REG - N.B. Ras Al Khaimah - NOTICE TO THE HOLDERS of ISIN: XS2630917107
06/03/2025 09:15
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RNS Number : 6197Z National Bank of Ras Al Khaimah P.S 06 March 2025
THIS NOTICE IS IMPORTANT AND REQUIRES THE ATTENTION OF HOLDERS OF THE CAPITAL
SECURITIES.
IMPORTANT NOTICE TO THE HOLDERS OF
U.S.$250,000,000 Fixed Rate Resettable Tier 2 Capital Securities due 2034
(ISIN: XS2630917107)
(the "Capital Securities")
of The National Bank of Ras Al-Khaimah (P.S.C.) (the "Issuer")
6 March 2025
NOTICE IS HEREBY GIVENto the holders of the Capital Securities that the terms
and conditions applicable to the Capital Securities have been amended and
restated (the "Amended and Restated Terms and Conditions") pursuant to the
amendment agreement dated 5 March 2025 between, inter alios, the Issuer and
The Bank of New York Mellon, London Branch as the fiscal agent (the "Fiscal
Agent") to cure a manifest error in Condition 5.1 (Initial Interest Rate and
Interest Payment Dates) such that "The Interest Payment Amount payable on each
Interest Payment Date following the First Interest Payment Date during the
Initial Period shall be U.S.$14.683 per U.S.$1,000 in principal amount of the
Capital Securities." in Condition 5.1 is deleted and replaced with "The
Interest Payment Amount payable on each Interest Payment Date following the
First Interest Payment Date during the Initial Period shall be U.S.$29.366 per
U.S.$1,000 in principal amount of the Capital Securities.".
For the avoidance of doubt, the Amended and Restated Terms and Conditions will
be effective on the Interest Payment Date falling on 10 March 2025 and in
respect of each Interest Period thereafter.
The Amended and Restated Terms and Conditions are scheduled to this notice.
Any capitalised term used but not otherwise defined herein shall have the
meaning given to it in the Conditions set forth in the Offering Circular dated
5 September 2024.
This notice is given to all holders of the Capital Securities in accordance
with Condition 14 (Notices) and the Agency Agreement dated 10 September 2024
made between, inter alios, the Issuer and the Fiscal Agent.
Any queries in relation to the matters set out in this notice should be
directed to:
The National Bank of Ras Al-Khaimah (P.S.C.)
Rakbank Head Office - RAK Operations Centre
Mohammed Bin Zayed Road, Exit 129 Al Rifa Area
P.O. Box 5300
Ras Al-Khaimah
United Arab Emirates
Email: sudhakar@rakbank.ae (mailto:sudhakar@rakbank.ae)
DISCLAIMER - INTENDED ADDRESSEES
Please note that the information contained in the Offering Circular and
Amended and Restated Terms and Conditions may be addressed to and/or targeted
at the persons specified in the Offering Circular only and is not intended for
use and should not be relied upon by any person to whom the offer contained in
the Offering Circular and Amended and Restated Terms and Conditions is not
addressed and/or targeted. Prior to relying on the information contained in
the Offering Circular and Amended and Restated Terms and Conditions, you must
ascertain from the Offering Circular and Amended and Restated Terms and
Conditions whether or not you are part of the intended addressees of the
information contained therein.
Your right to access this service is conditional upon complying with the above
requirement.
SCHEDULE
AMENDED AND RESTATED TERMS AND CONDITIONS
The following are the Terms and Conditions of the Capital Securities which
will be incorporated by reference into the Global Certificate (as defined
below) and endorsed on each Individual Certificate (if issued) in respect of
the Capital Securities:
Each of the U.S.$250,000,000 Fixed Rate Resettable Tier 2 Capital Securities
due 2034 (the "Capital Securities") is issued by The National Bank of Ras
Al-Khaimah (P.S.C.) in its capacity as issuer (the "Issuer") pursuant to the
Deed of Covenant and the Agency Agreement (each as defined below).
Payments relating to the Capital Securities will be made pursuant to an agency
agreement dated the Issue Date (as amended or supplemented from time to time,
the "Agency Agreement") made between the Issuer, The Bank of New York Mellon,
London Branch as fiscal agent (in such capacity, the "Fiscal Agent" and
together with any further or other paying agents appointed from time to time
in respect of the Capital Securities, the "Paying Agents"), The Bank of New
York Mellon SA/NV, Dublin Branch as registrar (in such capacity, the
"Registrar") and as transfer agent (in such capacity, the "Transfer Agent"
and, together with the Registrar and any further or other transfer agents
appointed from time to time in respect of the Capital Securities, the
"Transfer Agents") and The Bank of New York Mellon, London Branch as
calculation agent (the "Calculation Agent", which expression includes any
other calculation agent appointed from time to time in respect of the Capital
Securities). The Paying Agents, the Calculation Agent and the Transfer Agents
are together referred to in these terms and conditions (the "Conditions") as
the "Agents". References to the Agents or any of them shall include their
successors. The Capital Securities are constituted by a deed of covenant dated
the Issue Date (as amended or supplemented from time to time, the "Deed of
Covenant") entered into by the Issuer.
Any reference to "holders" in relation to any Capital Securities shall mean
the persons in whose name the Capital Securities are registered and shall, in
relation to any Capital Securities represented by a Global Certificate, be
construed as provided below.
Copies of the Agency Agreement and the Deed of Covenant are obtainable during
normal business hours at the specified offices of the Agents following the
Noteholder's prior written request and provision of proof of holding and
identity in a form satisfactory to the relevant Agent or at the relevant
Agent's discretion may be provided electronically. The holders of the Capital
Securities are deemed to have notice of, and are entitled to the benefit of,
all the provisions of the Agency Agreement and the Deed of Covenant. The
statements in the Conditions include summaries of, and are subject to, the
detailed provisions of the Agency Agreement and the Deed of Covenant.
1. INTERPRETATION
Words and expressions defined in the Agency Agreement shall have the same
meanings where used in these Conditions unless the context otherwise requires
or unless otherwise stated and provided that, in the event of any
inconsistency between any such document and these Conditions, these Conditions
will prevail. In addition, in these Conditions, the following expressions have
the following meanings:
"Additional Amounts" has the meaning given to it in Condition 11
(#_bookmark31) (Taxation);
"Additional Tier 1 Capital" means capital qualifying as, and approved by the
Regulator as, additional tier 1 capital in accordance with the Capital
Regulations;
"Applicable Regulatory Capital Requirements" means any requirements contained
in the Capital Regulations for the maintenance of capital from time to time
applicable to the Issuer, including transitional rules and waivers granted in
respect of the foregoing;
"Assets" means the consolidated gross assets of the Issuer as shown in the
latest audited or (as the case may be) auditor reviewed consolidated balance
sheet of the Issuer, but adjusted for subsequent events in such manner as the
Directors, the auditors of the Issuer or (if a bankruptcy trustee (or any
equivalent insolvency practitioner) has been appointed in respect of the
Issuer) a bankruptcy trustee (or such equivalent insolvency practitioner) may
determine;
"Authorised Denomination" has the meaning given to it in Condition 2.1
(#_bookmark3) (Form, Denomination and Title - Form and Denomination);
"Authorised Signatory" means any person who is duly authorised by the Issuer
to sign documents on its behalf and whose specimen signature has been provided
to the Fiscal Agent;
"Basel III Documents" means the Basel Committee on Banking Supervision
document "A global regulatory framework for more resilient banks and banking
systems" released by the Basel Committee on Banking Supervision on 16 December
2010 and revised in June 2011 and the Annex contained in its document "Basel
Committee issues final elements of the reforms to raise the quality of
regulatory capital" on 13 January 2011;
"Business Day" means a day, other than a Saturday, Sunday or public holiday,
on which registered banks settle payments and are open for general business
(including dealings in foreign exchange and foreign currency deposits) in Ras
Al-Khaimah, London and New York City;
"Call Date" means the First Call Date and any date thereafter up to and
including the Reset Date and any Interest Payment Date following the Reset
Date;
"Capital Event" is deemed to have occurred if the Issuer is notified in
writing by the Regulator to the effect that the outstanding principal amount
(or the amount that qualifies as regulatory capital, if some amount of the
Capital Securities is held by the Issuer or whose purchase is funded by the
Issuer) of the Capital Securities would cease to be eligible to qualify, in
whole or in part, for inclusion in the consolidated Tier 2 Capital of the
Issuer (save where such non-qualification is only as a result of any
applicable limitation on the amount of such capital), and provided that the
Issuer satisfies the Regulator that such non-qualification was not reasonably
foreseeable at the time of issuance of the Capital Securities;
"Capital Event Redemption Amount" in relation to a Capital Security means
100.000 per cent. of its Prevailing Principal Amount together with any
Outstanding Payments;
"Capital Regulations" means, at any time, the regulations, requirements,
standards, guidelines and policies relating to the maintenance of capital
and/or capital adequacy then in effect in the United Arab Emirates, including
those of the Regulator;
"Central Bank" means the Central Bank of the United Arab Emirates or any
successor thereto;
"Clearstream, Luxembourg" has the meaning given to it in Condition 2.1
(#_bookmark3) (Form, Denomination and Title - Form and Denomination);
"Code" has the meaning given to it in Condition 6.3 (#_bookmark14) (Payments -
Payments Subject to Laws);
"Common Equity Tier 1 Capital" means capital qualifying as, and approved by
the Regulator as common equity tier 1 capital in accordance with the Capital
Regulations;
"Day-count Fraction" means the actual number of days in the relevant period
divided by 360 (the number of days to be calculated on the basis of a year of
360 days with 12 30-day months and, in the case of an incomplete month, the
number of days elapsed of the Interest Period in which the relevant period
falls (including the first such day but excluding the last));
"Designated Account" has the meaning given to it in Condition 6.1
(#_bookmark13) (Payments - Payments in respect of Individual Certificates);
"Designated Bank" has the meaning given to it in Condition 6.1 (#_bookmark13)
(Payments - Payments in respect of Individual Certificates);
"Directors" means the executive and non-executive directors of the Issuer who
make up its board of directors;
"Dispute" has the meaning given to it in Condition 17.2 (#_bookmark34)
(Governing Law and Dispute Resolution - Arbitration);
"Early Redemption Amount" in relation to a Capital Security means 100 per
cent. of its Prevailing Principal Amount together with any Outstanding
Payments;
"Enforcement Event" means:
(a) Non-payment: the Issuer fails to pay an amount in the
nature of principal or interest due and payable by it pursuant to the
Conditions and the failure continues for a period of seven (7) days in the
case of principal and fourteen (14) days in the case of interest; or
(b) Insolvency: a final determination is made by a court or
other official body that the Issuer is insolvent or bankrupt or unable to pay
its debts as they fall due; or
(c) Winding-up: an administrator is appointed, an order is
made by a court of competent jurisdiction or an effective resolution passed
for the winding-up or dissolution or administration of the Issuer or the
Issuer shall apply or petition for a winding-up or administration order in
respect of itself or cease, or through an official action of its board of
directors threaten to cease, to carry on all or substantially all of its
business or operations, in each case except: (i) for the purpose of and
followed by a reconstruction, amalgamation, reorganisation, merger or
consolidation on terms approved by an Extraordinary Resolution of the holders
of the Capital Securities; or (ii) for any step or procedure which is part of
a solvent reconstruction or amalgamation approved by any court of competent
jurisdiction or other competent authority; or
(d) Analogous Event: any event occurs which under the laws
of the United Arab Emirates has an analogous effect to any of the events
referred to in paragraph (b) (#_bookmark0) or paragraph (c) (#_bookmark1)
above;
"Euroclear" has the meaning given to it in Condition 2.1 (#_bookmark3) (Form,
Denomination and Title - Form and Denomination);
"Exchange Event" has the meaning given to it in Condition 3.4 (#_bookmark4)
(Transfers of Capital Securities and Exchange for Individual Certificates -
Exchange for Individual Certificates);
"Extraordinary Resolution" has the meaning given to it in the Agency
Agreement; "First Call Date" means 10 September 2029;
"First Interest Payment Date" means 10 March 2025; "Global Certificate" means
the global registered certificate;
"H.15" means the statistical release designated as such, or any successor or
replacement publication, published by the Board of Governors of the United
States Federal Reserve System and "most recent H.15" means the H.15 published
closest in time but prior to the applicable Interest Rate determination date.
The H.15 may be currently obtained at the following website: https://www.
(http://www.federalreserve.gov/releases/h15/%3B)
federalreserve.gov/releases/h15/;
(http://www.federalreserve.gov/releases/h15/%3B)
"Individual Certificate" means a registered certificate in definitive form;
"Initial Interest Rate" has the meaning given to it in Condition 5.1
(#_bookmark10) (Interest - Initial Interest Rate and Interest Payment Dates);
"Initial Period" means the period (from and including) the Issue Date to (but
excluding) the Reset Date;
"Interest Payment Amount" means, subject to Condition 6 (#_bookmark12)
(Payments), the interest payable on each Interest Payment Date;
"Interest Payment Date" means each of 10 March and 10 September in every year,
commencing on the First Interest Payment Date;
"Interest Period" means, in the case of the first Interest Period, the period
from (and including) the Issue Date to (but excluding) the First Interest
Payment Date and, subsequently, the period from (and including) an Interest
Payment Date to (but excluding) the succeeding Interest Payment Date;
"Interest Rate" means, in respect of the Initial Period, the Initial Interest
Rate, and, in respect of the Reset Period thereafter, the rate calculated in
accordance with the provisions of Condition 5.2 (#_bookmark11) (Interest -
Interest Rate following the Initial Period);
"Issue Date" means 10 September 2024;
"Junior Obligations" means all claims of the holders of Ordinary Shares, all
payment obligations of the Issuer in respect of its Other Common Equity Tier 1
Instruments, all payment obligations of the Issuer in respect of its
Additional Tier 1 Capital and any other payment obligations that rank or are
expressed to rank junior to the Capital Securities;
"LCIA" means the London Court of International Arbitration;
"Liabilities" means the consolidated gross liabilities of the Issuer as shown
in the latest audited or (as the case may be) auditor reviewed consolidated
balance sheet of the Issuer, but adjusted for contingent liabilities and for
subsequent events in such manner as the Directors, the auditors of the Issuer
or (if a bankruptcy trustee (or any equivalent insolvency practitioner) has
been appointed in respect of the Issuer) a bankruptcy trustee (or such
equivalent insolvency practitioner) may determine;
"Margin" has the meaning given to it in Condition 5.1 (#_bookmark10) (Interest
- Initial Interest Rate and Interest Payment Dates);
"Maturity Date" has the meaning given to it in Condition 8.1(a) (#_bookmark18)
(Redemption and Variation - Redemption at Maturity);
"Maturity Date Redemption Amount" in relation to a Capital Security means 100
per cent. of its Prevailing Principal Amount together with any Outstanding
Payments;
"Non-Viability Event" means that the Regulator has notified the Issuer in
writing that it has determined that the Issuer has, or will, become Non-Viable
without:
(a) a Write-down; or
(b) a public injection of capital (or equivalent support);
"Non-Viability Event Write-down Date" shall be the date on which a Write-down
will take place as specified in a relevant Non-Viability Notice, which date
shall be as determined by the Regulator;
"Non-Viability Notice" has the meaning given to it in Condition 9.2
(#_bookmark26) (Write-Down at the Point of Non- Viability - Non-Viability
Notice);
"Non-Viable" means: (a) insolvent, bankrupt, unable to pay a material part of
its obligations as they fall due or unable to carry on its business; or (b)
any other event or circumstance occurs, which is specified as constituting
non-viability by the Regulator or in the Capital Regulations;
"Obligations" has the meaning given to it in Condition 4.2 (#_bookmark6)
(Status and Subordination - Subordination of the Capital Securities);
"Ordinary Shares" means ordinary shares of the Issuer;
"Other Common Equity Tier 1 Instruments" means securities issued by the Issuer
that qualify as Common Equity Tier 1 Capital of the Issuer other than Ordinary
Shares;
"Outstanding Payments" means, in relation to any amounts payable on redemption
of the Capital Securities, an amount representing any accrued and unpaid
interest for the Interest Period during which redemption occurs to the date of
redemption;
"Pari PassuObligations" means the Issuer's payment obligations (as issuer or
guarantor, as applicable) under all subordinated payment obligations of the
Issuer which rank, or are expressed to rank, pari passu with the Obligations;
"Payment Day" has the meaning given to it in Condition 6.4 (#_bookmark15)
(Payments - Payment Day);
"Prevailing Principal Amount" means, in respect of a Capital Security, the
initial principal amount of such Capital Security as reduced by any Write-down
of such Capital Security (on one or more occasions) pursuant to Condition 9
(#_bookmark25) (Write-Down at the Point of Non-Viability);
"Proceedings" has the meaning given to it in Condition 17.4 (#_bookmark36)
(Governing Law and Dispute Resolution - Effect of Exercise of Option to
Litigate);
"Qualifying Tier 2 Instruments" means instruments (whether securities, trust
certificates, interests in limited partnerships or otherwise) issued directly
or indirectly by the Issuer that:
(a) will be eligible to constitute (or would, but for any
applicable limitation on the amount of such capital, constitute) Tier 2
Capital;
(b) have terms and conditions not materially less favourable
to a holder of the Capital Securities than the terms and conditions of the
Capital Securities (as reasonably determined by the Issuer (provided that in
making this determination the Issuer is not required to take into account the
tax treatment of the varied instrument in the hands of all or any holders of
the Capital Securities, or any transfer or similar taxes that may apply on the
acquisition of the new instrument), provided that a certification to such
effect of two Authorised Signatories shall have been delivered to the Fiscal
Agent prior to the variation of the terms of the Capital Securities);
(c) continue to be direct or indirect obligations of the
Issuer;
(d) rank on a winding up at least pari passuwith the
Obligations;
(e) have the same outstanding principal amount and
interest payment dates as the Capital Securities and at least equal interest
or distribution rate or rate of return as the Capital Securities;
(f) (where the instruments are varied prior to the First
Call Date) have a first call date no earlier than the First Call Date and
otherwise have the same optional redemption dates as the Capital Securities
(as originally issued); and
(g) if, immediately prior to the variation of the terms of
the Capital Securities in accordance with Condition 8.1(d) (#_bookmark21)
(Redemption and Variation - Redemption or Variation due to Taxation) or
Condition 8.1(e) (#_bookmark23) (Redemption and Variation - Redemption or
Variation for Capital Event) (as applicable): (i) the Capital Securities were
listed or admitted to trading on a Regulated Market, have been listed or
admitted to trading on a Regulated Market; or (ii) the Capital Securities were
listed or admitted to trading on a recognised stock exchange other than a
Regulated Market, have been listed or admitted to trading on any
internationally recognised stock exchange (including, without limitation, a
Regulated Market), in each case, as selected by the Issuer and notified to the
holders of the Capital Securities in accordance with Condition 14
(#_bookmark33) (Notices),
and which may include such technical changes as necessary to reflect the
requirements of Tier 2 Capital under the Capital Regulations then applicable
to the Issuer (including, without limitation, such technical changes as may be
required in the adoption and implementation of the Basel III Documents);
"Record Date" means, in the case of any Interest Payment Amount, the date
falling on the 15(th) day before the relevant Interest Payment Date and, in
the case of the payment of a Redemption Amount, the date falling two Payment
Days before the date for payment of the relevant Redemption Amount (as the
case may be);
"Redemption Amount" means the Maturity Date Redemption Amount, the Early
Redemption Amount, the Tax Redemption Amount or the Capital Event Redemption
Amount (as the case may be);
"Register" has the meaning given to it in Condition 2.1 (#_bookmark3) (Form,
Denomination and Title - Form and Denomination);
"Regulated Market" means a regulated market for the purposes of Directive
2014/65/EU (as amended);
"Regulator" means the Central Bank or any successor entity having primary bank
supervisory authority with respect to the Issuer in the United Arab Emirates;
"Relevant Date" has the meaning given to it in Condition 11 (#_bookmark31)
(Taxation);
"Relevant Five-Year Reset Rate" means: (a) the per annum rate (expressed as a
decimal) equal to the weekly average yield to maturity for U.S. Treasury
securities with a maturity of five years and trading in the public securities
markets; or (b) in respect of any Reset Period, if there is no such published
U.S. Treasury security with a maturity of five years and trading in the public
securities markets, the rate determined by interpolation between the most
recent weekly average yield to maturity for two series of
U.S. Treasury securities trading in the public securities market: (i) one
maturing as close as possible to, but earlier than, the immediately following
Reset Date; and (ii) the other maturing as close as possible to, but later
than, the immediately following Reset Date, in each case as derived from the
most recent
H.15. In respect of the Reset Period, if the Issuer cannot procure the
determination of the Relevant Five- Year Reset Rate pursuant to the methods
described in (a) and (b) above, then the Relevant Five-Year Reset Rate will be
3.661 per cent.;
"Relevant Period" has the meaning given to it in Condition 5.1 (#_bookmark10)
(Interest - Initial Interest Rate and Interest Payment Dates);
"Reset Date" means 10 December 2029;
"Reset Period" means the period from and including the Reset Date to but
excluding the Maturity Date;
"Rules" has the meaning given to it in Condition 17.2 (#_bookmark34)
(Governing Law and Dispute Resolution - Arbitration);
"Senior Obligations" means all unsubordinated payment obligations of the
Issuer (including payment obligations to the Issuer's depositors in respect of
their due claims) and all subordinated payment obligations (if any) of the
Issuer except Junior Obligations or Pari Passu Obligations;
"Solvency Conditions" has the meaning given to it in Condition 4.3
(#_bookmark8) (Status and Subordination - Solvency Conditions);
"Solvent" means that: (a) the Issuer is able to pay its debts as they fall
due; and (b) the Issuer's Assets exceed its Liabilities;
"Tax Event" means on the occasion of the next payment due under the Capital
Securities, the Issuer has or will become obliged to pay Additional Amounts,
as a result of any change in, or amendment to or interpretation of, the laws,
published practice or regulations of a Tax Jurisdiction, or any change in the
application or official interpretation of such laws or regulations (each, a
"Tax Law Change"), which Tax Law Change becomes effective on or after the
Issue Date (and such requirement cannot be avoided by the Issuer taking
reasonable measures available to it), and provided that the Issuer satisfies
the Regulator that such Tax Law Change was not reasonably foreseeable at the
time of issuance of the Capital Securities;
"Tax Jurisdiction" has the meaning given to it in Condition 11 (#_bookmark31)
(Taxation); "Tax Law Change" has the meaning given to it in the definition of
"Tax Event";
"Tax Redemption Amount" in relation to a Capital Security means 100 per cent.
of its Prevailing Principal Amount together with any Outstanding Payments;
"Taxes" has the meaning given to it in Condition 11 (#_bookmark31) (Taxation);
"Tier 2 Capital" means capital qualifying as, and approved by the Regulator
as, tier 2 capital in accordance with the Capital Regulations;
"U.S. Government Securities Business Day" means any day except for a Saturday,
Sunday or a day on which the U.S. Securities Industry and Financial Markets
Association recommends that the fixed income departments of its members be
closed for the entire day for purposes of trading in U.S. government
securities;
"U.S. Securities Determination Date" means the second U.S. Government
Securities Business Day before the commencement of the Reset Period for which
the rate will apply;
"Write-down" means:
(a) the holders' rights under the Capital Securities shall
automatically be deemed to be irrevocably, unconditionally and permanently
written-down in a proportion corresponding to the relevant Write-down Amount;
(b) in the case of the Write-down Amount corresponding to
the full Prevailing Principal Amount of the Capital Securities then
outstanding, the Capital Securities shall be cancelled; and
(c) all rights of any holder for payment of any amounts
under or in respect of the Capital Securities (including, without limitation,
any amounts arising as a result of, or due and payable upon the occurrence of,
an Enforcement Event), in a proportion corresponding to the relevant
Write-down Amount (and any corresponding Interest Payment Amounts), shall be
cancelled and not restored under any circumstances, irrespective of whether
such amounts have become due and payable prior to the date of the
Non-Viability Notice or the Non-Viability Event Write-down Date,
and all references to "Written-down" shall be construed accordingly; and
"Write-down Amount" means, in relation to any Non-Viability Event Write-down
Date, the amount as determined by the Regulator by which the aggregate
Prevailing Principal Amount of the Capital Securities then outstanding is to
be Written-down on a pro rata basis and shall be calculated per Capital
Security by reference to the Prevailing Principal Amount of each Capital
Security then outstanding which is to be Written-down.
All references in these Conditions to "U.S. dollars", "U.S.$ " and "$" are to
the lawful currency of the United States of America.
2. FORM, DENOMINATION AND TITLE
2.1 Form and Denomination
The Capital Securities are issued in registered form in principal amounts of
U.S.$200,000 and integral multiples of U.S.$1,000 in excess thereof (each an
"Authorised Denomination"). An Individual Certificate will be issued to each
holder of the Capital Securities in respect of its registered holding of
Capital Securities. Each Individual Certificate will be numbered serially with
an identifying number which will be recorded on the relevant Individual
Certificate and in the register of holders of the Capital Securities (the
"Register").
Upon issue, the Capital Securities will be represented by the Global
Certificate which will be deposited with, and registered in the name of a
nominee for, a common depositary for Euroclear Bank SA/NV ("Euroclear") and
Clearstream Banking S.A. ("Clearstream, Luxembourg"). Ownership interests in
the Global Certificate will be shown on, and transfers thereof will only be
effected through, records maintained by Euroclear and Clearstream, Luxembourg
(as applicable), and their respective participants. The Conditions are
supplemented by certain provisions contained in the Global Certificate.
2.2 Title
The holder of any Capital Security will (except as otherwise required by law)
be treated as its absolute owner for all purposes (whether or not it is
overdue and regardless of any notice of ownership, trust or
any interest or any writing on, or the theft or loss of, the certificate
issued in respect of it) and no person will be liable for so treating the
holder.
For so long as any of the Capital Securities is represented by the Global
Certificate held on behalf of Euroclear and/or Clearstream, Luxembourg, each
person (other than Euroclear or Clearstream, Luxembourg) who is for the time
being shown in the records of Euroclear or of Clearstream, Luxembourg as the
holder of a particular principal amount of such Capital Securities (in which
regard any certificate or other document issued by Euroclear or Clearstream,
Luxembourg as to the principal amount of such Capital Securities standing to
the account of any person shall be conclusive and binding for all purposes
save in the case of manifest error) shall be treated by each of the Issuer and
the Agents as the holder of such principal amount of such Capital Securities
for all purposes other than with respect to the payment of principal or
interest on such principal amount of such Capital Securities, for which
purpose the registered holder of the Global Certificate shall be treated by
each of the Issuer and any Agent as the holder of such principal amount of
such Capital Securities in accordance with and subject to the terms of the
Global Certificate.
3. TRANSFERS OF CAPITAL SECURITIES AND EXCHANGE FOR INDIVIDUAL CERTIFICATES
3.1 Transfers of Interests in the Global Certificate
Capital Securities which are represented by the Global Certificate will be
transferable only in accordance with the rules and procedures for the time
being of Euroclear and/or Clearstream, Luxembourg (as the case may be).
3.2 Transfer of Individual Certificates
Subject to the conditions set forth in the Agency Agreement, Capital
Securities represented by Individual Certificates may be transferred in whole
or in part (in Authorised Denominations). In order to effect any such
transfer: (a) the holder or holders must: (i) surrender the relevant
Individual Certificate(s) for registration of the transfer of the Capital
Security (or the relevant part of the Capital Security) at the specified
office of any Transfer Agent, with the form of transfer thereon duly executed
by the holder or holders thereof or his or their attorney or attorneys duly
authorised in writing, and (ii) complete and deposit such other certifications
as may be required by the relevant Transfer Agent; and (b) the relevant
Transfer Agent must, after due and careful enquiry, be satisfied with the
documents of title and the identity of the person making the request. Any such
transfer will be subject to such reasonable regulations as the Issuer and the
Registrar may from time to time prescribe (the initial such regulations being
set out in schedule 5 to the Agency Agreement). Subject as provided above, the
relevant Transfer Agent will, within five business days (being for this
purpose a day on which commercial banks are open for business (including
dealings in foreign currencies) in the cities where the specified office of
the Registrar and (if applicable) the relevant Transfer Agent is located) of
the request (or such longer period as may be required to comply with any
applicable fiscal or other laws or regulations), authenticate and deliver, or
procure the authentication and delivery of, at its specified office to the
transferee or (at the risk of the transferee) send by uninsured mail, to such
address as the transferee may request, a new Individual Certificate of a like
aggregate principal amount to the Capital Security (or the relevant part of
the Capital Security) transferred. In the case of the transfer of part only of
a Capital Security represented by an Individual Certificate, a new Individual
Certificate in respect of the balance of the Capital Security not transferred
will be so authenticated and delivered or (at the risk of the transferor) sent
to the transferor.
3.3 Costs of Registration
Holders of the Capital Securities will not be required to bear the costs and
expenses of effecting any registration of transfer as provided above, except
for any costs or expenses of delivery other than by regular uninsured mail and
except that the Issuer may require the payment of a sum sufficient to cover
any stamp duty, tax or other governmental charge that may be imposed in
relation to the registration.
3.4 Exchange for Individual Certificates
Interests in the Global Certificate will be exchangeable (free of charge), in
whole but not in part, for Individual Certificates only upon the occurrence of
an Exchange Event (as defined below). The Issuer will give notice to holders
of the Capital Securities in accordance with Condition 14 (#_bookmark33)
(Notices) if an
Exchange Event occurs as soon as practicable thereafter. For these purposes,
an "Exchange Event" shall occur if: (a) an Enforcement Event has occurred; or
(b) the Issuer has been notified that both Euroclear and Clearstream,
Luxembourg have been closed for business for a continuous period of 14 days
(other than by reason of legal holiday) or have announced an intention
permanently to cease business or have in fact done so and, in any such case,
no successor clearing system satisfactory to the Issuer is available.
In such circumstances, the Global Certificate shall be exchanged in full for
Individual Certificates and the Issuer will, at the cost of the Issuer, cause
sufficient Individual Certificates to be executed and delivered to the
Registrar within 10 days following the request for exchange for completion and
dispatch to the holders of the Capital Securities.
3.5 Closed Periods
No holder of Capital Securities may require the transfer of a Capital Security
to be registered during the period of 15 calendar days ending on the due date
for any payment of principal or interest in respect of such Capital Security.
3.6 Other
References to Euroclear and/or Clearstream, Luxembourg shall, whenever the
context so permits, be deemed to include a reference to any additional or
alternative clearing system as shall have been approved by the Issuer and the
Fiscal Agent.
4. STATUS AND SUBORDINATION
4.1 Status of the Capital Securities
Each Capital Security will rank pari passu without preference or priority,
with all other Capital Securities.
4.2 Subordination of the Capital Securities
(a) The payment obligations of the Issuer under the
Capital Securities (the "Obligations") will: (i) constitute Tier 2 Capital of
the Issuer; (ii) constitute direct, unsecured, conditional (as described in
Condition 4.2 (#_bookmark6) (b) (#_bookmark7) (Status and Subordination -
Subordination of the Capital Securities) and Condition 4.3 (#_bookmark8)
(Status and Subordination - Solvency Conditions)) and subordinated obligations
of the Issuer that rank pari passu and without preference or priority amongst
themselves; (iii) rank subordinate and junior to all Senior Obligations (but
not further or otherwise); (iv) rank pari passu with all Pari Passu
Obligations; and (v) rank in priority only to all Junior Obligations.
(b) Notwithstanding any other provisions in these
Conditions, to the extent that any of the Solvency Conditions are not
satisfied at the relevant time or if a bankruptcy order in respect of the
Issuer has been issued by a court in the United Arab Emirates, all claims of
the holders of the Capital Securities under the Capital Securities will be
extinguished and the Capital Securities will be cancelled without any further
payment to be made by the Issuer under the Capital Securities.
(c) Subject to applicable law, each holder of the Capital
Securities unconditionally and irrevocably waives any right of set-off,
netting, counterclaim, abatement or other similar remedy which it might
otherwise have, under the laws of any jurisdiction, in respect of the
Obligations. No collateral is or will be given for the Obligations and any
collateral that may have been or may in the future be given in connection with
other obligations of the Issuer shall not secure the Obligations.
4.3 Solvency Conditions
Payments in respect of the Obligations by the Issuer are conditional upon the
following conditions (together, the "Solvency Conditions"):
(a) the Issuer being Solvent at all times from (and
including) the first day of the relevant Interest Period (or the Issue Date in
the case of the first Interest Period) to (and including) the time of payment
of the relevant Obligations;
(b) the Issuer being capable of making payment of the
relevant Obligations and any other payment required to be made on the relevant
date to a creditor in respect of all Senior Obligations and all Pari Passu
Obligations and still be Solvent immediately thereafter; and
(c) the total share capital (including, without
limitation, retained earnings) of the Issuer being greater than zero at all
times from (and including) the first day of the relevant Interest Period (or
the Issue Date in the case of the first Interest Period) to (and including)
the time of payment of the relevant Obligations.
4.4 Other Issues
So long as any of the Capital Securities remain outstanding, the Issuer will
not issue any securities (regardless of name or designation) or create any
guarantee of, or provide any contractual support arrangement in respect of,
the obligations of any other entity which in each case constitutes (whether on
a solo, or a solo consolidated or a consolidated basis) Tier 2 Capital of the
Issuer if claims in respect of such securities, guarantee or contractual
support arrangement would rank (as regards distributions on a return of assets
on a winding-up or in respect of distribution or payment of dividends and/or
any other amounts thereunder) senior to the Obligations. This prohibition will
not apply if at the same time or prior thereto these Conditions are amended to
ensure that: (a) the holders obtain; and/or (b) the Obligations have, in each
case, the benefit of such of those rights and entitlements as are contained in
or attached to such securities or under such guarantee or contractual support
arrangement as are required so as to ensure that claims in respect of the
Obligations rank pari passuwith, and contain substantially equivalent rights
of priority as to distributions or payments on, such securities or under such
guarantee or contractual support arrangement.
5. INTEREST
5.1 Initial Interest Rate and Interest Payment Dates
The Capital Securities shall, during the Initial Period, bear interest at a
rate of 5.8732 per cent. per annum (the "Initial Interest Rate") on the
Prevailing Principal Amount of the Capital Securities in accordance with the
provisions of this Condition 5. (#_bookmark9) The Interest Payment Amount
payable on each Interest Payment Date following the First Interest Payment
Date during the Initial Period shall be U.S.$29.366 per U.S.$1,000 in
principal amount of the Capital Securities.
Interest shall be payable on the Capital Securities semi-annually in arrear on
each Interest Payment Date, in each case as provided in this Condition 5.
(#_bookmark9)
If interest is required to be calculated in respect of a period of less than a
full Interest Period (the "Relevant Period"), it shall be calculated as an
amount equal to the product of: (a) the applicable Interest Rate; (b) the
Prevailing Principal Amount of the relevant Capital Security then outstanding;
and (c) the applicable Day-count Fraction for the Relevant Period, rounding
the resultant figure to the nearest cent (half a cent being rounded upwards).
5.2 Interest Rate following the Initial Period
For the purpose of calculating payments of interest following the Initial
Period, the Interest Rate will be reset on the Reset Date on the basis of the
aggregate of a margin of 2.214 per cent. per annum (the "Margin") and the
Relevant Five-Year Reset Rate on the relevant U.S. Securities Determination
Date, as determined by the Calculation Agent.
The Calculation Agent will, as soon as practicable upon determination of the
Interest Rate which shall apply to the Reset Period commencing on the Reset
Date, cause the applicable Interest Rate and the corresponding Interest
Payment Amount to be notified to each of the Paying Agents and the holders of
the Capital Securities in accordance with Condition 14 (#_bookmark33)
(Notices) as soon as possible after their determination but in no event later
than the second Business Day thereafter.
5.3 Determinations of Calculation Agent Binding
All notifications, determinations, certificates, calculations and decisions by
the Calculation Agent given, expressed, made or obtained for the purposes of
this Condition 5 (#_bookmark9) shall (in the absence of manifest error)
be binding on the other Agents and the holders of the Capital Securities and
(in the absence of manifest error) no liability to the holders of the Capital
Securities shall attach to the Calculation Agent in connection with the
exercise or non-exercise by it of any of its powers, duties and discretions.
6. PAYMENTS
6.1 Payments in respect of Individual Certificates
Subject as provided below, payments will be made by credit or transfer to an
account maintained by the payee with, or, at the option of the payee, by a
cheque drawn on, a bank in New York City.
Payments of principal in respect of each Capital Security will be made against
presentation and surrender of the Individual Certificate at the specified
office of the Registrar or any of the Paying Agents. Such payments will be
made by transfer to the Designated Account (as defined below) of the holder
(or the first named of joint holders) of the Capital Security appearing in the
Register at the close of business in the place of the Registrar's specified
office on the Record Date. Notwithstanding the previous sentence, if: (a) a
holder does not have a Designated Account; or (b) the principal amount of the
Capital Securities held by a holder is less than U.S.$200,000, payment will
instead be made by a cheque in U.S. dollars drawn on a Designated Bank (as
defined below). For these purposes, "Designated Account" means the account
maintained by a holder with a Designated Bank and identified as such in the
Register and "Designated Bank" means a bank in New York City.
Payments of interest in respect of each Capital Security will be made by a
cheque in U.S. dollars drawn on a Designated Bank and mailed by uninsured mail
on the business day in the city where the specified office of the Registrar is
located immediately preceding the relevant due date to the holder (or the
first named of joint holders) of the Capital Security appearing in the
Register at the close of business in the place of the Registrar's specified
office on the Record Date at his address shown in the Register on the Record
Date and at his risk. Upon application of the holder to the specified office
of the Registrar not less than three business days in the city where the
specified office of the Registrar is located before the due date for any
payment of interest in respect of a Capital Security, the payment may be made
by transfer on the due date in the manner provided in the preceding paragraph.
Any such application for transfer shall be deemed to relate to all future
payments of interest (other than interest due on redemption) in respect of the
Capital Securities which become payable to the holder who has made the initial
application until such time as the Registrar is notified in writing to the
contrary by such holder. Payments of interest due in respect of each Capital
Security on redemption will be made in the same manner as payment of the
principal amount of such Capital Security.
Holders of Capital Securities will not be entitled to any interest or other
payment for any delay in receiving any amount due in respect of any Capital
Security as a result of a cheque posted in accordance with this Condition 6.1
(#_bookmark13) arriving after the due date for payment or being lost in the
post. No commissions or expenses shall be charged to such holders by the
Registrar in respect of any payments of principal or interest in respect of
the Capital Securities.
6.2 Payments in respect of the Global Certificate
The holder of the Global Certificate shall be the only person entitled to
receive payments in respect of Capital Securities represented by the Global
Certificate and the Issuer will be discharged by payment to, or to the order
of, the holder of such Global Certificate in respect of each amount so paid.
Each of the persons shown in the records of Euroclear or Clearstream,
Luxembourg as the beneficial holder of a particular principal amount of
Capital Securities represented by such Global Certificate must look solely to
Euroclear or Clearstream, Luxembourg (as the case may be), for his share of
each payment so made by the Issuer, or to the order of, the holder of such
Global Certificate. Each payment made in respect of the Global Certificate
will be made to the person shown as the holder in the Register at the close of
business (in the relevant clearing system) on the Clearing System Business Day
before the due date for such payment, where "Clearing System Business Day"
means a day on which each clearing system for which the Global Certificate is
being held is open for business.
6.3 Payments Subject to Laws
All payments are subject in all cases to: (a) any applicable laws, regulations
and directives in the place of payment, but without prejudice to the
provisions of Condition 11 (#_bookmark31) (Taxation); and (b) any withholding
or deduction required pursuant to an agreement described in Section 1471(b) of
the U.S. Internal Revenue Code of 1986, as amended (the "Code") or otherwise
imposed pursuant to Sections 1471 through 1474 of the Code, any regulations or
agreements thereunder, official interpretations thereof, or any law in any
jurisdiction implementing an intergovernmental approach thereto. No commission
or expenses shall be charged to the holders of the Capital Securities in
respect of such payments.
6.4 Payment Day
If the date for payment of any amount in respect of the Capital Securities is
not a Payment Day, the holder thereof shall not be entitled to payment until
the next following Payment Day in the relevant place and shall not be entitled
to further interest or other payment in respect of such delay. For these
purposes, "Payment Day" means any day which (subject to Condition 12
(#_bookmark32) (Prescription)) is a day on which commercial banks and foreign
exchange markets settle payments and are open for general business (including
dealing in foreign exchange and foreign currency deposits) in New York City
and London.
6.5 Interpretation of principal and interest
Any reference in the Conditions to principal in respect of the Capital
Securities shall be deemed to include, as applicable:
(a) the Maturity Date Redemption Amount of the Capital
Securities;
(b) the Early Redemption Amount of the Capital Securities;
(c) the Tax Redemption Amount of the Capital Securities;
and
(d) the Capital Event Redemption Amount of the Capital
Securities.
Any reference in the Conditions to interest or Interest Payment Amounts in
respect of the Capital Securities shall be deemed to include, as applicable,
any Additional Amounts which may be payable with respect to interest under
Condition 11 (#_bookmark31) (Taxation).
7. AGENTS
The names of the initial Agents are set out above and their initial specified
offices are set out in the Agency Agreement.
The Issuer is entitled to vary or terminate the appointment of any Agent
and/or appoint additional or other Agents and/or approve any change in the
specified office through which any Agent acts, provided that:
(a) there will at all times be a Fiscal Agent and a
Registrar;
(b) with effect from the U.S. Securities Determination Date
prior to the Reset Date, and so long as any Capital Securities remain
outstanding thereafter, there will be a Calculation Agent;
(c) so long as the Capital Securities are listed on any
stock exchange or admitted to listing, trading and/or quotation by any other
relevant authority, there will at all times be a Paying Agent and a Transfer
Agent with a specified office in such place as may be required by the rules
and regulations of the relevant stock exchange or other relevant authority;
and
(d) there will at all times be a Paying Agent and a Transfer
Agent with a specified office in Europe.
Subject to the Agency Agreement, any variation, termination, appointment or
change shall only take effect (other than in the case of insolvency, when it
shall be of immediate effect) after not less than 30 nor more than 45 days'
prior notice thereof shall have been given to the holders of the Capital
Securities in accordance with Condition 14 (#_bookmark33) (Notices).
In acting under the Agency Agreement, the Agents act solely as agents of the
Issuer and do not assume any obligation to, or relationship of agency or trust
with, any holders of the Capital Securities. The Agency Agreement contains
provisions permitting any entity into which any Agent is merged or
converted or with which it is consolidated or to which it transfers all or
substantially all of its assets to become the successor paying agent.
8. REDEMPTION AND VARIATION
8.1 Redemption and Variation
(a) Redemption at Maturity
Unless previously redeemed and cancelled, the Issuer will redeem the Capital
Securities at the Maturity Date Redemption Amount on 10 December 2034 (the
"Maturity Date").
(b) Conditions for Redemption prior to the Maturity Date and Variation
The Issuer shall (subject to the provisions of Condition 4 (#_bookmark5)
(Status and Subordination), Condition 9 (#_bookmark25) (Write-Down at the
Point of Non-Viability) and Condition 10 (#_bookmark27) (Enforcement Events)
and without prejudice to the provisions of Condition 12 (#_bookmark32)
(Prescription)) only have the right to redeem the Capital Securities prior to
the Maturity Date or vary the terms thereof upon satisfaction of and in
accordance with the following provisions of this Condition 8. (#_bookmark16)
The redemption of the Capital Securities or variation of the Conditions prior
to the Maturity Date, in each case pursuant to this Condition 8,
(#_bookmark16) is subject to the following conditions (to the extent then
required by the Regulator or the Capital Regulations):
(i) the prior consent of the Regulator;
(ii) the requirement that both at the time when the relevant
notice of redemption or variation is given and immediately following such
redemption or variation (as applicable), the Issuer is or will be (as the case
may be) in compliance with the Applicable Regulatory Capital Requirements; and
(iii) the Solvency Conditions being satisfied.
(c) Issuer's Call Option
Subject to Condition 8.1(b) (#_bookmark19) (Redemption and Variation
-Conditions for Redemption prior to the Maturity Date and Variation), the
Issuer may (acting in its sole discretion), by giving not less than 10 nor
more than 15 days' prior written notice to the Fiscal Agent and the Registrar,
and to the holders of the Capital Securities in accordance with Condition 14
(#_bookmark33) (Notices) (which notice shall specify the date fixed for
redemption), redeem all, but not some only, of the Capital Securities at the
Early Redemption Amount (provided such notice has not been revoked by the
Issuer giving notice of such revocation to the Fiscal Agent and the Registrar,
and to the holders of the Capital Securities in accordance with Condition 14
(#_bookmark33) (Notices) (prior to the redemption date specified in the
initial notice)).
Redemption of the Capital Securities pursuant to this Condition 8.1
(#_bookmark17) (c) (#_bookmark20) may only occur on a Call Date.
(d) Redemption or Variation due to Taxation
(i) Subject to Condition 8.1(b) (#_bookmark19)
(Redemption and Variation - Conditions for Redemption prior to the Maturity
Date and Variation), upon the occurrence of a Tax Event, the Issuer may
(acting in its sole discretion), by giving not less than 10 nor more than 15
days' prior written notice to the Fiscal Agent and the Registrar, and to the
holders of the Capital Securities in accordance with Condition 14
(#_bookmark33) (Notices): (1) redeem all, but not some only, of the Capital
Securities at the Tax Redemption Amount; or (2) vary the terms of the Capital
Securities provided that they become or, as appropriate, remain, Qualifying
Tier 2 Instruments and so that the relevant withholding or deduction otherwise
arising from the relevant Tax Law Change is no longer required, in each case
without any requirement for consent or approval of the holders of the Capital
Securities.
(ii) Redemption of the Capital Securities, or variation of
the Conditions, in each case pursuant to this Condition 8.1 (#_bookmark17) (d)
(#_bookmark21) may occur on any date after the Issue Date (whether or not such
date is an Interest Payment Date).
(iii) At the same time as the publication of any notice of
redemption or variation (as the case may be) pursuant to this Condition 8.1
(#_bookmark17) (d), (#_bookmark21) the Issuer shall give to the Fiscal Agent:
(1) a certificate signed by two Authorised Signatories of the Issuer stating
that: (A) the relevant conditions set out in Condition 8.1(b) (#_bookmark19)
(Redemption and Variation - Conditions for Redemption prior to the Maturity
Date and Variation) have been satisfied; (B) a Tax Event has occurred; and (C)
in the case of a variation only, the varied Capital Securities will be
Qualifying Tier 2 Instruments and that the Regulator has confirmed that the
varied Capital Securities will satisfy limb (a) (#_bookmark2) of the
definition of Qualifying Tier 2 Instruments; and (2) an opinion of independent
legal advisors of recognised standing to the effect that the Issuer has or
will become obliged to pay Additional Amounts as a result of the Tax Event.
Such certificate delivered in accordance with this Condition 8.1(d)(iii)
(#_bookmark22) shall be conclusive and binding evidence of the satisfaction of
the conditions precedent set out in (1)(A) to (C) above. Upon expiry of such
notice, the Issuer shall redeem or vary the terms of the Capital Securities
(as the case may be) (provided such notice has not been revoked by the Issuer
giving notice of such revocation to the Fiscal Agent and the Registrar, and to
the holders of the Capital Securities in accordance with Condition 14
(#_bookmark33) (Notices) (prior to the redemption date specified in the
initial notice)).
(e) Redemption or Variation for Capital Event
(i) Subject to Condition 8.1(b) (#_bookmark19)
(Redemption and Variation - Conditions for Redemption prior to the Maturity
Date and Variation), upon the occurrence of a Capital Event, the Issuer may
(acting in its sole discretion), by giving not less than 10 nor more than 15
days' prior written notice to the Fiscal Agent and the Registrar, and to the
holders of the Capital Securities in accordance with Condition 14
(#_bookmark33) (Notices): (1) redeem all, but not some only, of the Capital
Securities at the Capital Event Redemption Amount; or (2) solely for the
purpose of ensuring compliance with Applicable Regulatory Capital
Requirements, vary the terms of the Capital Securities provided that they
become or, as appropriate, remain, Qualifying Tier 2 Instruments, in each case
without any requirement for consent or approval of the holders of the Capital
Securities.
(ii) Redemption of the Capital Securities, or variation of
the Conditions, pursuant to this Condition 8.1 (#_bookmark17) (e)
(#_bookmark23) may occur on any date after the Issue Date (whether or not an
Interest Payment Date).
(iii) At the same time as the delivery of any notice of
redemption or variation (as the case may be) pursuant to this Condition 8.1
(#_bookmark17) (e), (#_bookmark23) the Issuer shall give to the Fiscal Agent a
certificate signed by two Authorised Signatories stating that: (1) the
relevant conditions set out in Condition 8.1(b) (#_bookmark19) (Redemption and
Variation - Conditions for Redemption prior to the Maturity Date and
Variation) have been satisfied; (2) a Capital Event has occurred; and (3) in
the case of a variation only, the varied Capital Securities will be Qualifying
Tier 2 Instruments and that the Regulator has confirmed that the varied
Capital Securities will satisfy limb (a) (#_bookmark2) of the definition of
Qualifying Tier 2 Instruments. Such certificate shall be conclusive and
binding evidence of the satisfaction of the conditions precedent set out
above. Upon expiry of such notice, the Issuer shall redeem or vary the terms
of the Capital Securities (as the case may be) (provided such notice has not
been revoked by the Issuer giving notice of such revocation to the Fiscal
Agent and the Registrar, and to the holders of the Capital Securities in
accordance with Condition 14 (#_bookmark33) (Notices) (prior to the redemption
date specified in the initial notice)).
(f) Taxes upon Variation
In the event of a variation in accordance with Condition 8.1 (#_bookmark17)
(d) (#_bookmark21) (Redemption and Variation - Redemption or Variation due to
Taxation) or Condition 8.1 (#_bookmark17) (e) (#_bookmark23) (Redemption and
Variation - Redemption or Variation for Capital Event), the Issuer will not be
obliged to pay and will not pay any liability of any holder of the Capital
Securities to corporation tax, corporate income tax or tax on profits or gains
or any similar tax arising in respect of the variation of the terms of the
Capital Securities provided that (in the case of a Tax Event) or so that (in
the case of a Capital Event) they become or, as appropriate, remain,
Qualifying Tier 2 Instruments, including in respect of any stamp duty or
similar other taxes arising on any subsequent transfer, disposal or deemed
disposal of the Qualifying Tier 2 Instruments by such holder of the Capital
Securities.
(g) No redemption in the case of a Non-Viability Notice being delivered
The Issuer may not give a notice of redemption under Condition 8.1(c)
(#_bookmark20) (Redemption and Variation - Issuer's Call Option), Condition
8.1 (#_bookmark17) (d) (#_bookmark21) (Redemption and Variation - Redemption
or Variation due to Taxation) or Condition 8.1 (#_bookmark17) (e)
(#_bookmark23) (Redemption and Variation -Redemption or Variation for Capital
Event) if a Non-Viability Notice has been given in respect of the Capital
Securities. If a Non-Viability Notice is given after a notice of redemption
has been given by the Issuer under this Condition 8.1 (#_bookmark17) but
before the relevant date fixed for redemption, such notice of redemption shall
be deemed not to have been given and the Capital Securities shall not be
redeemed.
8.2 Purchase
Subject to the Issuer (to the extent then required by the Regulator or the
Capital Regulations): (a) obtaining the prior written consent of the
Regulator; (b) being in compliance with the Applicable Regulatory Capital
Requirements immediately following such purchase; and (c) being Solvent at the
time of purchase, the Issuer or any of its subsidiaries may purchase the
Capital Securities in the open market or otherwise at such price(s) and upon
such other conditions as may be agreed upon between the Issuer or the relevant
subsidiary (as the case may be) and the relevant holders of Capital
Securities. Upon any such purchase, the Issuer may (but shall not be obliged
to) deliver such Capital Securities for cancellation.
8.3 Cancellation
All Capital Securities which are redeemed will forthwith be cancelled. All
Capital Securities so cancelled and any Capital Securities purchased and
cancelled pursuant to Condition 8.2 (#_bookmark24) (Redemption and Variation -
Purchase) cannot be reissued or resold.
9. WRITE-DOWN AT THE POINT OF NON-VIABILITY
9.1 Non-Viability Event
If a Non-Viability Event occurs, a Write-down will take place in accordance
with Condition 9.2 (#_bookmark26) (Write- Down at the Point of Non-Viability -
Non-Viability Notice).
9.2 Non-Viability Notice
On the third Business Day following the date on which a Non-Viability Event
occurs (or on such earlier date as determined by the Regulator), the Issuer
will notify the Fiscal Agent, the Registrar and the holders of the Capital
Securities thereof (in accordance with Condition 14 (#_bookmark33) (Notices))
(such notice, a "Non- Viability Notice"). A Write-down will occur on the
Non-Viability Event Write-down Date.
In the case of a Write-down resulting in the reduction of the Prevailing
Principal Amount of each Capital Security then outstanding to nil, with effect
from the Non-Viability Event Write-down Date, the Capital Securities will be
automatically cancelled and the holders shall not be entitled to any claim for
any amount in connection with the Capital Securities.
10. ENFORCEMENT EVENTS
10.1 Enforcement Event
Upon the occurrence of an Enforcement Event, any holder of the Capital
Securities may give written notice to the Issuer at the specified office of
the Fiscal Agent, effective upon the date of receipt thereof by the Fiscal
Agent, that such Capital Security is due and payable, whereupon the same
shall, subject to Condition 9 (#_bookmark25) (Write-Down at the Point of
Non-Viability) and Condition 10.4 (#_bookmark30) (Enforcement Events -
Restrictions) become forthwith due and payable at its Early Redemption Amount,
without presentation, demand, protest or other notice of any kind.
10.2 Dissolution Remedies
To the extent permitted by applicable law and by these Conditions, any holder
of the Capital Securities may at its discretion: (a) institute any steps,
actions or proceedings for the winding-up of the Issuer; and/or (b) prove in
the winding-up of the Issuer; and/or (c) claim in the liquidation of the
Issuer; and/or
(d) take such other steps, actions or proceedings which, under the laws of the
United Arab Emirates, have an analogous effect to the actions referred to in
(a) to (c) above (in each case, without prejudice to Condition 4.2
(#_bookmark6) (Status and Subordination - Subordination of the Capital
Securities)), for such payment referred to in Condition 10.1 (#_bookmark28)
(Enforcement Events - Enforcement Event), but the institution of any such
steps, actions or proceedings shall not have the effect that the Issuer shall
be obliged to pay any sum or sums sooner than would otherwise have been
payable by it.
Subject to Condition 10.3 (#_bookmark29) (Enforcement Events - Performance
Obligations), no remedy against the Issuer, other than the steps, actions or
proceedings to enforce, prove or claim referred to in this Condition 10,
(#_bookmark27) and the proving or claiming in any dissolution/winding-up or
liquidation of the Issuer, shall be available to the holders of the Capital
Securities, whether for the recovering of amounts owing in respect of the
Capital Securities or in respect of any breach by the Issuer of any other
obligation, condition or provision binding on it under the Capital Securities.
10.3 Performance Obligations
Without prejudice to the other provisions of this Condition 10, (#_bookmark27)
any holder of the Capital Securities may at its discretion institute such
steps, actions or proceedings against the Issuer as it may think fit to
enforce any term or condition binding on the Issuer under these Conditions, in
each case, other than any payment obligation of the Issuer (including, without
limitation, payment of any principal or satisfaction of any payments in
respect of the Conditions, including any damages awarded for breach of any
obligations). However, in no event shall the Issuer, by virtue of the
institution of any such steps, actions or proceedings, be obliged to pay any
sum or sums sooner than would otherwise have been payable by it.
10.4 Restrictions
All claims by any holder of the Capital Securities against the Issuer
(including, without limitation, any claim in relation to any unsatisfied
payment obligation of the Issuer under the Capital Securities) shall be
subject to, and shall be superseded by: (a) the provisions of Condition 9
(#_bookmark25) (Write-Down at the Point of Non-Viability), irrespective of
whether the relevant Non-Viability Event occurs prior to or after the event
which is the subject matter of the claim; and (b) the provisions of Condition
4 (#_bookmark5) (Status and Subordination), irrespective of whether the breach
of a Solvency Condition at the relevant time or the issue of a bankruptcy
order in respect of the Issuer occurs prior to or after the event which is the
subject matter of the claim.
11. TAXATION
All payments of principal and interest in respect of the Capital Securities by
the Issuer will 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 within the Tax Jurisdiction ("Taxes") unless such
withholding or deduction is required by law. In such event, the Issuer will
pay such additional amounts in respect of Interest Payment Amounts (but not in
respect of principal) as shall be necessary in order that the net amounts
received by the holders of the Capital Securities after such withholding or
deduction shall equal the respective Interest Payment Amount(s) which would
otherwise have been receivable in respect of the Capital Securities (as the
case may be), in the absence of such withholding or deduction ("Additional
Amounts"); except that no such Additional Amounts shall be payable with
respect to any Capital Security:
(a) presented for payment (where presentation is required)
by or on behalf of a holder who is liable for such taxes, duties, assessments
or governmental charges in respect of such Capital Security by reason of his
having some connection with the Tax Jurisdiction other than the mere holding
of such Capital Security; or
(b) presented for payment (where presentation is required)
more than 30 days after the Relevant Date (as defined below) except to the
extent that the holder thereof would have been entitled to an
Additional Amount on presenting the same for payment on such 30(th) day
assuming that day to have been a Payment Day; or
(c) presented for payment in a Tax Jurisdiction. As used
in these Conditions:
(i) "Tax Jurisdiction" means the United Arab Emirates or
Ras Al-Khaimah or, in each case, any political sub-division or any authority
thereof or therein having power to tax; and
(ii) the "Relevant Date" means the date on which such
payment 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 holders of the Capital Securities in accordance
with Condition 14 (#_bookmark33) (Notices) that, upon further presentation of
the Capital Security in accordance with the Conditions, such payment will be
made, provided that payment is in fact made upon such presentation.
Notwithstanding any other provision in these Conditions, in no event will the
Issuer be required to pay any additional amounts in respect of the Capital
Securities for, or on account of, any withholding or deduction required
pursuant to an agreement described in Section 1471(b) of the Code or otherwise
imposed pursuant to Sections 1471 through 1474 of the Code, any regulations or
agreements thereunder, or any official interpretations thereof, or any law
implementing an intergovernmental approach thereto.
12. PRESCRIPTION
Subject to applicable law, claims for payment in respect of the Capital
Securities will become void unless made within a period of 10 years (in the
case of principal) and 5 years (in the case of interest) after the Relevant
Date therefor.
13. REPLACEMENT OF INDIVIDUAL CERTIFICATES
Should any Individual Certificate be lost, stolen, mutilated, defaced or
destroyed, it may be replaced, subject to applicable laws, regulations and
stock exchange or other relevant authority regulations, at the specified
office of the Registrar upon payment by the claimant of such costs and
expenses as may be 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 Individual Certificate is subsequently
presented for payment, there shall be paid to the Issuer on demand the amount
payable by the Issuer in respect of such Individual Certificate) and otherwise
as the Issuer and the Registrar may require. Mutilated or defaced Individual
Certificates must be surrendered before replacements will be issued.
14. NOTICES
All notices to the holders of the Capital Securities will be valid if mailed
to them at their respective addresses in the register of the holders of the
Capital Securities maintained by the Registrar. The Issuer shall also ensure
that notices are duly given or published in a manner which complies with the
rules and regulations of any stock exchange or other relevant authority on
which the Capital Securities are for the time being admitted to listing,
trading and/or quotation. Any notice shall be deemed to have been given on the
second day after being so mailed or on the date of publication or, if so
published more than once or on different dates, on the date of the first
publication.
For so long as all the Capital Securities are represented by the Global
Certificate and the Global Certificate is held on behalf of Euroclear and/or
Clearstream, Luxembourg, notices may be given by delivery of the relevant
notice to those clearing systems for communication to the holders rather than
by mailing as provided for in the paragraph above except that, so long as the
Capital Securities are listed on any stock exchange and/or admitted to
listing, trading and/or quotation by any other relevant authority, notices
shall also be published in accordance with the rules of such stock exchange or
other relevant authority on which the Capital Securities are admitted to
listing, trading and/or quotation. Any such notice shall be deemed to have
been given on the day on which such notice is delivered to the relevant
clearing systems.
Notices to be given by any holder of the Capital Securities shall be in
writing and given by lodging the same, together (in the case of any Individual
Certificate) with the relevant Individual Certificate(s), with the Registrar.
Whilst any of the Capital Securities are represented by a Global Certificate,
such notice may be given by any holder of a Capital Security to the Registrar
through Euroclear and/or Clearstream, Luxembourg (as the case may be), in such
manner as the Registrar, and Euroclear and/or Clearstream, Luxembourg (as the
case may be) may approve for this purpose.
15. MEETINGS OF HOLDERS OF THE CAPITAL SECURITIES AND MODIFICATION
The Agency Agreement contains provisions for convening meetings of the holders
of the Capital Securities to consider any matter affecting their interests,
including the sanctioning by Extraordinary Resolution of a modification of the
Capital Securities or any of the provisions of the Agency Agreement or the
Deed of Covenant. Such a meeting may be convened by the Issuer and shall be
convened by the Issuer if required in writing by holders of the Capital
Securities holding not less than 10 per cent. in principal amount of the
Capital Securities for the time being remaining outstanding. The quorum at any
such meeting for passing an Extraordinary Resolution is one or more persons
holding or representing in aggregate not less than 50 per cent. in principal
amount of the Capital Securities for the time being outstanding, or at any
adjourned meeting one or more persons being or representing holders of the
Capital Securities whatever the principal amount of the Capital Securities so
held or represented, except that at any meeting the business of which includes
the modification of certain provisions of the Capital Securities (as specified
in the Agency Agreement, and including (without limitation) modifying any date
for payment of interest thereon, reducing or cancelling the amount of
principal or the rate of interest payable in respect of the Capital
Securities, altering the currency of payment of the Capital Securities or
modifying the provisions concerning the quorum required at any meeting of
holders of the Capital Securities or the majority required to pass the
Extraordinary Resolution), the quorum shall be one or more persons holding or
representing not less than two-thirds in principal amount of the Capital
Securities for the time being outstanding, or at any adjourned such meeting
one or more persons holding or representing not less than one-third in
principal amount of the Capital Securities for the time being outstanding. An
Extraordinary Resolution passed at any meeting of the holders of the Capital
Securities shall be binding on all the holders of the Capital Securities,
whether or not they are present at the meeting, and whether or not they voted
on the resolution.
The Agency Agreement provides that a written resolution signed by or on behalf
of all the holders of Capital Securities shall for all purposes be as valid
and effective as an Extraordinary Resolution passed at a meeting of holders of
the Capital Securities duly convened and held. Such a written resolution may
be contained in one document or several documents in the same form, each
signed by or on behalf of one or more of the holders of the Capital
Securities. Such a written resolution will be binding on all holders of the
Capital Securities whether or not they participated in such written
resolution.
The Fiscal Agent and the Issuer may agree, without the consent of the holders
of the Capital Securities, to:
(a) any modification (except as mentioned above) of the
Capital Securities, the Agency Agreement or the Deed of Covenant which is not
prejudicial to the interests of the holders of the Capital Securities (as
determined by the Issuer in its sole opinion); or
(b) any modification of the Capital Securities, the Agency
Agreement or the Deed of Covenant which is of a formal, minor or technical
nature or is made to correct a manifest or proven error or to comply with
mandatory provisions of the law.
In addition, the Fiscal Agent shall be obliged to agree to such modifications
of the Capital Securities, the Agency Agreement or the Deed of Covenant as may
be required in order to give effect to Condition 8.1(d) (#_bookmark21)
(Redemption and Variation - Redemption or Variation due to Taxation) or
Condition 8.1(e) (#_bookmark23) (Redemption and Variation - Redemption or
Variation for Capital Event) in connection with any variation of the Capital
Securities upon the occurrence of a Tax Event or a Capital Event (as
applicable).
Any such modification shall be binding on the holders of the Capital
Securities and any such modification shall be notified to the holders of the
Capital Securities in accordance with Condition 14 (#_bookmark33) (Notices) as
soon as practicable thereafter.
16. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
No rights are conferred on any person under the Contracts (Rights of Third
Parties) Act 1999 to enforce any term of these Conditions, but this does not
affect any right or remedy of any person which exists or is available apart
from that Act.
17. GOVERNING LAW AND DISPUTE RESOLUTION
17.1 Governing law
The Agency Agreement, the Deed of Covenant and the Capital Securities, and any
non-contractual obligations arising out of or in connection with the Agency
Agreement, the Deed of Covenant and the Capital Securities, are governed by,
and shall be construed in accordance with, English law.
17.2 Arbitration
Subject to Condition 17.3 (#_bookmark35) (Governing Law and Dispute Resolution
- Option to Litigate), any dispute, claim, difference or controversy arising
out of, relating to or having any connection with the Capital Securities
(including any dispute as to their existence, validity, interpretation,
performance, breach or termination or the consequences of their nullity and
any dispute, claim, difference or controversy relating to any non-contractual
obligations arising out of or in connection with the Capital Securities) (a
"Dispute") shall be referred to and finally resolved by arbitration in
accordance with the LCIA Arbitration Rules (the "Rules"), which Rules (as
amended from time to time) are incorporated by reference into this Condition
17.2. (#_bookmark34) For these purposes:
(a) the seat, or legal place of arbitration shall be
London, England;
(b) the language of the arbitration shall be English;
(c) there shall be three arbitrators, each of whom shall
be disinterested in the arbitration and shall have no connection with any
party thereto and shall be an attorney experienced in international securities
transactions. The parties to the Dispute shall each nominate one arbitrator
and both arbitrators, together, shall appoint a further arbitrator who shall
be the chair of the tribunal. In cases where there are multiple claimants
and/or multiple respondents, the class of claimants jointly, and the class of
respondents jointly shall each nominate one arbitrator. Without prejudice to
Article 8 of the Rules, in the event that one party to the Dispute, or both,
fails to nominate an arbitrator within the time limits specified by the Rules,
such arbitrator(s) shall be appointed by the LCIA. If the party nominated
arbitrators fail to appoint the third arbitrator within 15 days of the
appointment of the second arbitrator, such arbitrator shall be appointed by
the LCIA; and
(d) the governing law of the arbitration shall be English.
17.3 Option to Litigate
(a) Notwithstanding Condition 17.2 (#_bookmark34)
(Governing Law and Dispute Resolution - Arbitration), any holder of the
Capital Securities may, in the alternative, and at its sole discretion, by
notice in writing to the Issuer:
(i) within 28 days of service of a Request for
Arbitration (as defined in the Rules); or
(ii) in the event no arbitration is commenced,
require that a Dispute be heard by a court of law. If any holder of the
Capital Securities gives such notice, the Dispute to which such notice refers
shall be determined in accordance with Condition 17.4 (#_bookmark36)
(Governing Law and Dispute Resolution - Effect of Exercise of Option to
Litigate) and, subject as provided below, any arbitration commenced under
Condition 17.2 (#_bookmark34) (Governing Law and Dispute Resolution -
Arbitration) in respect of that Dispute will be terminated. Each person who
gives such notice and the recipient of that notice will bear its own costs in
relation to such terminated arbitration.
(b) If any notice to terminate the arbitration in accordance
with this Condition 17.3 (#_bookmark35) is given after service of any Request
for Arbitration in respect of any Dispute, the holder of the Capital
Securities must also promptly give notice to the LCIA Court and to any
Tribunal (each as defined in the Rules) already appointed in relation to the
Dispute that such Dispute will be settled by the courts. Upon receipt of such
notice by the LCIA Court, the arbitration and any appointment of any
arbitrator in relation to such Dispute will immediately terminate. Any such
arbitrator will be deemed to be functus officio. The termination is without
prejudice to:
(i) the validity of any act done or order made by that
arbitrator or by the court in support of that arbitration before his
appointment is terminated;
(ii) his entitlement to be paid his proper fees and
disbursements; and
(iii) the date when any claim or defence was raised for the
purpose of applying any limitation bar or any similar rule or provision.
17.4 Effect of Exercise of Option to Litigate
In the event that a notice pursuant to Condition 17.3 (#_bookmark35)
(Governing Law and Dispute Resolution - Option to Litigate) is issued, the
following provisions shall apply:
(a) subject to paragraph (c) (#_bookmark38) below, the
courts of England shall have exclusive jurisdiction to settle any Dispute and
the Issuer submits to the exclusive jurisdiction of such courts;
(b) the Issuer agrees that the courts of England are the
most appropriate and convenient courts to settle any Dispute and, accordingly,
that it will not argue to the contrary; and
(c) this Condition 17.4 (#_bookmark36) is for the benefit
of the holders of the Capital Securities only. As a result, and
notwithstanding paragraph (a) (#_bookmark37) above, any holder of the Capital
Securities may take proceedings relating to a Dispute ("Proceedings") in any
other court with jurisdiction. To the extent allowed by law, any holder of the
Capital Securities may take concurrent Proceedings in any number of
jurisdictions.
17.5 Service of Process
The Issuer appoints Maples and Calder at its registered office at 11(th)
Floor, 200 Aldersgate Street, London, EC1A 4HD, United Kingdom as its agent
for service of process and agrees that, in the event of Maples and Calder
ceasing so to act or ceasing to be registered in the United Kingdom, it will
immediately (and in any event within 30 days of the event taking place)
appoint another person as its agent for service of process in England in
respect of any Proceedings or Disputes. Failure by a process agent to notify
the person that appointed it of any process will not invalidate the relevant
proceedings. Nothing herein shall affect the right to serve process in any
other manner permitted by law.
17.6 Waiver of Immunity
The Issuer hereby irrevocably and unconditionally waives, with respect to the
Capital Securities, any right to claim sovereign or other immunity from
jurisdiction or execution and any similar defence and irrevocably and
unconditionally consents to the giving of any relief or the issue of any
process, including without limitation, the making, enforcement or execution
against any property whatsoever (irrespective of its use or intended use) of
any order or judgment made or given in connection with any Proceedings or
Disputes.
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