THE ROYAL BANK OF SCOTLAND PLC as Issuer THE ROYAL BANK OF SCOTLAND GROUP PLC as Guarantor TO THE BANK OF NEW YORK MELLON, acting through its London Branch as Trustee INDENTURE Senior Debt Securities
Exhibit
4.1
THE
ROYAL BANK OF SCOTLAND PLC
as
Issuer
as
Guarantor
TO
THE
BANK OF NEW YORK MELLON, acting through its London Branch
as
Trustee
Senior
Debt Securities
Reconciliation
and tie between Trust Indenture Act of 1939, as amended by the Trust Indenture
Reform Act of 1990, and Senior Debt Securities Indenture, dated ________ ___,
____.
|
Trust
Indenture Act Section
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Senior
Debt Securities Indenture Section
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||
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§310
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(a)(1)
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6.09
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|
|
(a)(2)
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6.09
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||
|
(a)(3)
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Not
Applicable
|
||
|
(a)(4)
|
Not
Applicable
|
||
|
(b)
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6.08,
6.10
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||
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(c)
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Not
Applicable
|
||
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§311
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(a)
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6.13
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|
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(b)
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6.13
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||
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(b)(2)
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7.03(a),
7.03(b)
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||
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(c)
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Not
Applicable
|
||
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§312
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(a)
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7.01,
7.02(a)
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|
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(b)
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7.02(b)
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||
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(c)
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7.02(c)
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||
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§313
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(a)
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7.03(a)
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(b)
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7.03(a)
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||
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(c)
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1.06,
7.03(a)
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||
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(d)
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7.03(b)
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||
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§314
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(a)
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7.04,
10.06
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(b)
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Not
Applicable
|
||
|
(c)(1)
|
1.02
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||
|
(c)(2)
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1.02
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||
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(c)(3)
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Not
Applicable
|
||
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(d)
|
Not
Applicable
|
||
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(e)
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1.02
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||
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(f)
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Not
Applicable
|
||
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§315
|
(a)
|
6.01
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|
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(b)
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6.02,
7.03(a)
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||
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(c)
|
6.01
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||
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(d)
|
6.01
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||
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(d)(1)
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6.01
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||
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(d)(2)
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6.01
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||
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(d)(3)
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6.01
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||
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(e)
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5.14
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||
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Trust
Indenture Act Section
|
Senior
Debt Securities Indenture Section
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||
| §316 | (a)(1)(A) | 5.02, 5.12 | |
| (a)(l)(B) | 5.13 | ||
| (a)(2) | Not Applicable | ||
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(a)(last
sentence)
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1.01
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||
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(b)
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5.08
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||
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§317
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(a)(1)
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5.03
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|
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(a)(2)
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5.04
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||
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(b)
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10.03
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||
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§318
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(a)
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1.07
|
|
NOTE:
This reconciliation and tie shall not, for any purpose, be deemed to be a part
of the Senior Debt Securities Indenture.
TABLE
OF CONTENTS
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PAGE
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ARTICLE
1
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|
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DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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|
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Section
1.01. Definitions
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3
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Section
1.02. Compliance
Certificates and Opinions
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11
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|
Section
1.03. Form of
Documents Delivered to Trustee
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11
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|
Section
1.04. Acts of
Holders
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12
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|
Section
1.05. Notices, Etc. to
Trustee and Company
|
13
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Section
1.06. Notice
to Holders; Waiver
|
13
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Section
1.07. Conflict with
Trust Indenture Act
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14
|
|
Section
1.08. Effect
of Headings and Table of Contents
|
14
|
|
Section
1.09. Successors and
Assigns
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14
|
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Section
1.10. Separability
Clause
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14
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|
Section
1.11. Benefits of
Senior Debt Securities Indenture
|
14
|
|
Section
1.12. Governing
Law
|
15
|
|
Section
1.13. Saturdays,
Sundays and Legal Holidays
|
15
|
|
Section
1.14. Appointment of
Agent for Service
|
15
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Section
1.15. Calculation
Agent
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16
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ARTICLE
2
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|
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SENIOR DEBT SECURITY FORMS
|
|
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Section
2.01. Forms
Generally
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16
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Section
2.02. Form of
Trustee’s Certificate of Authentication
|
17
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ARTICLE
3
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|
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THE SENIOR DEBT SECURITIES
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|
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Section
3.01. Amount
Unlimited; Issuable in Series
|
18
|
|
Section
3.02. Denominations
|
21
|
|
Section
3.03. Execution,
Authentication, Delivery and Dating
|
21
|
|
Section
3.04. Temporary Senior
Debt Securities
|
22
|
|
Section
3.05. Registration,
Registration of Transfer and Exchange.
|
23
|
|
Section
3.06. Mutilated,
Destroyed, Lost and Stolen Senior Debt Securities
|
27
|
|
Section
3.07. Payment; Interest
Rights Preserved
|
28
|
|
Section
3.08. Persons
Deemed Owners
|
30
|
|
Section
3.09. Cancellation
|
30
|
|
Section
3.10. Computation of
Interest
|
30
|
|
Section
3.11. CUSIP
Numbers
|
30
|
i
ii
|
Section
6.13. Preferential
Collection of Claims
|
49
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|
Section
6.14. Appointment of
Authenticating Agent
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49
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ARTICLE
7
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HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
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|
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Section
7.01. Company
and Guarantor to Furnish Trustee Names and Addresses
of Holders
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51
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|
Section
7.02. Preservation of
Information; Communication to Holders.
|
51
|
|
Section
7.03. Reports
by Trustee.
|
52
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|
Section
7.04. Reports
by the Company and the Guarantor
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52
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ARTICLE
8
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CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
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|
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Section
8.01. Company
or Guarantor May Consolidate, Etc. Only on Certain
Terms
|
53
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|
Section
8.02. Successor
Corporation Substituted
|
54
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|
Section
8.03. Assumption of
Obligations
|
54
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ARTICLE
9
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SUPPLEMENTAL INDENTURES
|
|
|
Section
9.01. Supplemental
Indentures without Consent of Holders
|
56
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|
Section
9.02. Supplemental
Indentures with Consent of Holders
|
57
|
|
Section
9.03. Execution of
Supplemental Indentures
|
58
|
|
Section
9.04. Effect
of Supplemental Indentures
|
59
|
|
Section
9.05. Conformity with
Trust Indenture Act
|
59
|
|
Section
9.06. Reference in
Senior Debt Securities to Supplemental Indentures
|
59
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ARTICLE
10
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|
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COVENANTS
|
|
|
Section
10.01. Payment of
Principal, Premium, and Interest
|
59
|
|
Section
10.02. Maintenance of
Office or Agency
|
59
|
|
Section
10.03. Money
for Payments to be Held in Trust
|
60
|
|
Section
10.04. Additional
Amounts
|
62
|
|
Section
10.05. Corporate
Existence
|
64
|
|
Section
10.06. Statement as to
Compliance
|
64
|
|
Section
10.07. Original Issue
Document
|
64
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ARTICLE
11
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|
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REDEMPTION OF SENIOR DEBT SECURITIES
|
|
|
Section
11.01. Applicability of
Article
|
64
|
iii
|
Section
11.02. Election to
Redeem; Notice to Trustee
|
64
|
|
Section
11.03. Selection by
Trustee of Senior Debt Securities to be Redeemed
|
65
|
|
Section
11.04. Notice
of Redemption
|
65
|
|
Section
11.05. Deposit of
Redemption Price
|
66
|
|
Section
11.06. Senior
Debt Securities Payable on Redemption Date
|
66
|
|
Section
11.07. Senior
Debt Securities Redeemed in Part
|
66
|
|
Section
11.08. Optional
Redemption Due to Changes in Tax Treatment
|
67
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ARTICLE
12
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GUARANTEE AND INDEMNITY
|
|
|
Section
12.01. The
Guarantee
|
68
|
|
Section
12.02. Net
Payments
|
68
|
|
Section
12.03. Guarantee
Unconditional, Etc
|
71
|
|
Section
12.04. Reinstatement
|
71
|
|
Section
12.05. Subrogation
|
72
|
|
Section
12.06. Indemnity
|
72
|
|
Section
12.07. Assumption By
Guarantor
|
72
|
iv
SENIOR
DEBT SECURITIES INDENTURE, dated as of _________ ___, 2009 between THE ROYAL
BANK OF SCOTLAND PLC, a corporation incorporated in Scotland with registered
number SC090312 (the “Company”), THE
ROYAL BANK OF SCOTLAND GROUP PLC, a corporation incorporated in Scotland with
registered number SC045551 (the “Guarantor”) and THE BANK OF NEW YORK MELLON
(previously named The Bank of New York), acting through its London Branch, a
banking corporation duly organized and existing under the laws of the State of
New York as Trustee (the “Trustee”),
having its Corporate Trust Office at Xxx Xxxxxx Xxxxxx, Xxxxxx, X00
0XX.
RECITALS
OF THE COMPANY
The
Company has duly authorized the execution and delivery of this Senior Debt
Securities Indenture to provide for the issuance from time to time of its senior
debt securities (the “Senior
Debt Securities”), to be issued in one or more series, represented by one
or more Global Securities in registered form without coupons for payments
attached, or represented by definitive Senior Debt Securities in registered form
without coupons for payments attached, the amount and terms of each such series
to be determined as hereinafter provided.
All
things necessary to make this Senior Debt Securities Indenture a valid and
binding agreement of the Company, in accordance with its terms, have been
done.
All
things necessary to make the Guarantees, when executed by the Guarantor and
endorsed on the Senior Debt Securities issued under this Senior Debt Securities
Indenture, and authenticated and delivered hereunder, the valid obligations of
the Guarantor, and to make this Senior Debt Securities Indenture a valid
agreement of the Guarantor, in accordance with their and its terms, have been
done.
NOW,
THEREFORE, THIS SENIOR DEBT SECURITIES INDENTURE WITNESSETH:
For and
in consideration of the premises and the purchase of the Senior Debt Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of Senior Debt Securities as
follows:
2
ARTICLE
1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section
1.01. Definitions. For
all purposes of this Senior Debt Securities Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the
terms defined in this Article have the meanings assigned to them in this Article
and include the plural as well as the singular;
(2) all
other terms used herein which are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them
therein;
(3) all
accounting terms not otherwise defined herein have the meanings assigned to them
in accordance with generally accepted accounting principles and, except as
otherwise herein expressly provided, the term “generally accepted accounting
principles” with respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally accepted in the United
Kingdom at the date of such computation and as applied by the
Company;
(4) the
words “herein,” “hereof” and “hereunder” and other words of
similar import refer to this Senior Debt Securities Indenture as a whole and not
to any particular Article, Section or other subdivision; and
(5) any
reference to an “Article” or a “Section” refers to an Article
or Section of this Senior Debt Securities Indenture.
Certain
terms, used principally in Article 6, are defined in those
Articles.
“Act”, when used with respect
to any Holder, has the meaning specified in Section 1.04.
“Additional Amounts” shall have
the meaning set forth in Section 10.04, of this Agreement.
“Affiliate” of any specified
Person means any other Person directly or indirectly controlling or controlled
by or under direct or indirect common control with such specified Person. For
the purposes of this definition, “control” when used with
respect to any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
3
“Agent Member” means a member
of, or participant in, any Depositary.
“Auditors” means the Auditors
from time to time of the Company or if there shall be joint Auditors of the
Company any one or more of such joint Auditors.
“Authenticating Agent” means
any Person authorized by the Trustee to act on behalf of the Trustee to
authenticate Senior Debt Securities. Initially the Trustee shall act as
Authenticating Agent.
“Authorized Newspaper” means a
newspaper in an official language of the country of publication customarily
published at least once a day for at least five days in each calendar week and
of general circulation in the place in connection with which the term is used,
which, in the United Kingdom, will be the Financial Times of London, if
practicable, and which, in the United States, will be the Wall Street Journal, if
practicable, and which, in Luxembourg, will be the Luxemburger Wort, if
practicable and for so long as and only with respect to any Senior Debt
Securities listed on the Luxembourg Stock Exchange, and if it shall be
impracticable in the opinion of the Company to make any publication of any
notice required hereby in any such newspaper, shall mean any publication or
other notice in lieu thereof which is made or given with the approval of the
Company which may include through the means of DTC, Euroclear and
Clearstream.
“Board of Directors” means
either the board of directors, or any committee of such board duly authorized to
act with respect hereto, of the Company, which board of directors or committee
may, to the extent permitted by applicable law, delegate its
authority.
“Board Resolution” means a copy
of a resolution certified by the Secretary or a Deputy or Assistant Secretary of
the Company to have been duly adopted by the Board of Directors or duly
authorized committee thereof and to be in full force and effect on the date of
such certification and delivered to the Trustee.
“Business Day” means, with
respect to any Place of Payment, except as may otherwise be provided in the form
of Senior Debt Securities of any particular series, each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions
in that Place of Payment are authorized or obligated by law or executive order
to close.
“Calculation Agent” means the
Person, if any, authorized by the Company, to calculate the interest rate or
other amounts from time to time in relation to any series of Senior Debt
Securities.
4
“Commission” means the
Securities and Exchange Commission, as from time to time constituted, created
under the Exchange Act, or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
“Company Request” and “Company Order” mean,
respectively, a written request or order signed in the name of the Company by an
Executive Director or Director or the Secretary of a Deputy or Assistant
Secretary, and delivered to the Trustee.
“Corporate Trust Office” means
the office of the Trustee in which its corporate trust business is principally
administered, located at Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX (Attention: Corporate
Trust Administration, facsimile: x00 00 0000 0000).
The term
“corporation” includes
corporations, associations, companies and business trusts.
“Deferred Interest” has the
meaning specified in Section 3.07.
“Depositary” means, with
respect to any series of Senior Debt Securities, a clearing agency that is
designated to act as Depositary for the Global Securities evidencing all or part
of such Senior Debt Securities as contemplated by Section 3.01.
“Dollar” or “$” or any similar reference
means the coin or currency of the United States which as at the time of payment
is legal tender for the payment of public and private debts.
“DTC” means The Depository
Trust Company or its nominee or its or their successor.
“euro” or “€” means the single currency
of the participating member states in the Third Stage of European economic and
monetary union pursuant to the Treaty establishing the European Community (as
amended from time to time). “participating member states”
means those member states of the European Union from time to time which adopt a
single, shared currency in the Third Stage, as defined and identified in the EMU
legislation.
“Event of Default” has the
meaning specified in Section 5.01.
“Exchange Act” means the United
States Securities Exchange Act of 1934, as amended.
5
“Executive Officer” means, for
each of the Company and the Guarantor, any executive officer or any Designated
Signatory as defined in the minutes of a meeting of a committee of the Board of
Directors held on
[
], 2009, and, in each case, any other person authorized by a Board Resolution to
carry out the functions such officer performs.
“Foreign Currency” means the
euro or any currency issued by the government of any country (or a group of
countries or participating member states) other than the United States which as
at the time of payment is legal tender for the payment of public and private
debts.
“Foreign Government Securities”
means with respect to Senior Debt Securities of any series that are denominated
in a Foreign Currency, non-callable (i) direct obligations of the participating
member state or government that issued such Foreign Currency for the payment of
which obligations its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
such participating member state or government, the payment of which obligations
is unconditionally guaranteed as a full faith and credit obligation of such
participating member state or government. For the avoidance of doubt, for all
purposes hereof, euro shall be deemed to have been issued by each participating
member state from time to time.
“Global Security” means a
global certificate evidencing all or part of a series of Senior Debt Securities,
authenticated and delivered to the Holder and registered in the name of the
Holder or its nominee.
“Guarantee” means the
unconditional guarantee of the payment by the Guarantor of the principal of, any
premium or interest on, and any additional amounts with respect to the Senior
Debt Securities.
“Guarantor” means The Royal
Bank of Scotland Group PLC, until a successor Person shall have become such
pursuant to the applicable provisions of the Senior Debt Securities Indenture,
and thereafter “Guarantor” shall mean such successor Person.
“Guarantor’s Officer
Certificate” means a certificate signed by any two duly authorized
signatories of the Guarantor acting together, that complies with the
requirements of Section 314(e) of the Trust Indenture Act and is delivered to
the Trustee.
“Guarantor Taxing Jurisdiction”
shall have the meaning set forth in Section 12.02.
“Holder” means a Person in
whose name a Senior Debt Security in global or definitive form is registered in
the Senior Debt Security Register.
6
The term
“interest”, when used
with respect to a Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.
“Interest Payment Date”, when
used with respect to any Senior Debt Security, means the Stated Maturity of any
installment of interest on such Senior Debt Security.
“Maturity”, when used with
respect to any Senior Debt Security, means the date, if any, on which the
principal of such Senior Debt Security becomes due and payable as therein or
herein provided, whether by call for redemption, winding-up of the Company or
otherwise.
“Officer’s Certificate” means a
certificate delivered to the Trustee and signed by an Executive Director or an
Assistant Director or the Secretary or a Deputy or Assistant Secretary of the
Company.
“Opinion of Counsel” means a
written opinion of legal advisors, who may be an employee of or legal advisors
for the Company or other legal advisors acceptable to the Trustee.
“Original Issue Discount
Security” means any Senior Debt Security which provides for an amount
less than the principal amount to be due and payable upon a declaration of the
Maturity thereof pursuant to Section 5.02.
“Outstanding”, when used with
respect to Senior Debt Securities or any series of Senior Debt Securities means
(except as otherwise specified pursuant to Section 3.01), as of the date of
determination, all Senior Debt Securities or all Senior Debt Securities of such
series, as the case may be, theretofore authenticated and delivered under this
Senior Debt Securities Indenture, except:
(i) Senior
Debt Securities theretofore cancelled by the Trustee or delivered to the Trustee
for cancellation;
(ii) Senior
Debt Securities, or portions thereof, for whose payment or redemption money,
U.S. Government Obligations or Foreign Government Securities in the necessary
amount have been theretofore deposited with the Trustee or any Paying Agent
(other than the Company or the Guarantor) in trust or set aside and segregated
in trust by the Company or the Guarantor (if the Company shall act as its own or
authorized the Guarantor to act as, Paying Agent) for the Holders of such Senior
Debt Securities; provided, that, if such
Senior Debt Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Senior Debt Securities Indenture or provision
therefor satisfactory to the Trustee has been made; and
7
(iii)
Senior Debt Securities which have been paid pursuant to Section 11.06 or in
exchange for or in lieu of which other Senior Debt Securities have been
authenticated and delivered pursuant to this Senior Debt Securities Indenture,
other than any such Senior Debt Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such Senior Debt
Securities are held by a bona fide purchaser in whose hands such Senior Debt
Securities are valid obligations of the Company;
provided, however, that in
determining whether the Holders of the requisite principal amount of the
Outstanding Senior Debt Securities of any series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the principal
amount of a Senior Debt Security denominated in a Foreign Currency shall be the
Dollar equivalent, determined on the date of original issuance of such Senior
Debt Security, of the principal amount of such Senior Debt Security; and (ii)
Senior Debt Securities beneficially owned by the Company, the Guarantor or any
other obligor upon the Senior Debt Securities or any Affiliate of the Company or
of such other obligor shall be disregarded and deemed not to be Outstanding
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Senior Debt Securities for which a Responsible Officer of the
Trustee has received an Officer’s Certificate stating that such Senior Debt
Securities are so beneficially owned shall be so disregarded; provided, further, however, that Senior Debt
Securities so beneficially owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee’s right so to act with respect to such
Senior Debt Securities and that the pledgee is not the Company, the Guarantor or
any other obligor upon the Senior Debt Securities or any Affiliate of the
Company, the Guarantor or of such other obligor.
“Paying Agent” means any Person
(which may include the Company or the Guarantor) authorized by the Company to
pay the principal of (and premium, if any) or interest, if any on any Senior
Debt Securities on behalf of the Company.
“Person” means any individual,
corporation, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
“Place of Payment”, when used
with respect to the Senior Debt Securities of any series, means the place or
places where the principal of (and premium, if any) and interest, if any, on the
Senior Debt Securities of that series are payable as specified pursuant to
Section 3.01 or, if not so specified, as specified in Section
10.02.
8
“Predecessor Security” of any
particular Senior Debt Security means every previous Senior Debt Security
evidencing all or a portion of the same debt as that evidenced by such
particular Senior Debt Security; and, for the purposes of this definition, any
Senior Debt Security authenticated and delivered under Section 3.06 in exchange
for or in lieu of a mutilated, destroyed, lost or stolen Senior Debt Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Senior Debt Security.
“Redemption Date”, when used
with respect to any Senior Debt Security to be redeemed, means the date fixed
for such redemption by or pursuant to this Senior Debt Securities
Indenture.
“Redemption Price”, when used
with respect to any Senior Debt Security to be redeemed, means the price at
which it is to be redeemed pursuant to this Senior Debt Securities
Indenture.
“Regular Record Date” for the
interest payable on any Interest Payment Date on registered Senior Debt
Securities of any series means the date specified for the purpose pursuant to
Section 3.01.
“Responsible Officer”, when
used with respect to the Trustee, means any officer of the Trustee assigned to
or working in the corporate trust department of the Trustee or, with respect to
a particular corporate trust matter, any other officer to whom such matter is
referred because of his or her knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this
Senior Debt Securities Indenture.
“Senior Debt Securities” has
the meaning set forth in the recitals herein and more particularly means any
series of Senior Debt Securities issued, authenticated and delivered under this
Senior Debt Securities Indenture.
“Senior Debt Securities
Indenture” means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms and forms of particular series of Senior Debt Securities
established pursuant to Section 3.01.
“Senior Debt Security” means
one of the Senior Debt Securities.
“Senior Debt Security Register”
and “Senior Debt Security
Registrar” have the respective meanings specified in Section
3.05.
“Special Record Date”, when
used for the payment of any Deferred Interest on registered Senior Debt
Securities of any series, means the date specified by the Company for the
purpose pursuant to Section 3.07.
9
“Stated Maturity”, when used
with respect to any Senior Debt Security or any installment of principal thereof
or interest thereon, means the date, if any, specified in, or determined in
accordance with the terms of, such Senior Debt Security as the fixed date on
which the principal of such Senior Debt Security is due and
payable.
“Subsidiary” has the meaning
attributed thereto by Section 736 of the Companies Xxx 0000 of Great Britain as
in force at the date as of which this instrument was executed.
“Taxing Jurisdiction” has the
meaning specified in Section 10.04.
“Trustee” means the Person
named as the “Trustee”
in the first paragraph of this instrument until a successor trustee shall have
become such pursuant to the applicable provisions of this Senior Debt Securities
Indenture, and thereafter “Trustee” shall mean the Person
who is then the Trustee hereunder, and if at any time there is more than one
such Person, “Trustee”
shall mean and include each such Person; and “Trustee” as used with respect
to the Senior Debt Securities of any series shall mean the Trustee with respect
to the Senior Debt Securities of such series.
“Trust Indenture Act” means the
Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of
1990, as in force at the date as of which this instrument was executed, except
as provided in Section 9.05.
“United Kingdom” means the
United Kingdom of Great Britain and Northern Ireland.
“United States” and “U.S.” mean the United States
of America and, except in the case of Sections 6.09 and 6.14, its territories
and possessions.
“U.S. Government Obligations”
means noncallable (i) direct obligations of the United States for which its full
faith and credit are pledged and/or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States,
the payment of which is unconditionally guaranteed as a full faith and credit
obligation of the United States, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933,
as amended) as custodian with respect to any such U.S. Government Obligation or
a specific payment of principal of or interest on any such U.S. Government
Obligation held by such custodian for the account of the holder of such
depository receipt, provided that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the specific
payment of principal of or interest on the U.S. Government Obligation evidenced
by such depository receipt.
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Section
1.02. Compliance Certificates
and Opinions. Upon any application or request by the Company to the
Trustee to take any action under any provision of this Senior Debt Securities
Indenture, the Company shall furnish to the Trustee an Officer’s Certificate
stating that all conditions precedent, if any, provided for in this Senior Debt
Securities Indenture relating to the proposed action have been complied with and
an Opinion of Counsel stating that in the opinion of the legal advisor rendering
such opinion all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Senior Debt Securities Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Senior Debt Securities Indenture shall
include:
(a) a
statement that each Person signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;
(b) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based;
(c) a
statement that, in the opinion of each such Person, he has made such examination
or investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied with;
and
(d) a
statement as to whether, in the opinion of each such Person, such condition or
covenant has been complied with.
Section
1.03. Form of Documents
Delivered to Trustee. In any case where several matters are required to
be certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or several
documents.
Any
certificate or opinion of an officer of the Company or the Guarantor may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, legal advisors, unless such officer knows, or in the
exercise
11
of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of, or representations by, legal
advisors may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company or the Guarantor, as the case may be, stating that the information with
respect to such factual matters is in the possession of the Company or the
Guarantor, as the case may be, unless such legal advisors know, or in the
exercise of reasonable care should know, that the certificate or opinion or
representation with respect to such matters is erroneous.
Where any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Senior Debt Securities Indenture, they may, but need not, be consolidated and
form one instrument.
Section
1.04. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Senior Debt Securities Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, when it is hereby expressly required, to the Company and the
Guarantor. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Senior Debt Securities Indenture and (subject to Section 6.01) conclusive in
favor of the Trustee and the Company and the Guarantor, if made in the manner
provided in this Section.
(b) The
fact and date of the execution by any Person of any such instrument or writing
may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. When such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The
ownership of registered Senior Debt Securities shall be proved by the Senior
Debt Security Register.
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(d) Any
request, demand, authorization, direction, notice, consent, waiver or other Act
of the Holder of any Senior Debt Security shall bind every future Holder of the
same Senior Debt Security and the Holder of every Senior Debt Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Senior Debt Security or such other Senior Debt
Security.
Section
1.05. Notices, Etc. to Trustee
and Company. Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Senior Debt Securities Indenture to be made upon, given or furnished to, or
filed with,
(a) the
Trustee by any Holder or by the Company or Guarantor shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if made,
given, furnished or filed in writing (which may be via facsimile) to the Trustee
at its Corporate Trust Office, or
(b) the
Company or Guarantor by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class air mail postage prepaid, to the Company or the
Guarantor, to RBS Gogarburn, X.X. Xxx 0000, Xxxxxxxxx XX00 0XX (Attention: Group
Secretariat) or at any other address previously furnished in writing to the
Trustee by the Company or the Guarantor.
Section
1.06. Notice to Holders;
Waiver. When this Senior Debt Securities Indenture provides for notice to
Holders of any event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if given in writing and mailed, first-class postage
prepaid, to each Holder of a registered Senior Debt Security affected by such
event in the manner and to the extent provided in Section 313(c) of the Trust
Indenture Act with respect to reports pursuant to Section 7.03(a).
For so
long as the Senior Debt Securities of any series are represented by Global
Securities, the Company will deliver a copy of all notices with respect to such
series to the Holder (if the address of such Holder is known to the
Company).
When
notice to Holders of registered Senior Debt Securities is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Senior Debt Securities Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
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the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver. In case by reason of the
suspension of regular mail service or by reason of any other cause it shall be
impracticable to give such notice by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder.
Section
1.07. Conflict with Trust
Indenture Act. If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required to be included in this Senior
Debt Securities Indenture by any of the provisions of the Trust Indenture Act,
such required provision shall control. If at any future time any provision
required to be included herein by the Trust Indenture Act as in force at the
date as of which this Senior Debt Securities Indenture was executed or any
limitation imposed by the Trust Indenture Act at such date on any provision
otherwise included herein would not be so required or imposed (in whole or in
part) if this Senior Debt Securities Indenture were executed at such future
time, the Company, the Guarantor and the Trustee may enter into one or more
indentures supplemental hereto pursuant to Section 9.01 to change or eliminate
(in whole or in part) such provision or limitation of this Senior Debt
Securities Indenture in conformity with the requirements of the Trust Indenture
Act as then in force, except that (subject to Article Nine) no provision or
limitation required to be included herein by Sections 310(a)(1) and (a)(2),
315(a), (c), (d)(l), (d)(2), (d)(3) and (e), 316(a)(1)(A), (a)(l)(B), (a)(2),
(a) (last sentence) and (b) of the Trust Indenture Act as in force at the date
as of which this Senior Debt Securities Indenture was executed may be so changed
or eliminated.
Section
1.08. Effect of Headings and
Table of Contents. The Article and Section headings herein and the Table
of Contents are for convenience only and shall not affect the construction
hereof.
Section
1.09. Successors and
Assigns. All covenants and agreements in this Senior Debt Securities
Indenture by the Company or the Guarantor shall bind its successors and assigns,
whether so expressed or not.
Section
1.10. Separability
Clause. In case any provision in this Senior Debt Securities Indenture or
in the Senior Debt Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section
1.11. Benefits of Senior Debt
Securities Indenture. Nothing in this Senior Debt Securities Indenture or
in the Senior Debt Securities, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, and the Holders of
Senior Debt Securities, any benefit or any legal or equitable right, remedy or
claim under this Senior Debt Securities Indenture.
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Section
1.12. Governing Law.
This Senior Debt Securities Indenture and the Senior Debt Securities shall be
governed by and construed in accordance with the laws of the State of New York,
except that the authorization and execution of the Senior Debt Securities
Indenture and the Senior Debt Securities shall be governed by (in addition to
the laws of the State of New York relevant to execution) by the respective
jurisdictions of the Company, the Guarantor and the Trustee, as the case may
be.
Section
1.13. Saturdays, Sundays and
Legal Holidays. The terms of the Senior Debt Securities shall provide
that, in any case where any Interest Payment Date, Redemption Date, Maturity or
Stated Maturity, of a Senior Debt Security shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this Senior Debt
Securities Indenture or the Senior Debt Securities other than a provision in the
Senior Debt Securities that specifically states that such provision shall apply
in lieu of this Section) payments of interest, if any (and premium, if any) or
principal and the exchange of the Senior Debt Security need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment (or such other Business Day as shall be provided in
such Senior Debt Security) with the same force and effect as if made on such
Interest Payment Date, Redemption Date, Maturity or Stated Maturity, provided that no interest
shall accrue on such payment for the period from and after such Interest Payment
Date, Redemption Date, Maturity or Stated Maturity, as the case may
be.
Section
1.14. Appointment of Agent for
Service. Each Company and the Guarantor has designated and appointed Xxxx
Xxxxxxx, Chief Financial Officer, Citizens Financial Group, Inc., 000 Xxxxxxxxxx
Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxxx, 00000, as its authorized agent upon which
process may be served in any suit or proceeding in any Federal or State court in
the Borough of Manhattan, The City of New York arising out of or relating to the
Senior Debt Securities or this Senior Debt Securities Indenture, but for that
purpose only, and agrees that service of process upon said Xxxx Xxxxxxx shall be
deemed in every respect effective service of process upon it in any such suit or
proceeding in any Federal or State court in the Borough of Manhattan, The City
of New York, New York. Such appointment shall be irrevocable so long as any of
the Senior Debt Securities remain Outstanding until the appointment of a
successor by the Company or the Guarantor and such successor’s acceptance of
such appointment. Upon such acceptance, the Company or the Guarantor shall
notify the Trustee of the name and address of such successor. Each Company and
the Guarantor further agrees to take any and all action, including the execution
and filing of any and all such documents and instruments, as may be necessary to
continue such designation and appointment of said Xxxx Xxxxxxx in full force and
effect so long as any of the Senior Debt Securities shall be Outstanding. The
Trustee shall not be obligated and shall have no responsibility with respect to
any failure by the Company or the Guarantor to take any such action. The Company
15
and the Guarantor hereby submits (for the purposes of any such suit or proceeding) to the jurisdiction of any such court in which any such suit or proceeding is so instituted, and waives, to the extent it may effectively do so, any objection it may have now or hereafter to the laying of the venue of any such suit or proceeding.
Section
1.15. Calculation
Agent. If the Company appoints a Calculation Agent pursuant to Section
3.01 with respect to any series of Senior Debt Securities, any determination of
the interest rate on, or other amounts in relation to, such series of Senior
Debt Securities in accordance with the terms of such series of Senior Debt
Securities by such Calculation Agent shall (in the absence of manifest error,
bad faith or willful misconduct) be binding on the Company, the Guarantor, the
Trustee and all Holders and (in the absence of manifest error, bad faith or
willful misconduct) no liability to the Holders shall attach to the Calculation
Agent in connection with the exercise or non-exercise by it of its powers,
duties and discretions.
ARTICLE
2
SENIOR DEBT SECURITY FORMS
Section
2.01. Forms Generally.
The Senior Debt Securities of each series shall be issuable as registered
securities without coupons and in such forms as shall be established by or
pursuant to a Board Resolution, or in one or more indentures supplemental
hereto, pursuant to Section 3.01, in each case with such insertions, omissions,
substitutions and other variations as are required or permitted by this Senior
Debt Securities Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with any applicable law or rule or regulation made pursuant
thereto or with the rules of any securities exchange or Depositary therefor, or
as may, consistently herewith, be determined by the officers executing such
Senior Debt Securities, all as evidenced by any such execution.
The
Trustee’s certificates of authentication shall be in substantially the form set
forth in Section 2.02 or Section 6.14.
The
Guarantee by the Guarantor to be endorsed on the Senior Debt Securities of each
series (other than Senior Debt Securities issued by RBSG) shall be substantially
in the form set forth in this Article, or as shall be established by or pursuant
to a Board Resolution, or in one of more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Senior Debt Securities
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may, consistently herewith,
be determined by the officer or officers executing such Guarantees, as evidences
by the officer’s or officers’ execution (whether by facsimile or otherwise) of
the Guarantees.
16
The
definitive Senior Debt Securities and Guarantees shall be printed, lithographed
or engraved or produced by any combination of these methods or may be produced
in any other manner permitted by the rules of any securities exchange on which
the Senior Debt Securities may be listed, all as determined by the officers
executing such Senior Debt Securities, as evidenced by their execution
thereof.
Section
2.02. Form of Trustee’s
Certificate of Authentication. The Trustee’s certificate of
authentication shall be in substantially the following form:
CERTIFICATE
OF AUTHENTICATION
This is
one of the Senior Debt Securities of the series designated herein referred to in
the within-mentioned Senior Debt Securities Indenture.
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Dated:
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THE
BANK OF NEW YORK MELLON, LONDON BRANCH
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as
Trustee
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By:
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Authorized
Signatory
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17
ARTICLE
3
THE SENIOR DEBT SECURITIES
Section
3.01. Amount Unlimited;
Issuable in Series. The aggregate principal amount of Senior Debt
Securities which may be authenticated and delivered under this Senior Debt
Securities Indenture is unlimited. The Senior Debt Securities may be issued in
one or more series.
There
shall be established by or pursuant to Board Resolutions of the Company or
established in one or more indentures supplemental hereto, prior to the initial
issuance of Senior Debt Securities of any series:
(a) the
title of the Senior Debt Securities of the series (which shall distinguish the
Senior Debt Securities of the series from all other Senior Debt
Securities);
(b) any
limit upon the aggregate principal amount of the Senior Debt Securities of the
series which may be authenticated and delivered under this Senior Debt
Securities Indenture (except for Senior Debt Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Senior Debt Securities of the series pursuant to Sections 3.04, 3.05,
3.06, 9.6 or
11.07 and except for any Senior Debt Securities which, pursuant to Section 3.03
are deemed never to have been authenticated and delivered
hereunder);
(c) the
date or dates, if any, on which the principal of (and premium, if any, on) the
Senior Debt Securities of the series is payable;
(d) the
rate or rates, if any, at which the Senior Debt Securities of the series shall
accrue interest or the manner of calculation of such rate or rates, if any, the
date or dates from which such interest shall accrue, the Interest Payment Dates
on which such interest shall be payable or the manner of determination of such
Interest Payment Dates, if other than as specified in Section 3.07, the terms
applicable to deferred payments and, in the case of registered Senior Debt
Securities, the Regular Record Date for the interest payable on any Interest
Payment Date, the Special Record Date for the payment of any Deferred Interest
and any dates required to be established pursuant to Section 7.01;
(e) whether
any premium, upon redemption or otherwise, shall be payable by the Company on
Senior Debt Securities of the series;
(f) the
place or places where the principal of (and premium, if any) and any interest on
Senior Debt Securities of the series shall be payable, and the Paying Agent or
Paying Agents who shall be authorized to pay principal of (and premium, if any)
and interest on Senior Debt Securities of such series, at least one of such
Paying Agents having an office or agency in the Borough of Manhattan, The City
of New York;
18
(g) other
than with respect to any redemption of the Senior Debt Securities pursuant to
Section 11.08, whether or not such series of Senior Debt Securities are to be
redeemable, in whole or in part, at the Company’s option and, if so redeemable,
the period or periods within which, the price or prices at which and the terms
and conditions upon which, Senior Debt Securities of the series may be redeemed,
including the date referred to in Section 11.08;
(h) the
obligation, if any, of the Company to redeem or purchase Senior Debt Securities
of the series pursuant to any sinking fund or analogous provisions or at the
option of a Holder thereof and the period or periods within which, the price or
prices at which, and the terms and conditions upon which Senior Debt Securities
of the series shall be redeemed or purchased, in whole or in part, pursuant to
such obligation;
(i) if
other than denominations of $[ ] and any multiple
thereof, the denominations in which Senior Debt Securities of the series in each
applicable form shall be issuable;
(j) if
other than the principal amount thereof, the portion, or the manner of
calculation of such portion, of the principal amount of Senior Debt Securities
of the series which shall be payable upon a declaration of acceleration or
acceleration of the Maturity thereof pursuant to Section 5.02, upon redemption
of Senior Debt Securities of any series which are redeemable before their Stated
Maturity, or which the Trustee shall be entitled to file and prove a claim
pursuant to Section 5.04;
(k)
if
Additional Amounts, pursuant to Section 10.04, will not be payable;
(l) the
terms, if any, on which such Senior Debt Securities may or shall be converted
into or exchanged at the option of the Company or otherwise for stock or other
securities of the Company or another entity or other entities, into a basket or
baskets of such securities, into an index or indices of such securities, into
the cash value therefor or into any combination of the foregoing, any specific
terms relating to the adjustment thereof and the period during which such Senior
Debt Securities may or shall be so converted or exchanged;
(m) if
other than Dollars, provisions, if any, for the Senior Debt Securities of the
series to be denominated, and payments thereon to be made, in Foreign Currencies
and specifying the manner and place of payment thereon and any other terms with
respect thereto;
19
(n) if
other than the coin or currency in which the Senior Debt Securities of that
series are denominated, the coin or currency in which payment of the principal
of (and premium, if any) or interest, if any, on the Senior Debt Securities of
such series shall be payable;
(o) if
the principal of (and premium, if any) or interest, if any, on the Senior Debt
Securities of such series are to be payable, at the election of the Company or a
Holder thereof, in a coin or currency other than that in which the Senior Debt
Securities are denominated, the period or periods within which, and the terms
and conditions upon which, such election may be made;
(p) whether
the Senior Debt Securities of the series shall be issued in whole or in part in
the form of one or more Global Securities and the initial Holder with respect to
such Global Security or Senior Debt Securities;
(q) if
the Senior Debt Securities of such series are to be issuable in definitive form
(whether upon original issue or upon exchange of a temporary Senior Debt
Security of such series or otherwise) only upon receipt of certain certificates
or other documents or satisfaction of other conditions, then the form and terms
of such certificates, documents or conditions;
(r) if
the amounts of payments of principal of (and premium, if any) or interest, if
any, on the Senior Debt Securities of the series may be determined with
reference to an index or are otherwise not fixed on the original issue date
thereof, the manner in which such amounts shall be determined and the
Calculation Agent, if any, who shall be appointed and authorized to calculate
such amounts;
(s) any
other Events of Default or covenants with respect to the Senior Debt Securities
of such series and, if other than as specified in this Senior Debt Securities
Indenture, the terms thereof;
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(t)
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the
forms of Senior Debt Securities of the series;
and
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(u) any
other terms of the series (which terms shall not be inconsistent with the
provisions of this Senior Debt Securities Indenture, except as permitted by
Section 9.01(d)).
All
Senior Debt Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to
such action or in any such indenture supplemental hereto.
If the
forms of Senior Debt Securities of any series, or any of the terms thereof, are
established by action taken pursuant to a Board Resolution, a copy of the Board
Resolution in respect thereof shall be delivered to the Trustee at or
prior
20
to the
delivery of the Company Order pursuant to Section 3.03 for the authentication
and delivery of such Senior Debt Securities.
Section
3.02. Denominations.
The Senior Debt Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 3.01. In the
absence of any such specification with respect to Senior Debt Securities of any
series, the Senior Debt Securities of each series shall be issuable in
denominations of $[ ] each and any integral
multiple thereof. Unless otherwise specified in accordance with Section 3.01,
any Global Security issued and delivered to the Holder shall be issued in the
form of units with each $[ ] principal amount of
such Global Security constituting one unit.
Section
3.03. Execution,
Authentication, Delivery and Dating. The Senior Debt Securities shall be
executed on behalf of the Company by any Executive Officer. The signature of any
Executive Officer on the Senior Debt Securities may be manual or facsimile.
Senior Debt Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officer of the Company shall bind the Company,
notwithstanding that such individual has ceased to hold such office prior to the
authentication and delivery of such Senior Debt Securities.
At any
time and from time to time after the execution and delivery of this Senior Debt
Securities Indenture, the Company may deliver Senior Debt Securities of any
series executed by the Company having endorsed thereon Guarantees by the
Guarantor to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Senior Debt Securities, and the Trustee
in accordance with the Company Order shall authenticate and deliver such Senior
Debt Securities. In authenticating such Senior Debt Securities and accepting the
additional responsibilities under this Senior Debt Securities Indenture in
relation to such Senior Debt Securities the Trustee shall be entitled to
receive, and (subject to Section 6.01) shall be fully protected in relying upon,
an Opinion of Counsel stating that (a) the form and terms thereof have been
established in conformity with the provisions of this Senior Debt Securities
Indenture and (b) that such Senior Debt Securities, when authenticated and
delivered by the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute valid and
binding obligations of the Company and the Guarantor enforceable in accordance
with their terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws relating to or
affecting creditor's rights and by general principles of equity.
The
Trustee shall not be required to authenticate such Senior Debt Securities if the
issue of such Senior Debt Securities pursuant to this Senior Debt Securities
Indenture will affect the Trustee’s own rights, duties or
immunities
21
under the
Senior Debt Securities and this Senior Debt Securities Indenture or otherwise in
a manner which is not reasonably acceptable to the Trustee.
Each
registered Senior Debt Security shall be dated the date of its
authentication.
No Senior
Debt Security appertaining thereto shall be entitled to any benefit under this
Senior Debt Securities Indenture or be valid or obligatory for any purpose
unless there appears on such Senior Debt Security a certificate of
authentication substantially in the form provided for herein executed by or on
behalf of the Trustee by manual signature, and such certificate upon any Senior
Debt Security shall be conclusive evidence, and the only evidence, that such
Senior Debt Security has been duly authenticated and delivered hereunder and
that such Senior Debt Security is entitled to the benefits of this Senior Debt
Securities Indenture. Notwithstanding the foregoing, if any Senior Debt Security
shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Senior Debt Security to the
Trustee for cancellation as provided in Section 3.09, for all purposes of this
Senior Debt Securities Indenture, such Senior Debt Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefit of this Senior Debt Securities Indenture.
Section
3.04. Temporary Senior Debt
Securities. Pending the preparation of definitive Senior Debt Securities
of any series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Senior Debt Securities substantially of the
tenor of the definitive Senior Debt Securities in lieu of which they are issued,
which Senior Debt Securities may be printed, lithographed, typewritten,
photocopied or otherwise produced. Temporary Senior Debt Securities shall be
issuable as registered Senior Debt Securities without coupons attached in any
authorized denomination, and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Senior Debt
Securities may determine, all as evidenced by such execution.
If
temporary Senior Debt Securities of any series are issued, the Company will
cause, if so required by the terms of such temporary Senior Debt Securities,
definitive Senior Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Senior Debt Securities
of such series, the temporary Senior Debt Securities of such series shall be
exchangeable for definitive Senior Debt Securities of such series containing
identical terms and provisions upon surrender of the temporary Senior Debt
Securities of such series at the office or agency of the Company in a Place of
Payment for that series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Senior Debt Securities of any series
the Company shall execute, the Guarantor shall endorse the Guarantee on, and the
Trustee shall authenticate and deliver in exchange therefor, a like
aggregate
22
principal
amount of definitive Senior Debt Securities of the same series of authorized
denominations containing identical terms and provisions. Until so exchanged,
unless otherwise provided therein or in a supplemental indenture relating
thereto, the temporary Senior Debt Securities of any series shall in all
respects be entitled to the same benefits (but shall be subject to all the
limitations of rights) under this Senior Debt Securities Indenture as definitive
Senior Debt Securities of such series.
Section
3.05. Registration,
Registration of Transfer and Exchange.
(a)
Global Securities. This
Section 3.05(a) shall apply to Global Securities unless otherwise specified, as
contemplated by Section 3.01.
Except as
otherwise specified, as contemplated by Section 3.01 hereof, the Senior Debt
Securities shall be initially issued and represented by one or more Global
Securities in registered form, without Coupons attached thereto, which shall be
authenticated as contemplated by this Senior Debt Securities
Indenture.
Each
Global Security in registered form authenticated under this Senior Debt
Securities Indenture shall be registered in the name of the Depositary
designated for such Global Security or a nominee thereof and delivered to such
Depositary or a nominee thereof or custodian therefor, and each such Global
Security shall constitute a single Senior Debt Security for all purposes of this
Senior Debt Securities Indenture. Except as otherwise specified, as contemplated
by Section 3.01 hereof, each Global Security in registered form authenticated
under this Senior Debt Securities Indenture shall be initially registered in the
name of DTC only.
With
respect to Global Securities in registered form, unless the Global Security is
presented by an authorized representative of the Holder to the Company or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of a nominee of the Holder and any payment is
made to such nominee, any transfer, pledge or other use of the Global Security
in registered form for value or otherwise shall be wrongful since the registered
owner of such Global Security, the nominee of the Holder, has an interest in
such Global Security.
Except as
otherwise specified, as contemplated by Section 3.01 hereof, any Global Security
shall be exchangeable for definitive Senior Debt Securities only as provided in
this paragraph. A Global Security shall be exchangeable pursuant to this Section
only (i) if the relevant Depositary notifies the Trustee that it is unwilling or
unable to continue to act as Depositary, (ii) if, in the event of a winding-up
of the Company, the Company fails to make a payment on the Senior Debt
Securities when due, or (iii) at any time if the Company at its option and in
its sole discretion determines that the Global Securities of a particular
series
23
should be
exchanged for definitive Senior Debt Securities of that series in registered
form. Any Global Security that is exchangeable pursuant to the preceding
sentence shall be exchangeable for, unless otherwise specified or contemplated
by Section 3.01, definitive Senior Debt Securities in registered form bearing
interest (if any) at the same rate or pursuant to the same formula, having the
same date of issuance, the same date or dates from which such interest shall
accrue, the same Interest Payment Dates on which such interest shall be payable
or the manner of determination of such Interest Payment Dates, redemption
provisions, if any, specified currency and other terms and of differing
denominations aggregating a like amount as the Global Security so exchangeable.
Definitive Senior Debt Securities in registered form shall be registered in the
names of the owners of the beneficial interests in such Global Securities as
such names are from time to time provided by the Holder to the
Trustee.
Any
Global Security that is exchangeable pursuant to the preceding paragraph, unless
otherwise specified as contemplated by Section 3.01, shall be exchangeable for
Senior Debt Securities issuable in authorized denominations of a like aggregate
principal amount and tenor.
No Global
Security in registered form may be transferred except as a whole by the Holder
to a nominee of the Holder or by the Holder or any such nominee to a successor
of the Holder or a nominee of such successor. Except as provided above, owners
solely of beneficial interests in a Global Security shall not be entitled to
receive physical delivery of Senior Debt Securities in definitive form and will
not be considered the holders thereof for any purpose under this Senior Debt
Securities Indenture.
In the
event that a Global Security is surrendered for redemption or exchange for stock
or other securities of the Company or another entity or other entities in part
pursuant to Section 11.07, the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Global Security, without service
charge, a new Global Security in a denomination equal to and in exchange for the
unredeemed or unexchanged portion of the principal of the Global Security so
surrendered.
The Agent
Members and any other beneficial owners shall have no rights under this Senior
Debt Securities Indenture with respect to any Global Security held on their
behalf by a Holder, and such Holder may be treated by the Company, the Trustee,
and any agent of the Company or the Trustee as the owner of such Global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee, or any agent of the Company or the Trustee,
from giving effect to any written certification, proxy or other authorization
furnished by a Holder or impair, as between any such Holder or other clearance
service and its Agent Members and Holders, the operation of customary practices
governing the exercise of the rights of a holder of any
24
security,
including without limitation the granting of proxies or other authorization of
participants to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action which a Holder is entitled to give or
take under this Senior Debt Securities Indenture.
In
connection with any exchange of interests in a Global Security for definitive
Senior Debt Securities of another authorized form, as provided in this Section
3.05(a), then without unnecessary delay but in any event not later than the
earliest date on which such interests may be so exchanged, the Company shall
deliver to the Trustee definitive Senior Debt Securities in aggregate principal
amount equal to the principal amount of such Global Security or the portion to
be exchanged executed by the Company. On or after the earliest date on which
such interests may be so exchanged, such Global Security shall be surrendered by
the Holder to the Trustee, as the Company’s agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Senior Debt
Securities without charge (unless the definitive Senior Debt Securities in
registered form are to be issued to an Excepted Person (as defined in Section
13.10) in which case the Company or Trustee may require payment of any taxes or
governmental charges arising) and the Trustee shall authenticate and deliver, in
exchange for each portion of such Global Security, an equal aggregate principal
amount of definitive Senior Debt Securities of authorized denominations as the
portion of such Global Security to be exchanged. Any Global Security that is
exchangeable pursuant to this Section 3.05 shall be exchangeable for Senior Debt
Securities issuable in the denominations specified as contemplated by Section
3.01 and registered in such names as the Holder of such Global Security shall
direct. If a definitive Senior Debt Security in registered form is issued in
exchange for any portion of a Global Security after the close of business at the
office or agency where such exchange occurs on any record date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, interest will not be payable on such Interest Payment Date in respect of
such definitive Senior Debt Security, but will be payable on such Interest
Payment Date only to the person to whom payments of interest in respect of such
portion of such Global Security are payable.
A
Depositary may grant proxies and otherwise authorize any person, including Agent
Members and persons that may hold interests through Agent Members, to take any
action which a holder is entitled to take under this Senior Debt Securities
Indenture with respect to the Senior Debt Securities.
(b)
Except as otherwise specified pursuant to Section 3.01, registered Senior Debt
Securities of any series may only be exchanged for a like aggregate principal
amount of registered Senior Debt Securities of such series of other authorized
denominations containing identical terms and provisions. Senior Debt Securities
to be exchanged shall be surrendered at an office or agency of the Company
designated pursuant to Section 10.02 for such purpose, and the Company shall
execute, and if applicable, the Guarantor shall endorse the
25
Guarantee
thereon, and the Trustee shall authenticate and deliver, in exchange therefor
the Senior Debt Security or Senior Debt Securities of the same series which the
Holder making the exchange shall be entitled to receive.
Except as
otherwise specified pursuant to Section 3.01, the Company shall cause to be kept
in the principal corporate trust office of the Trustee a register (the register
maintained in such office and in any other office or agency of the Company in a
Place of Payment being herein sometimes collectively referred to as the “Senior Debt Security Register”
provided, no such
Senior Debt Security Register shall be maintained in any office or agency in the
United Kingdom other than in Scotland) in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of registered Senior Debt Securities and of transfers of such Senior Debt
Securities. The Trustee is hereby appointed “Senior Debt Security
Registrar” for the purpose of registering Senior Debt Securities in
registered form and transfers of Senior Debt Securities in registered form as
herein provided.
Registered
Senior Debt Securities shall be transferable only on the Senior Debt Security
Register. Upon surrender for registration of transfer of any registered Senior
Debt Security of any series, together with the form of transfer endorsed on it,
duly completed and executed at an office or agency of the Company designated
pursuant to Section 10.02 for such purpose, the Company shall execute, and if
applicable, the Guarantor shall endorse the Guarantee thereon, and the Trustee
shall authenticate and deliver to the address specified in the formal transfer,
within three Business Days, in the name of the designated transferee or
transferees, one or more new registered Senior Debt Securities of the same
series of any authorized denominations containing identical terms and
provisions, of a like aggregate principal amount.
If only
part of a registered Senior Debt Security is transferred, a new registered
Senior Debt Security of an aggregate principal amount equal to the amount not
being transferred shall be executed by the Company, and authenticated and
delivered by the Trustee to the transferor, in the name of the transferor,
within three Business Days after the Trustee acting as Paying Agent pursuant to
Section 10.02 receives the registered Senior Debt Security. The new registered
Senior Debt Security will be delivered to the transferor by uninsured post at
the risk of the transferor to the address of the transferor appearing in the
Senior Debt Security Register. A new registered Senior Debt Security of an
aggregate principal amount equal to the amount being transferred shall be
delivered by the Trustee to the transferee, in the name of the transferee,
within three Business Days after the Trustee acting as Paying Agent pursuant to
Section 10.02 receives the registered Senior Debt Security. The new registered
Senior Debt Security will be delivered to the transferee by uninsured post at
the risk of the transferee to the address of the transferee specified in the
form of transfer.
26
All
Senior Debt Securities issued upon any registration of transfer or exchange of
Senior Debt Securities shall be the valid obligations of the Company, and the
Guarantor, respectively evidencing the same debt, and entitled to the same
benefits under this Senior Debt Securities Indenture, as the Senior Debt
Securities surrendered upon such registration of transfer or
exchange.
Every
registered Senior Debt Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Senior Debt Security Registrar duly
executed, by the registered Holder thereof or his attorney duly authorized in
writing.
No
service charge shall be made for any registration of transfer or exchange of
Senior Debt Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Senior Debt Securities, other
than exchanges pursuant to Sections 3.04, 9.06 or 11.07 not involving any
transfer.
The
Company shall not be required (i) to issue, register the transfer of or exchange
any Senior Debt Security of any series during a period beginning at the opening
of business 15 days before the day of the giving of a notice of redemption of
Senior Debt Securities of such series selected for redemption under Section
11.03 and ending at the close of business on the day of the giving of such
notice, or (ii) to register the transfer of or exchange any Senior Debt Security
so selected for redemption in whole or in part, except the unredeemed portion of
any Senior Debt Securities being redeemed in part.
Section
3.06. Mutilated, Destroyed,
Lost and Stolen Senior Debt Securities. If any mutilated
Senior Debt Security (including any Global Security) is surrendered to the
Trustee, the Company may execute and the Trustee shall, in the case of a Senior
Debt Security, authenticate and deliver in exchange therefor a new Senior Debt
Security of the same series containing identical terms and provisions and of
like amount, and bearing a number not contemporaneously
outstanding.
If there
shall be delivered to the Company, the Guarantor and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Senior Debt
Security (including any Global Security) and (ii) such security or indemnity as
may be required by them to save each of them and any agent of any of them
harmless, then, in the absence of notice to the Company, the Guarantor or the
Trustee that such Senior Debt Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver in lieu of any such destroyed, lost or stolen Senior
Debt
27
Security
a new Senior Debt Security of the same series containing identical terms and
provisions and of like amount, and bearing a number not contemporaneously
outstanding.
In case
any such mutilated, destroyed, lost or stolen Senior Debt Security has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Senior Debt Security, pay such Senior Debt
Security.
Upon the
issuance of any new Senior Debt Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new
Senior Debt Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Senior Debt Security shall constitute an original
additional contractual obligation of the Company and the Guarantor, whether or
not the destroyed, lost or stolen Senior Debt Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this Senior
Debt Securities Indenture equally and proportionately with any and all other
Senior Debt Securities of that series duly issued hereunder.
The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Senior Debt Securities.
Section
3.07. Payment; Interest Rights
Preserved. Except as otherwise provided as contemplated by Section 3.01
with respect to any series of Senior Debt Securities, interest, if any, on any
Senior Debt Securities which is payable, and is paid or duly provided for, on
any Interest Payment Date shall be paid, in the case of registered Senior Debt
Securities, to the Person in whose name that Senior Debt Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest or, in the case of Global Securities held
by any Holder, to the Holder including through a Paying Agent of the Company
designated pursuant to Section 3.01 outside the United Kingdom for collection by
the Holder.
In the
case of registered Senior Debt Securities where payment is to be made in
Dollars, payment at any Paying Agent’s office outside The City of New York will
be made in Dollars by check drawn on, or, at the request of the Holder, by
transfer to a Dollar account maintained by the payee with, a bank in The City of
New York.
28
In the
case of registered Senior Debt Securities where payment is to be made in a
Foreign Currency, payment will be made as established pursuant to Section
3.01.
Any
interest on any Senior Debt Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date is herein
called “Deferred
Interest”. Deferred Interest on any registered Senior Debt Security of
any series shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue then of having been such Holder, and such Deferred
Interest may be paid by the Company, at its election in each case, as provided
in clause (a) or (b) below:
(a) The
Company may elect to make payment of any Deferred Interest to the Persons in
whose names the registered Senior Debt Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Deferred Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in writing
of the amount of Deferred Interest proposed to be paid on each Senior Debt
Security of such series and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Deferred Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Deferred Interest as in this
clause provided. Thereupon the Company shall fix a Special Record Date for the
payment of such Deferred Interest in respect of such registered Senior Debt
Securities of such series which shall be not more than 15 days and not less than
10 days prior to the date of the proposed payment and not less than 10 days
after it delivers to the Trustee notice of the proposed payment. The Company
shall promptly notify the Trustee of such Special Record Date and, in the name
and at the expense of the Company, the Trustee shall cause notice of the
proposed payment of such Deferred Interest and the Special Record Date therefor
to be given in the manner and to the extent provided in Section 1.06, not less
than 10 days prior to such Special Record Date. Notice of the proposed payment
of such Deferred Interest on the Senior Debt Securities of such series and the
Special Record Date therefor having been so given, such Deferred Interest on the
Senior Debt Securities of such series shall be paid in the case of registered
Senior Debt Securities to the Persons in whose names such Senior Debt Securities
(or their respective Predecessor Securities) are registered in the Senior Debt
Security Register at the close of business on the Special Record Date, and such
Deferred Interest shall no longer be payable pursuant to the following clause
(b); or
(b) The
Company may make payment of any Deferred Interest on the Senior Debt Securities
of any series in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Senior Debt
29
Securities
may be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed practicable by
the Trustee.
Subject
to the foregoing provisions of this Section, each Senior Debt Security delivered
under this Senior Debt Securities Indenture upon registration of transfer of or
in exchange for or in lieu of any other Senior Debt Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Senior Debt Security.
Section
3.08. Persons Deemed
Owners. Prior to due presentment of a registered Senior Debt Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Senior Debt Security is
registered as the owner of such Senior Debt Security for the purpose of
receiving payment of principal of (and premium, if any) and (subject to Section
3.07) interest, if any, on such Senior Debt Security and for all other purposes
whatsoever, whether or not such Senior Debt Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section
3.09. Cancellation. All
Senior Debt Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly cancelled by it. The Company
or the Guarantor may at any time deliver to the Trustee for cancellation any
Senior Debt Securities previously authenticated and delivered hereunder and all
Senior Debt Securities so delivered shall be promptly cancelled by the Trustee.
No Senior Debt Securities shall be authenticated in lieu of or in exchange for
any Senior Debt Securities cancelled as provided in this Section, except as
expressly permitted by the provisions of the Senior Debt Securities of any
series or pursuant to the provisions of this Senior Debt Securities Indenture.
The Trustee shall deliver to the Company all cancelled Senior Debt Securities
held by the Trustee.
Section
3.10. Computation of
Interest. Except as otherwise specified pursuant to Section 3.01 for
Senior Debt Securities of any series, payments of interest on the Senior Debt
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
Section
3.11. CUSIP Numbers.
The Company in issuing any series of the Senior Debt Securities may use “CUSIP”,
“ISIN” and/or “Common Code” numbers (if then generally in use) or any successor
to such numbers and thereafter with respect to such series, the Trustee shall
use “CUSIP”, “ISIN” and/or “Common Code” numbers or successor numbers in notices
of redemption as a convenience to Holders; provided that any such notice
may state that no
30
representation
is made as to the correctness of such numbers either as printed on the Senior
Debt Securities or as contained in any notice of a redemption and that reliance
may be placed only on the other identification numbers printed on the Senior
Debt Securities, and any such redemption shall not be affected by any defect in
or omission of such numbers. The Company will promptly notify the Trustee of any
change in the “CUSIP”, “ISIN” and/or “Common Code” numbers or successor
numbers.
ARTICLE
4
SATISFACTION AND DISCHARGE
Section
4.01. Satisfaction and
Discharge of Senior Debt Securities Indenture. This Senior Debt
Securities Indenture shall upon Company Request cease to be of further
effect with respect to Senior Debt Securities of any series (except as to any
surviving rights of registration of transfer or exchange of Senior Debt
Securities of such series herein expressly provided for), and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Senior Debt Securities Indenture with respect
to the Senior Debt Securities of such series when
|
|
(a)
|
either
|
(i) all
Senior Debt Securities of such series theretofore authenticated and delivered
(other than (A) Senior Debt Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.06 and (B) Senior
Debt Securities for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 10.03) have been
delivered to the Trustee for cancellation; or
(ii) all
such Senior Debt Securities not theretofore delivered to the Trustee for
cancellation
(A) have
become due and payable or will become due and payable at their Stated Maturity
within one year, or
(B) are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company, or
(C) are
to be exchanged for stock or other securities of the Company or another entity
or other entities and notice of
31
exchange
of such Senior Debt Securities for stock or other securities of the Company or
another entity or other entities shall have been given,
and the
Company or the Guarantor has deposited or caused to be deposited with the
Trustee, as trust funds in trust for the purpose, an amount in cash, or U.S.
Government Obligations (with respect to Senior Debt Securities denominated in
Dollars) or Foreign Government Securities (with respect to Senior Debt
Securities denominated in the same Foreign Currency) maturing, in the case of
(A) and (B) above, as to principal and interest, if any, and, in the case of (C)
above, as to accrued interest, if any, in such amounts and at such times as will
ensure the availability of cash sufficient to pay and discharge all claims with
respect to such Senior Debt Securities not theretofore delivered to the Trustee
for cancellation, in the case of (A) and (B) above, for principal (and premium,
if any) and accrued interest, if any, and, in the case of (iii) above, as to
accrued interest, if any, to the date of such deposit (in the case of Senior
Debt Securities which have become due and payable) or to the Redemption
Date;
(b) the
Company or the Guarantor has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Senior Debt Securities of such
series; and
(c) the
Company or the Guarantor has delivered to the Trustee an Officer’s Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Senior Debt
Securities Indenture with respect to the Senior Debt Securities of such series
have been complied with.
Notwithstanding
any satisfaction and discharge of this Senior Debt Securities Indenture, the
obligations of the Company and the Guarantor to the Trustee under Section 6.07,
the obligations of the Trustee to any Authenticating Agent under Section 6.14
and, if cash, U.S. Government Obligations and/or Foreign Government Securities
shall have been deposited with the Trustee pursuant to subclause 4.01(a)(ii) of
clause 4.01(a) of this Section, the obligations of the Trustee under Section
4.02 and the last paragraph of Section 10.03 shall survive such satisfaction and
discharge, including any termination under any bankruptcy law.
Section
4.02. Application of Trust
Money. Subject to the provisions of the last paragraph of Section 10.03,
all cash, U.S. Government Obligations and Foreign Government Securities
deposited with the Trustee pursuant to Section 4.01 shall be held in trust and
such cash and the proceeds from such U.S. Government
Obligations and/or Foreign Government Securities shall be applied by it, in
accordance with the provisions of the Senior Debt Securities of such series, and
this Senior Debt Securities Indenture, to the payment, either directly
or
32
through
any Paying Agent (including the Company acting as Paying Agent) as the Trustee
may determine, to the Persons entitled thereto, of the principal (and premium,
if any) and interest for the payment of which such cash, U.S. Government
Obligations and/or Foreign Government Securities have been deposited with the
Trustee.
Section
4.03. Repayment to
Company. The Trustee, the Calculation Agent and any Paying Agent promptly
shall pay to the Company upon Company Request any excess money, U.S. Government
Obligations and/or Foreign Government Securities held by them at any time with
respect to any series of Senior Debt Securities.
ARTICLE
5
REMEDIES
Section
5.01. Events of
Default. “Event of
Default”, wherever used herein with respect to Senior Debt Securities of
a particular series, means (i) that, whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body, except as
otherwise provided as contemplated by Section 3.01 with respect to any series of
Senior Debt Securities, the Company and the Guarantor failed to pay any
principal or any interest on any Senior Debt Securities of that series within 14
days from the due date for payment and the principal or interest has not been
duly paid within a further 14 days following written notice from the Trustee to
the Company and the Guarantor or to the Company, the Guarantor and the Trustee
by the Holders of at least 25% in aggregate principal amount of the Outstanding
Senior Debt Securities of that series requiring the non- payment to be made
good, (ii) the making of an order by an English court of competent jurisdiction
which is not successfully appealed within 30 days of the making of such order,
or the valid adoption by the shareholders of the Company or the Guarantor of an
effective resolution, for the winding-up of the Company or the Guarantor as
applicable (other than under or in connection with a scheme of reconstruction,
merger or amalgamation not involving bankruptcy or insolvency), (iii) any other
Event of Default provided with respect to Senior Debt Securities of such series
pursuant to Section 3.01 or (iv) the default in the performance, or breach, of
any covenant or warranty of the Company or the Guarantor in this Senior Debt
Securities Indenture (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section 5.01 specifically dealt
with) provided, that default or breach has not been remedied within 60 days of
receipt by the Company, the Guarantor and the Trustee from the Holders of at
least 25% aggregate principal amount of the Outstanding Senior Debt Securities
of that series of a written notice requiring the breach to be remedied or
written
33
notice
from the Trustee to the Company and the Guarantor certifying that in its opinion
the default or breach is materially prejudicial to the interests of the Holders
of the Senior Debt Securities of that series and requiring the breach to be
remedied.
Section
5.02. Acceleration of
Maturity; Rescission and Annulment. If an Event of Default occurs with
respect to Senior Debt Securities of any series and is continuing, then in every
such case the Trustee or the Holder or Holders of not less than 25% in aggregate
principal amount of the Outstanding Senior Debt Securities of such series may
declare the principal amount (or, in the case of Original Issue Discount
Securities, the accreted face amount together with accrued interest, if any, on)
of all the Senior Debt Securities of that series to be due and payable
immediately, by a notice in writing to the Company and the Guarantor (and to the
Trustee if given by the Holder or Holders), and upon any such declaration such
principal amount (or specified amount) shall become immediately due and
payable.
At any
time after such a declaration of acceleration with respect to Senior Debt
Securities of any series has been made but before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holder or Holders of a majority in aggregate principal
amount of the Outstanding Senior Debt Securities of such series, by written
notice to the Company, the Guarantor and the Trustee, may rescind or annul such
declaration of acceleration and its consequences (including any Event of Default
under another series of Senior Debt Securities arising therefrom) but only
if
(a) the
Company or the Guarantor have paid or deposited with the Trustee a sum
sufficient to pay
(i) the
principal of (and premium, if any, on) any Senior Debt Securities of such series
which have become due otherwise than by such declaration of acceleration and any
due and payable interest, and overdue interest, if any, thereon at the rate or
rates prescribed therefor in such Senior Debt Securities,
(ii) all
sums paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel;
and
(b) all
Events of Default with respect to Senior Debt Securities of such series have
been cured or waived as provided by Section 5.13.
No such
rescission or annulment shall affect any subsequent default or impair any right
consequent thereon.
34
Section
5.03. Collection of
Indebtedness and Suits for Enforcement by Trustee. The Company and the
Guarantor covenant that, if the Company fails to pay any principal or
any interest on any Senior Debt Securities of that series within 14 days from
the due date for payment and the principal or interest has not been duly paid
within a further 14 days following written notice from the Trustee to the
Company or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Senior Debt Securities of that
series requiring the non-payment to be made good, the Company or the Guarantor
will, upon demand of the Trustee, pay to it, for the benefit of the Holders of
such Senior Debt Securities, the whole amount then due and payable on such
Senior Debt Securities for principal (and premium, if any) and interest, if any,
and interest on any overdue principal (and premium, if any), at the rate or
rates prescribed therefor in such Senior Debt Securities; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If an
Event of Default with respect to Senior Debt Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Senior Debt Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Senior Debt Securities
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy, including the institution of proceedings in Scotland
(but not elsewhere) for the winding-up of the Company or the
Guarantor.
The
Holders of Senior Debt Securities by their acceptance thereof will be deemed to
have waived any right of set-off or counterclaim or combination of accounts with
respect to the Senior Debt Securities or this Senior Debt Securities Indenture
(or between the obligations under or in respect of any Senior Debt Securities
and any liability owed by a Holder to the Company) that they might otherwise
have against the Company or the Guarantor, whether before or during a winding up
of the Company.
Notwithstanding
the foregoing, failure to make any payment in respect of a series of Senior Debt
Securities shall not be a default in respect of such Senior Debt Securities if
such payment is withheld or refused (i) in order to comply with any law or
regulation or with the order of any court of competent jurisdiction, in each
case applicable to such payment, or (ii) in case of doubt as to the validity or
applicability of any such law, regulation or order, in accordance with advice
given as to such validity or applicability at any time before the expiry of such
period of 14 days by independent legal advisers acceptable to the Trustee, provided, however, that the Trustee may
by notice to the Company require the Company to take such action
(including but not limited to proceedings for a declaration by a
35
court of
competent jurisdiction) as the Trustee may be advised in an Opinion of Counsel,
upon which opinion the Trustee may conclusively rely, is appropriate and
reasonable in the circumstances to resolve such doubt, in which case the Company
shall forthwith take and expeditiously proceed with such action and shall be
bound by any final resolution of the doubt resulting therefrom. If any such
action results in a determination that the relevant payment can be made without
violating any applicable law, regulation or order then the provisions of the
preceding sentence shall cease to have effect and the payment shall become due
and payable on the expiration of 14 days after the Trustee gives written notice
to the Company informing it of such resolution.
No
recourse for the payment of the principal of (or premium, if any) or interest,
if any, on any Senior Debt Security, or for any claim based thereon on the
Guarantee endorsed thereon or otherwise in respect thereof or of the Guarantee
and no recourse under or upon any obligation, covenant or agreement of the
Company or the Guarantor in this Senior Debt Securities Indenture, or in any
Senior Debt Security, in the Guarantee endorsed thereon, or because of the
creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder (other than the Guarantor under the terms of the
Guarantees), officer or director, past, present or future, of the Company or any
Guarantor of any successor corporation of either the Company, either directly or
through the Company or the Guarantor or any successor corporation of either,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that to the extent lawful all such liability is hereby expressly
waived and released as a condition of, and as a consideration for, the execution
of this Senior Debt Securities Indenture and the issue of the Senior Debt
Securities of a series, and the endorsement of the Guarantees
thereon.
Notwithstanding
any contrary provisions, nothing shall impair the right of a Holder, absent the
Holder’s consent, to xxx for any payments due but unpaid with respect to the
Senior Debt Securities.
Section
5.04. Trustee May File Proofs
of Claim. In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition,
winding-up or other judicial proceeding relative to the Company or the Guarantor
or any other obligor upon the Senior Debt Securities of any series or to the
property of the Company or the Guarantor or such other obligor or their
creditors (other than under or in connection with a scheme of amalgamation or
reconstruction not involving bankruptcy or insolvency), the Trustee
(irrespective of whether the principal of the Senior Debt Securities of such
series shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company or the Guarantor for the payment of overdue principal (and premium,
if any) or interest, if any) shall be entitled and
36
empowered,
by intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee shall
be authorized to collect and receive any moneys and other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder of a Senior
Debt Security to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to such Holders or
holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due to the Trustee under Section
6.07.
Subject
to Article Eight and Section 9.02, nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf of
any Holder of any Senior Debt Security any plan of reorganization, arrangement,
adjustment, or composition affecting any Senior Debt Securities or the rights of
any Holder of any Senior Debt Security or to authorize the Trustee to vote in
respect of the claim of any such Holder or holder in any such
proceeding.
Section
5.05. Trustee May Enforce
Claims Without Possession of Senior Debt Securities. All rights
of action and claims under this Senior Debt Securities Indenture or the Senior
Debt Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Senior Debt Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel be for the ratable benefit of the Holders of the Senior Debt
Securities in respect of which such judgment has been recovered.
Section
5.06. Application of Money
Collected. Any money collected by the Trustee pursuant to this Article in
respect of any series of Senior Debt Securities shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (and premium, if any) or
interest, if any, upon presentation of such Senior Debt Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To
the payment of all amounts applicable to such series of Senior Debt Securities
due and owing to the Trustee under Section 6.07;
SECOND:
To the payment of the amounts then due and unpaid for principal of (and premium,
if any) and interest, if any, on such series of Senior Debt Securities in
respect of which or for the benefit of which such money has
37
been
collected, ratably, without preference or priority of any kind, according to the
amounts due and payable on such Senior Debt Securities for principal (and
premium, if any) and interest, if any, respectively; and
THIRD: To
the payment of the balance, if any, to the Company or any other Person or
Persons legally entitled thereto.
Section
5.07. Limitation on
Suits. No Holder of any Senior Debt Security of any series shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Senior Debt Securities Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless
(a) such
Holder has previously given written notice to the Trustee of a continuing Event
of Default with respect to Senior Debt Securities of the same series specifying
such Event of Default and stating that such notice is a “Notice of Default”
hereunder;
(b) the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Senior Debt Securities of such series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name, as Trustee hereunder;
(c) such
Holder of a Senior Debt Security has offered to the Trustee reasonable indemnity
satisfactory to it against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and
(e) no
direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in principal amount of
the Outstanding Senior Debt Securities of such series;
it being
understood and intended that no one or more Holders of Senior Debt Securities of
a particular series shall have any right in any manner whatever by virtue of, or
by availing of, any provision of this Senior Debt Securities Indenture to
affect, disturb or prejudice the rights of any other such Holders or holders, or
to obtain or to seek to obtain priority or preference over any other such
Holders or holders or to enforce any right under this Senior Debt Securities
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all Holders of Senior Debt Securities of such series.
Section
5.08. Unconditional Right of
Holders to Receive Principal, Premium and Interest, If Any.
Notwithstanding any other provision in this Senior Debt Securities
Indenture, the Holder of any Senior Debt Security shall have the
38
right,
which is absolute and unconditional, to receive payment of the principal of (and
premium, if any) and (subject to Section 3.07) interest, if any, on such Senior
Debt Security on the respective Stated Maturities as expressed in such Senior
Debt Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder or holder.
Section
5.09. Restoration of Rights
and Remedies. If the Trustee or any Holder of any Senior Debt Security
has instituted any proceeding to enforce any right or remedy under this Senior
Debt Securities Indenture and such proceeding has been discontinued or abandoned
for any reason, or has been determined adversely to the Trustee or to such
Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Guarantor, the Trustee and the Holders of Senior
Debt Securities shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders of Senior Debt Securities shall continue as though no such
proceeding had been instituted.
Section
5.10. Rights and Remedies
Cumulative. Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Senior Debt Securities in the
last paragraph of Section 3.06, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Senior Debt Securities is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section
5.11. Delay or Omission Not
Waiver. No delay or omission of the Trustee or of any Holder of any
Senior Debt Security to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders of Senior Debt
Securities may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Senior Debt Securities, as the
case may be.
Section
5.12. Control by
Holders. The Holders of a majority in aggregate principal amount of the
Outstanding Senior Debt Securities of any series shall have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the Trustee with
respect to the Senior Debt Securities of such series, provided that
39
(a) such
direction shall not be in conflict with any rule of law or with this Senior Debt
Securities Indenture;
(b) the
Trustee shall not determine that the action so directed would be unjustly
prejudicial to the Holders of any Senior Debt Securities of any series not
taking part in such direction with respect to which the Trustee is acting as the
Trustee; and
(c) the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
Section
5.13. Waiver of Past
Defaults. The Trustee may without prejudice to its rights in respect of
any subsequent Event of Default from time to time and at any time waive any
Event of Default or authorize any proposed Event of Default by the Company or
the Guarantor, provided that in its opinion the interests of the Holders shall
not be materially prejudiced thereby and, provided, further, that the Trustee
shall not exercise any powers conferred on it by this clause in contravention of
any notice in writing to the Company, the Guarantor and the Trustee made
pursuant to Section 5.02 hereof but so that no such notice shall affect any
waiver or authorization previously given or made. The Holders of not less than a
majority in aggregate principal amount of the Outstanding Senior Debt Securities
of any series may on behalf of the Holders of all the Senior Debt Securities of
such series waive any past Event of Default hereunder with respect to such
series and its consequences, except an Event of Default:
(a) in
the payment of the principal of (or premium, if any) or interest, if any, on any
Senior Debt Security of such series, or
(b) in
respect of a covenant or provision hereof which under Article Nine cannot be
modified or amended without the consent of the Holder of each Outstanding Senior
Debt Security of such series affected.
Upon any
such waiver, such Event of Default shall cease to exist, and any Event of
Default with respect to any series arising therefrom shall be deemed to have
been cured and not to have occurred for every purpose of this Senior Debt
Securities Indenture, but no such waiver shall extend to any subsequent or other
Event of Default or impair any right consequent thereon.
Section
5.14. Undertaking for
Costs. All parties to this Senior Debt Securities Indenture agree, and
each Holder of any Senior Debt Security by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Senior Debt Securities
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant to such suit of an
undertaking to pay the costs of such suit, and that such court may
40
in its
discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder or group of Holders holding in the
aggregate more than 10% in principal amount of the Outstanding Senior Debt
Securities of any series, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest,
if any, on any Senior Debt Security on or after the respective Stated Maturities
expressed in such Senior Debt Security (or, in the case of redemption, on or
after the Redemption Date).
ARTICLE
6
THE TRUSTEE
Section
6.01. Certain Duties and
Responsibilities. The duties and responsibilities of the Trustee shall be
as provided by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Senior Debt Securities Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it. Whether or not therein expressly so provided,
every provision of this Senior Debt Securities Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 6.01.
Section
6.02. Notice of
Defaults. Within 90 days after the occurrence of any Event of Default
hereunder with respect to Senior Debt Securities of any series of which a
Responsible Officer of the Trustee has written notice of such Event of Default
the Trustee shall transmit in the manner and to the extent provided in Section
1.06 to Holders of Senior Debt Securities of such series notice of such Event of
Default hereunder known to the Trustee, unless such Event of Default shall have
been cured or waived; provided, however, that, the Trustee
shall be protected in withholding such notice if it determines in good faith
that the withholding of such notice is in the interest of the Holders of Senior
Debt Securities of such series.
Section
6.03. Certain Rights of
Trustee. Subject to the provisions of Section 6.01:
(a) the
Trustee may conclusively rely and shall be protected in acting or refraining
from acting upon any resolution, Officer’s Certificate, Guarantor’s Officer’s
Certificate, or any other certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, coupon
or
41
other
evidence of indebtedness or other paper or document (whether in its original or
facsimile form) believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any
request or direction of the Company or the Guarantor mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order or a Guarantor’s
Officer’s Certificate, as the case may be and any resolution of the Board of
Directors of the Company or the Guarantor may be sufficiently evidenced by a
Board Resolution;
(c) whenever
in the administration of this Senior Debt Securities Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officer’s Certificate;
(d) the
Trustee may consult with counsel of its own selection and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Senior Debt Securities Indenture at the request or
direction of any of the Holders pursuant to this Senior Debt Securities
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, coupon or
other evidence of indebtedness or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit at the reasonable expense of the Company and shall
incur no liability by reason of such inquiry or investigation; provided that the
Trustee shall not be entitled to such information which the Company is prevented
from disclosing as a matter of law or contract;
(g) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent (other than an officer or employee of the Trustee) or attorney appointed
with due care by it hereunder;
42
(h) the
Trustee shall not be liable for any action taken, suffered, or omitted to be
taken by it in good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Senior Debt
Securities Indenture;
(i) the
Trustee shall not be deemed to have notice of any Event of Default unless a
Responsible Officer of the Trustee has received written notice of any event
which is in fact such a default is received by the Trustee at the Corporate
Trust Office of the Trustee; and
(j) the
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and
shall be enforceable by, the Trustee in each of its capacities
hereunder.
Section
6.04. Not Responsible for
Recitals or Issuance of Senior Debt Securities. The recitals
contained herein and in the Senior Debt Securities, except the Trustee’s
certificates of authentication, shall be taken as the statements of the Company
and the Guarantor, and neither the Trustee nor any Authenticating Agent assumes
any responsibility for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Senior Debt Securities Indenture or of
the Senior Debt Securities, except that the Trustee represents and warrants that
it has duly authorized, executed and delivered this Senior Debt Securities
Indenture. Neither the Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Company of Senior Debt Securities or the
proceeds thereof.
Section
6.05. May Hold Senior Debt
Securities. The Trustee, any Authenticating Agent, any Paying Agent, any
Senior Debt Security Registrar and any Calculation Agent or any other agent of
the Company or the Guarantor, in its individual or any other capacity, may
become the owner or pledgee of Senior Debt Securities and, subject to Sections
6.08 and 6.13, may otherwise deal with the Company or the Guarantor with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Senior Debt Security Registrar, Calculation Agent or such other
agent.
Section
6.06. Money Held in
Trust. Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
Section
6.07. Compensation
and Reimbursement.
Each of
the Company and the Guarantor agrees:
43
(a) to
pay to the Trustee from time to time compensation for all services rendered by
it hereunder as agreed upon in writing by the Company from time to time (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except
as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any provision of this Senior Debt Securities
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as shall be determined by a court of competent jurisdiction to have
been caused by its own negligence or bad faith; and
(c) to
indemnify the Trustee for, and to hold it harmless against, any and all
loss, liability, claim, damage or expense (including legal fees and expenses)
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of its powers
or duties hereunder but excluding any tax liabilities of the Trustee in respect
of its net profits.
The
Trustee shall notify the Company and the Guarantor in writing of the
commencement of any action or claim in respect of which indemnification may be
sought promptly after a Responsible Officer of the Trustee becomes aware of such
commencement (provided that the failure to make such notification shall not
affect the Trustee’s rights hereunder) and the Company shall be entitled to
participate in, and to the extent it shall wish, to assume the defense thereof,
including the employment of counsel reasonably satisfactory to the Trustee. If
the Company and the Trustee are being represented by the same counsel and the
Company has assumed the defense of the claim, the Trustee shall not be
authorized to settle a claim without the written consent of the Company, which
consent shall not be unreasonably withheld. In the case where the Company has
assumed the defense of a claim and the Trustee and the Company are represented
by the same legal counsel, the Trustee should not settle such a claim without
the written consent of the Company, which shall not be unreasonably
withheld.
If the
Trustee is represented by separate counsel due to a conflict of interest or its
need for separate representation due to a need to assert defenses which are
different from the Company’s, in the Trustee's sole discretion, the Trustee
shall be entitled to enter into any settlement without the written consent of
the Company and any and all fees, cost and expenses of such separate legal
representation of the Trustee will be paid by the Company.
44
As
security for the performance of the obligations of the Company and the Guarantor
under this Section, the Trustee shall have a senior lien to which the
Senior
Debt Securities are hereby made subordinate, upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the payment of
principal of (or premium, if any) or interest, if any, on the Senior Debt
Securities.
Section
6.08. Disqualification;
Conflicting Interests. If the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Senior Debt
Securities Indenture.
Section
6.09. Corporate Trustee
Required; Eligibility. There shall at all times be a Trustee hereunder
with respect to each series which shall be a corporation organized and doing
business under the laws of the United States, any State thereof or the District
of Columbia, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000, subject to
supervision or examination by Federal or State or District of Columbia authority
and, if there be such corporation willing and able to act as trustee on
reasonable and customary terms, having its corporate trust office or agency in
the Borough of Manhattan, The City of New York, New York. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article 6.
Section
6.10. Resignation and Removal;
Appointment of Successor. (a) No resignation or removal of the Trustee
and no appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 6.11.
(b) The
Trustee may resign at any time with respect to the Senior Debt Securities of one
or more series by giving written notice thereof to the Company and the
Guarantor. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Senior Debt Securities of such series.
(c) The
Trustee may be removed at any time with respect to the Senior Debt Securities of
any series by Act of the Holders of a majority in principal amount of the
Outstanding Senior Debt Securities of such series delivered to the
45
Trustee
and to the Company and the Guarantor. If the instrument of acceptance by a
successor Trustee required by Section 6.11 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of removal, the Trustee
may petition at the expense of the Company any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Senior Debt
Securities of such series.
|
|
(d)
|
If
at any time:
|
(i) the
Trustee shall fail to comply with Section 6.08 after written request therefor by
the Company or the Guarantor or by any Holder who has been a bona fide Holder of
a Senior Debt Security of the series as to which the Trustee has a conflicting
interest for at least six months, or
(ii) the
Trustee shall cease to be eligible under Section 6.09 and shall fail to resign
after written request therefor by the Company or the Guarantor or by any Holder
who has been a bona fide Holder of a Senior Debt Security for at least six
months, or
(iii) the Trustee shall become
incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver
of the Trustee or of its property shall be appointed or any public officer shall
take charge, or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, or
(iv)
the Trustee shall fail to perform its obligations to the Company or the
Guarantor under the Senior Debt Securities Indenture in any material
respect,
then, in
any such case, (A) the Company or the Guarantor by a Board Resolution may remove
the Trustee with respect to any or all series of Senior Debt Securities or (B)
subject to Section 5.14 (and except in the case of subparagraph 6.10(d)(iv)
above), any Holder who has been a bona fide Holder of a Senior Debt Security for
at least six months (and, in the case of Section 6.10(d)(i) above, who is a
Holder of a Senior Debt Security of the series as to which the Trustee has a
conflicting interest) may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Senior Debt Securities and the appointment of a
successor Trustee or Trustees.
(e) If
the Trustee shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of Trustee for any cause, with respect to the
Senior Debt Securities of one or more series, the Company and the Guarantor, by
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Senior Debt Securities of such series (it being
46
understood
that any successor Trustee may be appointed with respect to the Senior Debt
Securities of one or more or all of such series and at any time there shall be
only one Trustee with respect to the Senior Debt Securities of any particular
series), and shall comply with the applicable requirements of Section 6.11. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Senior Debt
Securities of any series shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Senior Debt Securities of such series
delivered to the Company, the Guarantor and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Senior Debt Securities of such series and
to that extent supersede the successor Trustee appointed by the Company and the
Guarantor. If no successor Trustee with respect to the Senior Debt Securities of
any series shall have been so appointed by the Company or the Holders of Senior
Debt Securities of such series and accepted appointment in the manner
hereinafter required by Section 6.11, any Holder who has been a bona fide Holder
of a Senior Debt Security of such series for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Senior Debt Securities of such series.
(f)
The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Senior Debt Securities of any series and each
appointment of a successor Trustee with respect to the Senior Debt Securities of
any series in the manner and to the extent provided in Section 1.06. Each notice
shall include the name of the successor Trustee with respect to the Senior Debt
Securities of such series and the address of its Corporate Trust
Office.
Section
6.11. Acceptance of
Appointment by Successor.
(a)
In case of the appointment hereunder of a successor Trustee with respect to all
Senior Debt Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company, the Guarantor and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on
request of the Company, the Guarantor or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee, all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee
hereunder.
47
(b) In
case of the appointment hereunder of a successor Trustee with respect to the
Senior Debt Securities of one or more (but not all) series, the Company, the
Guarantor, the retiring Trustee and each successor Trustee with respect to the
Senior Debt Securities of such series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (i) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Senior Debt Securities of such series to which the appointment of such successor
Trustee relates, (ii) if the retiring Trustee is not retiring with respect to
all Senior Debt Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Senior Debt Securities of such
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (iii) shall add to or change any of the
provisions of this Senior Debt Securities Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Senior Debt Securities of
such series to which the appointment of such successor Trustee relates; but, on
request of the Company, the Guarantor or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder with respect to the
Senior Debt Securities of such series to which the appointment of such successor
Trustee relates.
(c) Upon
request of any such successor Trustee, the Company and the Guarantor shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section 6.11, as the case may
be.
(d) No
successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article 6.
Section
6.12. Merger, Conversion,
Consolidation or Succession to Business. Any corporation
into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of
the
48
Trustee,
shall be the successor of the Trustee hereunder, provided such corporation shall
be otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties hereto.
In case any Senior Debt Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Senior Debt Securities so authenticated with the same effect as if
such successor Trustee had itself authenticated such Senior Debt
Securities.
Section
6.13. Preferential Collection
of Claims. If and when the Trustee shall be or become a creditor of the
Company or the Guarantor (or any other obligor upon the Senior Debt Securities
of a series), the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against the Company or the
Guarantor (or any such other obligor).
Section
6.14. Appointment of
Authenticating Agent. The Trustee may at any time appoint an
Authenticating Agent or Agents with respect to one or more series of Senior Debt
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Senior Debt Securities of such series upon original issue, or
issued upon exchange, registration of transfer or partial redemption thereof or
in lieu of destroyed, lost or stolen Senior Debt Securities, and Senior Debt
Securities so authenticated shall be entitled to the benefits of this Senior
Debt Securities Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Wherever reference is made in this
Senior Debt Securities Indenture to the authentication and delivery of Senior
Debt Securities by the Trustee or the Trustee’s certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and the Guarantor and
shall at all times be a corporation or national banking association organized
and doing business under the laws of the United States, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by Federal or State or District of Columbia
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.14, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section.
49
Any
corporation or national banking association into which an Authenticating Agent
may be merged or converted or with which it may be consolidated, or any
corporation or national banking association resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party,
or any corporation or national banking association succeeding to the corporate
agency or corporate trust business of an Authenticating Agent, shall continue to
be an Authenticating Agent, provided such corporation or national banking
association shall be otherwise eligible under this Section 6.14, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An
Authenticating Agent may resign at any time by giving written notice thereof to
the Trustee, the Company and the Guarantor. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent, the Company and the Guarantor. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.14, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and the Guarantor
and shall give notice to the Holders of Senior Debt Securities in the manner and
to the extent provided in Section 1.06. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section
6.14.
The
Company and the Guarantor agree to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section
6.14.
If an
appointment with respect to one or more series is made pursuant to this Section,
the Senior Debt Securities of such series may have endorsed thereon, in lieu of
the Trustee’s certificate of authentication, an alternate certificate of
authentication in the following form:
50
This is
one of the Senior Debt Securities referred to in the within- mentioned Senior
Debt Securities Indenture.
| THE BANK OF NEW YORK MELLON, LONDON BRANCH | ||
| as Trustee | ||
|
By:
|
||
|
as
Authenticating Agent
|
||
|
By:
|
||
|
as
Authenticating Agent
|
||
ARTICLE
7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section
7.01. Company and Guarantor to
Furnish Trustee Names and Addresses of Holders. Each of
the Company and the Guarantor, with respect to any series of Senior
Debt Securities in registered form, will furnish or cause to be furnished to the
Trustee
(a) quarterly,
not more than 15 days after each Regular Record Date (or after each of the dates
to be specified for such purpose for non-interest bearing Senior Debt Securities
and Senior Debt Securities on which interest is paid less frequently than
quarterly as contemplated by Section 3.01), a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of registered
Senior Debt Securities as of such Regular Record Date or such specified date,
and
(b) at
such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is
furnished.
The
Company need not furnish or cause to be furnished to the Trustee pursuant to
this Section 7.01 the names and addresses of Holders of registered Senior Debt
Securities so long as the Trustee acts as Senior Debt Security Registrar with
respect to such series of Senior Debt Securities.
Section
7.02. Preservation
of Information; Communication to Holders.
(a)
The Trustee shall preserve, in as current a form as is reasonably practicable,
the names and addresses of Holders (i) contained in the most recent list
furnished to the Trustee as provided in Section 7.01 and (ii) received by the
Trustee in its capacity as Paying Agent or Senior Debt Security Registrar (if so
acting). The Trustee may destroy any list furnished to it as provided in Section
7.01 upon receipt of a new list so furnished.
51
(b) The
rights of the Holders of Senior Debt Securities of any series to communicate
with other Holders with respect to their rights under this Senior Debt
Securities Indenture or under the Senior Debt Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
(c) Every
Holder, by receiving and holding a Senior Debt Security, agrees with the
Company, the Guarantor and the Trustee that neither the Company, the Guarantor
nor the Trustee nor any agent of any of them shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 7.02(b) or otherwise made pursuant to the
Trust Indenture Act.
Section
7.03. Reports by
Trustee.
(a) On
or before [May 15] in each year following the date hereof, so long as any Senior
Debt Securities are Outstanding hereunder, the Trustee shall transmit to Holders
as provided in the Trust Indenture Act a brief report dated as of a date
required by and in compliance with the Trust Indenture Act.
(b) A
copy of each such report shall, at the time of such transmission to Holders, be
filed by the Trustee with each securities exchange upon which the Trustee has
been notified that the Senior Debt Securities are listed, with the Commission
and with the Company and the Guarantor. The Company will notify the Trustee when
Senior Debt Securities are listed on any securities exchange.
(c) The
Company will furnish the Trustee with interim and annual reports and upon
receipt thereof, the Trustee will mail such reports to all record holders of
Senior Debt Securities. In addition, the Company will furnish the Trustee with
all notices of meetings at which holders of Senior Debt Securities of a
particular series are entitled to vote, and all other reports and communications
that are made generally available to holders of Senior Debt Securities. The
Trustee will, at the Company’s expense, make such notices, reports and
communications available for inspection by holders of Senior Debt Securities in
such manner as the Company may determine and, in the case of any notice received
by the Trustee in respect of any meeting at which holders of Senior Debt
Securities of a particular series are entitled to vote, will mail to all such
record holders of Senior Debt Securities, at the Company’s expense, a notice
containing a summary of the information set forth in such notice of
meeting.
Section
7.04. Reports by the Company
and the Guarantor. The Company and the Guarantor shall:
(a) file
with the Trustee, within 15 days after the Company or the Guarantor, as the case
may be, is required to file the same with the Commission,
52
copies of
the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) which the Company or the Guarantor
may be required to file with the Commission pursuant to Section 13 or Section
15(d) of the Exchange Act; or, if the Company or the Guarantor is not required
to file information, documents or reports pursuant to either of such Sections,
then it shall file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations. Delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on an Officer’s
Certificate);
(b) file
with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such additional information,
documents and reports with respect to compliance by the Company with the
conditions and covenants of this Senior Debt Securities Indenture as may be
required from time to time by such rules and regulations. Delivery of such
reports, information and documents to the Trustee is for informational purposes
only and the Trustee’s receipt of such shall not constitute constructive notice
of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on an Officer’s
Certificate); and
(c) transmit
to Holders, in the manner and to the extent required by the Trust Indenture Act,
within 30 days after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company pursuant
to paragraphs (a) and (b) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE
8
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section
8.01. Company or Guarantor May
Consolidate, Etc. Only on Certain Terms. The Company or
the Guarantor may, without the consent of Holders of any Senior
Debt Securities of any series Outstanding under this Senior Debt Securities
Indenture, consolidate or amalgamate with or merge into any other
corporation or convey or transfer or lease its properties and assets
substantially as an entirety to any Person, provided
that:
53
(a) the
corporation formed by such consolidation or amalgamation or into which the
Company or the Guarantor is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Company or the Guarantor substantially
as an entirety (i) shall be a company organized and existing under the laws of
the United Kingdom or any political subdivision thereof, and (ii) shall
expressly assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of (and premium, if any) and interest, if any, on all the
Senior Debt Securities in accordance with the provisions of such Senior Debt
Securities and this Senior Debt Securities Indenture and the performance of
every covenant of this Senior Debt Securities Indenture on the part of the
Company or the Guarantor, as the case may be, to be performed or observed;
and
(b) the
Company or the Guarantor, as the case may be, shall have delivered to the
Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that
such consolidation, amalgamation, merger, conveyance or transfer and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied
with.
Section
8.02. Successor Corporation
Substituted. Upon any consolidation by the Company or the Guarantor with,
or amalgamation or merger by the Company or the Guarantor into any other
corporation or any conveyance or transfer of the properties and assets of the
Company or the Guarantor substantially as an entirety in accordance with Section
8.01, the successor corporation formed by such consolidation or amalgamation or
into which the Company or the Guarantor is merged or to which such conveyance or
transfer is made shall succeed to and be substituted for, and may exercise every
right and power of, the Company or the Guarantor, as the case may be, under this
Senior Debt Securities Indenture with the same effect as if such successor
corporation had been named as the Company or the Guarantor, herein, and
thereafter, the predecessor corporation shall be relieved of all obligations and
covenants under the Senior Debt Securities Indenture and the Senior Debt
Securities.
Section
8.03. Assumption of
Obligations. With respect to the Senior Debt Securities of any series, a
wholly-owned Subsidiary of the Company (a “successor entity”) may without
the consent of any Holder assume the obligations of the Company (or any
corporation which shall have previously assumed the obligations of the Company)
for the due and punctual payment of the principal of (and premium, if any, on)
and interest, if any, on any series of Senior Debt Securities in accordance with
the provisions of such Senior Debt Securities and this Senior Debt Securities
Indenture and the performance of every covenant
54
of this
Senior Debt Security Indenture and such series of Senior Debt Securities on the
part of the Company to be performed or observed, provided that:
(a) the
successor entity shall expressly assume such obligations by an amendment to the
Senior Debt Securities Indenture, executed by the Company and such successor
entity, if applicable, and delivered to the Trustee, in form satisfactory to the
Trustee, and the Company shall, by amendment to the Senior Debt Securities
Indenture, unconditionally guarantee (such guarantee shall be given on a Senior
basis consistent with Article Twelve hereof) all of the obligations of such
successor entity under the Senior Debt Securities of such series and the Senior
Debt Securities Indenture as so modified by such amendment (provided, however, that, for the
purposes of the Company’s obligation to pay Additional Amounts, if any, payable
pursuant to Section 10.04 in respect of the Senior Debt Securities, references
to such successor entity’s country of organization will be added to references
to the United Kingdom);
(b) such
successor entity shall confirm in such amendment to the Senior Debt Securities
Indenture that such successor entity will pay all Additional Amounts, if any,
payable pursuant to Section 10.04 in respect of all the Senior Debt Securities
(provided, however, that for these
purposes such successor entity’s country of organization will be substituted for
the references to the United Kingdom);
(c) immediately
after giving effect to such assumption of obligations, no Event of Default and
no event which, after notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing; and
(d) the
Company shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that such assumption complies with this Article
and that all conditions precedent herein provided for relating to such
assumption have been complied with.
Upon any
such assumption, the successor entity shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Senior Debt
Securities Indenture with respect to any such Senior Debt Securities with the
same effect as if such successor entity had been named as the Company in this
Senior Debt Securities Indenture, and the Company or any legal and valid
successor corporation which shall theretofore have become such in the manner
prescribed herein, shall be released from all liability as obligor upon any such
Senior Debt Securities except as provided in clause (a) of this Section
8.03.
In the
event of any such assumption, any Additional Amounts, if any, payable pursuant
to Section 10.04 will be payable in respect of taxes, levies, imposts, duties,
charges, fees, deductions or withholdings (“Taxes”) imposed by the
jurisdiction in which the assuming corporation is incorporated (subject
to
55
exceptions
equivalent to those that apply to any obligation to pay Additional Amounts in
respect of Taxes imposed by any Taxing Jurisdiction) rather than Taxes imposed
by any Taxing Jurisdiction; provided however, that if the
Company makes payment under the guarantee, the Company shall be required to pay
Additional Amounts related to Taxes (subject to the exceptions set forth in
Section 10.04) imposed by any Taxing Jurisdiction by reason of such
payments.
ARTICLE
9
SUPPLEMENTAL INDENTURES
Section
9.01. Supplemental
Indentures without Consent of Holders.
Without
the consent of any Holders, the Company and the Guarantor, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(a) to
evidence the succession of another corporation to the Company or the Guarantor
and the assumption by any such successor of the covenants of any the Company or
the Guarantor herein and in the Senior Debt Securities;
(b) to
add to the covenants of the Company or the Guarantor for the benefit of the
Holders of all or any series of Senior Debt Securities (and, if such covenants
are to be for the benefit of less than all series of Senior Debt Securities,
stating that such covenants are expressly being included solely for the benefit
of such series) or to surrender any right or power herein conferred upon the
Company or the Guarantor;
|
|
(c)
|
to
add any additional Events of
Default;
|
(d) to
add to, change or eliminate any of the provisions of this Senior Debt Securities
Indenture, or any supplemental indenture, provided that any such change
or elimination shall become effective only when there is no Senior Debt Security
Outstanding of any series created prior to the execution of such supplemental
indenture effecting such change or elimination which is entitled to the benefit
of such provision, and adversely affected by such addition, change or
elimination;
|
|
(e)
|
to
secure the Senior Debt Securities;
|
(f)
to establish the form or terms of Senior Debt Securities of any series as
permitted by Sections 2.01 or 3.01;
(g) to
change any Place of Payment, so long as the Place of Payment as required by
Section 3.01 is maintained;
56
(h) to
cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein or in any supplemental
indenture;
(i)
to make any other provisions with respect to matters or questions arising under
this Senior Debt Securities Indenture, provided such action shall
not adversely affect the interests of the Holders of Senior Debt Securities of
any series in any material respect;
(j)
to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Senior Debt Securities of one or more
series and to add to or change any of the provisions of this Senior Debt
Securities Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 6.11(b); or
(k) to
change or eliminate any provision of this Senior Debt Securities Indenture as
permitted by Section 1.07.
Section
9.02. Supplemental Indentures
with Consent of Holders. With the consent of the Holders of not less than
a majority in aggregate principal amount of the Outstanding Senior Debt
Securities of each series affected by such supplemental Senior Debt Securities
Indenture (voting as a class), by Act of said Holders delivered to the Company,
the Guarantor and the Trustee, the Company and the Guarantor, when authorized by
a Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Senior Debt Securities
Indenture or of modifying in any manner the rights of the Holders of Senior Debt
Securities of such series under this Senior Debt Securities Indenture; provided, however, that no
such supplemental indenture may, without the consent of the Holder of each
Outstanding Senior Debt Security affected thereby,
(a)
change the Stated Maturity, if any, of any principal amount or any interest
amounts in respect of any such Senior Debt Security, reduce the principal amount
thereof or the rate of interest, if any, thereon, or any premium payable upon
the redemption thereof, or reduce the amount of principal of an Original Issue
Discount Security that would be due and payable upon an acceleration of the
Maturity thereof pursuant to Section 5.02, or change the obligation of the
Company (or its successor) to pay Additional Amounts pursuant to Section 10.04
(except as contemplated by Section 8.01(a) and permitted by Section 9.01(a)) on
the Senior Debt Securities, or the currency of payment of the principal amount
of, premium, if any, or interest on, any such Senior Debt Security, or impair
the right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date); or
57
(b) reduce
the percentage in aggregate principal amount of the Outstanding Senior Debt
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Senior Debt Securities
Indenture or of certain defaults hereunder and their consequences) provided for
in this Senior Debt Securities Indenture, or
(c) modify
any of the provisions of this Section 9.02 or Section 5.13 except to increase
any such percentage or to provide that certain other provisions of this Senior
Debt Securities Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Senior Debt Security affected thereby; provided, however, that this
clause shall not be deemed to require the consent of any Holder with respect
to changes in the references to “the Trustee” and concomitant changes in this
Section, or the deletion of this proviso, in accordance with the requirements of
Sections 6.11(b) and 9.01(j), or
(d) change
in any manner adverse to the interests of the Holders of any Senior Debt
Securities the terms and conditions of the obligations of the Company or any
Guarantee in respect of the due and punctual payment of any amounts due and
payable on the Senior Debt Securities.
It shall
not be necessary for any Act of Holders under this Section to approve the
particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
A
supplemental indenture which changes or eliminates any covenant or other
provision of this Senior Debt Securities Indenture which has expressly been
included solely for the benefit of one or more particular series of Senior Debt
Securities, or which modifies the rights of the Holders of Senior Debt
Securities of such series with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Senior Debt Securities
Indenture of the Holders of Senior Debt Securities of any other
series.
Section
9.03. Execution of
Supplemental Indentures. In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Senior Debt Securities
Indenture, the Trustee shall be entitled to receive, and (subject to Section
6.01) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Senior Debt Securities Indenture and that such supplemental indenture
constitutes the legal, valid and binding obligation of the Company and the
Guarantor. The Trustee may, but shall not be obliged to, enter into any
such
58
supplemental
indenture which affects the Trustee’s own rights, duties or immunities under
this Senior Debt Securities Indenture or otherwise.
Section
9.04. Effect of Supplemental
Indentures. Upon the execution of any supplemental indenture under this
Article, this Senior Debt Securities Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of this Senior Debt
Securities Indenture for all purposes; and every Holder of Senior Debt
Securities theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby, except as otherwise expressed therein.
Section
9.05. Conformity with Trust
Indenture Act. Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act as then in
effect.
Section
9.06. Reference in Senior Debt
Securities to Supplemental Indentures. Senior Debt
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company and the Guarantor
shall so determine, new Senior Debt Securities of any series so modified as to
conform, in the opinion of the Trustee, the Company and the Guarantor, to any
such supplemental indenture may be prepared and executed by the Company, the
Guarantees endorsed thereon may be executed by the Guarantor and such Senior
Debt Securities may be authenticated and delivered by the Trustee in exchange
for Outstanding Senior Debt Securities of such series.
ARTICLE
10
COVENANTS
Section
10.01. Payment of Principal,
Premium, and Interest. The Company covenants and agrees for the benefit
of each series of Senior Debt Securities that it will duly and punctually pay
the principal of (and premium, if any) and (subject to Section 3.07) interest,
if any, on the Senior Debt Securities of that series in accordance with the
terms of the Senior Debt Securities and this Senior Debt Securities
Indenture.
Section
10.02. Maintenance of Office
or Agency. The Company and the Guarantor will maintain in each Place of
Payment for any series of Senior Debt Securities an office or agency where
Senior Debt Securities of that series may be presented or surrendered for
payment, where Senior Debt Securities of that series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company or the Guarantor in respect of the Senior Debt Securities of that
series and this Senior Debt Securities Indenture may be served;
59
provided, however, that at
the option of the Company in the case of registered Senior Debt Securities
of such series, payment of any interest thereon may be made by check mailed to
the address of the Person entitled herein as such address shall appear in the
Senior Debt Security Register. With respect to the Senior Debt Securities of any
series, such office or agency in each Place of Payment shall be specified as
contemplated by Section 3.01, and if not so specified, initially shall be the
Corporate Trust Office of the Trustee. Unless otherwise specified pursuant to
Section 3.01, the Company and the Guarantor will maintain in the Borough of
Manhattan, The City of New York, an office or agency where notices and demands
to or upon the Company or the Guarantor in respect of Senior Debt Securities of
any series and this Senior Debt Securities Indenture may be served. The Company
and the Guarantor will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company and the Guarantor shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee. The Company and the Guarantor hereby
appoints the Trustee as its agent to receive all presentations, surrenders,
notices and demands.
The
Company and the Guarantor may also from time to time designate one or more other
offices or agencies (in or outside the Borough of Manhattan, The City of New
York) where the Senior Debt Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided,
however, that no such designation or rescission shall in any manner
relieve the Company and the Guarantor of any obligation to maintain an office or
agency in each Place of Payment (except as otherwise indicated in this Section)
for Senior Debt Securities of any series for such purposes. The Company and the
Guarantor will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
Section
10.03. Money for Payments to
be Held in Trust. If the Company or the Guarantor shall at any time act
as Paying Agent with respect to the Senior Debt Securities of any series, it
will, on or before each due date for payment of the principal of (and premium,
if any) or interest, if any, if any, on any of the Senior Debt Securities of
that series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest,
if any, so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee of
its failure so to act.
Whenever
the Company and the Guarantor shall have one or more Paying Agents for any
series of Senior Debt Securities, it will, prior to each due date for payment of
the principal of (and premium, if any) or interest, if any, on any
60
Senior
Debt Securities of that series deposit with a Paying Agent a sum sufficient to
pay the principal (and premium, if any) or interest, if any, so becoming due,
such sum to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the Trustee)
the Company or the Guarantor will promptly notify the Trustee of its action or
its failure so to act. Unless otherwise specified as contemplated by Section
3.01, the Trustee shall be the Company’s and the Guarantor’s Paying Agent. The
Company and the Guarantor will cause each Paying Agent for any series of Senior
Debt Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(a) hold
all sums held by it for the payment of the principal of (and premium, if any) or
interest, if any, on Senior Debt Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(b) give
the Trustee notice of any default by the Company (or the Guarantor or any other
obligor upon the Senior Debt Securities of that series) in the making of any
payment, when due and payable, or principal of (and premium, if any) or
interest, if any, on Senior Debt Securities of that series; and
(c) at
any time during the continuance of any such default, upon the written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust by such
Paying Agent.
The
Company may at the time, for the purpose of obtaining the satisfaction and
discharge of this Senior Debt Securities Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee such Paying Agent shall be released from all further liability with
respect to such money.
Any money
deposited with the Trustee or any Paying Agent, or then held by the Company or
the Guarantor, in trust for the payment of the principal of (and premium, if
any) or interest, if any, on any Senior Debt Security of any series and
remaining unclaimed for two years after such principal (and premium, if any) or
interest, if any, have become due and payable shall be paid to the Company or
the Guarantor, as the case may be, on Company Request, or (if then held by the
Company or the Guarantor) shall be discharged from such trust; and the Holder of
such Senior Debt Security shall thereafter, as an unsecured general creditor,
look only to the Company or the Guarantor for payment thereof, and all liability
of the Trustee or such Paying Agent with respect to such trust money, and all
liability of
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the
Company or the Guarantor as trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may
at the expense of the Company cause to be published at least once, in an
Authorized Newspaper, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
paid to the Company or the Guarantor, as the case may be.
Section
10.04. Additional
Amounts. Unless otherwise specified in any Board Resolution establishing
the terms of Senior Debt Securities of a series in accordance with Section 3.01,
all amounts of principal, and premium, if any, and interest, if any, on any
series of Senior Debt Securities will be paid by the Company without deduction
or withholding for, or on account of, any and all present and future income,
stamp and other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings now or hereafter imposed, levied, collected, withheld or assessed
by or on behalf of the United Kingdom or any political subdivision or authority
thereof or therein having the power to tax (the “Taxing Jurisdiction”), unless such
deduction or withholding is required by law. If deduction or withholding
of any such taxes, levies, imposts, duties, charges, fees, deductions or
withholdings shall at any time be required by the Taxing Jurisdiction, the
Company will pay such additional amounts of, or in respect of, the principal
amount of, premium, if any, and interest, if any, on any series of Senior Debt
Securities (“Additional
Amounts”) as may be necessary in order that the net amounts paid to the
Holders of Senior Debt Securities of the particular series, after such deduction
or withholding, shall equal the respective amounts of principal, premium, if
any, and interest, if any, which would have been payable in respect of such
Senior Debt Securities had no such deduction or withholding been required; provided, however, that the foregoing
will not apply to any such tax, levy, impost, duty, charge, fee, deduction or
withholding which would not have been payable or due but for the fact
that:
(i) the
Holder or the beneficial owner of the Senior Debt Security is a domiciliary,
national or resident of, or engaging in business or maintaining a permanent
establishment or physically present in, the Taxing Jurisdiction or otherwise has
some connection with the Taxing Jurisdiction other than the holding or ownership
of a Senior Debt Security, or the collection of any payment of (or in respect
of) principal of, premium, if any, or interest, if any, on any Senior Debt
Security of the relevant series,
(ii) except
in the case of a winding-up of the Company in the United Kingdom, the relevant
Senior Debt Security is presented (where presentation is required) for payment
in the United Kingdom,
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(iii) the
relevant Senior Debt Security is presented (where presentation is required) for
payment more than 30 days after the date payment became due or was provided for,
whichever is later, except to the extent that the Holder would have been
entitled to such Additional Amount on presenting (where presentation is
required) the same for payment at the close of such 30 day period,
or
(iv) the
Holder or the beneficial owner of the relevant Senior Debt Security or the
beneficial owner of any payment of (or in respect of) principal of, or interest,
if any, on such Senior Debt Security failed to comply with a request of the
Company or its liquidator or other authorized person addressed to the Holder (x)
to provide information concerning the nationality, residence or identity of the
Holder or such beneficial owner or (y) to
make any declaration or other similar claim to satisfy any information
requirement, which in the case of (x) or (y), is required or imposed by a
statute, treaty, regulation or administrative practice of the Taxing
Jurisdiction as a precondition to exemption from all or part of such tax,
assessment or other governmental charge;
(v)
the withholding or deduction is imposed on a payment to or for the
benefit of an individual and is required to be made pursuant to European Council
Directive 2003/48/EC or any other Directive implementing the conclusions of the
ECOFIN Council meeting of November 26-27, 2000 on the taxation of savings income
or any law implementing or complying with, or introduced in order to conform to,
such directives;
(vi) the
relevant Senior Debt Security is presented (where presentation is required) for
payment by or on behalf of a holder who would have been able to avoid such
withholding or deduction by presenting (where presentation is required) the
relevant Senior Debt Security to another paying agent in a Member State of the
European Union; or
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(vii)
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any
combination of subclauses (i) through (vi)
above;
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nor shall
Additional Amounts be paid with respect to the principal of, and interest on,
the Senior Debt Securities to any holder who is a fiduciary or partnership or
settlor with respect to such fiduciary or a member of such partnership other
than the sole beneficial owner of such payment to the extent such payment would
be required by the laws of any Taxing Jurisdiction to be included in the income
for tax purposes of a beneficiary or partner or settlor with respect to such
fiduciary or a member of such partnership or a beneficial owner who would not
have been entitled to such Additional Amounts, had it been the
holder.
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Whenever
in this Senior Debt Securities Indenture there is mentioned, in any context, the
payment of the principal of (and premium, if any) or interest, if any, on, or in
respect of, any Senior Debt Security of any series such mention shall be deemed
to include mention of the payment of Additional Amounts provided for in this
Section to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to the provisions of this Section
and as if express mention of the payment of Additional Amounts (if applicable)
were made in any provisions hereof where such express mention is not
made.
Section
10.05. Corporate
Existence. Subject to Article Eight, the Company and the Guarantor will
do or cause to be done all things necessary to preserve and keep in full force
and effect its respective corporate existence.
Section
10.06. Statement as to
Compliance. The Company and the Guarantor will deliver to the Trustee,
within 120 days after the end of each fiscal year, a certificate in compliance
with Section 314(a)(4) of the Trust Indenture Act.
Section
10.07. Original Issue
Document. The Company shall provide to the Trustee on a timely basis such
information, if any, as the Trustee requires to enable the Trustee to prepare
and file any form required to be submitted by the Company with the Internal
Revenue Service and the Holders of the Senior Debt Securities relating to any
original issue discount, including, without limitation, Form 1099-OID or any
successor form.
ARTICLE
11
REDEMPTION OF SENIOR DEBT SECURITIES
Section
11.01. Applicability of
Article. Senior Debt Securities of any series shall be redeemable in
accordance with their terms and (except as otherwise specified pursuant to
Section 3.01 for Senior Debt Securities of any series) in accordance with this
Article 11.
Section
11.02. Election to Redeem;
Notice to Trustee. The election of the Company to redeem any Senior Debt
Securities shall be evidenced by a Board Resolution. The Company shall, at least
60 days prior to the Redemption Date fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date, of the principal amount of Senior Debt Securities of such
series to be redeemed and, if applicable, the tenor of the Senior Debt
Securities to be redeemed. In the case of any redemption of Senior Debt
Securities of any series prior to the expiration of any provision restricting
such redemption provided in the terms of such Senior Debt Securities or
elsewhere in this Senior Debt Securities Indenture, the Company shall furnish
the
64
Trustee
with respect to such Senior Debt Securities with an Officer’s Certificate
evidencing compliance with or waiver of such provision.
Section
11.03. Selection by Trustee of
Senior Debt Securities to be Redeemed. If less than all
the Senior Debt Securities of any series are to be redeemed, the
particular Senior Debt Securities to be redeemed shall be selected not more than
60 days nor less than 30 days prior to the Redemption Date by the Trustee, from
the Outstanding Senior Debt Securities of such series not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of portions (equal to the
minimum authorized denomination for registered Senior Debt Securities of that
series or any multiple thereof) of the principal amount of Senior Debt
Securities of such series of a denomination larger than the minimum authorized
denomination for Senior Debt Securities of that series.
The
Trustee shall promptly notify the Company in writing of the Senior Debt
Securities selected for redemption and, in the case of any Senior Debt
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For all
purposes of this Senior Debt Securities Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Senior Debt Securities
shall relate in the case of any Senior Debt Securities redeemed or to be
redeemed only in part, to the portion of the principal amount of such registered
Senior Debt Security which has been or is to be redeemed.
Section
11.04. Notice of
Redemption. Unless otherwise provided as contemplated by Section 3.01
with respect to any series of Senior Debt Securities, notice of redemption shall
be given not less than 30 nor more than 60 days prior to the Redemption Date to
each Holder of Senior Debt Securities to be redeemed in the manner and to the
extent provided in Section 1.06.
All
notices of redemption shall state:
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(a)
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the
Redemption Date,
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(b)
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the
Redemption Price,
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(c) if
less than all the Outstanding Senior Debt Securities of any series are to be
redeemed, the principal amount of the Senior Debt Securities to be
redeemed,
(d) that
on the Redemption Date the Redemption Price will become due and payable upon
each such Senior Debt Security to be redeemed and, if applicable, that interest
thereon will cease to accrue on or after the said date,
65
(e) the
place or places where such Senior Debt Securities are to be surrendered for
payment of the Redemption Price, and
(f) the
CUSIP, Common Code and/or ISIN number or numbers, if any, with respect to such
Senior Debt Securities.
Notice of
redemption of Senior Debt Securities to be redeemed at the selection of the
Company shall be given by the Company or, at the Company’s Request, by the
Trustee in the name and at the expense of the Company.
Section
11.05. Deposit of Redemption
Price. On or prior to any Redemption Date, the Company or the Guarantor
shall deposit with the Trustee or with a Paying Agent (or, if the Company or the
Guarantor is acting as Paying Agent, segregate and hold in trust as provided in
Section 10.03) an amount of money sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued but
unpaid interest on, all the Senior Debt Securities which are to be redeemed on
that date.
Section
11.06. Senior Debt
Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Senior Debt Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest, if any)
such Senior Debt Securities shall cease to accrue interest. Upon surrender of
any such Senior Debt Security for redemption in accordance with said notice,
such Senior Debt Security shall be paid by the Company or the Guarantor at the
Redemption Price, together with accrued but unpaid interest to the Redemption
Date; provided,
however, that with respect to any Senior Debt Securities in registered
form, unless otherwise specified as contemplated by Section 3.01, a payment of
interest which is payable on a Interest Payment Date which is the Redemption
Date, shall be payable to the Holders of such Senior Debt Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant Regular Record Date or Special Record Date according to the terms of
the Senior Debt Securities and the provisions of Section 3.07. Senior Debt
Securities in definitive form shall be presented for redemption to the Paying
Agent.
If any
Senior Debt Security called for redemption shall not be so paid upon surrender
thereof for redemption, the Senior Debt Security shall, until paid, continue to
accrue interest from and after the Redemption Date in accordance with its terms
and the provisions of Section 3.07.
Section
11.07. Senior Debt Securities
Redeemed in Part. Any Senior Debt Security which is to be redeemed only
in part shall be surrendered at a Place of Payment therefor (with, only in the
case of Senior Debt Securities in registered
66
form, if
the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, the Guarantor shall endorse the Guarantee on, and the
Trustee shall authenticate and deliver to the Holder of such Senior Debt
Security without service charge, a new Senior Debt Security or Senior Debt
Securities of the same series of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Senior Debt Security so
surrendered.
Section
11.08. Optional
Redemption Due to Changes in Tax Treatment. Unless
otherwise provided in the Senior Debt Securities of any series, the Company and,
if applicable, the Guarantor will have the option to redeem the Senior Debt
Securities of any series in whole as contemplated by Section 3.01 with respect
to any series of Senior Debt Securities, the Senior Debt Securities are
redeemable, as a whole but not in part, on not less than 30 nor more than 60
days’ notice, on any Interest Payment Date, at a redemption price equal to 100%
of the principal amount, together with accrued but unpaid interest, if any, in
respect of such series of Senior Debt Securities to the date fixed for
redemption (or, in the case of Original Issue Discount Securities, the accreted
face amount thereof, together with accrued interest, if any), if, at any time,
the Company (or, if applicable, the Guarantor) shall determine that as a result
of a change in or amendment to the laws or regulations of the Taxing
Jurisdiction (including any treaty to which such Taxing Jurisdiction is a
party), or any change in the official application or interpretation of such laws
or regulations (including a decision of any court or tribunal) which change or
amendment becomes effective on or after a date included in the terms of such
series of Senior Debt Securities pursuant to Section 3.01:
(a) in
making payment under the Senior Debt Securities in respect of principal or
premium, if any, or interest, if any, it (or the Guarantor, if applicable) has
or will or would on the next Interest Payment Date become obligated to pay
Additional Amounts;
(b) the
payment of interest on the next Interest Payment Date in respect of any of the
Senior Debt Securities would be treated as “distributions” within the
meaning of Section 209 of the Income and Corporation Taxes Xxx 0000 of the
United Kingdom (or any statutory modification or re-enactment thereof for the
time being); or
(c) on
the next Interest Payment Date the Company (or the Guarantor, if applicable)
would not be entitled to claim a deduction in respect of such payment of
interest in computing its United Kingdom taxation liabilities (or the value of
such deduction to the Company would be materially reduced).
67
In any
case where the Company (or, if applicable, the Guarantor) shall determine that
as a result of any change in the official application or interpretation of any
laws or regulations it is entitled to redeem the Senior Debt Securities of any
series, the Company (or, if applicable, the Guarantor) shall be required to
deliver to the Trustee prior to the giving of any notice of redemption a written
legal opinion of independent United Kingdom counsel of recognized standing
(selected by the Company) (or, if applicable, the Guarantor) in a form
satisfactory to the Trustee confirming that the relevant change in the official
application or interpretation of such laws or regulations has occurred and that
the Company (or, if applicable, the Guarantor) is entitled to exercise its right
of redemption.
This
instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
ARTICLE
12
GUARANTEE AND INDEMNITY
Section
12.01. The Guarantee.
The Guarantor hereby unconditionally guarantees to each Holder of a Senior Debt
Security the due and punctual payment of the principal of, any premium and
interest on, and any additional amounts with respect to such Senior Debt
Security and the due and punctual payment of the sinking fund payments (if any)
provided for pursuant to the terms of such Senior Debt Security, when and as the
same shall become due and payable, whether at maturity, by acceleration,
redemption, repayment or otherwise, in accordance with the terms of such Senior
Debt Security and of this Senior Debt Securities Indenture. In case of the
failure of the Company punctually to pay any such principal, premium, interest,
additional amounts or sinking fund payment, the Guarantor hereby agrees to cause
any such payment to be made punctually when and as the same shall become due and
payable, whether at maturity, upon acceleration, redemption, repayment or
otherwise, and as if such payment were made by the Company.
Section
12.02. Net Payments.
All payments of principal of and premium, if any, interest and any other amounts
on, or in respect of, the Senior Debt Securities of any series shall be made by
the Guarantor without withholding or deduction at source for, or on account of,
any present or future taxes, fees, duties, assessments or governmental charges
of whatever nature imposed or levied by or on behalf of the United Kingdom, or
the jurisdiction of residence or incorporation of any successor to the
Guarantor, or any political subdivision or taxing authority thereof or therein
(the “Guarantor Taxing
Jurisdiction”), unless such taxes, fees, duties, assessments or
governmental charges are required to be withheld or deducted by (i) the laws (or
any regulations or ruling promulgated thereunder) of a Guarantor Taxing
Jurisdiction or (ii) an official position regarding the
68
application,
administration, interpretation or enforcement of any such laws, regulations or
rulings (including, without limitation, a holding by a court of competent
jurisdiction or by a taxing authority in a Guarantor Taxing Jurisdiction). If a
withholding or deduction at source is required, the Guarantor shall, subject to
certain limitations and exceptions set forth below, pay to the Holder of any
such Senior Debt Security such additional amounts as may be necessary so that
every net payment of principal, premium, if any, interest or any other amount
made to such Holder, after such withholding or deduction, shall not be less than
the amount provided for in such Senior Debt Security and this Senior Debt
Securities Indenture to be then due and payable; provided, however, that the
Guarantor shall not be required to make payment of such additional amounts for
or on account of:
(a) any
such tax, assessment or other governmental charge that would not have been so
imposed but for (i) the existence of any present or former connection between
such Holder (or between a fiduciary, settlor, beneficiary, member or
shareholder, if such Holder is an estate, a trust, a partnership or a
corporation) and the United Kingdom and its possessions or any other Guarantor
Taxing Jurisdiction, including, without limitation, such Holder (or such
fiduciary, settlor, beneficiary, member or shareholder) being or having been a
citizen or resident thereof, being or having been engaged in a trade or business
or present therein or having, or having had, a permanent establishment therein
or (ii) the presentation, where presentation is required, by the Holder of a
Senior Debt Security for payment on a date more than 30 days after the date on
which such payment became due and payable or the date on which payment thereof
is duly provided for, whichever occurs later;
(b) any
capital gain, estate, inheritance, gift, sale, transfer, personal property or
similar tax, assessment or other governmental charge;
(c) any
tax assessment or other governmental charge that is payable otherwise than by
withholding from payments on or with respect to the Senior Debt
Securities;
(d) any
tax assessment or other governmental charge that is imposed on a payment to an
individual and that is required to be made pursuant to European Council
Directive 2003/48/EC or any other directive implementing the conclusions of the
ECOFIN council meeting of November 26 – 27, 2000 on the taxation of savings
income, or any law implementing or complying with, or introduced in order to
conform to, such directives;
(e) any
tax assessment or other governmental charge required to be withheld by any
paying agent from any payment of principal or other amounts payable, or interest
on the Senior Debt Securities, to the extent that such payment can be made
without such withholding by presentation of the Senior Debt Securities to any
other paying agent;
69
(f) any
tax, assessment or other governmental charge that is imposed or withheld by
reason of the failure by the Holder or the beneficial owner of such Senior Debt
Security to comply with any reasonable request by the Company addressed to the
Holder or, if different, the direct nominee of a beneficiary of the payment,
within 90 days of such request (A) to provide information or certification
concerning the nationality, residence or identity of the Holder or such
beneficial owner or (B) to make any declaration or other similar claim or
satisfy any information or reporting requirement, which, in the case of (A) or
(B), is required or imposed by statute, treaty, regulation or administrative
practice of the relevant Guarantor Taxing Jurisdiction as a precondition to
exemption from all or part of such tax, assessment or other governmental charge;
or
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(g)
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any
combination of items (a), (b), (c), (d), (e) and
(f);
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nor shall
additional amounts be paid with respect to any payment of the principal of, or
premium, if any, interest or any other amounts on, any such Senior Debt Security
to any Holder who is a fiduciary, a partnership or any other Person, other than
the sole beneficial owner of such Senior Debt Security to the extent such
payment would be required by the laws of the relevant Guarantor Taxing
Jurisdiction to be included in the income for tax purposes of a beneficiary or
partner or settlor with respect to such fiduciary or a member of such
partnership or a beneficial owner who would not have been entitled to such
additional amounts had it been the Holder of the Senior Debt
Security.
Whenever
in this Senior Debt Securities Indenture there is mentioned, in any context, the
payment of the principal of or any premium, interest or any other amounts on, or
in respect of, any Senior Debt Security of any series or the net proceeds
received on the sale or exchange of any Senior Debt Security of any series, such
mention shall be deemed to include mention of the payment of additional amounts
provided by the terms of such series established hereby or pursuant hereto to
the extent that, in such context, additional amounts are, were or would be
payable in respect thereof pursuant to such terms, and express mention of the
payment of additional amounts (if applicable) in any provision hereof shall not
be construed as excluding the payment of additional amounts in those provisions
hereof where such express mention is not made.
Except as
otherwise provided in or pursuant to this Senior Debt Securities Indenture or
the Senior Debt Securities of the applicable series, at least 10 days prior to
the first interest payment date with respect to a series of Senior Debt
Securities (or if the Senior Debt Securities of such series shall not bear
interest prior to Maturity, the first day on which a payment of principal is
made), and at least 10 days prior to each date of payment of principal or
interest if there has been any change with respect to the matters set forth in
the below-mentioned Guarantor’s Officer’s Certificate, the Guarantor shall
furnish to the Trustee and the Paying Agent, a Guarantor’s Officer’s Certificate
instructing the Trustee and
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such
Paying Agent whether such payment of principal of and premium, if any, interest
or any other amounts on the Senior Debt Securities of such series shall be made
to Holders of Senior Debt Securities of such series without withholding for or
on account of any tax, fee, duty, assessment or other governmental charge
described in this Section 12.02. If any such withholding shall be required, then
such Guarantor’s Officer’s Certificate shall specify by Guarantor Taxing
Jurisdiction the amount, if any, required to be withheld on such payments to
such Holders of Senior Debt Securities, and the Guarantor agrees to pay to the
Trustee or such Paying Agent the additional amounts required by this Section
12.02. The Guarantor covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any
Guarantor’s Officer’s Certificate furnished pursuant to this Section
12.02.
Section
12.03. Guarantee
Unconditional, Etc. The Guarantor hereby agrees that its obligations
hereunder shall be as principal and not merely as surety, and shall be absolute,
irrevocable and unconditional, irrespective of, and shall be unaffected by, any
invalidity, irregularity or unenforceability of any Senior Debt Security or this
Senior Debt Securities Indenture, any failure to enforce the provisions of any
Senior Debt Security or this Senior Debt Securities Indenture, or any waiver,
modification, consent or indulgence granted with respect thereto by the Holder
of such Senior Debt Security or the Trustee, the recovery of any judgment
against the Company or any action to enforce the same, or any other
circumstances which may otherwise constitute a legal or equitable discharge of a
surety or guarantor. The Guarantor hereby waives diligence, presentment, demand
of payment, filing of claims with a court in the event of merger, insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest or notice with respect to any such Senior Debt Security or the
indebtedness evidenced thereby and all demands whatsoever, and covenants that
this Guarantee will not be discharged except by payment in full of the principal
of, any premium and interest on, and any additional amounts and sinking fund
payments required with respect to, the Senior Debt Securities and the complete
performance of all other obligations contained in the Senior Debt Securities.
The Guarantor further agrees, to the fullest extent that it lawfully may do so,
that, as between the Guarantor, on the one hand, and the Holders and the
Trustee, on the other hand, the maturity of the obligations guaranteed hereby
may be accelerated as provided in Section 5.02 hereof for the purposes of this
Guarantee, notwithstanding any stay, injunction or prohibition extant under any
bankruptcy, insolvency, reorganization or other similar law of any jurisdiction
preventing such acceleration in respect of the obligations guaranteed
hereby.
Section
12.04.
Reinstatement. This Guarantee shall continue to be effective or be
reinstated, as the case may be, if at any time payment on any Senior Debt
Security, in whole or in part, is rescinded or must otherwise be restored to the
Company or the Guarantor upon the bankruptcy, liquidation or reorganization of
the Company or otherwise.
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Section
12.05. Subrogation. The
Guarantor shall be subrogated to all rights of the Holder of any Senior Debt
Security against the Company in respect of any amounts paid to such Holder by
the Guarantor pursuant to the provisions of this Guarantee; provided, however,
that the Guarantor shall not be entitled to enforce, or to receive any payments
arising out of or based upon, such right of subrogation until the principal of,
any premium and interest on, and any additional amounts and sinking fund
payments required with respect to, all Senior Debt Securities shall have been
paid in full.
Section
12.06. Indemnity. As a
separate and alternative stipulation, the Guarantor unconditionally and
irrevocably agrees that any sum expressed to be payable by the Company under
this Senior Debt Securities Indenture or the Senior Debt Securities but which is
for any reason (whether or not now known or becoming known to the Company, the
Guarantor, the Trustee or any Holder of any Senior Debt Security) not
recoverable from the Guarantor on the basis of a Guarantee will nevertheless be
recoverable from it as if it were the sole principal debtor and will be paid by
it to the Trustee on demand. This indemnity constitutes a separate and
independent obligation from the other obligations in this Senior Debt Securities
Indenture, gives rise to a separate and independent cause of action and will
apply irrespective of any indulgence granted by the Trustee or any Holder of any
Senior Debt Security.
Section
12.07. Assumption By
Guarantor. (a) The Guarantor may, without the consent of the Holders,
assume all of the rights and obligations of the Company hereunder with respect
to a series of Senior Debt Securities and under the Senior Debt Securities of
such series if, after giving effect to such assumption, no Event of Default or
event which with the giving of notice or lapse of time, or both, would become an
Event of Default, shall have occurred and be continuing. Upon such an
assumption, the Guarantor shall execute a supplemental indenture evidencing its
assumption of all such rights and obligations of the Company and the Company
shall be released from its liabilities hereunder and under such Senior Debt
Securities as obligor on the Senior Debt Securities of such Series.
(b)
The Guarantor shall assume all of the rights and obligations of the Company
hereunder with respect to a series of Senior Debt Securities and under the
Senior Debt Securities of such series if, upon a default by the Company in the
due and punctual payment of the principal, sinking fund payment, if any,
premium, if any, or interest on such Senior Debt Securities, the Guarantor is
prevented by any court order or judicial proceeding from fulfilling its
obligations under Section 12.01 with respect to such series of Senior Debt
Securities. Such assumption shall result in the Senior Debt Securities of such
series becoming the direct obligations of the Guarantor and shall be effected
without the consent of the
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Holders
of the Senior Debt Securities of any series. Upon such an assumption, the
Guarantor shall execute a supplemental indenture evidencing its assumption of
all such rights and obligations of the Company, and the Company shall be
released from its liabilities hereunder and under such Senior Debt Securities as
obligor on the Senior Debt Securities of such series.
This
instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the parties hereto have caused this Senior Debt Securities
Indenture to be duly executed, all as of the day and year first above
written.
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THE
ROYAL BANK OF SCOTLAND PLC
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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THE
BANK OF NEW YORK MELLON, LONDON BRANCH
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By:
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Name:
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Title:
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