and are available to view on the Luxembourg Stock Exchange Website (www.bourse.lu).
[The following alternative language applies if the first tranche of an issue which is being
increased was issued under a Prospectus with an earlier date.
(the “Conditions”) set forth in the Prospectus dated [original date] [and the supplement to the
Prospectus dated [•]]. This document constitutes the Final Terms of the Notes described herein for
the purposes of Article 5.4 of the Prospectus Directive (Directive 2003/71/EC) (the “Prospectus
Directive”) and must be read in conjunction with the Prospectus dated [current date] [and the
supplement to the Prospectus dated [•] which together, constitute[s] a Prospectus for the purposes
of the Prospectus Directive, save in respect of the Conditions which are extracted from the
Prospectus dated [original date] [and the supplement to the Prospectus dated [•]] and are attached
hereto. Full information on the Issuer and the offer of the Notes is only available on the basis of the
combination of these Final Terms and the [Prospectuses dated [original date] and [current date]]
[and supplement to the [Prospectus] [Prospectuses]]. The Prospectuses [and any supplement to the
[Prospectus [Prospectuses]] are available for inspection at the office of the Fiscal Agent and the
office of the Issuer.]
[Dexia Banque Internationale à Luxembourg, société anonyme Singapore Branch, as issuer of
Certificates, is subject to restrictions on the acceptance of deposits in Singapore Dollars. The
Certificates do not constitute or evidence a debt repayable by Dexia Banque Internationale à
Luxembourg, société anonyme Singapore Branch on demand to the holder of the Certificates. The
holder of the Certificates may recover the principal sum from Dexia Banque Internationale à
Luxembourg, société anonyme Singapore Branch as Issuer subject to the Terms and Conditions of
the Certificates as set out in the Prospectus. The value of the Certificates, if sold on the secondary
market, is subject to the market conditions prevailing at the time of the sale.]1
[Include whichever of the following apply or specify as “Not Applicable” (N/A). Note that the
numbering should remain as set out below, even if “Not Applicable” is indicated for individual
paragraphs or sub-paragraphs. Italics denote directions for completing the Final Terms.]
References herein to numbered Conditions are to the terms and conditions of the relevant
series of Certificates and words and expressions defined in such terms and conditions shall bear
the same meaning in this Final Terms for the Certificates in so far as it relates to such series of
Certificates, save as where otherwise expressly provided.
222
SNA12-5.1.1
SNA5-5.1.1
[When completing any final terms, or adding any other final terms or information,
consideration should be given as to whether such terms or information constitute “significant new
factors” and consequently trigger the need for a supplement to the Prospectus under Article 16 of
the Prospectus Directive]
[Where interest, discount income, prepayment fee, redemption premium or break cost is derived
from any of the Certificates issued by Dexia Banque Internationale à Luxembourg, société anonyme
Singapore Branch, by any person who (i) is not resident in Singapore and (ii) carries on any operations
in Singapore through a permanent establishment in Singapore, the tax exemption available (subject to
certain conditions) the Income Tax Act, Chapter 134 of Singapore (the “Income Tax Act”) shall not
apply if such person acquires such Certificates using the funds and profits of such person’s
operations through a permanent establishment in Singapore. Any person whose interest, discount
income, prepayment fee, redemption premium or break cost derived from the Certificates is not
exempt from tax (including for the reasons described above) shall include such income in a return of
income made under the Income Tax Act.]2
1.
Issuer:
Dexia Banque Internationale à Luxembourg,
société anonyme
Acting through its Singapore Branch: [Yes/No]
2.
Series number of the Certificates:
[•]
3.
Tranche number of the Series:
[•]
4.
If Certificates to be consolidated with [Yes][No]
certificates of existing series:
5..
Aggregate Number of Certificates in
the Series:
[•]
6..
Aggregate Number of Certificates
in the Tranche:
[•]
7.
Description of the Certificates:
[Index Linked Certificates]
[Share Linked Certificates]
[Commodity Linked Certificates]
[Debt Linked Certificates]
[Currency Linked Certificates]
[Interest Rate Linked Certificates]
[Fund Linked Certificates]
[Other]
8.
Issue Date:
[•]
9.
Issue Price:
[•]
10.
Nominal Amount:
[•]
11.
[Date authorisation of [Board] for
issuance of Certificates obtained]:
[•]]
(N.B. Only relevant where Board or (similar)
authorisation is required for the Certificates)
12.
Maturity Date:
[•]
SNA12-4.1.9
SNA5-4.1.12
SNA12-5.1.2
SNA5-5.1.2
SNA12-4.1.11
SNA12-4.1.13
PROVISIONS RELATING TO INTEREST
13.
Interest Payment Dates:
[•]
14.
[•]
SNA5-4.7
Interest Rate:
223
15.
Fixed Rate Provisions
(If not applicable, delete the remaining subparagraphs of this paragraph)
16.
(i)
Interest Commencement Date:
[•]
(ii)
Interest Rate[(s)]
([including/excluding] on
overdue amounts after
Redemption Date or date set
for early redemption):
[•] per cent. per annum [payable
[annually/semi-annually/quarterly/monthly] in
arrear]
(iii)
Specified Interest Payment Date(s):
[•] in each year [adjusted in accordance with
[specify Business Day Convention and any
applicable Business Centre(s) for the definition
of “Business Day”]/not adjusted]
(iv)
Fixed Coupon Amount[(s)]:
[•]
(v)
Day Count Fraction:
[•] [30/360 / Actual/Actual (-ICMA /-ISDA) /
Actual/365 (Fixed) / Actual/360 / 30E/360 /
other (see Condition 4 for alternatives)]
(vi)
Determination Dates:
[•] in each year (insert regular interest payment
dates, ignoring issue date or redemption date in
the case of a long or short first or last coupon.
N.B. only relevant where Day Count Fraction is
Actual/Actual (ICMA))
(vii)
Other terms relating to the method
of calculating interest
for Fixed Rate Certificates:
Floating Rate Provisions
(If not applicable, delete the remaining subparagraphs of this paragraph)
(i)
Interest Period(s):
[•]
(ii)
Specified Interest Payment Date(s):
[•]
(iii)
First Interest Payment Date:
[•]
(iv)
Interest Period Date:
[•]
(v)
[Floating Rate Convention/ Following Business
Day Convention/ Modified Following Business
Day Convention/ Preceding Business Day
Convention/ other (give details)]
(vi)
Business Centre(s)
[•]
(vii)
Manner in which the Interest Rate(s) [Screen Rate Determination/ISDA
is/are to be determined (including on Determination/other (give details)]
overdue amounts after Redemption
Date or date set for early redemption):
(viii)
Party responsible for calculating the [•]
Interest Rate(s) and Interest Amount(s)
(if not the Calculation Agent):
(ix)
Screen Rate Determination
(Condition 3(iv)(y)):
Reference Rate:
[•]
Interest Determination Date:
[•]
224
Relevant Screen Page:
(x)
[•]
ISDA Determination
(Condition 3(iv)(x)):
Floating Rate Option:
[•]
Designated Maturity:
[•]
Reset Date:
[•]
ISDA Definitions:
[Specify definitions if different from those set
out in the Conditions]
(xi)
Margin(s):
[+/-][•] per cent. per annum
(xii)
Minimum Interest Rate:
[•] per cent. per annum
(xiii)
Day Count Fraction:
[Actual/365
Actual/365 (Fixed)
Actual/360
30/360
30E/360
other] (see Condition 3 for alternatives)
(xiv)
Fallback provisions, rounding
provisions, denominator and
any other terms relating to the
method of calculating interest
on Floating Rate Certificates,
if different from those set out
in the Conditions:
17.
Interest Linked to Indices, Shares,
Commodities, Debt, Currency,
Interest Rate/Other
[Applicable/Not Applicable] [The provisions set
out in paragraph [31-37] below apply]
18.
Conditional Interest
remaining
(i)
Condition:
[Specify]
(ii)
Conditional Interest:
If the Condition applies, [no] Interest shall be
payable on [each/the relevant] Interest Payment
Date.
PROVISIONS RELATING TO REDEMPTION
19. Method of Settlement:
SNA12-4.2.1
[Cash Settled Certificates]
SNA5-4.8
[Physical Delivery Certificates]
[Other]
20.
Certificateholder entitled to elect for
cash settlement or physical delivery:
[Yes / No]
21.
Redemption Date:
[•], subject
Disruption)
22.
Cash Settled Certificates:
Where:
to
Condition
4(m)
“Redemption Amount” means [•]
“Exchange Rate” means [•]
[“Multiplier” means [•]]
225
(Settlement
“Settlement Currency” means [•]
23.
Automatic Early Redemption:
[Applicable / Not Applicable]
Automatic Early Redemption Event(s):
[•]
Automatic Early Redemption Date:
[•]
Automatic Early Redemption Amount:
[•]
ISSUER CALL OPTION IN RESPECT OF CERTIFICATES
24. Issuer Call Option
(N.B. If not applicable, delete the remaining
sub-paragraphs of this paragraph.)
(i)
[•]
(ii)
Optional Redemption Amount(s)
and method, if any, of calculation
of such amount(s):
[•]
(iii)
Notice period (if different from
those set out in the Conditions):
[•] (If setting notice periods which are different
notice requirement which may apply, for
example, as between the Issuer and Agents.)
HOLDER PUT OPTION IN RESPECT OF CERTIFICATES
25. Holder Put Option
(N.B. If not applicable, delete the remaining
sub-paragraphs of this paragraph.)
26.
27.
(i)
[•]
(ii)
Optional Redemption Amount(s)
and method, if any, of calculation
of such amount(s):
[•]
(iii)
Notice period (if different from
those set out in the Conditions):
[•] (If setting notice periods which are different
notice requirement which may apply, for
example, as between the Issuer and Agents.)
Physical Delivery Certificates:
[Insert applicable rounding
relevant currencies]
Method of delivery of the Entitlement:
[•]
Customary documents of title in respect
of the Relevant Asset to be delivered by
the Issuer:
[•]
Relevant Asset[s]:
[•]
Relevant Clearing System:
[•]
Failure to Deliver Settlement Amount:
[Applicable] [Not Applicable]
Issuer’s Option to Vary Settlement:
Condition 4(m) (Issuer’s Option to Vary
226
convention
for
Settlement) [is applicable][is not applicable]
28.
FX Disruption:
Condition 4(n) (FX Disruption) [is applicable][is
not applicable]
Where:
“FX Rate” means [•]
“Relevant Country” means [•]
“Relevant Currency” means [•]
29.
Restrictions:
Condition 4(q) (Restrictions) [is applicable][is not
applicable]3
30.
Index Linked Certificates:
Where:
“Basket of Indices” means [•]
“Exchange” means [•]
“Related Exchange” means [•]
“Index” means [•]
“Sponsor” means [•]
“Valuation Date” means [•]
“Valuation Time” means [•]
31.
Share Linked Certificates:
Where:
“Basket of Shares” means [•]
“Reference Price” means [•]
“Relevant Price” means [•]
32.
Commodity Linked Certificates:
Where:
“Basket of Commodities” means [•]
“Related Exchange” means [•]
33.
Debt Linked Certificates:
Where:
“Basket of Debt Securities” means [•]
“Debt Security” means [•]
“Nominal Amount” means [•]
[others]
34.
Currency Linked Certificates:
Where:
“Basket of Subject Currencies” means [•]
[others]
35.
Interest Rate Linked Certificate:
Where:
“Subject Interest Rate” means [•]
227
36.
Business Day:
A day (other than a Saturday or Sunday) on
which commercial banks and foreign exchange
markets settle payments and are open for
general business in [•]
37.
Relevant Clearing System(s):
[Euroclear]
[other clearing system]
38.
Calculation Agent:
[Dexia Banque Internationale á Luxembourg,
société anonyme/Other]
[Address]
39.
Related Exchange:
[•]
40.
Other conditions relating to Currency
Linked Certificates, Debt Linked
Certificates, Interest Rate Linked
Certificates, Fund Linked Certificates
and other certificates linked to any
other underlying asset:
[•]
41.
Details of the applicable type of US
[(insert applicable U.S. selling restrictions and
specify details of any transfer restrictions and
any necessary certifications, if different from
those set out in the Conditions)]
42.
Details of the relevant US selling
restrictions certification required for
the Asset Transfer Notice:
[Non-U.S. certification required in Asset
Transfer Notice][Not Applicable]
43.
Details of any additional selling
restrictions:
[•]
44.
Form of Certificates:
[Permanent Global Certificate]
[Bearer / Registered]
45.
New Global Certificate format:
[Yes] [No]
Intended to be held in a manner which
would allow Eurosystem eligibility:
[Yes] [No]
[Note that the designation “Yes” simply means
that the Certificates are intended upon issue to
be deposited with one of the ICSDs as
common safekeeper and does not necessarily
mean that the Certificates will be recognised as
eligible collateral for Eurosystem monetary
policy and intra-day credit operations by the
Eurosystem either upon issue or at any or all
times during their life. Such recognition will
depend upon satisfaction of the Eurosystem
eligibility criteria.]
46.
Talons for future Coupons or Receipts to
be attached to Definitive Certificates
(and dates on which such Talons mature)
[Yes/No. If yes, give details]
47.
ISIN:
[•]
48.
Common Code:
[•]
49.
Listing:
[•]
50.
Principal Certificate Agent
[•] [Other]
228
PURPOSE OF FINAL TERMS
These Final Terms for the Certificates comprise the Final Terms required to list and have admitted
to trading the issue of the Certificates described herein pursuant to the ™ 10,000,000,000 Euro
Medium Term Note, Certificate and Warrants Programme of Dexia Banque Internationale à
Luxembourg, société anonyme.
RESPONSIBILITY
The Issuer accepts responsibility for the information contained in these Final Terms for the
Certificates. [(Relevant third party information) has been accurately reproduced from (specify
source). The Issuer confirms that such information has been accurately reproduced and that so far
as it is aware, and is able to ascertain from information published by (specify source), no facts have
been omitted which would render the reproduced information inaccurate or misleading.]
Signed on behalf of the Issuer:
By: ________________________________________
Duly authorised
229
PART B – OTHER INFORMATION*
1
Listing And Admission To Trading
(i)
Listing:
(ii)
[The official list of the Luxembourg Stock
Exchange/other (specify)/None]
Admission to trading:
[Application has been made for the Certificates
to be admitted to trading on [_] with effect from
[_].] [Not Applicable.]
(Where documenting a fungible issue need to
indicate that the original notes are already
admitted to trading.)
[(iii)
2
Estimate of total expenses related
to admission to trading:
SNA12-6.2
SNA5-5.6.2
[_]]4
Ratings
Ratings:
The Certificates to be issued have been rated:
[S & P: [•]]
[Moody’s: [•]]
[Fitch: [•]]
[[Other]: [•]]
[Need to include a brief explanation of the
meaning of the ratings if this has previously
been published by the rating provide,]
(The above disclosure should reflect the rating
allocated to Certificates of the type being
issued under the Programme generally or,
where the issue has been specifically rated, that
rating.)
3
[Risk Factors
[Include any product specific risk factors which are not covered under “Risk Factors” in the
Prospectus. If any such additional risk factors need to be included consideration should be given as
to whether they constitute “significant new factors” and consequently trigger the need for either (i)
a supplement to the Prospectus under Article 16 of the Prospectus Directive, the publication of
which would in turn trigger the investors’ right to withdraw their acceptances within a 48 hour time
period or (ii) a Prospectus.]]
4
[Notification
The Luxembourg Stock Exchange [has been requested to provide/has provided - include first
alternative for an issue which is contemporaneous with the establishment or update of the
Programme and the second alternative for subsequent issues] the [include names of competent
authorities of host Member States] with a certificate of approval attesting that the Prospectus has
been drawn up in accordance with the Prospectus Directive.]
5
[Interests of Natural and Legal Persons Involved in the [Issue/Offer]
“Save as discussed in [“Risk Factors” in the Prospectus], so far as the Issuer is aware, no
person involved in the offer of the Certificates has an interest material to the offer.”] – Amend as
appropriate
230
SNA12-3.1
SNA5-3.1
6
[Reasons for the Offer, Estimated Net Proceeds and Total Expenses4
Reasons for the offer
[•]
– if reasons for offer different from making profit
and/or hedging certain risks will need to include
those reasons here.)
SNA12-3.2
SNA5-3.2
[•]
other funding.)
[•] [Include breakdown of expenses]]
7
[Index Certificates only – Performance of Index/Formula/Other Variable, Explanation of
Effect on Value of Investment and Associated Risks, Description of any Settlement
Disruption Events that affect the Underlying Asset and Other Information concerning
the Underlying Asset]
[Need to include details of where past and future performance and volatility of the
index/formula/other variable can be obtained and a clear and comprehensive explanation of how the
value of the investment is affected by the underlying and the circumstances when the risks are most
evident.] [Where the underlying is an index need to include the name of the index and a description
if composed by the Issuer and if the index is not composed by the Issuer need to include details of
where the information about the index can be obtained.]5
For the purpose of describing the underlying asset, index or other item(s) to which the
Certificates relate insert
details of the “Basket of Indices” or the single “Index”;
details of the “Basket of Shares” (including, but not limited to, the number and type of each
Share comprising the Basket) and of the Basket Companies or the single Share and the issuer
of the Share;
details of the “Basket of Debt Securities” or the single “Debt Security”;
details of the “Basket of Commodities” or the single “Commodity”;
details of the “Basket of Currencies” or the single “Currency”
details of the “Basket of Subject Interest Rates” or single “Interest Rate”);
details of any combination of the above, or other; and
any further details of the underlying asset, index or other item(s) to which the Certificates
relate which are required to comply with the regulations of the stock exchange on which the
Certificates are to be listed (if any).
Include other information concerning the underlying required by Paragraph 4.2 of Annex XII of
the Prospectus Directive Regulation.]
[(When completing this paragraph, consideration should be given as to whether such matters
described constitute “significant new factors” and consequently trigger the need for a
The Issuer [intends to provide post-issuance information [specify what information will be
reported and where it can be obtained]] [does not intend to provide post-issuance information
except where required by applicable laws and regulations].
[Index/other Disclaimer6
The issue of this series of Certificates (in this paragraph, the “Transaction”) is not sponsored,
endorsed, sold, or promoted by [NAME OF INDEX/OTHER] (the “Index”) or [NAME OF
INDEX/OTHER SPONSOR] (the “Index Sponsor”) and no Index Sponsor makes any representation
whatsoever, whether express or implied, either as to the results to be obtained from the use of the
Index and/or the levels at which the Index stands at any particular time on any particular date or
8
231
SNA12-4.1.2
SNA12-4.2.2
SNA12-4.2.3
SNA12-4.2.4
otherwise. No Index or Index Sponsor shall be liable (whether in negligence or otherwise) to any
person for any error in the Index and the Index Sponsor is under no obligation to advise any person
of any error therein. No Index Sponsor is making any representation whatsoever, whether express
or implied, as to the advisability of purchasing or assuming any risk in connection with entering into
any Transaction. The Issuer shall not have any liability for any act or failure to act by the Index
Sponsor in connection with the calculation, adjustment or maintenance of the Index. Except as
disclosed prior to the Issue Date, none of the Issuer or its affiliates has any affiliation with or control
over the Index or Index Sponsor or any control over the computation, composition or dissemination
of the Index. Although the Calculation Agent will obtain information concerning the Index from
publicly available sources it believes reliable, it will not independently verify this information.
Accordingly, no representation, warranty or undertaking (express or implied) is made and no
responsibility is accepted by the Issuer, its affiliates or the Calculation Agent as to the accuracy,
completeness and timeliness of information concerning the Index.]
9
[Derivatives only – Other Information concerning the Certificates to be
[offered]/[admitted to trading]]6
Name of the issuer of the underlying
[•]
security:
ISIN Code:
[•]
Underlying interest rate:
[•]
Relevant weightings of each underlying
In the basket:
[•]
Adjustment rules with relation to events
concerning the underlying:
[•]
Source of information relating to the
[Index]/[Indices]
[•]
Place where information relating to the
[Index]/[Indices] can be obtained
[•]
Post-Issuance information7:
[•]
SNA12-4.1.1
SNA5-4.1
[Where the underlying does not fall within the categories specified above, the Certificates
need to include equivalent information]
10
[Terms and Conditions of the Public Offer]
Offer Price:
[Issue Price] [specify]
Conditions to which the offer is subject:
Description of the application process:
Description of possibility to reduce
subscriptions and manner for refunding
excess amount paid by applicants:
Details of the minimum and/or maximum
amount of application:
Details of the method and time limits for
paying up and delivering the Certificates:
SNA12-5.3
SNA5-5.3.1
SNA12-5.1.3
SNA5-5.1.3
SNA5-5.1.4
SNA12-5.1.4
SNA5-5.1.5
Manner in and date on which results of the [Not Applicable/give details]
offer are to be made public:
Procedure for exercise of any right of
pre-emption, negotiability of subscription
rights and treatment of subscription rights
not exercised:
232
SNA12-5.1.5
SNA5-5.1.6
SNA12-5.1.6
SNA5-5.1.7
SNA5-5.1.8
Categories of potential investors to which the
Certificates are offered and whether tranche(s)
have been reserved for certain countries:
Process for notification to applicants of the
amount allotted and the indication whether
dealing may begin before notification is made:
SNA5-5.2.1
SNA5-5.2.2
Amount of any expenses and taxes specifically [Not Applicable/give details]
charged to the subscriber or purchaser:
Name(s) and address(es), to the extent known
to the Issuer, of the placers in the various
countries where the offer takes place.
11
[Placing and Underwriting]5
Name and address of the co-ordinator(s)
of the global offer and of single parts of
the offer:8
SNA12-5.3
SNA5-5.3.1
[None/give details]
[•]
SNA12-5.4.1
SNA5-5.4.1
Name and address of any paying agents
and depository agents in each country (in
addition to the Principal Paying Agent):
12
SNA12-5.2.2
[•]
SNA12-5.4.2
SNA5-5.4.2
Entities agreeing to underwrite the issue on
[•]
a firm commitment basis, and entities agreeing
to place the issue without a firm commitment
or under “best efforts” arrangements:9
SNA12-5.4.3
When the underwriting agreement has been
or will be reached:
SNA12-5.4.4
[•]
Yield
[An indication of yield. Describe the method whereby that yield is calculated in summary form.]
Notes
*
If an issue of Certificates is (i) NOT admitted to trading on a regulated market within the European Economic area and
(ii) only offered in the European Economic Area in circumstances where a prospectus is not required to be published
under the Prospectus Directive, the Issuer may elect to amend and/or delete certain of the above paragraphs of Part B.
1
To be inserted when the Certificates are issued by Dexia Banque Internationale à Luxembourg, société anonyme
Singapore Branch, denominated in Singapore Dollars, issued to sophisticated investors (as defined in the Guidelines
for operation of Offshore Banks issued by the Monetary Authority of Singapore) or their nominees and Dexia Banque
Internationale à Luxembourg, société anonyme Singapore Branch reasonably expects or foresees that the Certificates
will not be held at all times by persons who are sophisticated investors.
2.
To be inserted when the Certificates are “qualifying debt securities” under the Income Tax Act and the Certificates are
issued by Dexia Banque Internationale à Luxembourg, société anonyme Singapore Branch.
3
Certification is in the form set out in [Annex [•]]
4
If the Certificates are derivative securities to which Annex XII of the Prospectus Regulation applies, disclosure in
respect of Estimated Net Proceeds and Total Expenses is only required if reasons for the offer are disclosed.
5
Required for derivative securities.
6
Include for Index Certificates (including, where relevant, Commodity Certificates).
7
Indicate whether post-issuance information is to be provided and, if so, what information (including in relation to the
underlying security) will be provided and where such information can be obtained.
8
To the extent known to the Issuer, of the placers in the various countries where the offer takes place
9
Where not all of the issue is underwritten, a statement of the portion not covered.
233
SNA5-5.4.3
SNA5-5.4.4
SNA5-4.9
FORM OF FINAL TERMS FOR THE WARRANTS
Set out below is the form of Final Terms for the Warrant that will be completed for each issue
of Warrants under the programme.
SNA5-5.1.1
SNA12-5.1.1
SNA5-5.1.7
These Final Terms for the Warrants, under which the Warrants described herein (the
“Warrants”) are issued, are supplemental to, and should be read in conjunction with, the
Prospectus (the “Prospectus”) dated [Original Date] issued in relation to the EUR10,000,000,000
Programme for the issue of Euro Medium Term Notes, Certificates and Warrants [include reference
to any other Final Terms for the Warrants for earlier Tranches of the same Series]. Terms defined in
the Prospectus have the same meaning in these Final Terms for the Warrants. The Warrants will be
issued on the terms of this Final Terms for the Warrants read together with the Prospectus. The
Issuer accepts responsibility for the information contained in these Final Terms for the Warrants
which, when read together with the Prospectus, contains all information that is material in the
context of the issue of the Warrants. The Prospectus [and the supplement to the Prospectus] [is]
[are] available for inspection at the office of the Agent and the office of the Issuer and are available
to view on the Luxembourg Stock Exchange Website (www.bourse.lu).
[The Warrants are being issued by the Issuer through Dexia Banque Internationale à
Luxembourg, société anonyme, Singapore Branch]
These Final Terms for the Warrants do not constitute, and may not be used for the purposes
of, an offer of, or an invitation by or on behalf of anyone to subscribe or purchase any of the
Warrants.
[Set out any additions or variations to the selling restrictions].
[Except as disclosed in these Final Terms for the Warrants, there/There]1 has been no adverse
change in the financial position or results of operations of the Issuer or of the Group in each case
which is material in the context of the Programme or the issue and offering of Warrants thereunder,
since [date of last audited accounts or interim accounts (if later)].
[Signed: ____________________________________
Director]
1
N.B. If any such change is disclosed in the Final Terms for the Warrants, it will require approval by the Stock
Exchange(s). Consideration should be given as to whether or not such disclosure should be made by means of a
supplemental Prospectus rather than in Final Terms for the Warrants.
A.
Issue Details
1.
Form of Warrants and if issued through Singapore Branch: [Bearer/Book-entry], [yes/no]
2.
Title, Number, Put or Call:
3.
European or American Style:
4.
Issue Date:
5.
Final Exercise Date:
6.
Exercise Date or Exercise Dates (European Style only):
7.
Strike Price:
8.
Minimum Exercise Number:
9.
Maximum Exercise Number (American Style only):
10.
Calculation Agent:
11.
Governing Law:
12.
Date of resolution of Board of Directors of the Issuer approving the issue of the Warrants:
234
SNA12-4.1.4
SNA5-5.1.2
SNA5-5.1.5
SNA12-4.1.9
SNA5-5.1.3
SNA12-4.1.11
SNA5-4.8
SNA12-4.1.13
SNA12-5.1.3
SNA5-4.9
SNA12-5.1.2
SNA12-5.1.4
SNA12-4.2.1
SNA5-4.12
SNA5-5.14
SNA12-4.1.8
SNA12-5.4.3
SNA12-5.4.4
SNA12-5.4.1
13.
Dealers:
14.
Date of Subscription Agreement:
15.
Co-ordinator and Underwriters
16.
Issue Price:
17.
Commissions, concessions or other similar amounts:
18.
Stock Exchange on which Warrants are listed:
(Where documenting a fungible issue need to indicate that the original Warrants are already
admitted to trading)
19.
Common Code:
20.
Other Clearing System:
21.
Code of any other Clearing System:
22.
ISIN (if applicable):
Interests of Natural and Legal Persons involved in the Issue
So far as the Issuer is aware, no person involved in the offer of the Warrants has an interest
material to the offer.
Reasons for the Offer, Estimated Net Proceeds and Total Expenses
[(i)
Reasons for the offer:
[_]
– if reasons for offer different from general
funding purposes of the Issuer, will need to
include those reasons here.)]
[(ii)]
[_]
other funding.)
[(iii)]
SNA12-5.3
SNA5-6.2
SNA12-6.2
SNA12-6.2
SNA12-4.1.1
B.
C.
SNA12-5.4.3
SNA5-5.4.1
SNA5-5.4.3
SNA5-5.4.4
[_] [Include breakdown of expenses.]
D.
Exercise Rights
This Section should set out the rights attaching to the Warrants on exercise. It should
generally include definitions of:
“Business Day” means [a day (other than a Saturday or a Sunday) on which banks are open
for business in [ ] and London];
“Settlement Amount” (if applicable);
“Settlement Date” means [the [number of days] Business Day following the Valuation Date];
“Settlement Price” or “Applicable Exchange Rate” etc.;
“Valuation Business Day” means [a Business Day on which [foreign exchange markets in
[ ]/the [ ] Stock Exchange, etc.] are [(or, but for the occurrence of a Market Disruption
Event, would be)] open for business];
”Valuation Date” means [, subject as provided below and in the Conditions,] the [next]
[Valuation] Business Day following the Exercise Date.
This section should also include any other definitions or provisions relevant to the rights
attaching to the Warrants, e.g. Market Disruption Events, Adjustment Rules, Discontinuance
or Modification of Index etc.
235
SNA5-4.1
SNA12-3.1
SNA5-3.1
SNA12-3.2
SNA5-3.2
E.
Provisions modifying the General Conditions
[lf applicable]
F.
Additional selling restrictions
[lf applicable]
G.
Description of the Underlying
[If applicable]
SNA12-4.1.2
SNA12-4.2.2
[Need to include details of where past and future performance and volatility of the
index/formula/other variable can be obtained and a clear and comprehensive explanation of
how the value of the investment is affected by the underlying and the circumstances when
the risks are most evident. Where the underlying is an index need to include the name of the
index and a description if composed by the Issuer and if the index is not composed by the
Issuer need to include details of where the information about the index can be obtained.
Where the underlying is not an index need to include equivalent information. Where the
underlying is a security need to include the name of the issuer of the security and the
International Securities Identification Number (ISIN) or equivalent identification number. Where
the underlying is a basket of underlyings, need to include the relevant weightings of each
underlying in the basket.]
236
SNA12-4.2.3
SNA12-4.2.4
SNA5-4.7
GENERAL INFORMATION
1.
The Issuer has obtained all necessary consents, approvals and authorisations in
connection with the amending and updating of the Programme. The issue of the Notes and the
Warrants and the supplementing and/or restating of the Programme and the increases in the limit
of the Programme were authorised by resolutions of the Board of Directors passed on
19 September, 1995, 17 September, 1996, 16 September, 1997, 21 February, 2005, 3 October, 2005
and 25 February, 2008. The issue of the Certificates under the Programme was authorised by
resolutions of the Board of Directors passed on 23 January, 2008 and 25 February, 2008.
SNA5-4.11
2.
There has been no significant change in the financial position of the Dexia BIL Group
since 31 December, 2008. There has been no significant change in the financial position of the Group
since 31 December, 2008 and there has been no material adverse change in the prospects of the
Issuer or the Dexia BIL Group since 31 December, 2008.
RDA11-7.1
RDA11-11.7
SNA12-4.1.8
SNA5-4.11
RDA11-11.6
3.
Neither the Issuer nor any of its subsidiaries is or has been involved in any
governmental, legal or arbitration proceedings (including any such proceedings which are pending
or threatened of which the Issuer is aware) during the 12 months preceding the date of this
Prospectus which may have or have had in the recent past significant effects, in the context of the
issue of the Notes, the Certificates or the Warrants, on the financial position or profitability of
the Issuer.
4.
The issue price and the amount of the relevant Notes and Certificates will be
determined before filing of the relevant Final Terms or Final Terms for the Certificates, as the case
may be, of each Tranche, based on then prevailing market conditions. The Issuer does not intend
to provide any post-issuance information in relation to any related underlying assets, except if
required by any applicable laws and regulations.
SNA12-5.3
SNA5-5.3.1
SNA12-4.2.2
SNA12-7.5
5.
Each Bearer Note and Bearer Certificate having a maturity of more than one year,
Receipt, Coupon and Talon will bear the following legend: “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”.
SNA5-4.1
6.
Notes, Certificates and Warrants have been accepted for clearance through Euroclear
and Clearstream, Luxembourg (which are the entities in charge of keeping the records). The Common
Code, the International Securities Identification Number (“ISIN”) and the identification number for any
other relevant clearing system for each Series of Notes and Certificates will be set out in the relevant
Final Terms or Final Terms for the Certificates, as the case may be, and the Common Code and ISIN
for each Series of Warrants will be set out in the relevant Final Terms for the Warrants. The address
of Euroclear is 1 Boulevard du Roi Albert II, B-1210 Brussels, Belgium and the address of
Clearstream, Luxembourg is 42 Avenue JF Kennedy, L-1855 Luxembourg. The address of any
alternative clearing system will be specified in the applicable Final Terms, Final Terms for the
Certificates or Final Terms for the Warrants.
7.
Copies in physical form of the Articles of Association of the Issuer, the annual report
(which includes audited consolidated and non-consolidated figures) of the Issuer for the years
ended 31 December, 2007 and 31 December, 2008, including the reports of statutory auditors in
respect thereof, may be obtained, and copies in physical form of this Prospectus and any
supplement hereto and each Final Terms, Final Terms for the Certificates and Final Terms for the
Warrants, the Distribution Agreement (as amended, restated or supplemented from time to time),
the Agency Agreement (as amended, restated or supplemented from time to time), the Deed of
Covenant (as amended, restated or supplemented from time to time), the Undertaking (as amended,
restated or supplemented from time to time) and the State Guarantee Agreement dated
9 December, 2008 (French and English language versions) will be available for inspection, at the
specified offices of each of the Paying Agents during normal business hours, so long as any of the
Notes or Certificates is outstanding. Copies in physical form of the Final Terms, Final Terms for the
Certificates or Final Terms for the Warrants in respect of any Tranche of Notes, Certificates or
Warrants listed on the Official List of the Luxembourg Stock Exchange, as the case may be, will be
obtainable at the specified offices of the Issuer in Luxembourg during normal business hours, so
long as any of the Notes, Certificates or Warrants listed on the Official List of the Luxembourg
Stock Exchange, as the case may be, of any such Tranche is outstanding.
237
RDA11-14
SNA12-5.1.6
SNA5-5.1.7
SNA5-4.10
8.
PricewaterhouseCoopers S.à r.l. (a member of the Institut des Réviseurs d’Entreprises (the
Luxembourg institute of chartered accountants)) has audited, and rendered the unqualified audit report
on, the consolidated and non-consolidated accounts of Dexia BIL for the year ended 31 December,
2007.
RDA11-2.1
Deloitte SA (a member of the Institut des Réviseurs d’Entreprises (the Luxembourg institute of
chartered accountants)) has audited, and rendered the unqualified audit report on, the consolidated and
non-consolidated accounts of Dexia BIL for the year ended 31 December, 2008.
A11-14
9.
The Prospectus, the Final Terms, Final Terms for the Certificates and Final Terms for
the Warrants listed on the Official List of the Luxembourg Stock Exchange and all documents that
have been incorporated by reference will be available to view on the Luxembourg Stock Exchange
website (www.bourse.lu).
238
SNA5-7.2
REGISTERED OFFICE OF THE ISSUER
Dexia Banque Internationale à
Luxembourg, société anonyme
69 route d’Esch L-1470
Luxembourg
Dexia Banque Internationale à Luxembourg,
société anonyme Singapore Branch
9 Raffles Place
#29-01 Republic Plaza
Singapore 48619
DEALERS
RDA11-4.1.1
RDA11-4.1.2
SNA12-1.1
RDA11-1.1
SNA5-5.4.1
BNP PARIBAS
10 Harewood Avenue
London NW1 6AA
United Kingdom
CALYON
9, Quai du President Paul Doumer
92920 Paris La Defense Cedex
France
Citigroup Global Markets Limited
Citigroup Centre
Canada Square
London E14 5LB
United Kingdom
Credit Suisse Securities (Europe) Limited
One Cabot Square
London E14 4QJ
United Kingdom
Dexia Banque Internationale à
Luxembourg, société anonyme
(Dexia Capital Markets)
69 route d’Esch
L-1470 Luxembourg
Dresdner Bank Aktiengesellschaft
Jürgen-Ponto-Platz 1
D-60301 Frankfurt am Main
Peterborough Court
133 Fleet Street
London EC4A 2BB
United Kingdom
J.P. Morgan Securities Ltd.
125 London Wall
London EC2Y 5AJ
United Kingdom
Merrill Lynch Financial Centre
2 King Edward Street
London EC1A 1HQ
United Kingdom
6 Broadgate
London EC2M 2AA
United Kingdom
Morgan Stanley & Co. International plc
25 Cabot Square
Canary Wharf
London E14 4QA
United Kingdom
Nomura International plc
Nomura House
1 St. Martin’s-le-Grand
London EC1A 4NP
United Kingdom
UBS Limited
1 Finsbury Avenue
London EC2M 2PP
United Kingdom
ISSUING, FISCAL, PAYING AND TRANSFER AGENT
69 route d’Esch
L- 1470 Luxembourg
239
SNA5-5.4.2
SNA12-5.4.2
REGISTRAR AND TRANSFER AGENT
69 route d’Esch
L-1470 Luxembourg
SNA5-4.3
PAYING AGENTS
69 route d’Esch
L-1470 Luxembourg
Dexia Banque S.A./Dexia Bank N.V.
44, boulevard Pacheco
B-1000 Brussels
Belgium
SNA5-5.4.2
SNA12-5.4.2
HSBC Bank plc
8 Canada Square
London E14 5HQ
United Kingdom
CALCULATION AGENT
SNA12-5.4.5
69 route d’Esch
L-1470 Luxembourg
LUXEMBOURG LISTING AGENT
69 route d’Esch
L-1470 Luxembourg
ARRANGER
Peterborough Court
133 Fleet Street
London EC4A 2BB
United Kingdom
AUDITORS
To the Issuer for the year
ended 31 December 2008
Deloitte SA,
560 rue de Nendorf
L-2220 Luxembourg
To the Issuer for the year
ended 31 December 2007
PricewaterhouseCoopers S.à r.l.
400, route d’Esch B.P. 1443
L-1014 Luxembourg
SNA12-7.1
LEGAL ADVISERS
To the Issuer
in respect of Luxembourg law
Elvinger, Hoss & Prussen
2 Place Winston Churchill
L-1340 Luxembourg
To the Issuer
in respect of Singapore law
Allen & Gledhill LLP
One Marina Boulevard #28-00
Singapore 018989
To the Dealers
in respect of English law
Linklaters LLP
One Silk Street
London EC2Y 8HQ
United Kingdom
240
SNA5-7.1
Printed in England – 9505
STEPHEN BERESFORD LIMITED

9505 Dexia BIL.qxd

Transcription

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