PAA NorthCap 9.3.1 - NorthCapital Finance GmbH

NorthCapital
Paying Agency Agreement
EUR 250,000,000 Bond Issue
4.5% - Bonds 04/2015 - 04/2020
Common Code: 120650327
Official CFI: DTFXFB
ISIN: XS1206503275
NorthCapital Finance GmbH
as Issuer
and
Banque Internationale à Luxembourg S.A.
as Paying Agent
March 2015
NorthCapital
Contents
Article
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. Interpretation ..................................................................................................................... 3 Definitions.......................................................................................................................... 4 Appointment of Agents ........................................................................................................ 4 Authentication and Delivery of Bonds ..................................................................................... 5 Payment to the Paying Agent ................................................................................................ 5 Notification of Non-Payment by the Issuer .............................................................................. 6 Duties of the Paying Agents .................................................................................................. 6 Reimbursement of the Paying Agents ..................................................................................... 6 Notice of any Withholding or Deduction .................................................................................. 7 Duties of the Paying Agent in connection with Optional Redemption of Bonds .............................. 7 Publication of Notices ........................................................................................................... 7 Copies of this Agreement Available for Inspection .................................................................... 7 Cancellation Of Bonds .......................................................................................................... 7 Commissions and Expenses .................................................................................................. 8 Indemnity .......................................................................................................................... 8 Repayment by Paying Agent ................................................................................................. 8 Conditions of Appointment ................................................................................................... 8 Communication with Paying Agents ....................................................................................... 9 Termination of Appointment ............................................................................................... 10 Notices ............................................................................................................................ 11 Variation .......................................................................................................................... 12 Counterparts .................................................................................................................... 12 Language ......................................................................................................................... 12 Jurisdiction ....................................................................................................................... 12 Governing Law .................................................................................................................. 13 Entire Agreement .............................................................................................................. 13 cc
Schedule 1
Schedule 2
Schedule 3
Global Certificate
Terms & Conditions of the Notes
Fee Proposal
cc
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THIS AGREEMENT is dated 31 March 2015 and made
BETWEEN:
(1) NorthCapital Finance GmbH, a private limited liability company (Gesellschaft mit beschränkter
Haftung) incorporated under the laws Germany with registered office at Kurfürstendamm 21, 10719
Berlin, Germany and registered with the Register of Companies in Berlin under number HRB 163956B as
issuer (the “Issuer”); and
(2) Banque Internationale à Luxembourg S.A., a public company with limited liability incorporated
as a “société anonyme” under the laws of the Grand Duchy of Luxembourg having its registered office at
69, route d’Esch, L-2953 Luxembourg and registered with the Luxembourg Register of Commerce and
Companies under number B 6307 (the “Paying Agent” and “Principal Paying Agent”).
WHEREAS:
(A)
The Issuer proposes to issue bonds in the aggregate principal amount of up to EUR
250,000,000 (the “Bonds”) in one or more tranches at any time. The Issuer will provide a Private
Placement Memorandum to the investors in written form (the “Memorandum”). This Memorandum will
be delivered to BIL for information. The Terms and Conditions of the Notes will be in the form set out in
the Memorandum.
(B)
The Bonds will be issued in bearer form in denominations of EUR 100 each and a minimum
subscription of EUR100,000.
(C)
The Bonds will be represented by a Global Certificate without interest coupons (the “Global
Certificate” or the “Global Note”) in or substantially in the form set out in Schedule 1.
The Notes, however, will initially be in the form of the Temporary Global Note which will be deposited on
or around the Issue Date with a common depositary for Euroclear and Clearstream, Luxembourg. The
Temporary Global Note will be exchangeable in whole or in part for interests in the Permanent Global
Note (together with the Temporary Global Note, the “Note”) not earlier than 40 days after the Issue
Date upon certification as to non-U.S. beneficial ownership. Definitive Bonds with interest coupons
attached will not be issued.
NOW IT IS HEREBY AGREED as follows:
1.
Interpretation
1.1
In this paying agency agreement (the “Agreement”), except so far as the context otherwise
requires and subject to any contrary indication, words and expressions defined and expressed to
be construed in the terms and conditions of the Bonds (the "Terms and Conditions of the
Bonds") shall have the same meaning and construction mutatis mutandis herein.
1.2
References to the parties, Clauses and the Schedules are respectively to the parties, Clauses
and Schedules of this Agreement
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2.
Definitions
2.1
As used in this Agreement:
“Authorised Signatory”
means any person who (i) is a director or (ii) has been
notified by the Issuer in writing to the Paying Agent as
being duly authorised to sign documents and to do
other acts and things on behalf of the Issuer for the
purposes of this Agreement;
“Clearstream, Luxembourg”
means Clearstream Banking, société anonyme;
“Euroclear”
means Euroclear Bank S.A./N.V.;
“Luxembourg Business Day”
means a day on which banks are open for business in
Luxembourg and the Trans-European Automated Realtime Gross Settlement Express Transfer 2 (TARGET2)
System is open for business.
“Principal Paying Agent
and Paying Agent”
means and includes each principal paying agent and
paying agent from time to time appointed to exercise
the powers and undertake the duties conferred and
imposed upon it by this Agreement and notified to the
holders under clause 20;
“Specified Office”
2.2
means the offices specified in clause 20 or any other
specified offices as may from time to time be duly
notified pursuant to clause 20.
In this Agreement, unless the contrary intention appears, a reference to:
2.2.1
an amendment includes a supplement, restatement or novation and amended is to
be construed accordingly;
2.2.2
the records of Euroclear and Clearstream, Luxembourg shall be to the records that
each of Euroclear and Clearstream, Luxembourg holds for its customers which reflect
the amount of such customer’s interest in the Bonds;
2.3
the headings in this Agreement do not affect its interpretation;
2.4
all references in this Agreement to costs or charges or expenses shall include any value added
tax or similar tax charged or chargeable in respect thereof; and
2.5
all references in this Agreement to Bonds shall, unless the context otherwise requires, include
the Global Certificate.
3.
Appointment of Agents
3.1
The Issuer appoints, on the
Internationale à Luxembourg
Agents” and each a “Paying
of, and interest on, the Bonds
3.2
The Paying Agent accepts its appointment as Paying Agent of the Issuer and agrees to comply
terms and subject to the conditions of this Agreement Banque
S.A. as Principal Paying Agent and Paying Agent (the “Paying
Agent”) in respect of the Bonds and for the payment of principal
in each case acting at its Specified Office.
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with the provisions of this Agreement and of the Terms and Conditions of the Bonds.
4.
Authentication and Delivery of Bonds
4.1
The Issuer undertakes that the Global Certificate (duly executed on behalf of the Issuer) will be
delivered to the Paying Agent on or prior to the issue date of the Bonds.
4.2
The Issuer authorises and instructs the Paying Agent to authenticate the Global Certificate
delivered pursuant to subclause 4.1.
4.3
The Paying Agent shall cause all Bonds delivered to and held by it under this Agreement to be
maintained in safe custody and in accordance with the terms of this Agreement. Furthermore,
the Paying Agent undertakes that it shall handle the Global Certificate at all times in accordance
with the rules and procedures of Euroclear Bank and Clearstream Banking Luxembourg
4.4
Defaulted Bonds: Where the Principal Paying Agent acts as receiving bank for the Issuer in
respect of the purchase price of the Bond being issued, if on the relevant Issue Date an Investor
does not pay the full purchase price due from it in respect of any Bond (the “Defaulted Bond”)
and, as a result, the Defaulted Bond remains in the Principal Paying Agent's distribution account
with the relevant Clearing System after such Issue Date, the Principal Paying Agent will continue
to hold the Defaulted Bond to the order of the Issuer. The Principal Paying Agent shall notify the
Issuer forthwith of the failure of the Investor to pay the full purchase price due from it in
respect of any Defaulted Bond and, subsequently, shall notify (i) the Issuer forthwith upon
receipt from the Investor of the full purchase price in respect of such Defaulted Bond and (ii)
pay to the Issuer the amount so received.
4.5
Repayment of advance: If the Principal Paying Agent pays an amount (the “Advance”) to the
Issuer on the basis that a payment (the “Payment”) has been or will be received from an
Investor and if the Payment is not received by the Principal Paying Agent on the date the
Principal Paying Agent pays the Issuer, the Issuer shall repay to the Principal Paying Agent the
Advance and shall pay interest on the Advance (or the unreimbursed portion thereof) from (and
including) the date the Advance is made to (but excluding) the earlier of repayment of the
Advance or receipt by the Principal Paying Agent of the Payment at a rate quoted at that time by
the Principal Paying Agent as its cost of funding the Advance. For the avoidance of doubt, the
Principal Paying Agent shall not be obliged to pay any amount to or for the Issuer if it has not
received satisfactory confirmation that it is to receive that amount.
5.
Payment to the Paying Agent
5.1
The Issuer shall, not later than 10.00 a.m. (Luxembourg time) on the second Luxembourg
Business Day preceding the relevant date on which any payment of principal and/or interest in
respect of any of the Bonds becomes due under the Terms and Conditions of the Bonds, transfer
to an account specified by the Paying Agent such amount of euro as shall be sufficient for the
purposes of the payment of principal and/or interest.
5.2
The Issuer shall ensure that, not later than the second Luxembourg Business Day immediately
preceding the date on which any payment is to be made to the Paying Agent pursuant to
subclause 5.1, the Paying Agent shall receive a copy of an irrevocable payment instruction to
the bank through which the payment is to be made.
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6.
Notification of Non-Payment by the Issuer
6.1
The Paying Agent shall notify each of the other Paying Agents (if any) forthwith:
6.1.1
if it has not by the relevant date specified in subclause 5.1 received unconditionally the
full amount in euro required for the payment; and
6.1.2
if it receives unconditionally the full amount of any sum due in respect of the Bonds
and the coupons after such date.
6.2
The Paying Agent shall, at the expense of the Issuer, forthwith upon receipt of any amount as
described in subparagraph 6.1.2, cause notice of that receipt to be provided to the other Paying
Agents.
7.
Duties of the Paying Agents
7.1
Subject to the payments to the Paying Agent provided for by Clause 5 being duly made, the
Paying Agents shall act as Paying Agents of the Issuer in respect of the Bonds and pay or cause
to be paid on behalf of the Issuer, on and after each date on which any payment becomes due
and payable, the amounts of principal and/or interest then payable, under the Terms and
Conditions of the Bonds and this Agreement. If any payment provided for by Clause 5 is made
late but otherwise under the terms of this Agreement the Paying Agents shall nevertheless act
as Paying Agents following receipt by them of payment.
7.2
If default is made by the Issuer in respect of any payment, unless and until the full amount of
the payment has been made under the terms of this Agreement (except as to the time of
making the same) or other arrangements satisfactory to the Paying Agent have been made,
neither the Paying Agent nor any of the other Paying Agents shall be bound to act as Paying
Agents.
7.3
If for any reason the Agent considers in its sole discretion that the amounts to be received by it
under subclause 7.1 will be, or the amounts actually received by it are, insufficient to satisfy all
claims in respect of all payments then falling due in respect of the Notes, no Paying Agent shall
be obliged to pay any such claims until the Agent has received the full amount of all such
payments.
7.4
Without prejudice to subclauses 7.1 and 7.2, if the Paying Agent pays any amounts to the
holders of Bonds or to any other Paying Agent at a time when it has not received payment in full
in respect of the Bonds in accordance with subclause 5.1 (the excess of the amounts so paid
over the amounts so received being the “Shortfall”), the Issuer will, in addition to paying
amounts due under subclause 5.1, pay to the Paying Agent on demand interest (at a rate which
represents the Paying Agent's cost of funding the Shortfall) on the Shortfall (or the
unreimbursed portion thereof) until the receipt in full by the Paying Agent of the Shortfall.
7.5
Whilst any Bonds are represented by a Global Certificate, all payments due in respect of the
Bonds shall be made to, or to the order of, the holder of the Global Certificate, subject to and in
accordance with the provisions of the Global Certificate.
8.
Reimbursement of the Paying Agents
8.1
The Paying Agent shall charge the account referred to in Clause 5 for all payments made by it
under this Agreement and will credit or transfer to the respective accounts of the other Paying
Agents the amount of all payments made by them under the Terms and Conditions of the Bonds
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immediately upon notification from them, subject in each case to any applicable laws or
regulations.
9.
Notice of any Withholding or Deduction
9.1
If the Issuer is, in respect of any payment in respect of the Bonds, compelled to withhold or
deduct any amount for or on account of any taxes under the Bonds, the Issuer shall give notice
to the Paying Agent as soon as it becomes aware of the requirement to make the withholding or
deduction and shall give to the Paying Agent such information as the Paying Agent shall require
to enable it to comply with the requirement.
10.
Duties of the Paying Agent in connection with Optional Redemption of Bonds
10.1
If the Issuer decides to redeem all of the Bonds for the time being outstanding under Condition
5.3 of the Terms and Conditions of the Bonds (Redemption at the Option of the Issuer), it shall
give notice of the decision stating the date on which the Bonds are to be redeemed and the
nominal amount of Bonds to be redeemed not less than 15 days before the redemption date or
the date on which the Issuer will give notice to the Bondholders in accordance with the Terms
and Conditions of the Bonds.
10.2
On behalf of the Issuer, the Paying Agent shall before or at the same time as it notifies the
holders, notify the other Paying Agents, if any, of the date fixed for redemption.
10.3
The Paying Agent shall instruct Euroclear and Clearstream, Luxembourg to make appropriate
entries in their records in respect of all Bonds redeemed by the Issuer to reflect such
redemptions.
11.
Publication of Notices
11.1
Forthwith upon the receipt by the Paying Agent of a demand or notice from any holder (events
of default), the Paying Agent shall forward a copy of the demand or notice to the Issuer.
12.
Copies of this Agreement Available for Inspection
12.1
The Paying Agents shall hold copies of this Agreement and any other documents, issued by the
Issuer in relation to the Bonds available for inspection. For this purpose, the Issuer shall furnish
the Paying Agents with sufficient copies of each of such documents.
13.
Cancellation Of Bonds
13.1
All Bonds which are surrendered in connection with a redemption shall be cancelled by the
Paying Agent to which they are surrendered. Each of the Paying Agents shall give to the Paying
Agent details of all payments made by it and shall deliver all cancelled Bonds to the Paying
Agent (or as the Paying Agent may specify).
13.2
The Paying Agent or its authorised paying agent shall (unless otherwise instructed by the Issuer
in writing) destroy all cancelled Bonds and coupons and furnish the Issuer with a certificate of
destruction.
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14.
Commissions and Expenses
14.1
The Issuer shall pay to the Paying Agent the commissions in respect of the services under this
Agreement as agreed between the Issuer and the Paying Agent in a fee proposal letter signed 2
February 2015 but mistakenly dated 27 April 2015.
14.2
The Issuer shall also pay to the Paying Agent an amount equal to any value added tax which
may be payable in respect of the commissions together with all reasonable expenses incurred by
the Paying Agents in connection with its services under this Agreement.
14.3
At the request of the Paying Agent or of the Issuer, the parties to this Agreement may from
time to time during the continuance of this Agreement review the commissions agreed initially
pursuant to subclause 14.1 with a view to determining in good faith whether the parties can
mutually agree upon any changes to the commissions.
15.
Indemnity
15.1
The Issuer undertakes to indemnify each of the Paying Agents against all losses, liabilities,
costs, claims, actions, damages, expenses or demands which any of them may incur or which
may be made against any of them as a result of or in connection with the appointment of or the
exercise of the powers and duties by any Paying Agent under this Agreement except as may
result from its own default, negligence or bad faith or that of its directors, officers or employees
or any of them, or breach by it of the terms of this Agreement.
15.2
The indemnity set out above shall survive any termination of this Agreement.
16.
Repayment by Paying Agent
16.1
Sums paid by or by arrangement with the Issuer to the Paying Agent pursuant to the terms of
this Agreement shall not be required to be repaid to the Issuer unless and until any Bond or
coupon becomes void but in that event the Paying Agent shall forthwith repay to the Issuer
sums equivalent to the amounts which would otherwise have been payable in respect of the
relevant Bond or coupon.
17.
Conditions of Appointment
17.1
Subject as provided in subclause 17.3, the Paying Agent shall be entitled to deal with money
paid to it by the Issuer for the purposes of this Agreement in the same manner as other money
paid to a banker by its customers and shall not be liable to account to the Issuer for any interest
or other amounts in respect of the money. No money held by any Paying Agent need be
segregated except as required by law.
17.2
In acting under this Agreement and in connection with the Bonds and the coupons the Paying
Agents shall act solely as paying agents of the Issuer and will not assume any obligations
towards or relationship of agency or trust for or with any of the holders of the Bonds or the
coupons.
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17.3
No Paying Agent shall exercise any right of set-off or lien against the Issuer or any holders of
Bonds in respect of any money payable to or by it under the terms of this Agreement.
17.4
Except as otherwise ordered by a court of competent jurisdiction or required by law or otherwise
instructed by the Issuer, each of the Paying Agents shall be entitled to treat the holder of any
Bond or coupon as the absolute owner for all purposes (whether or not the Bond or coupon shall
be overdue and notwithstanding any notice of ownership or other writing on the Bond or coupon
or any notice of previous loss or theft of the Bond or coupon).
17.5
The Paying Agents shall be obliged to perform such duties and only such duties as are set out in
this Agreement and the Terms and Conditions of the Bonds and no implied duties or obligations
shall be read into this Agreement or the Bonds against the Paying Agents other than the duty to
act honestly and in good faith and to exercise the diligence of a reasonably prudent paying
agent in comparable circumstances.
17.6
The Paying Agent may consult with legal and other professional advisers and the opinion of the
advisers shall be full and complete protection in respect of action taken, omitted or suffered
under this Agreement in good faith and in accordance with the opinion of the advisers.
17.7
Each of the Paying Agents shall be protected and shall incur no liability for or in respect of action
taken, omitted or suffered in reliance upon any instruction, request or order from the Issuer or
any document which it reasonably believes to be genuine and to have been delivered by the
proper party or parties or upon written instructions from the Issuer. Each of the Agents are
entitled to do nothing, without liability, if conflicting, unclear or equivocal instructions are
received or in order to comply with any applicable law.
17.8
Any of the Paying Agents, their officers, directors or employees may become the owner of, or
acquire any interest in, Bonds or coupons with the same rights that it or he would have if the
Paying Agent concerned was not appointed under this Agreement, and may engage or be
interested in any financial or other transaction with the Issuer, and may act on, or as
depositary, trustee or paying agent for, any committee or body of holders of Bonds or coupons,
or other obligations of the Issuer, as freely as if the Paying Agent were not appointed under this
Agreement.
17.9
The Paying Agent shall not be under any obligation to take any action under this Agreement
which it expects will result in any expense or liability accruing to it, the payment of which within
a reasonable time is not, in its opinion, assured to it.
17.10
The Issuer shall provide the Paying Agent with a copy of the list of the Authorised Signatories
and shall notify the Paying Agent in writing if any of such persons ceases to be an Authorised
Signatory or if any additional person becomes an Authorised Signatory and, unless and until
notified of any such change, the Paying Agent shall be entitled to rely upon any notice,
communication or other document by an Authorised Signatory.
17.11
The Paying Agent shall have no duty or responsibility in the case of any default by the relevant
Issuer in the performance of its obligations under the Terms and Conditions of the Bonds.
17.12
Nothing in this Agreement shall require the Paying Agents to assume an obligation of the Issuer
arising under any provision of the Luxembourg Act dated 10 July 2005 on prospectuses for
securities as amended (or the equivalent rules of any other competent authority besides the
Commission de Surveillance du Secteur Financier).
18.
Communication with Paying Agents
18.1
A copy of all communications relating to the subject matter of this Agreement between the
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Issuer and any of the Paying Agents other than the Paying Agent shall be sent to the Paying
Agent.
19.
Termination of Appointment
19.1
The Issuer may terminate the appointment of any Paying Agent at any time and/or appoint
additional or other Paying Agents by giving to the Paying Agent whose appointment is concerned
and, where appropriate, the Paying Agent at least 90 days' prior written notice to that effect,
provided that, so long as any of the Bonds is outstanding:
19.1.1
in the case of a Paying Agent, the notice shall not expire less than 45 days before any
due date for the payment of interest; and
19.1.2
notice shall be given at least 30 days before the removal or appointment of a Paying
Agent.
19.2
Notwithstanding the provisions of subclause 19.1, if at any time a Paying Agent becomes
incapable of acting, or is adjudged bankrupt or insolvent, or files a voluntary petition in
bankruptcy or makes an assignment for the benefit of its creditors or consents to the
appointment of an administrator, liquidator or administrative or other receiver of all or any
substantial part of its property, or if an administrator, liquidator or administrative or other
receiver of it or of all or a substantial part of its property is appointed, or it admits in writing its
inability to pay or meet its debts as they may mature or suspends payment of its debts, or if an
order of any court is entered approving any petition filed by or against it under the provisions of
any applicable bankruptcy or insolvency law or if a public officer takes charge or control of the
Paying Agent or of its property or affairs for the purpose of rehabilitation, administration or
liquidation, the Issuer may forthwith without notice terminate the appointment of the Paying
Agent, in which event notice shall be given to the holders as soon as is practicable.
19.3
The termination of the appointment of a Paying Agent under this Agreement shall not entitle the
Paying Agent to any amount by way of compensation but shall be without prejudice to any
amount then accrued due.
19.4
Any of the Paying Agents may resign their respective appointments under this Agreement at any
time by giving to the Issuer and, where appropriate, the Paying Agent at least 90 days' prior
written notice to that effect provided that, so long as any of the Bonds is outstanding, the notice
shall not, in the case of a Paying Agent, expire less than 45 days before any due date for the
payment of interest. Following receipt of a notice of resignation from a Paying Agent, the Issuer
shall promptly, and in any event not less than 30 days before the resignation takes effect, give
notice to the holders. If the Paying Agent shall resign or be removed pursuant to subclauses
19.1 or 19.2 above or in accordance with this subclause 19.4, the Issuer shall promptly and in
any event within 30 days appoint a successor. If the Issuer fails to appoint a successor within
such period, the Paying Agent may select a leading bank to act as Paying Agent hereunder and
the Issuer shall appoint that bank as the successor Paying Agent.
19.5
Notwithstanding the provisions of subclauses 19.1 , 19.2 and 19.4, so long as any of the Bonds
is outstanding, the termination of the appointment of a Paying Agent (whether by the Issuer or
by the resignation of the Paying Agent) shall not be effective unless upon the expiry of the
relevant notice there is a Paying Agent;
19.6
Any successor of the Paying Agent shall execute and deliver to its predecessor, the Issuer and,
where appropriate, the Paying Agent an instrument accepting the appointment under this
Agreement, and the successor Paying Agent, without any further act, deed or conveyance, shall
become vested with all the authority, rights, powers, trusts, immunities, duties and obligations
of the predecessor with like effect as if originally named as a Paying Agent.
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19.7
If the appointment of a Paying Agent under this Agreement is terminated (whether by the Issuer
or by the resignation of the Paying Agent), the Paying Agent shall on the date on which the
termination takes effect deliver to its successor Paying Agent all Bonds and coupons
surrendered to it but not yet destroyed and all records concerning the Bonds and coupons
maintained by it (except such documents and records as it is obliged by law or regulation to
retain or not to release) and pay to its successor Paying Agent the amounts (if any) held by it in
respect of Bonds or coupons which have become due and payable but which have not been
presented for payment, but shall have no other duties or responsibilities under this Agreement
and shall be released and discharged from its obligations under this Agreement.
19.8
If the Paying Agent or any of the other Paying Agents shall change its Specified Office, it shall
give to the Issuer and, where appropriate, the Paying Agent not less than 45 days' prior written
notice to that effect giving the address of the new Specified Office. As soon as practicable
thereafter and in any event at least 30 days before the change, the Paying Agent shall give to
the holders on behalf of and at the expense of the Issuer notice of the change and the address
of the new Specified Office.
19.9
A corporation into which any Paying Agent for the time being may be merged or converted or a
corporation with which the Paying Agent may be consolidated or a corporation resulting from a
merger, conversion or consolidation to which the Paying Agent shall be a party shall, to the
extent permitted by applicable law, be the successor Paying Agent under this Agreement
without the execution or filing of any paper or any further act on the part of any of the parties
to this Agreement. Notice of any merger, conversion or consolidation shall forthwith be given to
the Issuer and, where appropriate, the Paying Agent.
20.
Notices
20.1
The initial postal address, email address and fax number so designated by each party are:
The Issuer:
NorthCapital Finance GmbH
Kurfürstendamm 21
10719 Berlin
Germany
attention: Kim Hersland and/or Ulf Mex
telephone: +49 30 / 311 697 270
facsimile: +49 30 / 311 697 299
mail to: u.mex@wsp-finance.com
The Paying Agent:
Banque Internationale à Luxembourg S.A.
69 route d'Esch
L - 2953 Luxembourg
attention: Transaction Execution Group
facsimile: + 352 4590 4227
telephone:+ 352 4590 3000
mail to: paying.agency@bil.com
or such other address of which notice in writing has been given to the other parties to this
Agreement under the provisions of this Clause.
20.2
All notices and other communications under this Agreement shall, save as otherwise provided in
this Agreement, be made in writing and in English (by letter, email or fax) and shall be sent to
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the intended recipient at the postal address, email address or fax number and marked for the
attention of the person (if any) from time to time designated by that party to the other parties
hereto for such purpose provided that communications with legal significance may not be sent
via email. The initial postal address, email address and fax number so designated by each party
are set out on the signature page of this Agreement.
20.3
Any communication from any party to any other under this Agreement shall be effective if sent
by letter or fax, upon dispatch provided that any such notice or other communication which
would otherwise take effect after 17.00 (Luxembourg time) on any particular day shall not take
effect until 10.00 (Luxembourg time) on the immediately succeeding Luxembourg Business Day.
21.
Variation
21.1
No variation of this Agreement (including this Clause 21) shall be effective unless it is in writing
and signed by (or by some person duly authorised by) each of the parties hereto.
22.
Counterparts
22.1
This Agreement may be executed (including by facsimile) in any number of counterparts, each
of which, when so executed, shall be deemed to be an original and all of which when taken
together shall constitute a single agreement.
23.
Language
23.1
This Agreement is made in the English language and this English language version of this
Agreement shall be binding on the parties hereto and shall prevail over any translation of this
Agreement provided that in the case of any French term or phrase expressly referred to in this
Agreement, the corresponding English term shall only be a translation and the French term or
phrase shall prevail
24.
Jurisdiction
24.1
Each of the parties hereto irrevocably agrees that the courts of Luxembourg, Grand Duchy of
Luxembourg shall have exclusive jurisdiction to hear and determine any suit, action or
proceeding, and to settle any disputes, which may arise out of or in connection with this
Agreement.
24.2
Each of the parties hereto irrevocably waives any objection which it might now or hereafter have
to the courts referred to in Clause 24.1 being nominated as the forum to hear and determine
any suit, action or proceeding, and to settle any disputes, which may arise out of or in
connection with this Agreement and agrees not to claim that any such court is not a convenient
or appropriate forum.
24.3
Each of the parties hereto hereby consents generally to any legal action or proceeding arising
out of or in connection with this Agreement as it relates to the giving of any relief or regarding
the issuance of any process in connection with such action or proceeding including, without
limitation, the making, enforcement or execution against any property whatsoever (irrespective
of its use or intended use) of any order or judgment which may be made or given in such suit,
action or proceeding.
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25.
Governing Law
25.1
This Agreement shall be governed by and construed in accordance with the laws of the Grand
Duchy of Luxembourg.
26.
Entire Agreement
26.1
This Agreement (and any fee letters entered into between the parties hereto from time to time
in relation hereto) constitutes the entire agreement among the parties hereto with respect to
the subject matter of this Agreement superseding all prior oral or written understandings.
26.2
This Agreement has been executed in two (2) originals on the day and year first before written
and each party acknowledges receipt of one signed original.
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IN WITNESS WHEREOF this Agreement has been duly executed by the Parties hereto by their duly
authorized representatives on the date set out below.
The Issuer:
NorthCapital Finance GmbH
The Paying Agent:
Banque Internationale à Luxembourg S.A.
By:
_______________________________
Name: Kim Hersland
_______________________________
Name:
Title:
Title:
CEO
By:
_______________________________
Name: Ulf Michael Mex
Title:
_______________________________
Name:
COO
Title:
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Schedule 1
Global Certificate
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Schedule 2
Terms and Conditions of the Notes
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Schedule 3
Fee Proposal
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