Execution
Copy
AMENDED AND RESTATED PAYING
AND CONVERSION AGENCY AGREEMENT
CHINA ARCHITECTURAL
ENGINEERING, INC.
US$20,000,000 12%
CONVERTIBLE BONDS DUE 2011
September 29, 2008
CONTENTS
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Clause
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Page
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1
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2
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AUTHENTICATION;
TRANSFER OF GLOBAL CERTIFICATE
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2
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3
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4
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6
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10
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12
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ISSUE OF
REPLACEMENT CERTIFICATES
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13
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DUTIES OF THE
TRANSFER AGENTS IN RESPECT OF TRANSFERS
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14
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15
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DOCUMENTS AND
CERTIFICATES FOR THE REGISTRAR
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15
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INFORMATION AND
REGULATIONS CONCERNING THE BONDS
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16
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FUNDS HELD BY
PRINCIPAL AGENT
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17
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18
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21
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23
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GOVERNING LAW
AND JURISDICTION
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25
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26
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TERMINATION OF
THIS AGREEMENT
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26
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CONTRACTS
(RIGHTS OF THIRD PARTIES) ACT 1999
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26
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EXHIBIT A
CONVERSION NOTICE
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29
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EXHIBIT B
CONVERSION AGENT NOTIFICATION
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32
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EXHIBIT C
NOTIFICATION FROM ISSUER
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34
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EXHIBIT D
REGULATIONS CONCERNING THE TRANSFER AND REGISTRATION OF
BONDS
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36
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EXHIBIT E FORM
OF BONDHOLDER REDEMPTION NOTICE
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38
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EXHIBIT F FORM
OF BONDHOLDER’S TAX ELECTION NOTICE
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40
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Amended and Restated
Paying and Conversion
Agency Agreement
THIS
AMENDED AND RESTATED PAYING AND CONVERSION AGENCY
AGREEMENT (this
“ Agreement ”) is made on September
29, 2008
AMONG :
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(1)
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CHINA
ARCHITECTURAL ENGINEERING, INC. , a company incorporated under the laws of the
State of Delaware whose registered office is at c/o Corporation
Service Company, 2711 Centerville Road, Suite 400, Wilmington,
Delaware (the “ Issuer ”);
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THE
BANK OF NEW YORK MELLON, LONDON BRANCH at its specified office at One Canada Square,
London, E14 5AL, United Kingdom as principal paying, conversion and
transfer agent (the “ Paying Agent ”,
“ Conversion Agent ”, “
Transfer Agent ”, as applicable, and
collectively, the “ Principal Agent ”
which expression shall, unless the context otherwise requires,
include its successors as such principal paying, conversion and
transfer agent, which expression shall, unless the context
otherwise requires, include any future agent appointed in
accordance with this Agreement);
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THE
BANK OF NEW YORK MELLON at its specified office at 101 Barclay Street,
New York, NY 10286, United States of America as registrar (the
“ Registrar ”, which expression shall,
unless the context otherwise requires, include its successors as
such registrar); and
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THE
BANK OF NEW YORK MELLON, LONDON BRANCH at its specified office at One Canada Square,
London, E14 5AL, United Kingdom, as trustee for the persons for the
time being holding the Bonds referred to below (the “
Trustee ”, which expression shall include
its successors as such trustee or any joint trustee).
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The Issuer has
agreed to issue US$20,000,000 12% Convertible Bonds Due 2011 of the
Issuer (the “ Bonds ”) which will be
convertible at the option of the holder thereof into fully paid
shares of common stock of par value of US$0.001 each (the “
Shares ”) that will be listed on the
American Stock Exchange (the “ AMEX
”).
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The Bonds are
to be constituted by a trust deed dated April 15, 2008 and made
between the Issuer and the Trustee, as restated and amended on
September 17, 2008 (the “ Trust Deed
”).
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The Bonds will
be issued in registered form in the denomination of US$1,000
each.
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NOW IT
IS HEREBY AGREED as
follows:
Terms defined
or construed in the terms and conditions of the Bonds (the “
Conditions ”) or the Trust Deed shall,
unless the context otherwise requires, have the same meanings when
used herein. In the event of inconsistencies between any term in
the Conditions or the Trust Deed and that stated herein, the term
in the Conditions or the Trust Deed shall prevail. In
addition:
“
Agents ” means the Principal Agent, the
Registrar and the other paying, conversion and transfer agents
referred to above;
Amended and Restated
Paying and Conversion
Agency Agreement
“
Alternative Clearing System ” means a
clearing system as shall have been designated by the Issuer and
approved by the Trustee;
“
Business Day ” means a day (other than a
Saturday, Sunday or a public holiday) on which commercial banks and
foreign exchange markets are open for business in New York, England
and the city in which the specified office of the Principal Agent
is located;
“
Register ” has the meaning set out in Clause
11.1; and
any “
successor ” to an Agent means a successor to
that Agent appointed at its specified office in accordance with the
terms of this Agreement.
The Issuer
appoints the Agents as its agents in respect of the Bonds in
accordance with the provisions of the Conditions and this Agreement
at their respective offices referred to in this Agreement and the
Agents accept such appointments. Subject as provided in Clause 17,
references to the Agents are to them acting solely through their
respective specified offices. The obligations and duties of the
Agents under this Agreement are several and not joint.
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Authentication; Transfer of Global
Certificate
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Immediately
before issuance, the Issuer shall deliver to the Registrar a duly
executed Global Certificate representing the Bonds. The Registrar
(or its agent on its behalf) shall authenticate the Global
Certificate upon the written order of the Issuer and arrange for
its delivery to a common depositary for Euroclear and
Clearstream.
Title to the
Bonds evidenced by the Global Certificate may be registered in the
name of, and the Global Certificate may be deposited with, such
Alternative Clearing System other than Euroclear or Clearstream (or
a nominee thereof) as the Issuer may from time to time designate
with the prior written approval of the Trustee, and shall bear such
legend as may be appropriate.
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Transfers of Interests in the Global
Certificate
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Any transfer or
exchange of an interest in the Bonds evidenced by the Global
Certificate shall be effected in accordance with the rules and
procedures of Euroclear or Clearstream, or any relevant Alternative
Clearing System, as applicable.
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Exchange of Interests in the Global Certificate
for Definitive Certificates
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Definitive
Certificates in respect of interests in any Bonds will not be
issued in exchange for interests in the Bonds evidenced by the
Global Certificate except in the circumstances provided in Clause
3.3(b), provided that, in the event that the Issuer designates an
Alternative Clearing System and such designation is approved in
writing by the Trustee, title to all or some of the Bonds may be
transferred to an Alternative Clearing System or its nominee and
definitive Certificates may be issued to evidence such
transfer.
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Amended and Restated
Paying and Conversion
Agency Agreement
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In the event
that either Euroclear or Clearstream (or any Alternative Clearing
System on behalf of which the Bonds evidenced by the Global
Certificate may be held) is closed for business for a continuous
period of fourteen (14) days (other than by reason of holidays,
statutory or otherwise) or announces an intention permanently to
cease business or does in fact do so, the Issuer will cause
sufficient definitive Certificates to be executed and delivered to
the Registrar in sufficient quantities as advised by the Registrar
and the Registrar will authenticate the same for despatch to
individual Bondholders in accordance with the Conditions, Clause
3.3(c) and Exhibit D hereto.
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Upon one (1) of
the events set forth in Clause 3.3(b) occurring, a holder of Bonds
represented by the Global Certificate will provide the Registrar
with a written order containing instructions and such other
information as the Issuer and the Registrar may require to
complete, execute and deliver such definitive
Certificates.
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Upon receipt of
the Certificates referred to in Clause 3.3(b) and the written order
referred to in Clause 3.3(c), the Registrar shall arrange for the
execution and delivery to or upon the order of the person or
persons named in such order of an individual definitive Certificate
representing Bonds registered in the name or names requested by
such person or persons and the Registrar shall alter the entries in
the Register in respect of the Bonds accordingly. Payment will only
be made to the person whose name appears on the
Register.
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Transfer or Exchange of Definitive
Certificates
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Subject to the
provisions of this Clause 3 and Exhibit D, the holder of Bonds
represented by definitive Certificates may transfer or exchange
such Bonds. Subject to compliance with such provisions, the
relevant Transfer Agent and the Registrar shall register the
transfer of Bonds represented by definitive Certificates in
accordance with Clauses 10 and 11 below.
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Proxies
and Authorisations
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Subject to the
provisions of this Agreement, the registered holder of Bonds
represented by the Global Certificate may grant proxies and
otherwise authorise any person, including participants in Euroclear
and Clearstream and persons that may hold interests through such
participants, to take any action that a holder is entitled to take
under this Agreement or the Bonds.
Notwithstanding
anything herein to the contrary, no Bondholder may require the
transfer of a Bond during the periods set forth in Condition
4(E).
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Payment
to the Principal Agent
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In order to
provide for the payment of the principal, premium, interest and/or
default interest (if any) in respect of the Bonds as the same shall
become due, the Issuer shall, by 12:00 noon (New York time),
unconditionally pay or procure to be paid, to the Principal
Agent:
Amended and Restated
Paying and Conversion
Agency Agreement
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on maturity or
early redemption of any Bonds in an account specified by the
Principal Agent for value at least one (1) Business Day prior to
the redemption date thereof (or, in the case of the Bonds becoming
due and payable pursuant to Condition 12, forthwith upon being
required by the Trustee so to make such payment), an amount
sufficient (together with any funds then held by the Principal
Agent which are available for such purpose) to pay the amount due
on redemption of all Bonds so to be redeemed (or the amount due
pursuant to Condition 12); and
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for value at
least one (1) Business Day before each due date for the payment of
interest or any other sums payable in respect of the Bonds in
accordance with the Conditions, other than sums referred to in
sub-Clause 4.1(a) above, an amount sufficient (together with any
funds then held by the Principal Agent which are available for such
purpose) to pay the interest or any other sums payable then
becoming due on the outstanding Bonds.
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Except as set
forth in Section 24.18 of the Trust Deed when upon the occurrence
of any default the Trustee may require any Paying Agent to pay all
money hold by it to the Trustee, all amounts deposited with the
Trustee or any Paying Agent for the payment of Bonds to the
Bondholders but which have not been so paid due to the subsequent
conversion of such Bonds or otherwise shall be immediately returned
to the Issuer upon the Issuer’s written request, provided
that no interest shall accrue on such amounts and be payable to the
Issuer by the Trustee or any Paying Agent.
The Issuer
shall procure that on or before 12:00 noon (New York time) on the
second Business Day prior to each due date for payment of
principal, premium, interest and/or default interest in respect of
the Bonds, the bank through which such payment is to be made will
send to the Principal Agent confirmation that it has received from
the Issuer an irrevocable instruction to make the relevant payment
(by SWIFT).
In this Clause
4, the date on which a payment in respect of the Bonds becomes due
means the first date on which the holder of a Bond could claim the
relevant payment by transfer to an account under the Conditions,
but disregarding the necessity for it to be a Business Day in any
particular place of presentation.
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Notification in the Event of
Non-Payment
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The Principal
Agent shall forthwith notify (in writing and by facsimile
transmission) the Trustee, the other Agents and the Issuer if it
has not, by 10:00 a.m. (New York time) on the due date for payment
of principal, premium, interest and/or default interest (if any) on
the Bonds or any of them, received unconditionally in the manner
provided in this Clause 4 the full amount of the moneys payable on
such due date on or in respect of all such Bonds, as the case may
be.
Unless the
Paying Agents receive a notification from the Principal Agent under
Clause 4.3, they will, subject to and in accordance with the
Conditions, pay or cause to be paid on behalf of the Issuer on and
after each due date therefor the amounts due in respect of the
Bonds and will be entitled to claim any amounts so paid from the
Principal Agent. If any payment provided for in Clause 4.1 is made
late but otherwise in accordance with this Agreement, the Paying
Agents will nevertheless make such payments in respect of the
Bonds. However, unless and until the full amount of any such
payment has been made to the Principal Agent, none of the Paying
Agents will be bound to make such payments until either the
Principal Agent has received the full amount of moneys then due and
payable in respect of the Bonds or other arrangements satisfactory
to the Principal Agent have been made. If payment of any amount is
made to the Principal Agent later than the due date for payment of
such amount to the Bondholders, the Principal Agent shall as soon
as practicable after receipt thereof give notice to the Bondholders
in accordance with Condition 19 that such payment has been made.
All payments to be made by the Paying Agents hereunder shall be
made without charging any commission or fee to the Bondholders.
Nothing contained herein shall require a Paying Agent to make a
payment unless and until the Paying Agent has received immediately
available funds sufficient to make said payment.
Amended and Restated
Paying and Conversion
Agency Agreement
The Principal
Agent will on demand promptly reimburse each Paying Agent for
payments in respect of the Bonds made by it in accordance with the
Conditions and this Agreement. The Issuer shall on demand by the
Principal Agent reimburse the Principal Agent for the relevant
amount and pay interest to the Principal Agent on such amount that
is outstanding from the date on which it is paid out by that Paying
Agent to the date of reimbursement by the Issuer at the rate per
annum then prevailing at the date of such funding equal to the cost
to the relevant Paying Agent of funding the amount paid out plus
two percent (2%) per annum as certified by the Principal
Agent.
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Method
of Payment to Principal Agent
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All sums
payable to the Principal Agent hereunder will be paid in United
States dollars and in immediately available or same day funds to
such account, with such bank in New York City as the Principal
Agent may from time to time notify in advance to the Issuer in
writing.
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Surrender of Certificates to Paying
Agents
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The Paying
Agents shall accept surrender of Certificates from Bondholders as a
condition precedent to payment of principal and premium (if any) in
accordance with the Conditions. At close of business on the second
business day (as defined in Condition 8(F)) before the due date for
payment in respect of Bonds, and, if Certificates are surrendered
later than that, on any business day (as defined in Condition 8(F))
thereafter on which Certificates are surrendered, each Paying Agent
to whom Certificates have been surrendered will notify the
Registrar and the Principal Agent of the identifying numbers of
Certificates surrendered to it at that time. Each Paying Agent will
cancel Certificates surrendered to it and forward the cancelled
Certificates to the Principal Agent for destruction.
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Fees
and Expenses of the Agents
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The Principal
Agent will account to each of the other Agents for their fees and
expenses in respect of the services performed by them under this
Agreement promptly after receipt thereof from the Issuer and the
Issuer shall have no responsibility for the apportionment of any
such payments.
Amended and Restated
Paying and Conversion
Agency Agreement
The Principal
Agent, the Registrar or the other Agents shall, on demand by the
Trustee by notice in writing given to them at any time after any
Event of Default or Potential Event of Default has occurred, until
notified by the Trustee to the contrary, so far as permitted by
applicable law:
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act thereafter
as agents of the Trustee under the Trust Deed and the Bonds on the
terms of this Agreement (with consequential amendments as necessary
and except that the Trustee’s liability for the
indemnification, remuneration and all other expenses of the Agents
and the Registrar will be limited to the amounts for the time being
held by the Trustee in respect of the Bonds on the terms of the
Trust Deed) and thereafter hold all Certificates and all moneys,
documents and records held by them in respect of the Bonds to the
order of the Trustee; and/or
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deliver up all
Certificates and all moneys, documents and records held by them in
respect of the Bonds to the Trustee or as the Trustee shall direct
in such notice or subsequently, provided that this Clause 5.6(b)
shall not apply to any documents or records which the Principal
Agent, the Registrar or the relevant Agent is obliged not to
release by any law or regulation to which it is subject.
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Notices
of Change of the Trustee
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The Issuer
shall forthwith give notice to the Principal Agent of any change in
the person or persons who act as the Trustee under the Trust
Deed.
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Conversion Duties of Conversion
Agents
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The Conversion
Agent shall during normal business hours (local time in the place
where the specified office of the relevant Conversion Agent is
located) (a) accept deposit on behalf of the Issuer of (i) any
Certificates in respect of Bonds which the holder(s) thereof
desires to convert (and in respect of which Bond a Conversion
Notice is deposited with that Conversion Agent prior to the
Conversion Date) together with a Conversion Notice (in duplicate)
duly completed and signed (where necessary) or (ii) in the case of
Bonds represented by the Global Certificate, a Conversion Notice
duly completed and signed only (which may, in such case, be
delivered by facsimile transmission), together, in each case of (i)
and (ii), with any amount payable by the relevant holder under
Condition 6(B)(ii); and (b) the Issuer shall pay all stamp, issue,
documentary, transfer, registration, excise or other taxes or
duties (if any) specified in the Trust Deed or the Bonds to be
payable by the Issuer. The Conversion Agent shall be entitled to
assume, without duty to enquire, each converting Bondholder has, as
a condition precedent to exercising its Conversion Right, paid all
stamp, issue, registration, and similar taxes or duties or transfer
costs (if any) (other than any amounts payable by the Issuer in
accordance with the Conditions) which it is required to pay in
accordance with the Conditions (including without limitation,
Condition 6(B)(ii)). Once deposited, a Conversion Notice may not be
withdrawn without the written consent of the Issuer (with a copy of
such consent together with the relevant Conversion Notice sent to
the relevant Conversion Agent at the same time).
Amended and Restated
Paying and Conversion
Agency Agreement
Conversion
Rights attaching to the Bonds represented by the Global Certificate
shall be exercised in the manner set out herein and in the
Conditions, provided that:
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the Global
Certificate need not be deposited with the Conversion Agent
together with the relevant Conversion Notice;
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the Conversion
Notice for Bonds represented by the Global Certificate may be
completed and deposited by or on behalf of an account holder of
Clearstream or Euroclear or an Alternative Clearing System in which
the Bond to be converted is held at such time, which has an
interest in such Bonds;
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Bonds which
have been converted will be rendered void forthwith and the Global
Certificate shall be annotated accordingly without cancellation of
the Global Certificate; and
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the holding of
an interest in Bonds by an account holder of Clearstream or
Euroclear or an Alternative Clearing System in which the Bonds are
held at such time in respect of which the Conversion Rights are
exercised will be confirmed by the relevant clearing system with
the Conversion Agent.
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Certificates Held by Conversion
Agents
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On deposit of a
Certificate and a Conversion Notice (in duplicate) in accordance
with Clause 6.1, the Certificate and the Conversion Notice so
deposited shall be deemed to be held by the Conversion Agent as the
agent of the Issuer. The Conversion Agent shall cancel forthwith
upon the Conversion Date the Certificates representing the Bonds
and (unless the Conversion Agent is also the Principal Agent)
despatch such cancelled Certificates promptly to or to the order of
the Principal Agent or its designated agent, together with a
certificate stating the identifying numbers of the Bonds in respect
of which the relevant Certificates have been delivered and the
identifying numbers of the relevant Certificates.
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Notification by Conversion
Agents
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Immediately
following deposit of a Certificate (if applicable) and Conversion
Notice in accordance with Clause 6.1 and payment of any required
amount by Bondholders in accordance with Condition 6(B)(ii), the
Conversion Agent with which they were deposited shall verify that
the Conversion Right is exercisable and that the Conversion Notice
(in duplicate) has been duly completed in relation to the Bonds,
which are the subject of the purported conversion, in accordance
with its terms and purports to have been signed by or on behalf of
the Bondholder named therein and that the Conversion Notice is
accompanied by all Certificates (if applicable) to which it
relates. Following receipt of the Conversion Notices in accordance
with this Clause 6.4, and notwithstanding the provisions of Clause
6.4(c)(iii) below, the Principal Agent will send by post to the
Issuer the Conversion Notice (if applicable) as soon as reasonably
practicable following any such request by the Issuer. For the
avoidance of doubt, the Conversion Agent should have no
responsibility in respect of a Conversion Notice which is not duly
completed and signed in accordance with Clause 6.1.
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Amended and Restated
Paying and Conversion
Agency Agreement
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As soon as
reasonably practicable following receipt of the Conversion Notice
by a Conversion Agent other than the Principal Agent and the
fulfilment of the conditions in Clause 6.4(a), such Conversion
Agent shall:
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send by
facsimile transmission a copy of such Conversion Notice to the
Principal Agent and the Issuer; and
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cancel
forthwith upon the Conversion Date all Certificates delivered with
such Conversion Notice and despatch such cancelled Certificates
promptly (together with a certificate stating the certificate
numbers of the Bonds so delivered), to or to the order of the
Principal Agent or its designated agent, who shall destroy such
cancelled Certificates.
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Upon receipt of
the Conversion Notice and in any event no later than five (5)
Business Days following such receipt by the Principal Agent (either
as a result of deposit of the Conversion Notice by a converting
Bondholder with the Principal Agent in its capacity as Conversion
Agent or as a result of receipt of the facsimile of such Conversion
Notice pursuant to Clause 6.4(b)(i) above) and fulfilment of the
conditions in Clause 6.4(a), the Principal Agent in its capacity as
Conversion Agent shall:
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notify the
Issuer in the manner specified in Exhibit B hereto (a “
Conversion Agent Notification ”) by
facsimile transmission, of the following (together with a copy of
the Conversion Notice(s)):
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the total
number, the aggregate principal amount and identifying number of
all Bonds deposited on the same occasion by the same Bondholder
which are to be converted, the number of Shares issuable upon
conversion and the name and address of such Bondholder;
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the name and
address of the person in whose name the Shares issuable upon
conversion are to be registered; and
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the Conversion
Date and the Conversion Price in respect of such
conversion;
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(where the
Conversion Agent with which the Certificate is deposited is itself
the Principal Agent) cancel forthwith upon the Conversion Date all
Certificates delivered with such Conversion Notice and procure the
destruction of such cancelled Certificates, unless notified
otherwise by the Issuer at least five (5) Business Days prior to
such Conversion Date;
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despatch as
soon as practicable and in any event within five (5) days after the
Conversion Date the Conversion Notice (if applicable) to the
Issuer; and
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without any
further notice or confirmation from the Issuer, and in any event no
later than the Conversion Date, instruct the Registrar to remove
the name of the relevant Bondholder from the Register or reduce the
corresponding principal amount of Bonds registered as being
represented by the Global Certificate, where
appropriate.
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Amended and Restated
Paying and Conversion
Agency Agreement
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Where a
Conversion Notice is received which requires the Shares (or other
securities, property or cash) issuable on conversion of the Bonds
to which it relates to be dealt with in different ways for
specified principal amounts (which must be US$1,000) of Bonds, the
Principal Agent receiving the Conversion Notice may, and if
requested by the Bondholder depositing the Conversion Notice,
shall, treat each specified principal amount of Bonds as if it were
subject to its own Conversion Notice and prepare and send the
details referred to in Clause 6.4(c) separately for each such
specified principal amount (and, for the avoidance of doubt so they
are not aggregated for the purpose of calculating the number of
Shares, or amount of other property, issuable on
conversion).
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Within ten (10)
Business Days after the receipt of the relevant Conversion Agent
Notification, the Issuer will forthwith send notification (in the
manner specified in Exhibit C hereto) by facsimile to the
Conversion Agent which has initially received the relevant
Conversion Notice (and will send a copy to the Principal Agent (if
it is not the Agent which received the relevant Conversion Notice)
and the Registrar), in the case of a Bond in respect of which the
Conversion Right has been exercised and in respect of which a
Conversion Notice was deposited, confirming that delivery, despatch
or payment in accordance with such Conversion Notice (or otherwise
in accordance with the converting Bondholder’s instructions)
of the certificate or certificates for the relevant Shares and/or
securities, property or cash required to be delivered and/or paid
upon conversion has been or will be made.
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In addition,
upon delivery and despatch of the certificate(s) for the relevant
Shares issued on conversion or delivery of the relevant Shares to
the converting Bondholder, the Issuer shall send confirmation by
facsimile to the Conversion Agent which has sent the relevant
Conversion Notice (and will send a copy to the Principal Agent and
the Registrar) that the converting Bondholder or other person
nominated in the Conversion Notice has been registered as the owner
of the relevant Shares issued on conversion.
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Promptly upon
receipt of the confirmation referred to in Clause 6.5(b) of
registration in the register of shareholders or notification that
cash has been paid upon conversion (but not before), the Registrar
shall remove the name of the relevant Bondholder from the Register,
or reduce the number of Bonds of which it is registered as owner,
as appropriate.
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Issuer
to Provide Conversion Notice and Particulars of Adjustment to
Conversion Price
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As soon as is
practicable following a request from time to time, the Issuer will
provide the Conversion Agents with copies of the form of Conversion
Notice and shall, whenever the Conversion Price is adjusted
pursuant to the Trust Deed and the Conditions, as soon as
practicable, notify each of the Trustee and the Conversion Agents
of particulars of the event giving rise to the adjustment, the
Conversion Price after such adjustment, the date on which such
adjustment takes effect and such other particulars and information
as the Trustee may reasonably require. If required by any
Bondholder, the Conversion Agents shall make Conversion Notices in
the current form available to Bondholders. For the avoidance of
doubt, no Agent has any duty to determine whether any event
requiring any adjustment to the Conversion Price has occurred or is
existing, or whether any such adjustment has been correctly made
and no Agent has an obligation to calculate any Conversion Price or
any adjustment to the Conversion Price.
Amended and Restated
Paying and Conversion
Agency Agreement
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Notification of Closure of Register of
Shareholders
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The Issuer
shall as soon as is practicable after becoming aware that the
Issuer’s register of shareholders is to be closed, give
notice to the Trustee and the Agents of any dates upon which such
register of shareholders is to be closed. Such notice shall give
particulars of the reason for such closure and the expected date
when the register will be re-opened.
Each Conversion
Notice deposited with a Conversion Agent and each facsimile
transmission sent and letter delivered in respect of a Conversion
Notice pursuant to the foregoing provisions of this Clause by any
Conversion Agent shall indicate the identification code designated
below for that Conversion Agent, followed by the words “
China Architectural Engineering, Inc. 12% Convertible Bonds
due 2011 (US$) ”, and shall bear the lowest number
previously unused by that Conversion Agent in the sequence of whole
numerals starting from one and continuing in uninterrupted sequence
upwards, for identification. All confirmatory or subsequent
communications (regardless of the identity of the sender or the
recipient thereof) with regard to the conversion, receipt, delivery
and/or payment of Shares and/or any other securities, property and
cash relating to such Conversion Notice shall bear the same
identifying number as well as the identification code of the
relevant Conversion Agent.
The
identification codes of the Conversion Agent shall be as
follows:
Thus, by way of
example, the reference to be used for the fifth Conversion Notice
deposited with the Principal Agent and for each facsimile
transmission and letter relating thereto would be “BNYLDN1/
China Architectural Engineering, Inc. 12% Convertible Bonds due
2011/0005”.
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Fees
and Expenses of Conversion
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The Issuer
shall pay all stamp, issue, registration, excise, and similar taxes
and duties and transfer costs (if any) payable with respect to the
deposit of Bonds for conversion and the issue and delivery of
Shares following such deposit (other than those taxes and duties
payable by the converting Bondholder as expressly provided in
Clause 6.1 or the Conditions), all expenses arising in the United
States or England on the issue of Shares on conversion of Bonds and
all charges of the Conversion Agents in connection
thereon.
Neither the
Conversion Agent nor the Issuer is under any obligation to
determine whether a Bondholder is liable to pay any taxes or
duties, including stamp, issue, registration or similar taxes and
duties upon exercise by such Bondholder of the Conversion Right.
The Agents shall be entitled to rely without further enquiry and
without liability on any information provided by such Bondholder in
the Conversion Notice as to any such amounts payable and as to the
details of the relevant tax authorities to which the Conversion
Agent must pay monies received in settlement of the taxes and
duties payable pursuant to Condition 6(B)(ii).
Amended and Restated
Paying and Conversion
Agency Agreement
If the Issuer
intends to redeem all or any of the Bonds under Condition 9(B) or
Condition 9(C) it shall, at least five (5) Business Days before the
latest date for the publication of the notice of redemption
required to be given to Bondholders in accordance with Condition
19, give prompt notice in writing of its intention to the Principal
Agent and the Trustee stating the date on which such Bonds are to
be redeemed and the Early Redemption Amount.
On behalf of
and at the request and expense of the Issuer, the Principal Agent
shall publish the notice in accordance with Condition 19, in the
form approved by the Issuer, required in connection with such
redemption. Such notice shall specify the details in accordance
with Condition 9(I). The Principal Agent shall forthwith notify the
other Paying Agents of the contents of such notice.
Each Paying
Agent will keep a stock of notices (the “
Bondholder’s Tax Election Notices ”)
each in a form similar to that set out in the Exhibit F and will
make them available on demand to Bondholders. The Paying Agent with
which a Bond is deposited pursuant to Condition 9(C) shall hold
such Bond on behalf of the depositing Bondholder (but shall not,
save as provided below, release it) until the proposed Tax
Redemption Date of the Bonds pursuant to Condition 9(C)(i). On that
date, subject as provided below, the relevant Paying Agent shall
return such Bond to the depositing Bondholder and (in the case of
the Global Certificate) endorse the relevant Schedule to such
Certificate appropriately. If the deposited Bond (or Bonds) becomes
(or become) immediately due and payable before that date, the
Paying Agent concerned shall mail such Certificate by uninsured
post to, and at the risk of, the relevant holder.
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Redemption at the Option of the Bondholders and
Redemption for Non-Listing or Change of Control
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Each Paying
Agent will keep a stock of notices (“ Bondholder
Redemption Notices ”) in a form similar to that set
out in Exhibit E and will make them available on demand to
Bondholders. The Paying Agent with which a Certificate is deposited
pursuant to Condition 9(D), Condition 9(E) or Condition 9(F) shall
hold such Certificate on behalf of the depositing Bondholder (but
shall not, save as provided below, release it) until the due date
for redemption of the Bonds in respect of which it is issued
pursuant to Condition 9(D), Condition 9(E) or Condition 9(F), as
the case may be. On that date, subject as provided below, the
relevant Paying Agent shall surrender such Certificate to itself
and treat it as if surrendered by the holder in accordance with the
Conditions and (in the case of the Global Certificate) endorse the
Schedule to such Certificate with the principal amount of Bonds to
be redeemed and the principal amount of Bonds remaining after such
redemption. If the Bond (or Bonds) represented by the deposited
Certificate becomes (or become) immediately due and payable before
that date, the Paying Agent concerned shall mail such Certificate
by uninsured post to, and at the risk of, the relevant Bondholder
at the address shown for the Bondholder on the register of
Bondholders as supplied by the Registrar. At the end of the period
for exercising the option in Condition 9(D), Condition 9(E) or
Condition 9(F), as the case may be, each Paying Agent shall
promptly notify the Principal Agent of the principal amount of
Bonds in respect of which Bondholder Redemption Notices have been
deposited with it and will forward such Bondholder Redemption
Notices to the Principal Agent. The Principal Agent shall promptly
notify such information and details of the principal amount of
Bonds represented by the Global Certificate in respect of which the
option in Condition 9(D), Condition 9(E) or Condition 9(F), as the
case may be, has been exercised to the Issuer and the Trustee. A
Bondholder Redemption Notice, once delivered, shall be
irrevocable.
Amended and Restated
Paying and Conversion
Agency Agreement
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Effect
of Notice of Redemption
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Once a notice
of redemption is provided in accordance with Condition 19 and/or a
Bondholder Redemption Notice is duly completed, signed and
deposited with any Paying Agents in accordance with Condition 9(D),
Condition 9(E) or Condition 9(F), Bonds called/put for redemption
become due and payable on the date fixed for redemption of the
Bonds or the Relevant Event Redemption Date, as the case may be, at
the Early Redemption Amount or 116.61% of the principal amount of
the Bonds, as the case may be, stated in the relevant notice. Upon
surrender of any Certificate in respect of such Bond for redemption
in accordance with said notice, such Bond shall be paid by the
Issuer at the Early Redemption Amount or 116.61% of the principal
amount of the Bonds, as the case may be, in accordance with the
Conditions.
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Deposit
of Redemption Price
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For value on
the Business Day prior to the relevant redemption date, the Issuer
shall deposit with the Principal Agent money sufficient to pay the
redemption price of all Bonds to be redeemed on that date other
than any Bonds called for redemption on that date which have been
converted prior to the date of such deposit. The Principal Agent
shall as soon as practicable return to the Issuer upon its written
request any money (without interest thereon) not required for that
purpose because of conversion of any Bonds called for
redemption.
All Bonds which
are redeemed, converted or purchased by the Issuer or any of its
Subsidiaries shall be cancelled by the removal of the relevant
Bondholder’s name from the Register by the Registrar and
cancellation of the corresponding Certificates (or appropriate
amendment of the Global Certificate if the Bonds are represented
thereby) by the Agent to which they were surrendered or with which
they were deposited.
Each Agent
shall (unless it is itself the Principal Agent) give all relevant
details for the purposes of Clause 8.3 to, and shall forward
Certificates cancelled by it promptly to, the Principal Agent or,
as the case may be, its designated agent.
Amended and Restated
Paying and Conversion
Agency Agreement
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Certification of Payment
Details
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Subject to
receipt of the information described in Clause 8.2, the Principal
Agent shall as soon as reasonably practicable, upon a request in
writing from any of the Issuer, the Trustee and the Registrar,
furnish the Issuer and the Trustee and the Registrar with a
certificate signed by its duly authorised officer (whose name and
specimen signature have previously been provided to the Issuer)
stating (as applicable) (a) the aggregate amounts paid in respect
of Bonds redeemed or paid and cancelled, (b) the aggregate
principal amount of Bonds converted and cancelled and (c) the
identifying numbers of such Bonds and (d) that such Bonds have been
cancelled. Such certification may be accepted by the Trustee as
conclusive evidence of repayment or discharge pro tanto of
the Bonds, of payment of interest thereon (if any) or (as the case
may be) of the issue of replacement Certificates.
Unless
otherwise instructed by the Issuer, the Principal Agent or its
designated agent shall destroy the cancelled Certificates in its
possession or held to its order and furnish to the Issuer and the
Trustee upon request, a certificate of such destruction duly
signed
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