WiseAlpha Bond Agreement
THIS INSTRUMENT is made by way of DEED POLL on 09 February 2017 by WISEALPHA INVESTMENT LIMITED, a company incorporated under the laws of the British Virgin Islands, whose registered address is at Intertrust Corporate Services (BVI) Limited, Nemours Chambers, Road Town, Tortola, British Virgin Islands VG1110 (the “Company”).
(A) The Company has, pursuant to resolutions of its board of directors dated 09 February 2017, authorised the issue of various series of unsecured non-convertible non-transferable bonds of the Company (the bonds of which series being hereinafter called the ‘Bonds’ constituted by this Deed Poll).
(B) Each series of Bonds will be issued on their respective Initial Issue Date.
THIS DEED WITNESSES AND IT IS DECLARED as follows:
Unless otherwise defined herein, terms defined in the Conditions or the relevant Final Terms shall have the same meanings herein. In addition, the following expressions have the following meanings:
“Aggregate Nominal Amount” in respect of the Bonds in issue at any time, the aggregate principal amount of the Bonds outstanding at that time and/or all accrued interest thereon;
“Bondholder or Bondholders” the person(s) from time to time entered in the Register as holders of the Bonds;
“Business Day” a day other than a Saturday or a Sunday on which banks are open for business in London
“Commencement Date” the date of issue of the relevant series of Bonds as specified in the Final Terms
“Directors” the board of directors of the Company from time to time
“Instrument” this instrument
“Interest Payment Date” the dates specified in the Final Terms that fall after the Commencement Date and each subsequent date thereafter;
“Interest rate” the rate specified in the Final Terms;
“Maximum Notional Amount” the maximum aggregate nominal amount of Bonds per Bondholder (if any), as set out in the Final Terms
“Minimum Nominal Amount” the minimum aggregate nominal amount of Bonds per Bondholder (if any), as set out in the Final Terms
“Nominal Amount” the nominal amount of each Bond as set out in the Final Terms
“Recognised Investment Exchange” has the meaning ascribed to that term in section 285 of the Financial Services and Markets Act 2000
“Register” the register of Bondholders maintained by the company as provided for in Clause 11
“Registered Office” the registered office of the Company from time to time
“Repayment Date” subject to prepayment by the Company in accordance with the terms of this Instrument, the repayment date is specified in the applicable Final Terms.
"Conditions" means, in respect of the Bonds of each Series, the terms and conditions applicable thereto which shall be substantially in the form set out in Schedule 1 to this Deed Poll and incorporating any additional provisions forming part of such terms and conditions set out in the Final Terms (substantially in the form of Schedule 2 to this Deed Poll) relating to the Bonds of that Series. Any reference to a particularly numbered Condition shall be construed accordingly;
"Event of Default" means an event described in Condition 11;
"Government Authority" means any nation, sovereign or government, any state, province, territory or other political subdivision thereof, and any entity or authority exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including a central bank or stock exchange;
"Law" means, as to any Person on any date of determination, any domestic, foreign or other statute, law, rule, regulation, judgment, order (including judicial or executive), ordinance, code or rule of common law, decree, permit, concession, grant, franchise, license, agreement, directive, approval, filing, registration, requirement of, or other restriction imposed by, or any similar form of decision of or determination by, or any interpretation or administration of any of the foregoing by, any Governmental Authority, to the extent legally binding on such Person or its assets, or to which such Person or its assets is otherwise legally subject, on and as of such date of determination;
"Bondholder" or, in respect of a Bond, "holder" means a Person in whose name a Bond is registered in the register of Bondholders;
"Bonds" means Bonds, issued in minimum denominations of £100 each or integral multiples of £0.01 (or the euro equivalent should the Specified Currency be euro) in excess thereof in registered form constituted by this Deed Poll and for the time being Outstanding or, as the context may require, a specific number or principal amount of them issued pursuant to the Conditions;
"Person" means any individual, partnership, joint venture, firm, corporation, company, entity, association, trust or other enterprise or any Governmental Authority;
“Provisions for Meetings of Bondholders” means those provisions for all meetings of Bondholders;
"Register" has the meaning set out in Condition 4(a);
"Specified Office" means, the office identified with its name as listed in the Final Terms or any other office notified to the Bondholders pursuant to Clause 6.12;
"this Deed Poll" means this Deed Poll (as from time to time altered in accordance with the terms of this Deed Poll) and any other document executed in accordance with the terms of this Deed Poll (as from time to time so altered) and expressed to be supplemental to this Deed Poll.
1.2 Construction of Certain References
1.2.1 costs, charges, remuneration or expenses include any withholding, value added, turnover or similar tax charged in respect thereof; and
1.2.2 an action, remedy or method of judicial proceedings for the enforcement of rights of creditors shall include references to the action, remedy or method of judicial proceedings in jurisdictions other than England and Wales as shall most nearly approximate thereto;
Headings shall be ignored in construing this Deed Poll.
The Schedules are part of this Deed Poll and have effect accordingly.
1.5 Contracts (Rights of Third Parties) Act 1999
A Person who is not a party to this Deed Poll has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Deed Poll other than the Bondholders as expressly provided for in this Deed Poll and except and to the extent (if any) that this Deed Poll expressly provides for such Act to apply to any of its terms.
2. Amount AND ISSUE of the Bonds and Covenant to Pay
2.1 Issue and Amount of the Bonds
The Company may from time to time issue Bonds of one or more Series on a continuous basis. Upon the issue by the Company of any Bonds expressed to be constituted by this Deed Poll, such Bonds shall forthwith be constituted by this Deed Poll without any further formality and irrespective of whether or not the issue of such debt securities contravenes any covenant or other restriction in this Deed Poll.
2.2 Separate Series
The provisions of sub-clauses 2.3 and 2.4, and of clauses 3 to 13 of this Deed Poll (all inclusive) and the Provisions for Meetings of Bondholders shall apply mutatis mutandis separately and independently to the Bonds of each Series and in such clauses and the Provisions for Meetings of Bondholders the expression "Bondholders" together with all other terms that relate to Bonds or their Conditions, shall be construed as referring to those of the particular Series in question and not of all Series unless expressly so provided, so that each Series shall be constituted by a separate trust pursuant to sub-clause 2.3 and that, unless expressly provided, events affecting one Series shall not affect any other.
2.3 Covenant to Pay
Subject to the Conditions, the Company shall on any date when the Bonds or any of them become due to be redeemed in accordance with the Conditions or any principal or default interest on the Bonds or any of them becomes or become due to be repaid in accordance with the Conditions, unconditionally pay or procure to be paid to the relevant Bondholder in the relevant Specified Currency in immediately available funds the principal amount of the Bonds or any of them becoming due for redemption on that date together with any applicable premium and additional amounts.
Any payment to be made in respect of the Bonds by the Company may be made as provided in the Conditions and any payment so made will to such extent be a good discharge to the Company.
3. Form of the Bonds
The initial issue and delivery of the Bonds on each Initial Issue Date shall be complete on the issue of the Final Terms relating to a Series and completion of the register of Bondholders appending the relevant Final Terms thereto. Any subsequent issuance of Bonds of the same “up to” Series (pursuant to Condition 13(b)) on any subsequent Issue Date shall be completed by the issuance thereof and payment therefor. The Issuer will subsequently procure that the register of Bondholders be promptly updated with the details of such issuance.
Upon full or partial redemption of any of the Bonds for any reason, a notation shall be made in the register of Bondholders reflecting such event.
3.3 Entitlement to Treat Holder As Owner
A Bondholder shall (save as otherwise required by Law) be treated as the absolute owner of a Bond registered in its name for all purposes (whether or not it is overdue and regardless of any notice of ownership, trust or any interest in it or any writing on) and no Person will be liable for so treating the holder. Payments made to such holder in accordance with the Conditions will be valid and effective to satisfy and discharge the liability for relevant moneys payable on the Bonds to such holder.
4. Stamp Duties
The Company shall pay any stamp, issue, registration, documentary, transfer or other taxes, including interest and penalties, payable in respect of the creation, issue and offering of the Bonds and the execution or delivery of this Deed Poll.
5. Further Issues
5.1 Liberty to Create
Pursuant to Condition 13 (Further Issues), the Company may, from time to time without the consent of the Bondholders, create and issue Further Bonds.
5.2 Means of Constitution
Except in relation to any Further Bonds issued as part of an existing “up to” Series pursuant to Condition 13(b), any Further Bonds created and issued pursuant to the provisions of Clause 5.1 so as to form a single series with the Bonds or an existing Series thereof shall be constituted by a deed supplemental to this Deed Poll and any other Further Bonds created and issued pursuant to the provisions of Clause 5.1 may, be so constituted. The Company shall, prior to the issue of any Further Bonds to be so constituted, execute and deliver a deed supplemental to this Deed Poll (if applicable duly stamped or denoted) and containing a covenant in the form mutatis mutandis of Clause 2 of this Deed Poll in relation to the principal and interest (or other return) in respect of such Further Bonds.
5.3 Meetings of Bondholders
The Provisions for Meetings of Bondholders shall apply equally to Bondholders and to holders of any securities issued pursuant to the Conditions as if references in it to "Bonds" and "Bondholders" were also to such securities and their holders respectively.
5.4 Notice of Further Issues
Except in relation to any Further Bonds issued as part of any existing “up to” Series pursuant to Condition 13(b), whenever it is proposed to create and issue any Further Bonds, the Company shall give to the Bondholders not less than two (2) Business Days' notice in writing of its intention to do so, stating the amount of Further Bonds proposed to be created or issued.
5.5 Separate Series
Any Further Bonds not forming a single series with an existing series of the Bonds shall form a separate series and accordingly the provisions of Clauses 2.2 shall apply mutatis mutandis to such Bonds separately and independently to the Bonds of each such existing series and in such Clauses and Schedule the expressions "Bonds" and "Bondholders" shall be construed accordingly.
6. General Covenants
So long as any Bond is outstanding, the Company covenants to and shall:
6.1 General Compliance
Comply with, perform and observe the provisions of this Deed Poll and the Conditions;
6.2 Notice of Events of Default
Notify the Bondholders immediately on becoming aware of the occurrence of any Event of Default;
So far as permitted by applicable Law, procure such opinions, certificates, information and evidence as the Company shall reasonably require and in such form as it shall reasonably require for the purpose of the discharge or exercise of the duties, trusts, powers, authorities and discretions vested in it under this Deed Poll or by operation of Law;
6.4 Information Material to Bondholders
Make available as many further copies or translations as they may request in order to satisfy any reasonable request from Bondholders from time to time;
6.5 Notices to Bondholders
All notices shall be issued at the expense of the Company;
6.6 Further Acts
So far as permitted by applicable Law, execute all such further documents and do such further things as may be necessary to give effect to this Deed Poll and the Bonds;
6.7 Notice of Late Payment
Forthwith upon becoming aware dispatch notice to the Bondholders in accordance with Condition 11 of any unconditional payment of any sum due in respect of the Bonds that by the time of such notice has not been made or was made after the due date for such payment;
6.8 Deed Poll
Comply with and perform and observe all the provisions of this Deed Poll which are expressed to be binding on it, including the Conditions and the Provisions for Meetings of Bondholders;
6.9 Filing, Registration and Reporting
Duly and punctually comply with or procure that there is complied with all filing, registration, reporting and similar requirements required in accordance with applicable Law from time to time relating in any manner whatsoever to this Deed Poll and the Bonds;
6.10 Consents, Approvals and Authorisations
Obtain, comply with and do all that is necessary to maintain in full force and effect any governmental or regulatory consents, approval, authorisation, resolution, license or exemption required by the Company relating in any manner whatsoever to this Deed Poll and the Bonds;
7 Proof of Default
7.1 Proof of Default
Proof that the Company has failed to issue payment of a sum due to the holder of any one Bond will (unless the contrary be proved) be sufficient evidence that it has made the same default as regards all other Bonds which are then payable.
Where under this Deed Poll provision is made for the exercise of any discretion by the Company, any such discretion may be exercised as the Company may think fit and all such consents and approvals may be given or exercised with retrospective effect.
The Bonds, the Conditions, this Deed Poll, may be amended without the consent of the Bondholders, except to determine any matter relating to an Event of Default pursuant to Condition 11 (Events of Default) and provided always that in relation to any amendment to the Bonds, these Conditions, this Deed Poll, the Company shall act reasonably and in good faith and not in manner which is materially prejudicial to the Bondholders. Any such modification, waiver or authorisation will be binding on the Bondholders and any such modifications will be notified by the Company to the Bondholders as soon as practicable thereafter.
The Company may, without the consent of Bondholders, substitute itself with another company in accordance with Condition 14 (Substitution).
10. Currency Indemnity
10.1 Currency of Account and Payment
The relevant Specified Currency is the currency of account and payment for all sums payable by the Company under or in connection with this Deed Poll and the Bonds, including damages shall be made in the Specified Currency.
10.2 Extent of Discharge
Any amount received or recovered in a currency other than the relevant Specified Currency (whether as a result of, or of the enforcement of, a judgment or order of a court of any jurisdiction, in the winding-up or dissolution of the Company or otherwise) by any Bondholder in respect of any sum expressed to be due to it from the Company will only discharge the Company to the extent of the Specified Currency amount which the recipient is able to purchase with the amount so received or recovered in that other currency on the date of that receipt or recovery (or, if it is not practicable to make that purchase on that date, on the first date on which it is practicable to do so).
If that Specified Currency amount is less than the Specified Currency amount expressed to be due to the recipient under this Deed Poll or the Bonds, the Company shall indemnify it against any loss sustained by it as a result. In any event, the Company shall indemnify the recipient against the cost of making any such purchase.
10.4 Indemnities Separate
The indemnity in this Clause 10 constitutes a separate and independent obligation from the other obligations in this Deed Poll, will give rise to a separate and independent cause of action, will apply irrespective of any indulgence granted by any Bondholder and will continue in full force and effect despite any judgment, order, claim or proof for a liquidated amount in respect of any sum due under this Deed Poll and/or the Bonds or any other judgment or order. No proof of actual loss may be required.
10.5 Continuing Effect
This Clause 10 will continue in full force and effect even if the Bonds are no longer Outstanding or this Deed Poll have been discharged.
Any notice required to be given under this Deed Poll to any of the parties shall be made in (or translated into) the English language and shall be by letter sent by registered post or courier to the Company:
WiseAlpha Investment Limited
C/O Intertrust Corporate Services (BVI) Limited
171 Main Street
British Virgin Islands
With a copy to:
WiseAlpha Technologies Limited
Level 39 One Canada Square, Canary Wharf
Any notice or demand sent by post as provided in this Clause shall be deemed (unless any relevant part of the postal service is affected by industrial action) to have been given, made or served three (3) days (in the case of inland post) or seven (7) days (in the case of overseas post) after despatch and any notice sent by fax as provided in this Clause shall be deemed to have been given, made or served 24 hours after despatch and receipt of confirmation of error-free transmission (if received during business hours and, if not, on the next Business Day in the place of receipt). Subject thereto, neither the non-receipt of, nor the time of receiving, any such confirmation of a notice given by fax as is referred to above shall invalidate or affect such notice or the time at which it is deemed as provided above to have been given.
Any of the parties named above may change its address for the purpose of this Clause by giving notice of such change to the other parties to this Agreement.
12. Force Majeure
Notwithstanding anything to the contrary in this Deed Poll, the Company shall not in any event be liable for any failure or delay in the performance of its obligations hereunder if it is prevented from so performing its obligations by any existing or future Law, any existing or future act of Government Authority, Act of God, flood, war (whether declared or undeclared), terrorism, riot, rebellion, civil commotion, strike, lockout, other industrial action, general failure of electricity or other supply, aircraft collision, technical failure, accidental or mechanical or electrical breakdown, computer failure or failure of any money transmission system.
13. Governing Law and Jurisdiction
13.1 Governing Law
This Deed Poll and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law.
The courts of England are to have jurisdiction to settle any disputes which may arise out of or in connection with this Deed Poll or the Bonds and accordingly any legal action or proceedings arising out of or in connection with this Deed Poll or the Bonds ("Proceedings") may be brought in such courts. The Company irrevocably submits to the jurisdiction of such courts and waives any objections to Proceedings in such courts on the ground of venue or on the ground that the Proceedings have been brought in an inconvenient forum. This submission is for the benefit of each of the Bondholders and shall not limit the right of any of them to take Proceedings in any other court of competent jurisdiction nor shall the taking of Proceedings in any one or more jurisdictions preclude the taking of Proceedings in any other jurisdiction (whether concurrently or not).
Terms and Conditions of the Bonds
The following is the text of the terms and conditions of the Bonds (the “Conditions”), which contain summaries of certain provisions of the Deed Poll, and which subject to completion and amendment in accordance with the provisions of the relevant Final Terms and as provided for in the Deed Poll and the Investor Agreement (as defined below) will apply to all Bonds issued. All capitalised terms that are not defined in these Conditions will have the meanings given to them in the Deed Poll, the Investor Agreement or the relevant Final Terms. References in the Conditions to “Bonds” are to the Bonds of one Series only, not to all Bonds that may be issued under this Bond programme.
The Bonds are constituted by, are subject to, and have the benefit of, a deed poll dated 09 February 2017 (as may be further amended or supplemented from time to time, the “Deed Poll”), made by WiseAlpha Investment Limited (the “Issuer”).
The Issuer has authorised the creation, issue and sale of the Bonds for the sole purpose of providing the funds to the Issuer to finance the purchase of the Issuer’s participation in certain WiseAlpha Products listed on the WiseAlpha website or other debt securities.
Payments in respect of the Bonds will be made (subject to the receipt of the relevant funds from each Obligor) pursuant to this agreement.
Copies of the Deed Poll, and the Final Terms are available for inspection at the principal office of the Issuer being, at the date hereof, at the specified office of the Issuer.
The statements contained in these Conditions include summaries or restatements of, and are subject to, the detailed provisions of the Deed Poll, the Investor Agreement, the Final Terms. Bondholders are entitled to the benefit of, are bound by, and are deemed to have notice of, all the provisions thereof. Expressions used but not defined in these Conditions shall, if defined in the Deed Poll, Investor Agreement or Final Terms, have the meanings ascribed to such terms therein.
1. Definitions and Interpretation
The following terms used in these Conditions shall have the following meanings:
“Accrual Period” means, in respect of any Bond:
(i) in respect of the initial Accrual Period for such Bond, the period from (but excluding) the Issue Date to (and including) the next following Payment Date; and
(ii) in respect of all other Accrual Periods for such Bond, the period from (but excluding) a Payment Date to (and including) the next following Payment Date.
“Business Day” means a day other than a Saturday or Sunday on which commercial banks and foreign exchange markets settle payments generally in London.
“Euro” or “€” means the currency of the member states of the Euro-zone.
“Investment” has the meaning given to such term in the Investor Agreement.
“Investor Agreement” means the investor agreement executed by each Bondholder reflecting its agreement with the Issuer in relation to any investment in any Bonds issued by the Issuer and the terms related thereto.
“Issue Date” means each date on which Bonds are issued as provided for in these Conditions, the “Initial Issue Date” being the date specified as such in the Final Terms.
“Maturity Date” means the maturity date of each series of Bonds.
“Bond Periodic Payment Date” means the date specified in the Final Terms.
“Obligor” has the meaning given to such term in the Investor Agreement and for each Bond is as set out in the relevant Final Terms.
“Outstanding” means, in relation to the Bonds, all the Bonds issued except (a) those which have been redeemed in accordance with the Conditions, (b) those in respect of which the date for redemption has occurred and the redemption moneys (including all interest or other return accrued on such Bonds to the date for such redemption) have been duly paid or distributed to the Bondholder(s) directly, as applicable, and remain available for payment against presentation of the Bonds, (c) those in respect of which claims have become void or in respect of which claims have become prescribed, (d) those which have been purchased and cancelled as provided in the Conditions; provided, that for the purposes of (1) ascertaining the right to attend and vote at any meeting of the Bondholder(s) and (2) the determination of how many Bonds are outstanding for the purposes of Condition 9(Meetings of Bondholders; Modification and Waiver), those Bonds which are beneficially held by, or are held on behalf of, the Issuer and not cancelled shall (unless and until ceasing to be so held) be deemed not to remain outstanding.
“Payment Date” means a Bond Periodic Payment Date and/or Redemption Payment Date, as the case may be.
“Pounds”, “sterling” and “£” the lawful currency of the United Kingdom.
“Rate of Return” means interest or other rate of return specified in the Final Terms.
“Redemption Amount” means either the Early Redemption Amount or the Final Redemption Amount, as the case may be.
“Redemption Charge” means 2.5 per cent. of the market value of the Bond as determined by the Issuer in its absolute discretion at the Redemption Date.
“Redemption Date” means the Maturity Date, any other Business Day specified as such by the Issuer following a repayment of principal or any other amounts in relation to the relevant Bond pursuant to Condition 7(b) or Condition 7(c), or such date designated as such following an Event of Default pursuant to Condition 11 (Events of Default).
“Redemption Payment Date” means such date(s) that fall as soon as reasonably practicable on or following the Redemption Date, as notified to Bondholders pursuant to Condition 12 (Notices) on which the Early Redemption Amount or Final Redemption Amount is paid to the Bondholders.
The sole purpose of the issue of the Bonds is to provide the funds for the Issuer to finance its participation in or purchase of Investments or other debt securities.
The Issuer shall not be liable to make any payment in respect of the Bonds other than as expressly provided herein and in the Deed Poll.
3. Form, Denomination, Title and Status, Issuance of Bonds
a) Form and denomination: The Bonds will be issued in registered form, in minimum denominations of £100 each and integral multiples of £0.01 in excess thereof (or the euro equivalent, should the Specified Currency of the relevant Bond be euro) and are non-transferable save by operation of law. The Bonds constitute direct, general and unconditional obligations of the Issuer which rank pari passu among themselves; and at all times rank at least pari passu with all other future unsecured obligations of the Issuer, except for those obligations as may be preferred by law.
b) Rate of Return: A Bond will bear the rate of interest (or other return) as further detailed in Condition 5 (Rate of return).
c) Issuance of Bonds: Bonds will initially be issued on each Initial Issue Date in an Initial Investment Amount specified in the Final Terms. Any subsequent Bonds of the same Series will be issued on the same basis.
d) Issues by series: Bonds shall be issued as a separate series of Bonds (each a “Series”) in an amount up to the maximum amount specified in the relevant Final Terms.
4. Register, Title and Transfers
a) The Issuer will maintain a register outside of the United Kingdom (the “Register”) in respect of the Bonds. In these Conditions the “holder” of a Bond means the person in whose name such Bond is for the time being registered in the Register and “Bondholder” shall be construed accordingly. No certificates will be issued to Bondholders in respect of their registered holding(s).
b) The holder of each Bond shall (except as otherwise required by law) be treated as the absolute owner of such Bond for all purposes (whether or not it is overdue and regardless of any notice of ownership, trust or any other interest therein, any writing on the Bond relating thereto (other than the endorsed form of transfer) or any notice of any previous loss or theft of such Bond) and no person shall be liable for so treating such holder.
c) The Bonds are non-transferable and no application has been or will be made to any investment or stock exchange for the Bonds to be listed or dealt in or on.
5. Rate of Return
a) Rate of Return:
i) Each Bond bears interest from the relevant Issue Date on the Bonds Periodic Payment Basis set out in the Final Terms. Accordingly, on each Bond Periodic Payment Date, the Issuer shall account to the Bondholders for an amount equivalent to the amounts of interest as set out in the Final Terms
ii) Periodic Payments of interest, or other return, if any, will be made as set out in Condition 7 (Payments) to the Bondholders in respect of each Bond Periodic Payment Date and will be payable in the Specified Currency and in respect of each Bond issued.
b) Accrual of Interest: The rate of return shall cease to accrue on each Bond on the due date for redemption unless, upon due presentation, payment is improperly withheld or refused, in which event the return shall continue to accrue (as well after as before judgment) at the rate and in the manner provided in this Condition 5 to the Relevant Date (as defined in Condition 7 (Payments)).
6. Redemption and Purchase
a) All bonds not previously repaid (in whole or part) before the Repayment Date will be redeemed by the Company on the Repayment Date, at par, together with interest accrued up to and including the date of redemption
b) Purchase: The Issuer may at any time and from time to time purchase Bonds in the open market or by tender or by private agreement at any price for the purpose of providing liquidity to a Bondholder. All such Bonds purchased by the Issuer shall be cancelled and may not be reissued or sold.
a) Payments of Rate of Return and Principal: Any payments of a periodic nature shall be made to an account of the Bondholder denominated in the Specified Currency, and as notified by the relevant Bondholder to the Issuer or pursuant to a notice subsequently given to the Issuer by the Bondholder no later than four Business Days prior to the relevant Payment Date, as applicable.
b) Payments Subject to Fiscal Laws: All payments in respect of the Bonds are subject in all cases to any applicable fiscal or other laws and regulations in the place of payment (including, without limitation, requirements applicable in any place of payment to withhold or deduct for or on account of tax). No commissions or expenses shall be charged to the Bondholders in respect of such payments.
c) Payments on Business Days: If the due date for payment of any amount in respect of any Bond is not a Business Day, the Bondholder shall not be entitled to payment of the amount due until the next succeeding Business Day in such place and shall not be entitled to any further interest or other payment in respect of any such delay
d) Limited recourse: In each case where amounts of principal, interest, other return and additional amounts (if any) are stated herein or in the Deed Poll to be payable in respect of the Bonds, the obligations of the Issuer to make any such payment shall constitute an obligation only to account to the Bondholders on each date upon which such amounts are due in respect of the Bonds.
The Issuer shall not be required to gross up any payments made to the Bondholders and shall withhold or deduct from any such payments any amounts on account of such tax where so required by law or any such relevant tax authority. Any withholding or deduction shall not constitute an Event of Default under Condition 11 (Events of Default).
9. Meetings of Bondholders; Modifications
The Bonds, these Conditions, the Deed Poll, may be amended without the consent of the Bondholders, except to determine any matter relating to an Event of Default pursuant to Condition 11 (Events of Default) and provided always that, in relation to any amendment to the Bonds, these Conditions, the Deed Poll, the Issuer shall act reasonably and in good faith and not in a manner which is materially prejudicial (such determination of materiality to be made solely by the Issuer) to the Bondholders. Any such modification, waiver or authorisation will be binding on the Bondholders and any such modifications will be notified by the Issuer to the Bondholders as soon as practical thereafter.
The Deed Poll contains provisions for convening meetings of Bondholders to consider any amendment that may require the consent of the Bondholders pursuant to this Condition 11 and/or any matter relating to an Event of Default. Bondholders will vote according to the principal amount of their Bonds. Any resolution duly passed at a meeting of Bondholders will be binding on all the Bondholders, whether present or not.
The Deed Poll provides that a written resolution signed by the holders of 75 per cent. in nominal amount of the Bonds outstanding shall take effect as if it were an Extraordinary Resolution. Such a resolution in writing may be contained in one document or several documents in the same form, each signed by or on behalf of one or more Bondholders.
No Bondholder is entitled to claim from the Issuer any indemnification or payment in respect of any tax consequence of any such exercise upon individual Bondholders.
Bonds will become void unless presented for payment within 10 years (in the case of principal) or five years (in the case of any periodic return) from the due date for payment in respect thereof.
11. Events of Default
A Bondholder shall be entitled by notice in writing to the Issuer to require the Issuer to immediately redeem all or part (in integral multiples of £1 nominal amount) of the Bonds together with accrued interest (if any and after deduction of tax) up to but excluding the date of redemption on the occurrence of any of the following events (each an “Event of Default”, such date of redemption constituting a “Redemption Date” and the relevant payment date constituting a “Redemption Payment Date” in each case for the purpose of these Conditions):
a) Non-Payment: Default is made for more than 14 calendar days (in the case of any periodic return) or 7 calendar days (in the case of principal) in the payment on the relevant due date in respect of any of the Bonds, provided however that it shall not be a Non-Payment Event of Default where the Issuer can demonstrate that such failure to pay within such 14 or 7 calendar day period, as the case may be, was due entirely to an error or omission or an administrative or operational nature and at all times between the time at which the relevant transfer was due and the time of such demonstration funds were available for the Issuer to make the relevant transfer by such time and such payment is made by the Issuer within 20 Business Days after notice of such failure is given to the Issuer; or
b) Winding-Up: Any order shall be made by any competent court or any resolution passed for the winding-up or dissolution of the Issuer save for the purposes of amalgamation, merger, consolidation, reorganisation or any other similar arrangement on terms approved by an Extraordinary Resolution (as defined in the Deed Poll) of the Bondholders; or
c) Inability to Pay: The Issuer stops payment generally (within the meaning of any applicable bankruptcy law), admits in writing its inability to pay its debts generally as and when they fall due, applies for or consents to or suffers the appointment of an administrator or receiver of the whole or any part of its undertaking, property, assets or revenues or makes an arrangement or composition with its creditors generally or makes an application to a court of competent jurisdiction for protection of its creditors generally.
All notices to the Bondholders shall be deemed to have been duly given if posted to such holders at their respective addresses as shown on the Register.
13. Further Issues
a) Further Issues: The Issuer may from time to time, without the consent of the Bondholders, create and issue further Bonds including (and as set out in more detail in Condition 13(b) below) Bonds having the same terms and conditions as the Bonds in all respects (or in all respects except for the amount and the date of the first payment of any periodic return) so as to be consolidated and form a single series with the Bonds (such Bonds being “Further Bonds”). Such Further Bonds shall also be constituted by the Deed Poll.
b) Up to Series: Where a Series of Bonds is designated as an “up to” Series in the Final Terms, the Issuer may issue Further Bonds of the same Series, up to the maximum amount so designated. As from any such Issue Date any such Further Bonds will be immediately consolidated and form a single series with the existing Series. Such subsequent issuance of Further Bonds on any subsequent Issue Date shall be completed by the issuance thereof and payment therefor. The Issuer will subsequently procure the prompt annotation of the register of Bondholders with the details of such issuance.
a) General right of substitution: The Issuer may, without the consent of the Bondholders, substitute any other company (the “Substituted Obligor”) in place of the Issuer (or of any previous substitute under this Condition 14) as the principal debtor of the Bonds, provided that a deed is executed or undertaking given by the Substituted Obligor agreeing to be bound by these Conditions and all other documentation relating to the Bonds as if the Substituted Obligor had been named in these Conditions as the principal debtor of the Bonds in place of the Issuer.
b) Related Issuer documentation: At the request of the Issuer, the Substituted Obligor will execute any documentation relating to such substitution including an agreement by the Substituted Obligor that following any substitution pursuant to this Condition 14, the Issuer will be released from any or all of its obligations in relation to the Bonds.
c) Notice of substitution. Notice of any substitution pursuant to this Condition 14 shall be given to Bondholders within 14 days of the compliance with such requirements and the execution of any related documentation.
d) Completion of substitution. On completion of the formalities set out above, the Substituted Obligor shall be deemed to be named in these Conditions as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions shall be deemed to be amended as necessary to give effect to the substitution.
15. Contracts (Rights of Third Parties) Act 1999
No person shall have any right to enforce any term or condition of the Bonds under the Contracts (Rights of Third Parties) Act 1999.
16. Governing Law
b) Jurisdiction: The courts of England have jurisdiction to settle any disputes that may arise out of or in connection with any Bonds (including any non-contractual disputes and claims), and accordingly any legal action or proceedings arising out of or in connection with any Bonds (“Proceedings”) may be brought in such courts. The Issuer irrevocably submits to the jurisdiction of the courts of England and waives any objection to Proceedings in such courts on the ground of venue or on the ground that the Proceedings have been brought in an inconvenient forum. This submission is made for the benefit of each of the Bondholders of the Bonds and shall not affect the right of any of them to take Proceedings in any other court of competent jurisdiction nor shall the taking of Proceedings in one or more jurisdictions preclude the taking of Proceedings in any other jurisdiction (whether concurrently or not).
c) Service of Process: The Issuer irrevocably appoints WiseAlpha Technologies Limited as its agent in England to receive, for it and on its behalf, service of process in any Proceedings in England. Such service shall be deemed completed on delivery to such process agent (whether or not it is forwarded to and received by the Issuer). If for any reason such process agent ceases to be able to act as such or no longer has an address in London, the Issuer irrevocably agrees to appoint a substitute process agent and shall immediately notify Bondholders of such appointment in accordance with Condition 12 (Notices). Nothing shall affect the right to serve process in any manner permitted by law.
Form of Final Terms
The form of Final Terms that will be issued in respect of each Series, subject only to the deletion of non- applicable provisions, is set out below.
Dated 09th February 2017
WISEALPHA INVESTMENT LIMITED
Issue of up to £ [ ] of Series [ ] non-negotiable Investment Bonds to be issued by WiseAlpha Investment Limited (the “Issuer”) as detailed below under a programme for the issuance of Investment Bonds.
Terms used herein shall be deemed to be defined as such for the purposes of the Conditions set forth in the Deed Poll dated 09 February 2017. This document constitutes the Final Terms of the Bonds described therein and must be read in conjunction with such Conditions, the Deed Poll and the Investor Agreement (each as may be amended or supplemented from time to time). Information on the Issuer and the offer of the Bonds is only available on the basis of the combination of such Final Terms, the Conditions, the Deed Poll and the Investor Agreement, each of which are available for viewing at www.wisealpha.com, and copies may be obtained on request.
In each case where amounts of principal, interest, other return and additional amounts (if any) are stated herein, in the Conditions or in the Deed Poll to be payable in respect of the Bonds, the obligations of the Issuer to make any such payment shall constitute an obligation only to account to the Bondholders on each date upon which such amounts of principal, interest and additional amounts (if any) are due in respect of the Bonds.
WiseAlpha Investment Limited
[Sterling (GBP £)/Euro (€)] [TO REFLECT CURRENCY OF ISSUE]
Initial Investment Amount:
£100 and integral multiples of £.001 in excess thereof [or the euro equivalent should the Specified Currency be euro]
Initial Issue Date:
The date of the issue of the relevant Bond
The date falling [●] months after the Initial Issue Date.
Bonds Periodic Payment Basis:
[●%] gross per annum, payable [annually/at maturity]
Bonds Periodic Payment Date
The Maturity Date of the relevant Bond series
Admission to trading:
GENERAL PROVISIONS APPLICABLE TO THE BONDS
Form of the Bonds:
Specified Office of Issuer:
WiseAlpha Investment Limited
C/O Intertrust Corporate Services (BVI) Limited
171 Main Street
British Virgin Islands
Signed on behalf of the Issuer:
This Deed Poll is delivered on the date first above written.
Executed as a deed