EXECUTION COPY
EXHIBIT 2.3(1)
XXXXXXX PLC
AND
THE BANK OF NEW YORK,
AS TRUSTEE, PAYING AGENT AND CALCULATION AGENT
7% NOTES DUE 2011
INDENTURE
DATED AS OF JUNE 21, 0000
XXXXXX XXXXXX XXXXX & XXXX, LONDON
TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions............................................................................1
Section 1.2 Rules of Construction..................................................................8
ARTICLE II
THE NOTES
Section 2.1 Form and Dating........................................................................8
Section 2.2 Execution and Authentication...........................................................9
Section 2.3 Registrar and Paying Agent; Calculation Agent.........................................11
Section 2.4 Paying Agent to Hold Money in Trust...................................................11
Section 2.5 Holder Lists..........................................................................12
Section 2.6 Global Note Provisions................................................................12
Section 2.7 Legends...............................................................................13
Section 2.8 Transfer and Exchange.................................................................13
Section 2.9 Mutilated, Destroyed, Lost or Stolen Notes............................................15
Section 2.10 Cancellation..........................................................................16
Section 2.11 Add On Notes..........................................................................16
Section 2.12 Default Interest......................................................................17
ARTICLE III
COVENANTS
Section 3.1 Payment of Notes......................................................................18
Section 3.2 Maintenance of Office or Agency.......................................................18
Section 3.3 Corporate Existence...................................................................18
Section 3.4 Payment of Taxes and Other Claims.....................................................19
Section 3.5 Further Instruments and Acts..........................................................19
Section 3.6 Waiver of Stay, Extension or Usury Laws...............................................19
Section 3.7 Payment of Additional Amounts.........................................................19
Section 3.8 Limitation on Liens...................................................................20
Section 3.9 Reports to Holders....................................................................20
ARTICLE IV
SUCCESSOR CORPORATION
Section 4.1 Consolidation, Merger and Sale of Assets..............................................21
ARTICLE V
OPTIONAL REDEMPTION OF NOTES
Section 5.1 Optional Tax Redemption...............................................................21
Section 5.2 Optional Redemption...................................................................22
Section 5.3 Election to Redeem....................................................................22
Section 5.4 Notice of Redemption..................................................................22
Section 5.5 Selection of Notes to be Redeemed in Part Pursuant to an Optional Redemption..........23
Section 5.6 Deposit of Redemption Price...........................................................24
Section 5.7 Notes Payable on Redemption Date......................................................24
Section 5.8 Unredeemed Portions of Partially Redeemed Note........................................24
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ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 Events of Default.....................................................................24
Section 6.2 Acceleration..........................................................................25
Section 6.3 Other Remedies........................................................................26
Section 6.4 Waiver of Past Defaults...............................................................26
Section 6.5 Control by Majority...................................................................26
Section 6.6 Limitation on Suits...................................................................26
Section 6.7 Rights of Holders to Receive Payment..................................................27
Section 6.8 Collection Suit by Trustee............................................................27
Section 6.9 Trustee May File Proofs of Claim, etc.................................................27
Section 6.10 Priorities............................................................................28
ARTICLE VII
TRUSTEE
Section 7.1 Duties of Trustee.....................................................................28
Section 7.2 Rights of Trustee.....................................................................29
Section 7.3 Individual Rights of Trustee..........................................................30
Section 7.4 Trustee's Disclaimer..................................................................30
Section 7.5 Notice of Defaults....................................................................30
Section 7.6 Reports by Trustee to Holders.........................................................31
Section 7.7 Compensation and Indemnity............................................................31
Section 7.8 Replacement of Trustee................................................................31
Section 7.9 Successor Trustee by Merger...........................................................32
Section 7.10 Eligibility; Disqualification.........................................................33
Section 7.11 Preferential Collection of Claims Against Company.....................................33
Section 7.12 Paying Agent and Calculation Agent....................................................33
ARTICLE VIII
SATISFACTION AND DISCHARGE OF
INDENTURE; UNCLAIMED MONIES
Section 8.1 Satisfaction and Discharge............................................................33
Section 8.2 Application by Trusteee of Funds Deposited for Payment of Notes.......................33
Section 8.3 Repayment of Monies Held by Paying Agent..............................................34
Section 8.4 Return of Monies Held by Trustee and Paying Agent Unclaimed for Two Years.............34
ARTICLE IX
AMENDMENTS
Section 9.1 Without Consent of Holders............................................................34
Section 9.2 With Consent of Holders...............................................................35
Section 9.3 Compliance with Trust
Indenture Act...................................................36
Section 9.4 Acts of Holders; Record Dates.........................................................36
Section 9.5 Notation on or Exchange of Notes......................................................37
Section 9.6 Trustee to Sign Amendments............................................................37
ARTICLE X
MISCELLANEOUS
Section 10.1 Trust
Indenture Act Controls..........................................................37
Section 10.2 Notices...............................................................................37
Section 10.3 Communication by Holders with Other Holders...........................................38
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Section 10.4 Certificate and Opinion as to Conditions Precedent....................................38
Section 10.5 Statements Required in Certificate or Opinion.........................................39
Section 10.6 Form of Documents Delivered to Trustee................................................39
Section 10.7 Rules by Trustee, Paying Agent and Registrar..........................................39
Section 10.8 Payment on Business Days..............................................................40
Section 10.9 Governing Law, etc....................................................................40
Section 10.10 Successors............................................................................41
Section 10.11 Duplicate and Counterpart Originals...................................................41
Section 10.12 Severability..........................................................................41
Section 10.13 Currency Indemnity....................................................................41
Section 10.14 Benefits of
Indenture.................................................................42
Section 10.15 Table of Contents; Headings...........................................................42
EXHIBITS
Exhibit A Form of Notes.........................................................................44
Exhibit B Form of Transfer Certificate for Transfer to QIB......................................55
Exhibit C Form of Certificate to be Delivered in Connection with Transfers Pursuant to
Regulation S..........................................................................56
Exhibit D Form of Rule 144 Certification........................................................58
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This
INDENTURE, dated as of June 21, 2001, among Xxxxxxx PLC, a public
company incorporated with limited liability under the laws of England and Wales
(the "COMPANY") and The Bank of
New York, a
New York banking corporation (the
"TRUSTEE"), as Trustee, Paying Agent, and Calculation Agent in
New York.
Each party agrees as follows for the benefit of the other parties and for
the benefit of the Holders of the Company's 7% Notes due 2011 issued hereunder
(the "NOTES").
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 DEFINITIONS.
"ACTUAL KNOWLEDGE" means, with respect to the Trustee, actual knowledge of
any Trust Officer of the Trustee, which shall include within its scope any
matter which shall have been notified in writing to the Trustee.
"ADDITIONAL AMOUNTS" has the meaning assigned to it in SECTION 3.7.
"ADD ON NOTE BOARD RESOLUTIONS" means resolutions duly adopted by the Board
of Directors of the Company and delivered to the Trustee in an Officers'
Certificate providing for the issuance of Add On Notes.
"ADD ON NOTE SUPPLEMENTAL
INDENTURE" means a supplement to this
Indenture
duly executed and delivered by the Company and the Trustee pursuant to SECTION
2.11 providing for the issuance of Add On Notes.
"ADD ON NOTES" means any Notes originally issued after the Issue Date
pursuant to SECTION 2.11, including any replacement Notes as specified in the
relevant Add On Note Board Resolutions or Add On Note Supplemental
Indenture
issued therefor in accordance with this
Indenture.
"AFFILIATE" shall have the meaning provided in Rule 405 of the Securities
Act.
"AGENT MEMBERS" has the meaning assigned to it in SECTION 2.6(b).
"AUTHENTICATING AGENT" has the meaning assigned to it in SECTION 2.2(d).
"AUTHORIZED AGENT" has the meaning assigned to it in SECTION 10.9(d).
"BANKRUPTCY DEFAULT" means any of the Events of Default specified in
SECTION 6.1(a)(v) (with respect to the dissolution, winding up or reorganization
of the Company).
"BANKRUPTCY LAW" means, with respect to any jurisdiction in which the
Company or any of its Principal Subsidiaries are incorporated, any laws or
regulations and any judicial decisions pertaining to proceedings that are
initiated either by an entity or by creditors thereof seeking a general
moratorium in relation to such entity's debts, to appoint a receiver for such
entity, to have such insolvent entity's assets or businesses sold or distributed
among such entity's creditors or to restructure and reorganize the entity's
debts for the benefit of such creditors.
"BOARD OF DIRECTORS" means, as to any Person, the board of directors,
management committee or similar governing body of such Person or any duly
authorized committee thereof.
"BOARD RESOLUTION" means, with respect to any Person, a copy of a
resolution certified by an Officer or the General Counsel of such Person to have
been duly adopted by the Board of Directors of
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such Person and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY" means any day other than a Saturday or Sunday or a day on
which commercial banks and trust companies located in
New York City, London or
the Place of Payment with respect to the Notes are authorized or required by
law, regulation or executive order to be closed.
"CALCULATION AGENT" means the calculation agent appointed by the Company,
who shall initially be The Bank of
New York.
"CAPITAL EMPLOYED" means, in respect of the Company and for the purposes of
SECTION 3.8 herein, the amount of the issued and paid-up share capital plus or
minus: (i) the aggregate amount standing to the credit or debit of the
consolidated reserves (including profit and loss account and any share premium
account), plus (ii) the amount of minority interests in any Subsidiary, plus
(iii) any reserves for deferred tax, plus (iv) all gross borrowings, whether
such borrowing is made within the Group or otherwise, but excluding all such
borrowings other than borrowing within the Group repayable on demand or
repayable within one year, all of the foregoing as included in the Company's
latest published audited consolidated balance sheet or the latest audited
balance sheet of such Subsidiary or pro forma consolidated financial statements,
as the case may be. For the purpose of this definition only, borrowings shall be
construed in accordance with normal accounting principles in the relevant
jurisdiction as adopted from time to time in preparing the relevant companies'
audited financial statements.
"CERTIFICATED NOTE" means any Note issued in fully-registered certificated
form (other than a Global Registered Note), which shall be substantially in the
form of EXHIBIT A, with appropriate legends as specified in SECTION 2.7 and
EXHIBIT A.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMPANY" means the party named as such in the introductory paragraph to
this Indenture and its successors and assigns, including any Successor
Corporation that becomes such in accordance with ARTICLE IV.
"COMPANY ORDER" has the meaning assigned to it in SECTION 2.2(c).
"COMPARABLE TREASURY ISSUE" means, with respect to any Redemption Date for
any Notes being redeemed, the United States Treasury security selected by an
Independent Investment Banker as having the maturity comparable to the remaining
term of the Notes to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of the Notes.
"COMPARABLE TREASURY PRICE" means, with respect to any Redemption Date for
any of the Notes being redeemed:
(i) the average of four Reference Treasury Dealer Quotations for the
Redemption Date, after excluding the highest and lowest of those Reference
Treasury Dealer Quotations, or
(ii) if the Calculation Agent obtains fewer than four Reference
Treasury Dealer Quotations, the average of all Reference Treasury Dealer
Quotations obtained.
"CORPORATE TRUST OFFICE" means the corporate trust office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which office on the date of execution of this Indenture is located at One Canada
Square, 00xx xxxxx, Xxxxxx, X00 0XX, Xxxxxxx, telephone number x00 000 000 0000,
Attention: Xxxxxx Xxxxxxxx.
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"DEFAULT" means an event or condition the occurrence of which is, or with
the lapse of time or giving of notice or both would be, an Event of Default.
"DIRECTIVE" has the meaning assigned to it in SECTION 3.7(d).
"DISTRIBUTION COMPLIANCE PERIOD" means, in respect of any Regulation S
Global Note, the 40 consecutive days beginning on and including the later of (a)
the day on which any Notes represented thereby are offered to persons other than
distributors (as defined in Regulation S under the Securities Act) pursuant to
Regulation S and (b) the Issue Date for such Notes.
"DTC" means The Depository Trust Company, its nominees and their respective
successors and assigns, or such other depositary institution hereinafter
appointed by the Company that is a clearing agency registered under the Exchange
Act.
"EVENT OF DEFAULT" has the meaning assigned to it in SECTION 6.1.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting practices in the United Kingdom.
"GLOBAL REGISTERED NOTE" means any Note issued in fully-registered prepared
form to DTC (or its nominee), which shall be substantially in the form of
EXHIBIT A, with appropriate legends as specified in SECTION 2.7 and EXHIBIT A.
"GROUP" means, together, the Company and its Subsidiaries.
"HOLDER" means the Person in whose name a Note is registered in the Note
Register.
"INDENTURE" means this Indenture as amended or supplemented from time to
time.
"INDEPENDENT INVESTMENT BANKER" means one of the Reference Treasury Dealers
selected by the Trustee in consultation with the Company.
"INTEREST PAYMENT DATE" means June 15 and December 15 in each year,
commencing on December 15, 2001 and ending on the Maturity Date.
"ISSUE DATE" means June 21, 2001.
"ISSUE DATE NOTES" means the Notes originally issued on the Issue Date, and
any replacement Notes issued therefor in accordance with this Indenture.
"LIEN" has the meaning assigned to it in SECTION 3.8.
"MATURITY DATE" means June 15, 2011.
"NON-U.S. PERSON" means a person who is not a U.S. person, as defined in
Regulation S under the Securities Act.
"NOTE REGISTER" has the meaning assigned to it in SECTION 2.3(a).
"NOTEHOLDER MEETING" means a meeting of Holders of Outstanding Notes.
"NOTES" has the meaning assigned to the preamble hereto.
"OBLIGOR" of the Notes means the Company and any other obligor of the
Notes.
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"OFFICER" means, when used in connection with any action to be taken by the
Company, the Chairman of the Board, the Chief Executive Officer, any executive
Director of the Company or any authorized representative of such persons.
"OFFICERS' CERTIFICATE" means, when used in connection with any action to
be taken by the Company, a certificate signed by an Officer or Officers that
complies with the requirements of SECTION 10.4 and is delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be an
employee of or counsel for the Company, and who shall be reasonably acceptable
to the Trustee.
"OPTIONAL REDEMPTION" has the meaning assigned to it in SECTION 5.2.
"OPTIONAL TAX REDEMPTION" has the meaning assigned to it in SECTION 5.1.
"OUTSTANDING" means, as of the date of determination, all Notes theretofore
authenticated and delivered under this Indenture, except:
(i) Notes theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Notes, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as Paying
Agent) for the Holders of Notes; provided that, if the Notes are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
and
(iii) Notes which have been surrendered pursuant to SECTION 2.9
or in exchange for or in lieu of which other Notes have been authenticated
and delivered pursuant to this Indenture, other than any such Notes in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Notes are held by a bona fide purchaser in
whose hands such Notes are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Company or any other obligor upon the Notes 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 Notes which a Trust Officer of the Trustee actually knows to be so
owned shall be so disregarded. Notes so 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
Notes and that the pledgee is not the Company or any other obligor upon the
Notes or any Affiliate of the Company or of such other obligor.
"PAYING AGENT" has the meaning assigned to it in SECTION 2.3(a).
"PERSON" means an individual, partnership, corporation, limited liability
company, unincorporated organization, trust or joint venture, or a governmental
agency or political subdivision thereof, or any other entity.
"PLACE OF PAYMENT" means, with respect to a Note, the place or places where
the principal of or any interest on the Notes are payable as specified in the
Notes.
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"PRINCIPAL SUBSIDIARY" means any Subsidiary at any relevant time of the
Company: (a) whose Capital Employed or unconsolidated profit before tax and
extraordinary items, calculated by reference to such Subsidiary's latest audited
financial statements, is 10% or more of the Group's consolidated Capital
Employed or consolidated profit before tax and extraordinary items, as the case
may be, calculated by reference to the latest audited financial statements of
the Group, provided that if a Subsidiary itself has Subsidiaries, the reference
above to Capital Employed of such Subsidiary shall be construed as a reference
to the consolidated Capital Employed of such Subsidiary and its Subsidiaries, or
(b) to which is transferred the whole or substantially the whole of the assets
and undertakings of a Subsidiary which immediately prior to such transfer is a
Principal Subsidiary, provided that the transferor Subsidiary shall upon such
transfer forthwith cease to be a Principal Subsidiary and the transferee
Subsidiary shall cease to be a Principal Subsidiary pursuant to this paragraph
(b) on the date on which the audited consolidated financial statements of the
Group for the financial period current at the date of such transfer are
published, but such transferor Subsidiary or such transferee Subsidiary may be a
Principal Subsidiary on or at any time after such date by virtue of the
provisions of paragraph (a) above, provided that references to the audited
consolidated financial statements of any Subsidiary shall be construed as
references to the audited consolidated financial statements of such Subsidiary
and its subsidiaries for the relevant financial period if such audited
consolidated financial statements were produced (or, if no such audited
consolidated financial statements were produced, to pro forma consolidated
financial statements produced on the basis of the relevant audited financial
statements of such Subsidiary and its subsidiaries), and further provided that
if a Subsidiary is acquired after the end of the financial period to which the
latest audited consolidated financial statements relate, references to such
audited consolidated financial statements for the purpose of the calculations
above shall, until consolidated financial statements for the financial period in
which the acquisition is made have been prepared and audited, be deemed to refer
to such first-mentioned financial statements as if such Subsidiary had been
shown in such financial statements by reference to its then latest relevant
audited financial statements, adjusted as deemed appropriate by the Company's
auditors.
"PRIVATE PLACEMENT LEGEND" has the meaning assigned to it in SECTION 2.7.
"PURCHASE AGREEMENT" means the purchase agreement, dated as of June 14,
2001, among the Company, X.X. Xxxxxx Securities Inc., Xxxxxx Xxxxxxx & Co.
International Limited and each of the other initial purchasers names therein.
"QIB" means any "qualified institutional buyer" (as defined in Rule 144A
under the Securities Act).
"QUALIFIED MAJORITY" means a vote of a majority of the aggregate principal
amount of Notes at a Noteholder Meeting at which more than one-half of the
aggregate principal amount of the Outstanding Notes are represented or voting
pursuant to a written instrument; provided, however, that if representation,
including representation pursuant to a written instrument, of the Notes does not
reach a majority of the aggregate principal amount of the Outstanding Notes at
the initial Noteholder Meeting, a Qualified Majority will nonetheless exist if
at a second Noteholder Meeting a majority vote is cast with respect to the
aggregate principal amount of the Outstanding Notes represented and voting at
such meeting, PROVIDED THAT such amount voting at such meeting shall not be less
than 25% in aggregate principal amount of the Outstanding Notes at such date.
"RECORD DATE" means any of the dates indicated under the heading "Record
Dates" on the face of any of the Global Registered Notes.
"REDEMPTION DATE" means, with respect to any redemption of the Notes, the
date of redemption with respect thereto.
"REFERENCE TREASURY DEALER" means each of Xxxxxx Xxxxxxx & Co.
Incorporated, X.X. Xxxxxx Securities Inc. and two additional primary US
Government securities dealers in
New York City
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selected by the Trustee in consultation with the Company. If any Reference
Treasury Dealer ceases to be a primary U.S. government securities dealer, the
Trustee will substitute another primary U.S. government securities dealer for
that dealer.
"REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to any
Redemption Date, the average, as determined by the Calculation Agent, of the bid
and asked prices for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted to the Calculation Agent by that
Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third
Business Day preceding the Redemption Date.
"REGISTRAR" has the meaning assigned to it in SECTION 2.3(a).
"REGULATION S" means Regulation S under the Securities Act or any successor
regulation.
"REGULATION S GLOBAL NOTE" has the meaning assigned to it in SECTION
2.1(e).
"RELEVANT DATE" means, in relation to any Note, the later of (a) the date
on which the payment of an Additional Amount in question first becomes due, and
(b) if the full amount of the monies payable has not been duly received in
New
York by the Paying Agent on or prior to such due date, Relevant Date means the
date on which the full amount of such monies have been so received, provided
notice to that effect is duly given to the holders of the Notes in the manner
set forth in SECTION 10.2.
"RELEVANT INDEBTEDNESS" means any indebtedness for borrowed money which is
in the form of, or represented or evidenced by, bonds, notes, debentures, loan
stocks, depositary receipts or other securities issued otherwise than to
constitute or represent advances made by banks and/or other lending
institutions; and at its date of issue is, or is intended by the Company to
become, quoted or listed on or by, or dealt in or traded on, any stock exchange,
over-the-counter market or other organized securities market (whether or not
initially distributed by means of private placement).
"RESALE RESTRICTION TERMINATION DATE" means, (i) for any Restricted Note
(or beneficial interest therein) sold pursuant to Rule 144A, two years (or such
other period specified in Rule 144(k) under the Securities Act) from the Issue
Date or, if any Add On Notes that are Restricted Notes have been issued before
the Resale Restriction Termination Date for any Restricted Notes, from the
latest such original issue date of such Add On Notes and (ii) for any Restricted
Note sold pursuant to Regulation S, 40 days after the later of the Issue Date
with respect to the Restricted Note and the day on which such Restricted Notes
are offered to persons other than distributors (as defined in Regulation S).
"RESTRICTED NOTE" means each Issue Date Note and each Add On Note until the
Resale Restriction Termination Date with respect thereto.
"RULE 144" means Rule 144 under the Securities Act (or any successor rule).
"RULE 144A" means Rule 144A under the Securities Act (or any successor
rule).
"RULE 144A GLOBAL NOTE" has the meaning assigned to it in SECTION 2.1(d).
"SEC" means the United States Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"Special Record Date" has the meaning assigned to it in SECTION 2.12.
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"SUBSIDIARY" means one of the Company's subsidiaries within the meaning of
Section 736 of the United Kingdom Companies Xxx 0000, as modified or re-enacted
from time to time, and any orders or regulations made under that Section.
"SUCCESSOR COMPANY" has the meaning assigned to it in SECTION 4.1(a).
"TAXES" has the meaning assigned to it in SECTION 3.7.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in effect on the date of this Indenture (except as otherwise
provided in this Indenture).
"TREASURY RATE" means, with respect to any Redemption Date for Optional
Redemption:
(a) the yield for the maturity corresponding to the Comparable
Treasury Issue under the heading that represents the average for the immediately
preceding week, appearing in the most recently published statistical release
designated "H.15(519)" or any successor publication that is published weekly by
the Board of Governors of the Federal Reserve System and that establishes yields
on actively traded United States Treasury securities adjusted to constant
maturity under the caption "Treasury Constant Maturities," provided, that if no
maturity is within three months before or after the Maturity Date for the Notes
being redeemed the yields for the two published maturities most closely
corresponding to the Comparable Treasury Issue will be determined and the
Treasury Rate shall be interpolated or extrapolated from those yields on a
straight line basis, rounding to the nearest month; or
(b) if the release referred to in (a) (or any successor
release) is not published during the week preceding the calculation date or does
not contain the yields referred to above, the rate per annum equal to the
semi-annual equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
that Redemption Date,
as calculated on the third Business Day preceding the Redemption Date.
"TRUSTEE" means the Person named as such in the introductory paragraph of
this Indenture until a successor replaces it in accordance with the terms of
this Indenture and, thereafter, means the successor.
"TRUST OFFICER" means, when used with respect to the Trustee, any vice
president, assistant vice president, assistant treasurer, trust officer or any
other officer of such Trustee customarily performing corporate trust functions
on behalf of the Trustee and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of such
person's knowledge of and familiarity with the particular subject and who shall
have direct responsibility for the administration of this Indenture.
"U.S. GOVERNMENT SECURITIES" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable or redeemable at the issuer's option.
"U.S. DOLLARS" and "U.S.$" mean the lawful currency of the United States of
America that as at the time of payment shall be legal tender for the payment of
public and private debts.
All TIA terms used in this Indenture that are defined by the TIA, defined
in the TIA by reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
7
Section 1.2 RULES OF CONSTRUCTION. Unless the context otherwise requires:
(a) a term has the meaning assigned to it in this Indenture;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "OR" is not exclusive;
(d) "INCLUDING" means including without limitation;
(e) words in the singular include the plural and words in the
plural include the singular;
(f) references to the payment of principal of the Notes shall
include applicable premium, if any;
(g) references to payments of interest on the Notes shall
include Additional Amounts pursuant to SECTION 3.7, if any; and
(h) references to England and Wales or to English law shall be
deemed to be a reference to the jurisdiction of incorporation of the Company or
the law of the jurisdiction of incorporation of the Company in the event the
Company changes its jurisdiction of incorporation.
ARTICLE II
THE NOTES
Section 2.1 FORM AND DATING.
(a) The Issue Date Notes are being originally offered and sold
by the Company pursuant to the Purchase Agreement. The Notes will be issued in
fully-registered global form without coupons, and only in denominations of U.S.$
1,000 and any integral multiples thereof in excess thereof. The Notes and the
Trustee's certificate of authentication shall be substantially in the form of
EXHIBIT A.
(b) The terms and provisions of the Notes, the form of which is
in EXHIBIT A, shall constitute, and are hereby expressly made, a part of this
Indenture and the Company by its execution and delivery of this Indenture,
expressly agrees to such terms and provisions and to be bound thereby. In the
event of an inconsistency between the terms of the Notes set forth in EXHIBIT A
hereto and other terms of this Indenture, the terms set forth in any part of
this Indenture other than in EXHIBIT A shall govern. Except as otherwise
expressly permitted in this Indenture, all Notes shall be identical in all
respects. Notwithstanding any differences among them, all Notes issued under
this Indenture shall vote and consent together on all matters as one class.
(c) The Notes may have notations, legends or endorsements as
specified in SECTION 2.7 or as otherwise required by law, stock exchange rule,
DTC rule or usage. The Company and the Trustee shall approve the form of the
Notes and any notation, legend or endorsement on them. Each Note shall be dated
the date of its authentication.
(d) Notes originally offered and sold to QIBs in reliance on
Rule 144A will be initially issued in the form of one or more permanent Global
Registered Notes (each, a "RULE 144A GLOBAL NOTE").
8
(e) Notes originally offered and sold outside the United States
of America in accordance with Regulation S under the Securities Act will be
initially issued in the form of one or more permanent Global Registered Notes
(each, a "REGULATION S GLOBAL NOTE").
Section 2.2 EXECUTION AND AUTHENTICATION.
(a) Any Officer shall sign the Notes for the Company. If an
Officer whose signature is on a Note no longer holds that office at the time the
Trustee authenticates the Note, the Note shall be valid nevertheless.
(b) A Note shall not be valid or enforceable unless and until
an authorized signatory of the Trustee, upon Company Order, authenticates the
Note substantially in the form of the Trustee's certificate of authentication
provided for in SECTION 2.2(d) hereof. The signature of the Trustee on a Note
shall be conclusive evidence that such Note has been duly and validly
authenticated and issued under this Indenture.
(c) At any time and from time to time after the execution and
delivery of this Indenture, the Trustee shall authenticate and make available
for delivery Notes upon a written order of the Company signed by an Officer (the
"COMPANY ORDER"). A Company Order shall specify the amount of the Notes to be
authenticated and the date on which the original issue of Notes is to be
authenticated.
(d) The Trustee may appoint an agent or agents with respect to
the Notes which shall be authorized to act on behalf of the Trustee to
authenticate Notes issued upon original issue and upon exchange, registration of
transfer or partial conversion or partial redemption thereof or pursuant to
SECTION 5.8 (an "AUTHENTICATING AGENT"), and Notes so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and enforceable
for all purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery of Notes
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 shall at all times be either (i) a branch
of the Trustee or (ii) a Person organized and doing business under the laws of
the United States of America, 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 U.S.$150,000,000 and subject to supervision
or examination by any federal or state authority in the United States. 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 reports of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any Person into which an Authenticating Agent may be merged or with which
it may be consolidated, or any Person resulting from any merger or consolidation
to which such Authenticating Agent shall be a party, or any Person succeeding to
the corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent without the execution or filing of
any paper or any further act on the part of the Trustee or the Authenticating
Agent, provided such Person shall be otherwise eligible under this Section.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. 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, the
9
Trustee may appoint a successor Authenticating Agent which shall be acceptable
to the Company and shall give notice of such appointment in the manner provided
in SECTION 10.2 to all Holders of Notes with respect to which such
Authenticating Agent will serve. 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.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Indenture, and the Trustee
shall be entitled to be reimbursed by the Company for such payments, subject to
the provisions of SECTION 7.7. The Company, the Trustee and the Authenticating
Agent may agree that the Company shall reimburse the Authenticating Agent's
expenses directly.
If an appointment is made pursuant to this Section, the Notes may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
"This is one of the Notes referred to in the within-mentioned Indenture.
The Bank of
New York,
as Trustee
By:
---------------------------
as Authenticating Agent
By:
---------------------------
Authorized Signatory
Date: _______________________"
If all of the Notes may not be originally issued at one time, and if the
Trustee does not have an office capable of authenticating Notes upon original
issuance located in a Place of Payment where the Company wishes to have Notes
authenticated upon original issuance, the Trustee, if so requested by the
Company in writing (which writing need not be an Officers' Certificate or be
accompanied by an Opinion of Counsel), shall appoint in accordance with this
Section an Authenticating Agent having an office in a Place of Payment
designated by the Company with respect of such Notes.
(e) In case the Company:
(i) shall be consolidated with or merged into any other Person,
or
(ii) shall convey, transfer, lease or otherwise dispose of its
properties and assets substantially as an entirety to any Person,
and the Successor Corporation resulting from such consolidation, or surviving
such merger, or which shall have received a conveyance, transfer, lease or other
disposition as aforesaid, shall assume the rights, responsibilities and
obligations of the Company pursuant to ARTICLE IV, any of the Notes
authenticated or delivered prior to such transaction may, from time to time, at
the request of the Successor Corporation, be exchanged for other Notes executed
in the name of the Successor Corporation with such changes in phrasing and form
as may be appropriate (but which shall not affect the rights or duties of the
Trustee), but otherwise identical to the Notes surrendered for such exchange and
of like principal amount; and the Trustee, upon Company Order of the Successor
Corporation,
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pursuant to this SECTION 2.2 in exchange or substitution for or upon
registration of transfer of any Notes, such Successor Corporation, at the option
of the Holders of Notes but without expense to them, shall provide for the
exchange of all Notes at the time Outstanding for Notes authenticated and
delivered in such new name.
Section 2.3 REGISTRAR AND PAYING AGENT; CALCULATION AGENT.
(a) The Company shall cause to be maintained an office or
agency in the Borough of Manhattan, City of New York, where Global Registered
Notes and Certificated Notes may be presented for registration of transfer or
for exchange (a "REGISTRAR"), for the service of notices and demands to or upon
the Company in respect of the Notes and this Indenture, and where Notes may be
presented for payment (a "PAYING AGENT"). The Registrar shall keep a register of
the Global Registered Notes and Certificated Notes and of their transfer and
exchange (the "NOTE REGISTER") and shall maintain such Note Register outside the
United Kingdom. The Company may have one or more co-Registrars and one or more
additional Paying Agents. The term "PAYING AGENT" includes any additional Paying
Agent. The Company shall inform the Trustee in writing of any appointment or
payment with respect to the Notes made to any Paying Agent or co-Registrar.
(b) The Company shall enter into an appropriate agency
agreement with any Registrar, Paying Agent or co-Registrar not a party to this
Indenture. The agreement shall implement the provisions of this Indenture that
relate to such agent. The Company shall notify the Trustee in writing of the
name and address of each such agent. If the Company fails to maintain a
Registrar or Paying Agent, the Trustee shall act as such and shall be entitled
to appropriate compensation therefor pursuant to SECTION 7.7. The Company may
act as Paying Agent, Registrar, co-Registrar or transfer agent.
(c) The Company initially appoints the Trustee at its Corporate
Trust Office as Registrar, Paying Agent, Calculation Agent and agent for service
of demands and notices in connection with the Notes and this Indenture, and
shall also appoint Credit Europeen S.A. in Luxembourg as an additional Paying
Agent with respect to any Certificated Notes, until such time as another Person
is appointed as such. For so long as any Notes are listed on the Luxembourg
Stock Exchange and the rules of the Luxembourg Stock Exchange so require, the
Company shall maintain a Paying Agent in Luxembourg with respect to any
Certificated Notes if any, where such Certificated Notes.
(d) The Company initially appoints the Trustee as Calculation
Agent. For so long as any Notes are Outstanding, the Company shall maintain a
Calculation Agent.
(e) The Company undertakes that, if the conclusions of the
ECOFIN Council Meeting of 26-27 November 2000 are implemented, it will ensure
that it maintains a paying agent in an EU Member State that will not be obliged
to withhold or deduct tax pursuant to the Directive (as defined in SECTION
3.7(D)).
Section 2.4 PAYING AGENT TO HOLD MONEY IN TRUST. The Company shall require
each Paying Agent (other than the Trustee) to agree in writing that such Paying
Agent shall hold in trust for the benefit of the Holders or the Trustee all
money held by such Paying Agent for the payment of principal of or interest on
the Notes and shall notify the Trustee in writing of any Default by the Company
in making any such payment. If the Company or an Affiliate of the Company acts
as Paying Agent, it shall segregate the money held by it as Paying Agent and
hold it as a separate trust account. The Company at any time may require a
Paying Agent (other than the Trustee) to pay all money held by it to the Trustee
and to account for any funds disbursed by such Paying Agent. Upon complying with
this SECTION 2.4, the Paying Agent (if other than the Company) shall have no
further liability for the money delivered to the Trustee. Upon any proceeding
under any Bankruptcy Law with respect to the Company or any Affiliate of the
Company, if the Company or such Affiliate is then acting as Paying Agent, the
Trustee shall replace the Company or such Affiliate as Paying Agent.
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Section 2.5 HOLDER LISTS. The Trustee shall preserve in as current a form
as is reasonably practicable the most recent list available to it of the names
and addresses of Holders of Notes. If the Trustee is not the Registrar, or to
the extent otherwise required under the TIA, the Company shall furnish to the
Trustee, in writing at least seven Business Days before each Interest Payment
Date and at such other times as the Trustee may request in writing, a list in
such form and as of such date as the Trustee may reasonably require of the names
and addresses of Holders of Notes.
Every Holder of Notes, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any agent
of any of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to the Trust
Indenture Act.
Section 2.6 GLOBAL NOTE PROVISIONS.
(a) Each Global Registered Note initially shall (i) be
registered in the name of DTC or the nominee of DTC and (ii) bear the
appropriate legend, as set forth in SECTION 2.7 and EXHIBIT A. The Notes may be
represented by one or more Global Registered Notes. The aggregate principal
amount of each Global Registered Note may from time to time be increased or
decreased by adjustments made on the records of the Paying Agent, as provided in
this Indenture.
(b) Members of, or participants in, DTC ("AGENT MEMBERS") shall
have no rights under this Indenture with respect to any Global Registered Note
held on their behalf by DTC and DTC may be treated by the Company, the Trustee,
the Paying Agent and the Registrar and any of their agents as the absolute owner
of such Global Registered Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee, the Paying
Agent or the Registrar or any of their agents from giving effect to any written
certification, proxy or other authorization furnished by DTC or impair, as
between DTC and its Agent Members, the operation of customary practices of DTC
governing the exercise of the rights of an owner of a beneficial interest in any
Global Registered Note. The Holder of a Global Registered Note may grant proxies
and otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action that a Holder is
entitled to take under this Indenture or the Notes.
(c) Except as provided below, owners of beneficial interests in
Global Registered Notes will not be entitled to receive Certificated Notes.
Certificated Notes shall be issued to all owners of beneficial interests in a
Global Registered Note in exchange for such interests if:
(i) DTC, as depositary for the Global Registered Notes, has
discontinued providing its services as a securities depositary and the
Company fails to appoint a successor within 90 days of notice of the
foregoing or if DTC or any successor depositary ceases to be a clearing
agency registered under the Exchange Act, at a time when DTC or such
successor depositary is required to be so registered in order to act as
depositary and a successor securities clearing system with respect to such
Global Registered Note is not appointed by the Company within 90 days of
such notice, or
(ii) an Event of Default has occurred and is continuing and the
Registrar has received a written request from the Holder of the Global
Registered Note.
In connection with the exchange of an entire Global Registered Note for
Certificated Notes pursuant to this paragraph (c), such Global Registered Note
shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and upon Company Order the Trustee shall authenticate and
deliver, to each beneficial owner identified by the Depositary for such Global
Registered Note in exchange for its beneficial interest in such Global
Registered Note, an equal aggregate principal amount of Certificated Notes of
authorized denominations.
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(d) In connection with the exchange of a portion of a
Certificated Note for a beneficial interest in a Global Registered Note, the
Trustee shall cancel such Certificated Note, and the Company shall execute, and
upon Company Order the Trustee shall authenticate and deliver to the exchanging
Holder, a new Certificated Note representing the principal amount not so
exchanged.
Section 2.7 LEGENDS.
Each Global Registered Note shall bear the applicable legend or legends
specified therefor in EXHIBIT A on the face thereof (the "Private Placement
Legend").
Section 2.8 TRANSFER AND EXCHANGE.
(a) The following provisions shall apply with respect to any
proposed transfer of an interest in a Rule 144A Global Note that is a Restricted
Note:
If (1) the owner of a beneficial interest in a Rule 144A Global Note wishes
to transfer such interest (or portion thereof) to a Non-U.S. Person pursuant to
Regulation S and (2) such Non-U.S. Person wishes to hold its interest in the
Notes through a beneficial interest in the Regulation S Global Note, (x) upon
receipt by the Registrar of:
(A) written instructions from the Holder of the
Rule 144A Global Note directing the Registrar to credit or cause to
be credited a beneficial interest in the Regulation S Global Note
equal to the principal amount of the beneficial interest in the
Rule 144A Global Note to be transferred, and
(B) a certificate in the form of EXHIBIT C from the
transferor,
and (y) subject to the rules and procedures of DTC with respect to the Rule
144A and the Regulation S Global Note, the Registrar shall increase the
Regulation S Global Note and decrease the Rule 144A Global Note by such
amount in accordance with the foregoing.
(b) If the owner of an interest in a Regulation S Global Note
wishes to transfer such interest (or any portion thereof) to a QIB pursuant to
Rule 144A prior to the expiration of the Distribution Compliance Period
therefor, (x) upon receipt by the Registrar of:
(A) written instructions from the Holder of the
Regulation S Global Note directing the Registrar to credit or cause
to be credited a beneficial interest in the Rule 144A Global Note
equal to the principal amount of the beneficial interest in the
Regulation S Global Note to be transferred, and
(B) a certificate in the form of EXHIBIT B duly executed
by the transferor,
and (y) in accordance with the rules and procedures of DTC with respect to
the Rule 144A and the Regulation S Global Note, the Registrar shall
increase the Rule 144A Global Note and decrease the Regulation S Global
Note by such amount in accordance with the foregoing.
(c) Certificated Notes, if issued, may be exchanged or
transferred in whole or in part in the principal amount of authorized
denominations by surrendering such Certificated Notes at the Corporate Trust
Office or the office of a Paying Agent with a written instrument of transfer as
set forth in EXHIBIT A duly executed by the Holder thereof or its attorney duly
authorized in writing. In exchange for any Certificated Note properly presented
for exchange or transfer, the Trustee will promptly, upon Company Order,
authenticate and deliver or cause to be authenticated and delivered at the
Corporate Trust Office of the Trustee, to the Holder entitled to such
Certificated Note, or send by mail (at the risk of such Holder) to such address
as such Holder may request in writing, a Certificated Note or Notes. The costs
and expenses of effecting any exchange or transfer pursuant to this
13
paragraph will be borne by the Company, except that the expense of delivery by
other than regular mail (if any) and the payment of a sum sufficient to cover
any tax or other government charges or insurance that may be imposed in relation
thereto, will be borne solely by the Holder requesting such transfer or
exchange. Any transfer or exchange by a Holder of a Certificated Note must occur
in accordance with applicable law.
(d) Any transfer of Restricted Notes not described above (other
than a transfer of a beneficial interest in a Global Registered Note that does
not involve an exchange of such interest for a Certificated Note or a beneficial
interest in another Global Registered Note, which must be effected in accordance
with applicable law and the rules and procedures of DTC with respect to a
Restricted Note, but is not subject to any procedure required by this
Indenture), shall be made only upon receipt by the Registrar of such Opinions of
Counsel, certificates and/or other information reasonably required to ensure
compliance with the Securities Act or in accordance with paragraph (e) of this
SECTION 2.8.
(e) Upon the transfer, exchange or replacement of Notes (or
beneficial interests in a Global Registered Note) not bearing a Private
Placement Legend, the Registrar shall exchange such Notes (or beneficial
interests) for beneficial interests in a Global Registered Note (or Certificated
Notes if they have been issued pursuant to SECTION 2.6(d)) that does not bear a
Private Placement Legend. Upon the transfer, exchange or replacement of Notes
(or beneficial interests in a Global Registered Note) bearing a Private
Placement Legend, the Registrar shall deliver only Notes (or beneficial
interests in a Global Registered Note) that bear a Private Placement Legend
unless:
(i) such Notes (or beneficial interests) are transferred
pursuant to Rule 144 upon delivery to the Registrar of a certificate of the
transferor in the form of EXHIBIT D and an Opinion of Counsel;
(ii) such Notes (or beneficial interests) are transferred,
replaced or exchanged after the Resale Restriction Termination Date
therefor; or
(iii) in connection with such transfer, exchange or replacement
the Registrar shall have received an Opinion of Counsel and other evidence
reasonably requested by it to the effect that neither such Private
Placement Legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act.
The Private Placement Legend on any Note shall be removed at the written request
of the Holder on or after the Resale Restriction Termination Date thereof. The
Holder of a Global Registered Note may exchange an interest therein for an
equivalent interest in a Global Registered Note not bearing a Private Placement
Legend (other than a Regulation S Global Note) upon transfer of such interest
pursuant to any of clauses (i) through (iii) of this paragraph (e).
(f) The Registrar shall retain copies of all letters, notices
and other written communications received pursuant to this ARTICLE II. The
Company shall have the right to inspect and make copies of all such letters,
notices or other written communications during the Registrar's normal business
hours upon the giving of reasonable written notice to the Registrar.
(g) (i) Subject to the other provisions of this SECTION 2.8,
when Notes are presented to the Registrar or a co-Registrar with a request
to register the transfer of such Notes or to exchange such Notes for an
equal principal amount of Notes of other authorized denominations, the
Registrar or co-Registrar shall register the transfer or make the exchange
as requested if its requirements for such transaction are met; provided
that any Notes presented or surrendered for registration of transfer or
exchange shall be duly endorsed or accompanied by a written instrument in
the form of EXHIBIT B, C OR D, as applicable, to the Registrar or
co-Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing. To permit registrations of transfers and exchanges
and subject to the other terms
14
and conditions of this ARTICLE II, the Company will execute and upon
Company Order the Trustee will authenticate Certificated Notes and Global
Registered Notes.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than any such
transfer taxes, assessments or similar governmental charges payable upon
exchange or transfer pursuant to ARTICLE IV or SECTION 5.1 or Section 9.5).
(iii) The Registrar or co-Registrar shall not be required to
register the transfer of or exchange of any Note for a period beginning:
(1) 15 days before the mailing of a notice of an offer to repurchase or
redeem Notes and ending at the close of business on the day of such mailing
or (2) 15 days before an Interest Payment Date and ending on such Interest
Payment Date.
(iv) Prior to the due presentation for registration of
transfer of any Note, the Company, the Trustee, the Paying Agent, the
Registrar or any co-Registrar and any agent of any of them may deem and
treat the Person in whose name a Note is registered as the absolute owner
of such Note for the purpose of receiving payment of principal of and
interest on such Note and for all other purposes whatsoever, whether or not
such Note is overdue, and none of the Company, the Trustee, the Paying
Agent, the Registrar or any co-Registrar and any agent of any of them shall
be affected by notice to the contrary.
(v) All Notes issued upon any transfer or exchange
pursuant to the terms of this Indenture shall evidence the same debt and
shall be entitled to the same benefits under this Indenture as the Notes
surrendered upon such transfer or exchange.
(h) The Trustee shall have no responsibility or obligation to
and shall not incur any liability with respect to any beneficial owner of an
interest in a Global Registered Note, a member of, or a participant in, DTC or
any other Person with respect to the accuracy of the records of DTC or its
nominee or of any participant or member thereof, with respect to any ownership
interest in the Notes or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than DTC) of any notice
(including any notice of redemption) or the payment of any amount or delivery of
any Notes (or other security or property) under or with respect to such Notes.
All notices and communications to be given to the Holders and all payments to be
made to Holders in respect of the Notes shall be given or made only to or upon
the order of the registered Holders (which shall be DTC or its nominee in the
case of a Global Registered Note). The Trustee may rely and shall be fully
authorized and protected in relying upon information furnished by DTC with
respect to its members, participants and any beneficial owners.
(i) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any
interest in any Note (including any transfers between or among DTC participants,
members or beneficial owners in any Global Registered Note) other than to
require delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by, the terms
of this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
Section 2.9 MUTILATED, DESTROYED, LOST OR STOLEN NOTES.
(a) If a mutilated Note is surrendered to the Paying Agent in
New York City or if the Holder of a Note claims that the Note has been lost,
destroyed or wrongfully taken, the Company shall execute and upon Company Order
the Trustee shall authenticate a replacement Note if such Holder shall furnish
an affidavit of loss and indemnity bond sufficient in the judgment of the
Company and the Trustee to protect the Company, the Trustee, the Paying Agent,
the Registrar and
15
any co-Registrar from any loss that any of them may suffer if a Note is
replaced, and, in the absence of notice to the Company or the Trustee that such
Note has been acquired by a bona fide purchaser, the Company shall execute and
upon Company Order the Trustee shall authenticate and make available for
delivery, in exchange for any such mutilated Note or in lieu of any such
destroyed, lost or stolen Note, a new Note of like tenor and principal amount,
bearing a number not contemporaneously Outstanding.
(b) Upon the issuance of any new Note under this SECTION 2.9,
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 reasonable fees and expenses of the Trustee, its agents
and counsel) in connection therewith.
(c) Every new Note issued pursuant to this SECTION 2.9 in
exchange for any mutilated Note, or in lieu of any destroyed, lost or stolen
Note, shall constitute an original additional contractual obligation of the
Company and any other obligor upon the Notes, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all benefits of this Indenture equally and proportionately
with any and all other Notes duly issued hereunder.
Section 2.10 CANCELLATION. The Company at any time may deliver Notes to
the Trustee for cancellation. The Registrar and the Paying Agent shall forward
to the Trustee any Notes surrendered to them for registration of transfer,
exchange or payment. The Trustee and no one else shall cancel and dispose of
cancelled Notes in accordance with its policy of disposal. The Company may not
issue new Notes to replace Notes it has paid or delivered to the Trustee for
cancellation for any reason other than in connection with a transfer or exchange
upon Company Order.
Section 2.11 ADD ON NOTES.
(a) The Company may, from time to time, subject to compliance
with any other applicable provisions of this Indenture, without the consent of
the Holders, create and issue pursuant to this Indenture additional notes ("ADD
ON NOTES") having terms and conditions identical to those of the Outstanding
Notes, except that Add On Notes:
(i) may have a different issue date from other Outstanding
Notes;
(ii) may have a different amount of interest payable on the
first Interest Payment Date after issuance than is payable on other
Outstanding Notes; and
(iii) may have terms specified in the Add On Note Board
Resolution or Add On Note Supplemental Indenture for such Add On Notes
making appropriate adjustments to this ARTICLE II and EXHIBIT A (and
related definitions) applicable to such Add On Notes in order to conform to
and ensure compliance with the Securities Act (or other applicable
securities laws) which are not adverse in any material respect to the
Holder of any Outstanding Notes (other than such Add On Notes) and which
shall not affect the rights or duties of the Trustee.
(b) In authenticating any Add On Notes, and accepting the
additional responsibilities under this Indenture in relation to such Add On
Notes, the Trustee shall be entitled to receive, and shall be fully protected in
relying upon:
(i) Company Order;
(ii) the Add On Note Board Resolutions or Add On Note
Supplemental Indenture relating thereto;
(iii) an Officers' Certificate complying with SECTION 10.4; and
16
(iv) an Opinion of Counsel complying with SECTION 10.4 stating,
(A) that the forms of such Notes have been established by
or pursuant to Add On Note Board Resolutions or by an Add On Note
Supplemental Indenture, as permitted by this SECTION 2.11 and in
conformity with the provisions of this Indenture;
(B) the terms of such Notes have been established by or
pursuant to Add On Note Board Resolutions or by an Add On Note
Supplemental Indenture, as permitted by this SECTION 2.11 and in
conformity with the provisions of this Indenture;
(C) that such Notes, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to
any customary conditions specified in such Opinion of Counsel,
will constitute valid and legally binding obligations of the
Company entitled to the benefits provided in the Indenture,
enforceable in accordance with their respective terms, except to
the extent that the enforcement of such obligations may be subject
to bankruptcy laws or insolvency laws or other similar laws,
general principles of equity and such other qualifications as such
counsel shall conclude are customary or do not materially affect
the rights of the Holders of such Notes;
(D) that all laws and requirements in respect of the
execution and delivery of the Notes have been complied with; and
(E) such other matters as the Trustee may reasonably
request.
(c) If such forms or terms have been so established by or
pursuant to Add On Note Board Resolutions or an Add On Note Supplemental
Indenture, the Trustee shall have the right to decline to authenticate and
deliver any Notes:
(i) if the Trustee, being advised by counsel, determines that
such action may not lawfully be taken;
(ii) if the Trustee by its committee of Trust Officers in good
faith determines that such action would expose the Trustee to personal
liability to Holders of any Outstanding Notes; or
(iii) if the issue of such Add On Notes pursuant to this
Indenture will affect the Trustee's own rights, duties and immunities under
the Notes and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Notwithstanding anything in this SECTION 2.11, the Company may not issue
Add On Notes if an Event of Default shall have occurred and be continuing.
Section 2.12 DEFAULTED INTEREST
If the Company defaults in a payment of interest on the Notes, it shall pay
the defaulted amounts to the persons who are Holders on a subsequent Special
Record Date. The Company shall fix the Special Record Date and payment date in a
manner satisfactory to the Trustee and provide the Trustee at least 20 days
notice of the proposed date. At least 15 days before the Special Record Date,
the Company shall mail or cause to be mailed to Holder at its address as it
appears on the Notes Register maintained by the Registrar a notice that states
the Special Record Date, the payment date (which shall be not less than five nor
more than ten days after the Special Record Date), and the
17
amount to be paid. In lieu of the foregoing procedures, the Company may pay
defaulted interest in any other lawful manner satisfactory to the Trustee.
ARTICLE III
COVENANTS
Section 3.1 PAYMENT OF NOTES.
(a) The Company shall pay the principal of and interest on the
Notes in U.S. dollars on the dates and in the manner provided in the Notes and
in this Indenture. On or prior to 10:00 a.m. local time on each Interest Payment
Date and the Maturity Date, the Company shall deposit or have deposited with the
Paying Agent in the Place of Payment with respect to such Notes immediately
available U.S. dollar funds sufficient to make cash payments due on such
Interest Payment Date or Maturity Date, as the case may be. If the Company or an
Affiliate of the Company is acting as Paying Agent, the Company or such
Affiliate shall, prior to 10:00 a.m. local time in the Place of Payment with
respect to the Notes on each Interest Payment Date and the Maturity Date,
segregate and hold in trust U.S. dollar funds sufficient to make cash payments
due on such Interest Payment Date or Maturity Date, as the case may be, with
respect to the Notes. Principal and interest shall be considered paid on the
date due if on such date the Trustee or the Paying Agent (other than the Company
or an Affiliate of the Company) holds in accordance with this Indenture U.S.
dollar funds designated for and sufficient to pay all principal and interest
then due and the Trustee or the Paying Agent, as the case may be, is not
prohibited from paying such money to the Holders of Notes on that date pursuant
to the terms of this Indenture.
(b) Each Paying Agent shall notify the Trustee promptly in
writing when it has received from the Company payment of the principal and/or
interest on the Notes with respect to each Interest Payment Date and/or Maturity
Date.
(c) Notwithstanding anything to the contrary contained in this
Indenture, the Company may, to the extent it is required to do so by law, deduct
or withhold income or other similar taxes imposed by the United States of
America from principal or interest payments hereunder.
Section 3.2 MAINTENANCE OF OFFICE OR AGENCY.
(a) The Company shall maintain each office or agency required
under SECTION 2.3. The Company will give prompt written notice to the Trustee of
any change in the location of any such office or agency. If at any time the
Company 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, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
(b) The Company may also from time to time designate one or
more other offices or agencies (in or outside of The City of New York or
Luxembourg) where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind any such designation; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in The City of New
York and Luxembourg for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and any change in
the location of any such other office or agency.
Section 3.3 CORPORATE EXISTENCE. Subject to ARTICLE IV, the Company will
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence.
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Section 3.4 PAYMENT OF TAXES AND OTHER CLAIMS. The Company will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Principal Subsidiary or for which it or any of
them are otherwise liable, or upon the income, profits or property of the
Company or any Principal Subsidiary and (ii) all lawful claims for labor,
materials and supplies, which, if unpaid, might by law become a liability or
security interest upon the property of the Company or any Principal Subsidiary;
provided, however, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings and for which appropriate reserves, if necessary (in the
good faith judgment of management of the Company), are being maintained in
accordance with GAAP or where the failure to effect such payment will not be
disadvantageous to the Holders.
Section 3.5 FURTHER INSTRUMENTS AND ACTS. The Company will execute and
deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purpose of this Indenture.
Section 3.6 WAIVER OF STAY, EXTENSION OR USURY LAWS. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law or any usury law or other law that
would prohibit or forgive the Company from paying all or any portion of the
principal of or interest on the Notes as contemplated herein, wherever enacted,
now or at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture. The Company hereby expressly waives (to the
extent that it may lawfully do so) all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
Section 3.7 PAYMENT OF ADDITIONAL AMOUNTS. The Company shall make all
payments of principal and interest in respect of the Notes without withholding
or deduction for, or on account of, any present or future taxes, duties,
assessments or governmental charges of whatever nature imposed, levied,
collected, withheld or assessed by the United Kingdom or any political
subdivision or any authority thereof or therein having power to tax ("TAXES")
with respect to payments of interest and principal on the Notes, unless such
withholding or deduction is required by law; provided, however, that if the law
of the United Kingdom should require that any payments in respect of the Notes
be subject to withholding or deduction with respect to any Taxes imposed or
levied by, or on behalf of, such jurisdiction or any authority therein or
thereof having power to tax, the Company shall, to the fullest extent then
permitted by law, pay such additional amounts as may be necessary in order that
the net amounts received by a Holder of Notes who is not resident in the United
Kingdom for tax purposes after such withholding or deduction shall equal the
respective amounts of principal and interest, if any, that would otherwise have
been receivable in respect of the Notes in the absence of such withholding or
deduction (the "ADDITIONAL AMOUNTS"); except that no such Additional Amounts
shall be payable with respect to any Note presented for payment:
(a) by or on behalf of a Holder of a Note (including a
beneficial owner) who is liable for such Taxes in respect of such Note by reason
of such Holder having some connection with the United Kingdom other than the
mere holding of such Note;
(b) where such withholding or deduction could have been avoided
by the Holder making a declaration of non-residence or other similar claim for
exemption to any authority of or in the United Kingdom;
(c) where (in the case of a payment of principal or interest on
final redemption) the relevant Note is surrendered for payment more than 30 days
after the Relevant Date except to the
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extent that the relevant Holder would have been entitled to such Additional
Amounts if such Holder had surrendered the relevant Note on the last day of such
period of 30 days;
(d) where such withholding or deduction is imposed on a payment
to an individual and is required to be made pursuant to any European Union
Directive on the taxation of savings implementing the conclusions of the ECOFIN
Council meeting of November 26-27, 2000 (the "DIRECTIVE"), or any law
implementing or complying with, or introduced in order to conform to, the
Directive; or
(e) where the relevant Note is surrendered for payment by or on
behalf of a Holder who would have been able to avoid such withholding or
deduction by presenting the relevant Note to another Paying Agent in a member
state of the European Union.
If the Directive is promulgated, the Company undertakes to maintain a
Paying Agent in a European Union member state that will not be obliged to
withhold or deduct Taxes pursuant to the Directive if such a member state
exists.
If the Company, or its successor, becomes subject at any time to any taxing
jurisdiction other than the United Kingdom, references in this Section to the
United Kingdom with respect to Additional Amounts shall be construed as
references to the United Kingdom and/or such other successor jurisdiction.
Section 3.8 LIMITATION ON LIENS.
So long as any Notes remain outstanding, the Company will not, and will not
permit any Principal Subsidiary to, create, assume or permit to arise or to
exist any mortgage, pledge, charge, lien, security interest or other encumbrance
(other than a lien or other encumbrance arising by operation of law) (a "LIEN")
upon the whole or any part of its present or future property, assets or revenues
to secure (i) payment of any Relevant Indebtedness or (ii) payment under any
guarantee or indemnity granted by the Company or any Principal Subsidiary in
respect of any Relevant Indebtedness, without in any such case at the same time
affording to the Notes the same security as the Lien created or subsisting to
secure any such Relevant Indebtedness, guarantee or indemnity or such other
security as the Company, by an Officers' Certificate, shall confirm to the
Trustee is not materially less beneficial to the Holders of the Notes or as
shall be approved by Holders of a majority in aggregate principal amount of the
Outstanding Notes; provided, however, that a Lien existing to secure Relevant
Indebtedness of, or in respect of the payment of which there is granted a
guarantee or an indemnity by, a Principal Subsidiary and which Lien existed
prior to the time of such Principal Subsidiary becoming a Subsidiary (other than
a Lien created or assumed in contemplation of such company becoming a
Subsidiary), shall be permitted and neither the Company nor such Principal
Subsidiary shall be required to extend the security of such Lien to the Holders
of the Notes.
Section 3.9 REPORTS TO HOLDERS.
At any time when the Company is not subject to Section 13 or Section 15(d)
of the Exchange Act (or is not current in its reporting obligations thereunder
nor exempt from reporting pursuant to Rule 12g3-2(b) thereunder), the Company
will make available, upon request, to any Holder and any prospective purchaser
of Notes the information required pursuant to Rule 144A(d)(4) under the
Securities Act.
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ARTICLE IV
SUCCESSOR CORPORATION
Section 4.1 CONSOLIDATION, MERGER AND SALE OF ASSETS. The Company may
consolidate or merge with or into any other entity and may convey, transfer or
lease its property as an entirety or substantially as an entirety to any entity,
provided that:
(a) the entity (if other than the Company) formed by or
resulting from any such consolidation or merger or which shall have received
such property (the "SUCCESSOR COMPANY") shall expressly assume by a supplemental
agreement the obligations of the Company under the Notes and this Indenture;
(b) such agreement shall be in form reasonably satisfactory to
the Trustee, shall be duly executed by the Successor Company and, when so
executed, shall constitute a valid and legally binding agreement of such
Successor Company, and shall be delivered to the Trustee;
(c) subject to exceptions (a) through (e) in SECTION 3.7
herein, such Successor Company shall agree that all payments made by it under
the Notes in respect of principal of, or premium, if any, or interest on, any
Note will be made without withholding or deduction for, or on account of, any
present or future taxes, duties, assessments or governmental charges of whatever
nature imposed, levied, collected, withheld or assessed by or on behalf of a
taxing authority of the jurisdiction in which such Successor Company is
incorporated, or any political subdivision thereof or authority or agency
thereof or therein having power to levy the same, unless such withholding or
deduction is required by law or by the official, judicial or administrative
interpretation thereof, and if withholding or deduction is so required, such
Successor Company will pay to a Holder of a Note such Additional Amounts as may
be necessary so that the net amounts paid to such Holder who is not resident for
tax purposes in the jurisdiction in which such Successor Company is
incorporated, after such deduction or withholding, shall be not less than the
amounts specified in such Note to which such Holder is entitled; and
(d) immediately after giving effect to such transaction, 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.
The Company also shall deliver to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to such
consolidation, merger, conveyance, transfer or lease have been satisfied.
ARTICLE V
OPTIONAL REDEMPTION OF NOTES
Section 5.1 OPTIONAL TAX REDEMPTION. The Notes may be redeemed on not
less than 30 nor more than 60 days' prior written notice to the Trustee and, in
accordance with SECTION 5.4 and in the manner provided in SECTION 10.2, the
Holders of the Notes, at the option of the Company, in whole, but not in part,
at any time, if:
(a) on the occasion of the next payment of interest due under
the Notes, the Company has or will become obliged to pay Additional Amounts as a
result of any change in, or amendment to, the laws or regulations of the United
Kingdom or any authority in or of the United Kingdom, having power to tax, or
any change in the application or official interpretation of these laws or
regulations, which change or amendment becomes effective on or after the date
upon which the Notes are issued; and
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(b) the Company cannot avoid this obligation by taking
reasonable measures available to it, (an "OPTIONAL TAX REDEMPTION"), provided
that no notice of Optional Tax Redemption shall be given earlier than 90 days
prior to the earliest date on which the Company would be obliged to pay such
Additional Amounts were a payment in respect of the Notes then due.
Notes redeemed pursuant to an Optional Tax Redemption will be redeemed at
an amount equal to the principal amount of the Notes being redeemed together
with Additional Amounts, if any, plus any accrued and unpaid interest to (but
excluding) the Redemption Date.
Section 5.2 OPTIONAL REDEMPTION. The Company may redeem the Notes, as a
whole at any time or in part from time to time, at the option of the Company, at
a redemption price equal to the greater of:
(a) 100% of the principal amount of the Notes being redeemed;
or
(b) as determined by the Calculation Agent, the sum of the
present values of the remaining scheduled payments of principal and interest on
the Notes being redeemed not including any portion of such payment of interest
accrued on the Redemption Date, from the Redemption Date to the Maturity Date,
discounted to the Redemption Date on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate plus 25 basis
points (an "OPTIONAL REDEMPTION") plus any accrued and unpaid interest to (but
excluding) the Redemption Date and Additional Amounts, if any.
Notice of any redemption will be mailed at least 30 days but no more than 60
days before the Redemption Date to the Trustee and, in accordance with SECTION
5.4 and in the manner provided in SECTION 10.2, to each Holder of Notes to be
redeemed.
Section 5.3 ELECTION TO REDEEM. The Company shall evidence its election
to redeem any Notes pursuant to SECTION 5.1 or SECTION 5.2 by a Board
Resolution.
Section 5.4 NOTICE OF REDEMPTION.
(a) The Company shall give or cause the Trustee to give written
notice of redemption not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Notes to be redeemed at the address appearing
in the Notes Register. If the Company itself gives the notice, it shall also
deliver a copy to the Trustee.
(b) If either (i) the Company is not redeeming all Outstanding
Notes, or (ii) the Company elects to have the Trustee give notice of redemption,
then the Company shall deliver to the Trustee, at least 45 days prior to the
Redemption Date (unless the Trustee is satisfied with a shorter period), an
Officers' Certificate requesting that the Trustee select the Notes to be
redeemed and/or give notice of redemption and setting forth the information
required by paragraph (c) of this SECTION 5.4. If the Company elects to have the
Trustee give notice of redemption, the Trustee shall give the notice in the name
of the Company and at the Company's expense.
(c) All notices of redemption shall state:
(i) whether the Company is redeeming the Notes pursuant to an
Optional Tax Redemption or an Optional Redemption;
(ii) the Redemption Date,
(iii) the redemption price and the amount of any accrued interest
payable as provided in SECTION 5.7,
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(iv) in the case of an Optional Redemption, whether or not the
Company is redeeming all Outstanding Notes,
(v) in the case of an Optional Redemption, if the Company is
not redeeming all Outstanding Notes, the aggregate principal amount of
Notes that the Company is redeeming and the aggregate principal amount of
Notes that will remain Outstanding after the partial redemption, as well as
the identification of the particular Notes, or portions of the particular
Notes, that the Company is redeeming,
(vi) in the case of an Optional Redemption, if the Company is
redeeming only a portion of the principal amount of a Note or Notes, the
notice that relates to such Note or Notes shall state that on and after the
Redemption Date, upon surrender of such Note or Notes, the Holder will
receive, without charge, a new Note or Notes of authorized denominations
for the principal amount of the Note or Notes remaining unredeemed,
(vii) that on the Redemption Date the redemption price and any
accrued interest payable to the Redemption Date as provided in SECTION 5.7
will become due and payable in respect of each Note to be redeemed, and,
unless the Company defaults in making the redemption payment, that interest
on each Note, to be redeemed, will cease to accrue on and after the
Redemption Date,
(viii) the place or places where a Holder must surrender the
Holder's Notes for payment of the redemption price, and
(ix) the CUSIP or ISIN number, if any, listed in the notice or
printed on the Notes, and that no representation is made as to the accuracy
or correctness of such CUSIP or ISIN number.
Section 5.5 SELECTION OF NOTES TO BE REDEEMED IN PART PURSUANT TO AN
OPTIONAL REDEMPTION.
(a) If the Company is not redeeming all Outstanding Notes, the
Trustee shall, so long as the Notes are listed on the Luxembourg Stock Exchange,
select the Notes to be redeemed in compliance, based on an Opinion of Counsel
furnished to the Trustee by the Company prior to the Redemption Date, with the
requirements of the Luxembourg Stock Exchange, and in all cases, on a pro rata
basis, by lot or in another fair and reasonable manner chosen by the Trustee.
The Trustee shall make the selection from the Outstanding Notes not previously
called for redemption. The Trustee shall promptly notify the Company in writing
of the Notes selected for redemption and, in the case of any Notes selected for
partial redemption, the principal amount of the Notes to be redeemed. In the
event of a partial redemption by lot, the Trustee shall select the particular
Notes to be redeemed not less than 30 nor more than 60 days prior to the
relevant Redemption Date from the Outstanding Notes not previously called for
redemption. The Company may redeem Notes in those denominations specified for
such Notes only in whole. The Trustee may select for redemption portions (equal
to the denomination(s) specified for such Notes or any integral multiple
thereof) of the principal of Notes that have denominations larger than a
denomination specified for such Notes, provided that after such partial
redemption the remaining principal amount of any such Note shall be a
denomination specified for such Notes or any integral multiple thereof.
(b) For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Notes shall relate,
in the case of any Note redeemed or to be redeemed only in part, to the portion
of the principal amount of that Note which has been or is to be redeemed.
Section 5.6 DEPOSIT OF REDEMPTION PRICE. Prior to 10:00 a.m. local time
in the city in which the office of the Trustee or the Paying Agent with respect
to the Notes being redeemed is located on the relevant Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent
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(or, if the Company is acting as Paying Agent, segregate and hold in trust as
provided in SECTION 2.4) an amount of money in immediately available funds
sufficient to pay the redemption price of, and accrued interest on, all the
Notes that the Company is redeeming on that date.
Section 5.7 NOTES PAYABLE ON REDEMPTION DATE. If the Company, or the
Trustee on behalf of the Company, gives notice of redemption in accordance with
this ARTICLE V, the Notes, or the portions of Notes (in the case of an Optional
Redemption), called for redemption, shall, on the Redemption Date, become due
and payable at the redemption price specified in the notice (together with
accrued interest, if any, to (but excluding) the Redemption Date), and from and
after the Redemption Date (unless the Company shall default in the payment of
the redemption price and accrued interest) the Notes or the portions of the
Notes shall cease to bear interest. Upon surrender of any Note for redemption in
accordance with the notice, the Company shall pay the Notes at the redemption
price, together with accrued, but unpaid, interest, if any, to (but excluding)
the Redemption Date and any Additional Amounts, if any, (subject to the rights
of Holders of record in the case of a Global Registered Note on the relevant
Record Date to receive interest due on the relevant Interest Payment Date). If
the Company shall fail to pay any Note called for redemption upon its surrender
for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate borne by the Notes.
Section 5.8 UNREDEEMED PORTIONS OF PARTIALLY REDEEMED NOTE. In the case
of an Optional Redemption, upon surrender of a Note that is to be redeemed in
part, the Company shall execute, and upon Company Order the Trustee shall
authenticate and make available for delivery to the Holder of the Note at the
expense of the Company, a new Note or Notes, of any authorized denomination as
requested by the Holder, in an aggregate principal amount equal to, and in
exchange for, the unredeemed portion of the principal of the Note surrendered,
provided that each new Note will be in a principal amount of $1,000 and integral
multiples of $1,000 in excess thereof.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 EVENTS OF DEFAULT.
(a) An "EVENT OF DEFAULT" occurs if one or more of the
following events shall occur:
(i) if the Company defaults in the payment of any interest on
any of the Notes when due and payable, and such default continues for a
period of 30 days;
(ii) if the Company defaults in the payment of the principal of
any Note when due and payable, and such default continues for a period of
two Business Days;
(iii) if the Company defaults in the performance of, or breaches,
any covenant or warranty contained in this Indenture or the Notes, and such
default or breach continues for a period of 30 days after written notice of
such default or breach shall have been given to the Company by the Trustee
or the Holders of at least 25% in aggregate principal amount of the Notes
then Outstanding;
(iv) if any event of default as defined in any mortgage,
indenture or instrument under which there may be issued, or by which there
may be secured or evidenced, any indebtedness of the Company or
indebtedness of any Principal Subsidiary for money borrowed, whether such
indebtedness now exists or shall hereafter be created, shall occur and
shall result in such indebtedness in principal amount in excess of
$30,000,000 (or the equivalent thereof in other currencies) becoming or
being declared due and payable prior to the date on which it would
otherwise become due and payable, and such acceleration shall not
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be rescinded or annulled, or such indebtedness shall not have been
discharged, within a period of 30 days after written notice thereof shall
have been given to the Company by the Trustee or the Holders of at least
25% in aggregate principal amount of the Notes then Outstanding; or
(v) if proceedings are initiated against the Company or any
Principal Subsidiary under any applicable liquidation, insolvency,
re-organization or any other similar laws, or an application is made for
the appointment of an administrative or other receiver, manager or
administrator, or any such or other similar official is appointed, in
relation to the Company or any Principal Subsidiary, as the case may be, in
relation to the whole or a part of the undertakings or assets of the
Company or any Principal Subsidiary, or an encumbrancer takes possession of
the whole or a part of the applicable company's undertakings or assets, or
a distress, execution, attachment, sequestration or other process is
levied, enforced upon, sued out or put in force against the whole or a part
of its undertakings or assets; and in any case (other than the appointment
of an administrator) are not discharged within 28 days; provided that this
paragraph (v) shall not apply to any proceedings against the Company or a
Principal Subsidiary brought by a third party other than an administrative
or judicial authority where the Company can demonstrate that any such
proceedings are being contested by the Company or the Principal Subsidiary
in good faith, diligently and by appropriate proceedings in a competent
court.
Any of the foregoing will constitute an Event of Default whatever the reason for
any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
(b) The Company shall deliver to the Trustee within five days
after the occurrence of any Default or Event of Default written notice in the
form of an Officers' Certificate of any Default or Event of Default, their
status and what action the Company proposes to take in respect thereof.
Section 6.2 ACCELERATION. If an Event of Default occurs and is continuing
(other than one relating to the matters referred to in SECTION 6.1(v), in which
case, the principal of all Outstanding Notes shall become due and payable
immediately), then the Trustee or Holders of at least 25% in aggregate principal
amount of Outstanding Notes may declare the principal amount of all of the
Outstanding Notes to be due and payable immediately, together with accrued and
unpaid interest, Additional Amounts and liquidated damages, if any, accrued to
the date of repayment by a notice in writing to the Company (and to the Trustee
if given by the Holders), and upon any such declaration, such principal amount
and accrued and unpaid interest shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to the
Notes subject to such declaration of acceleration has been made and before a
judgment or decree for payment of the money due has been obtained by the Trustee
or the Holders as hereinafter in this Article provided, the Holders of a
majority in aggregate principal amount of the Outstanding Notes, by written
notice to the Company and the Trustee, may rescind and annul such declaration of
acceleration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(i) all overdue interest on all Notes subject to such
declaration of acceleration,
(ii) the principal of any Notes subject to such declaration of
acceleration which become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed
therefor in such Notes,
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(iii) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates therefor in such Notes,
and
(iv) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursement and advances of the
Trustee, its agents and counsel, and any other amounts due to the Trustee
under SECTION 7.7; and
(b) all Events of Default with respect to Notes subject to such
declaration of acceleration, other than the non-payment of the principal of
Notes subject to such declaration of acceleration which has become due solely by
such declaration of acceleration, have been cured or waived as provided in
SECTION 6.4.
Section 6.3 OTHER REMEDIES.
(a) If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal of
and interest on the Notes or to enforce the performance of any provision of the
Notes or this Indenture.
(b) The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
Section 6.4 WAIVER OF PAST DEFAULTS. The Holders of not less than a
Qualified Majority in aggregate principal amount of the Outstanding Notes may on
behalf of the Holders of all the Notes waive any Event of Default hereunder with
respect to such Notes and its consequences, except (i) a default in the payment
of the principal of, or premium, if any, or interest on, the Notes, and (ii) a
Default in respect of a covenant or agreement that cannot be modified or amended
without the consent of the Holder of each such Note affected thereby. Upon any
such waiver, such Default shall cease to exist and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Event of
Default or impair any right consequent thereon.
Section 6.5 CONTROL BY MAJORITY. The Holders of a majority in
principal amount of the Outstanding Notes may direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. Subject to SECTIONS 7.1
and 7.2, however, the Trustee may refuse to follow any direction that (i)
conflicts with law or this Indenture, (ii) exposes the Trustee to personal
liability for which the Trustee would not be indemnified pursuant to SECTION 7.7
hereof or (iii) is unduly prejudicial to Holders not joined therein; provided,
further, that the Trustee may take any other action deemed proper by the Trustee
that is not inconsistent with such direction.
Section 6.6 LIMITATION ON SUITS.
No Holder of any Notes will have any right to institute any proceeding with
respect to this Indenture for any remedy hereunder, unless:
(a) such Holder has previously given to the Trustee written
notice of a continuing Event of Default;
(b) Holders of at least 25% in principal amount of the then
Outstanding Notes shall have made a written request to the Trustee to pursue the
remedy in its own name as trustee hereunder;
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(c) such Holders of the Notes have provided to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(d) the Trustee does not comply within 60 days after its
receipt of such notice, request and offer of indemnity; and
(e) during such 60 day period the Holders of a majority in
principal amount of the Outstanding Notes have not given the Trustee a written
direction which is inconsistent with the request.
Otherwise, no Holder of any Note will have any right to institute any
proceeding with respect to this Indenture or for any remedy hereunder, except:
(f) a Holder of a Note may institute suit for enforcement of
payment of the principal of and premium, if any, or interest on such Note on or
after the respective due dates expressed in such Note, or
(g) for the institution of any proceeding with respect to this
Indenture or any remedy thereunder, including, without limitation, acceleration,
by the Holders of a majority in principal amount of the Outstanding Notes;
PROVIDED, that upon institution of any proceeding or exercise of any remedy,
such Holder or Holders provide the Trustee with prompt written notice thereof.
Section 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding any
other provision of this Indenture (including, without limitation, SECTION 6.6),
the right of any Holder to receive payment of principal of or interest on the
Notes held by such Holder, on or after the respective due dates, Redemption
Dates or repurchase date expressed in this Indenture or the Notes, or to bring
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.
Section 6.8 COLLECTION SUIT BY TRUSTEE. If an Event of Default occurs
and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company for the whole amount then due
and owing (together with applicable interest on any overdue principal and, to
the extent lawful, interest on overdue interest) and the amounts provided for in
SECTION 7.7.
Section 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM, ETC.
(a) The Trustee may (irrespective of whether the principal of
the Notes is then due):
(i) file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
and the Holders under this Indenture and the Notes allowed in any
bankruptcy, insolvency, liquidation or other judicial proceedings relative
to the Company or any Subsidiary of the Company or their respective
creditors or properties; and
(ii) collect and receive any monies or other property payable or
deliverable in respect of any such claims and distribute them in accordance
with this Indenture.
Any receiver, trustee, liquidator, sequestrator (or other similar official) in
any such proceeding is hereby authorized by each Holder to make such payments to
the Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, taxes, disbursements and advances
of the Trustee, its agent and counsel, and any other amounts due to the Trustee
pursuant to SECTION 7.7.
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(b) Nothing in this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceeding.
Section 6.10 PRIORITIES. If the Trustee collects any money or property
pursuant to this Article VI, it shall pay out the money or property in the
following order:
FIRST: to the Trustee for amounts due under SECTION 7.7;
SECOND: if the Holders proceed against the Company directly without the
Trustee in accordance with this Indenture, to the Holders for their collection
costs;
THIRD: to the Holders for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal and
interest, respectively; and
FOURTH: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may, upon notice to the Company, fix a record date and payment date
for any payment to Holders pursuant to this SECTION 6.10.
Section 6.11 UNDERTAKING FOR COSTS. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This SECTION 6.11 does not apply to a suit by the
Trustee, a suit by the Company, a suit by a Holder pursuant to SECTION 6.7 or a
suit by Holders of more than 10% in principal amount of the Outstanding Notes.
ARTICLE VII
TRUSTEE
Section 7.1 DUTIES OF TRUSTEE.
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise the rights and powers vested in it by
this Indenture and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of a Default or an Event of
Default:
(i) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
in the case of any such certificates or opinions which by any provisions
hereof are specifically required to be furnished to the Trustee, the
Trustee shall examine such certificates and opinions to determine whether
or not they reasonably conform to the
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requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph (c) does not limit the effect of paragraph
(b) of this SECTION 7.1;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to SECTION 6.2, 6.4 OR 6.5.
(d) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(e) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(f) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur 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 to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(g) Whether or not expressly provided herein, every provision
of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
ARTICLE VII and to the provisions of the TIA.
(h) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(i) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses (including
reasonable attorneys' fees and expenses) and liabilities that might be incurred
by it in compliance with such request or direction.
Section 7.2 RIGHTS OF TRUSTEE. Subject to SECTION 7.1:
(a) The Trustee may conclusively rely and shall be protected in
acting or refraining from acting on any document reasonably believed by it to be
genuine and to have been signed or presented by the proper party or parties. The
Trustee need not investigate any fact or matter stated in the document.
(b) Whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, it may require an Officers'
Certificate or an Opinion of Counsel. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on an Officers'
Certificate or Opinion of Counsel.
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(c) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through its
attorneys and agents and shall not be responsible for the misconduct or
negligence on the part of any agent or attorney appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute willful misconduct or negligence (as finally determined by a court of
competent jurisdiction).
(e) The Trustee may consult with counsel of its selection, and
the advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and complete authorization and protection
from liability in respect to any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(f) If the Trustee shall determine, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney.
(g) The Trustee shall not be deemed to have knowledge of any
Default or Event of Default unless a Trust Officer of the Trustee has Actual
Knowledge thereof or unless written notice of any event which is in fact such a
Default or Event of Default is received by the Trustee at the Corporate Trust
Office of the Trustee, and such notice references the Notes and this Indenture.
(h) 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, and to each agent, custodian and other Person
employed to act hereunder.
(i) The Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or titles of
Officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any Person authorized to
sign an Officers' Certificate, including any Person specified as so authorized
in any such certificate previously delivered and not superseded.
(j) Any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Order and any resolution of the
Board of Directors of the Company shall be sufficiently evidenced by a Board
Resolution.
Section 7.3 INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its individual
or any other capacity may become the owner or pledgee of Notes and may otherwise
deal with the Company or any of its Affiliates with the same rights it would
have if it were not Trustee. Any Authenticating Agent, Paying Agent, Registrar
or co-Registrar may do the same with like rights. However, the Trustee must
comply with SECTIONS 7.10 and 7.11 and the Authenticating Agent must comply with
SECTION 2.2(d).
Section 7.4 TRUSTEE'S DISCLAIMER. The Trustee shall not be responsible
for and makes no representation as to the validity or adequacy of this Indenture
or the Notes, it shall not be accountable for the Company's use of the proceeds
from the Notes, and it shall not be responsible for any statement of the Company
in this Indenture or in any document issued in connection with the sale of the
Notes or in the Notes other than the Trustee's certificate of authentication.
Section 7.5 NOTICE OF DEFAULTS. If a Default or Event of Default occurs
and is continuing and if a Trust Officer has Actual Knowledge thereof, the
Trustee shall mail to each Holder notice of the Default or Event of Default
within 30 days after the Trustee obtains Actual Knowledge thereof. Except in the
case of a Default or Event of Default in payment of principal of or interest on
any Note (including payments pursuant to the Optional Redemption, Optional Tax
Redemption or required
30
repurchase provisions of such Note, if any), the Trustee may withhold the notice
if and so long as a committee of its Trust Officers in good faith determines
that withholding the notice is in the interests of the Holders.
Section 7.6 REPORTS BY TRUSTEE TO HOLDERS. The Trustee shall comply with
TIA Section 313. The Company agrees to notify promptly the Trustee whenever the
Notes become listed, quoted and/or traded on or by any stock exchange, competent
listing authority and/or quotation system and of any delisting thereof.
Section 7.7 COMPENSATION AND INDEMNITY.
(a) The Company shall pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and services
hereunder as the Company and the Trustee shall from time to time agree in
writing. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses, disbursements
and advances incurred or made by it, including, without limitation, costs of
collection, costs of preparing and reviewing reports, certificates and other
documents, costs of preparation and mailing of notices to Holders and reasonable
costs of counsel retained by the Trustee in connection with the delivery of an
Opinion of Counsel or otherwise, in addition to the compensation for its
services. Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents, counsel, accountants and
experts.
(b) The Company shall indemnify the Trustee against any and all
loss, liability or expense (including reasonable attorneys' fees and expenses)
incurred by it without negligence, willful misconduct or bad faith on its part
arising out of or in connection with the acceptance and administration of this
trust and the performance of its duties hereunder, including the costs and
expenses of enforcing this Indenture (including this SECTION 7.7) and of
defending itself against any claims or liabilities (whether asserted by any
Holder, the Company or otherwise). The Trustee shall notify the Company promptly
of any claim for which it may seek indemnity. Failure by the Trustee to so
notify the Company shall not relieve the Company of its obligations hereunder.
The Company shall defend the claim and the Trustee may, upon written request to
the Company, have separate counsel and the Company shall upon such event pay the
fees and expenses of such counsel. The Company need not reimburse any expense or
indemnify against any loss, liability or expense incurred by the Trustee through
the Trustee's own negligence, willful misconduct or bad faith.
(c) To secure the Company's payment obligations in this SECTION
7.7, the Trustee shall have a lien prior to the Notes on all money or property
held or collected by the Trustee other than money or property held in trust to
pay principal of and interest on particular Notes. The Trustee's right to
receive payment of any amounts due under this SECTION 7.7 shall not be
subordinate to any other liability or indebtedness of the Company.
(d) The Company's payment obligations pursuant to this
SECTION 7.7 shall survive the discharge of this Indenture and the resignation or
removal of the Trustee. When the Trustee incurs expenses after the occurrence of
a Bankruptcy Default, the expenses are intended to constitute expenses of
administration under any Bankruptcy Law; provided, however, that this shall not
affect the Trustee's rights as set forth in this SECTION 7.7 or SECTION 6.10.
Section 7.8 REPLACEMENT OF TRUSTEE.
(a) The Trustee may resign at any time by notifying the
Company. The Holders of a majority in principal amount of the Outstanding Notes
may remove the Trustee at any time by so notifying the Trustee in writing and
may appoint a successor Trustee reasonably acceptable to the Company. The
Company shall remove the Trustee if:
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(i) the Trustee fails to comply with SECTION 7.10;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
(b) If the Trustee resigns or is removed by the Company or by
the Holders of a majority in principal amount of the Outstanding Notes (and such
Holders do not reasonably promptly appoint a successor Trustee), or if a vacancy
exists in the office of the Trustee for any reason (the Trustee in such event
being referred to herein as the retiring Trustee), the Company shall promptly
appoint a successor Trustee.
(c) A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, subject to the lien provided for
in SECTION 7.7.
(d) If a successor Trustee does not deliver a written
acceptance of its appointment within 30 days after the retiring Trustee resigns
or is removed, the retiring Trustee or the Holders of 10% in principal amount of
the Outstanding Notes may petition, at the Company's expense, any court of
competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee fails to comply with SECTION 7.10, any
Holder of Notes may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
(f) Notwithstanding the replacement of the Trustee pursuant to
this SECTION 7.8, the Company's obligations under SECTION 7.7 shall continue for
the benefit of the retiring Trustee.
(g) In the event of the resignation, termination or removal of
the Trustee, the Company shall within 30 days mail written notice thereof to the
Holders of Notes.
Section 7.9 SUCCESSOR TRUSTEE BY MERGER.
(a) If the Trustee consolidates with, merges or converts into,
or transfers all or substantially all its corporate trust business or assets to,
another Person, the resulting, surviving or transferee Person without any
further act shall be the successor Trustee.
(b) In case at the time such successor or successors to the
Trustee shall succeed to the trusteeship created by this Indenture, any of the
Notes shall have been authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of any predecessor trustee,
and deliver such Notes so authenticated; and in case at that time any of the
Notes shall not have been authenticated, any successor to the Trustee may
authenticate such Notes either in the name of any predecessor hereunder or in
the name of the successor to the Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Notes or in
this Indenture provided that the certificate of the Trustee shall have.
Section 7.10 ELIGIBILITY; DISQUALIFICATION. The Trustee and the
Authenticating Agent shall at all times satisfy the requirements of TIA Section
310(a). The Trustee shall have a combined capital and surplus of at least
U.S.$150,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA Section 310(b); provided, however,
that there shall be
32
excluded from the operation of TIA Section 310(b)(1) any indenture or indentures
under which other securities or certificates of interest or participation in
other securities of the Company are outstanding if the requirements for such
exclusion set forth in TIA Section 310(b)(1) are met.
Section 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
Section 7.12 PAYING AGENT AND CALCULATION AGENT. All rights, duties and
immunities of the Trustee under this Indenture shall apply to any Paying Agent
and Calculation Agent under this Indenture.
ARTICLE VIII
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONIES
Section 8.1 SATISFACTION AND DISCHARGE. The Indenture will be discharged
and will cease to be of further effect (except as to surviving rights of
registration of transfer or exchange of the Notes, as expressly provided for in
the Indenture and except as to the Company's obligations under SECTION 7.7) as
to all Outstanding Notes when:
(a) either:
(i) the Notes theretofore executed, authenticated and delivered
(except lost, stolen or destroyed Notes which have been replaced or paid
and Notes 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) have been delivered to the Trustee
for cancellation, or
(ii) all Notes not theretofore delivered to the Trustee for
cancellation have become due and payable, or by their terms are due and
payable within one year (or scheduled for Optional Redemption or Optional
Tax Redemption within one year) and the Company has irrevocably deposited
or caused to be deposited with the Trustee U.S. dollar funds sufficient to
pay and discharge the entire indebtedness on the Notes not theretofore
delivered to the Trustee for cancellation, for principal of and interest on
the Notes to the date of deposit (or until their redemption, as confirmed
by the opinion of an internationally recognized firm of independent public
accountants), together with irrevocable written instructions from the
Company directing the Trustee to apply such funds to the payment;
(b) the Company has paid all other sums payable under: (i) this
Indenture with respect to the Notes and (ii) the Notes; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel stating that all conditions precedent
under this Indenture relating to the satisfaction and discharge of this
Indenture have been complied with.
Section 8.2 APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR PAYMENT OF NOTES.
Subject to SECTION 8.4, all monies deposited with the Trustee pursuant to
SECTION 8.1 shall be held in trust and applied by it to the payment, either
directly or through any paying agent (including the Company acting as its own
paying agent), to the Holders of the particular Notes for the payment or
redemption of which such monies have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest; but such money
need not be segregated from other funds except to the extent required by law.
33
Section 8.3 REPAYMENT OF MONIES HELD BY PAYING AGENT.
In connection with the satisfaction and discharge of this Indenture with
respect to the Notes, all monies then held by any paying agent under the
provisions of this Indenture with respect to such series of Notes shall, upon
written demand of the Company, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such monies.
Section 8.4 RETURN OF MONIES HELD BY TRUSTEE AND PAYING AGENT UNCLAIMED FOR
TWO YEARS.
Any monies deposited with or paid to the Trustee or any paying agent for
the payment of the principal of or interest (including Additional Amounts) on
any Note and not applied but remaining unclaimed for two years after the date
upon which such principal or interest (including Additional Amounts) shall have
become due and payable, shall, upon the written request of the Company and
unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property law, be repaid to the Company by the Trustee or
such paying agent, and the Holder of the Notes shall, unless otherwise required
by mandatory provisions of applicable escheat or abandoned or unclaimed property
laws, thereafter look only to the Company for any payment which such Holder may
be entitled to collect, and all liability of the Trustee or any paying agent
with respect to such monies shall thereupon cease.
ARTICLE IX
AMENDMENTS
Section 9.1 WITHOUT CONSENT OF HOLDERS.
(a) The Company and the Trustee may amend this Indenture or the
Notes without notice to or consent of any Holder:
(i) to cure any ambiguity, omission, defect or inconsistency,
provided that such action shall not adversely affect the interests of the
Holders in any material respect;
(ii) to comply with ARTICLE IV in respect of the assumption by a
Successor Corporation of the obligations of the Company under the Notes and
this Indenture;
(iii) to provide for uncertificated Notes in addition to or in
place of certificated Notes; provided, however, that the uncertificated
Notes are issued in registered form for purposes of Section 163(f) of the
Code;
(iv) to add guarantees with respect to the Notes or to secure
the Notes;
(v) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power herein conferred upon the
Company;
(vi) to add any additional Events of Default for the benefit of
the Holders of the Notes;
(vii) to make any change that does not adversely affect the
rights of any Holder in any material respect;
(viii) to provide for the issuance of Add On Notes as permitted by
SECTION 2.11, which will have terms substantially identical to the other
Outstanding Notes except as specified in SECTION 2.11, and which will be
treated, together with any other Outstanding Notes, as a single issue of
securities.
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(b) After an amendment under this SECTION 9.1 becomes
effective, the Company shall mail to Holders a notice briefly describing such
amendment. The failure to give such notice to all Holders, or any defect
therein, shall not impair or affect the validity of an amendment under this
SECTION 9.1.
Section 9.2 WITH CONSENT OF HOLDERS.
(a) The Company and the Trustee may amend this Indenture with
respect to any Notes or the Notes themselves without notice to any Holder but
with the written consent of the Holders of at least a Qualified Majority in
principal amount of the Outstanding Notes (including, without limitation,
consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Notes), which consent(s) shall be delivered to the Company and the
Trustee. However, without the consent of each Holder affected, an amendment may
not:
(i) reduce the principal amount of Notes the Holders of which
must consent to an amendment or waiver;
(ii) reduce the rate of, or change, or have the effect of
changing the time for payment of, interest, including Additional Amounts,
if any, on any Notes or change in any adverse respect the obligation of the
Company to pay Additional Amounts;
(iii) reduce the principal of, or change, or have the effect of
changing the fixed maturity of, any Notes or the amount due upon an Event
of Default, or change the date on which any Notes may be subject to
acceleration or redemption, or reduce the redemption price therefor;
(iv) make any Notes payable in a currency or at a location other
than that stated in the Notes or at a place other than stated in the Notes;
(v) make any change in the provisions of this Indenture
entitling each Holder to receive payment of principal of and interest on
such Notes on or after the due date thereof or to bring suit to enforce
such payment, or permitting Holders of a Qualified Majority in principal
amount of Outstanding Notes to waive compliance with various provisions of
this Indenture or Defaults or Events of Default;
(vi) reduce the percentage of Holders of Notes whose consent is
needed to modify or amend the provisions of this Indenture with respect to
the Notes or the Notes themselves; or
(vii) make any changes to this Section 9.2.
(b) It shall not be necessary for the consent of the Holders
under this SECTION 9.2 to approve the particular form of any proposed amendment,
but it shall be sufficient if such consent approves the substance thereof.
(c) After an amendment under this SECTION 9.2 becomes
effective, the Company shall mail to Holders a notice briefly describing such
amendment. The failure to give such notice to all Holders, or any defect
therein, shall not impair or affect the validity of an amendment under this
SECTION 9.2.
Section 9.3 COMPLIANCE WITH TRUST INDENTURE ACT. Every amendment to this
Indenture or the Notes shall comply with the TIA as then in effect.
35
Section 9.4 ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this 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 as herein otherwise expressly provided. Such action shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the Company. 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
Indenture and (subject to SECTION 7.1) conclusive in favor of the Trustee and
the Company, 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 in any reasonable manner which the
Trustee deems sufficient.
(c) The Company may set any day as a record date for the
purpose of determining the Holders of Outstanding Notes represented by Global
Registered Notes or Certificated Notes entitled to give, make or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders of Notes (for the purposes of this SECTION 9.4 only, a "RECORD DATE");
provided that the Company may not set a record date for, and the provisions of
this paragraph shall not apply with respect to, the giving or making of any
notice, declaration, request or direction referred to in the next paragraph. If
any record date is set pursuant to this paragraph, the Holders of Outstanding
Notes represented by Global Registered Notes or Certificated Notes on such
record date, and no other Holders, shall be entitled to take the relevant
action, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable expiration date by Holders of the requisite principal
amount of Outstanding Notes on such record date. Nothing in this paragraph shall
be construed to prevent the Company from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and be of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Notes on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable expiration date to be given to the
Trustee in writing and to each Holder of Notes in the manner set forth in
SECTION 10.2.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Notes represented by Global Registered Notes or
Certificated Notes entitled to join in the giving or making of (i) any request
to institute proceedings referred to in SECTION 6.6 or (ii) any direction
referred to in SECTION 6.5, in each case with respect to the Notes. If any
record date is set pursuant to this paragraph, the Holders of Outstanding Notes
on such record date, and no other Holders, shall be entitled to join in such
notice, declaration, request or direction, whether or not such Holders remain
Holders after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable expiration date by Holders
of the requisite principal amount of Outstanding Notes on such record date.
Nothing in this paragraph shall be construed to prevent the Trustee from setting
a new record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and be of no
effect), and nothing in this paragraph shall be construed to render ineffective
any action taken by Holder of the requisite principal amount of Outstanding
Notes on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the expense of the Company, shall
cause notice of such record date, the proposed action by Holders and the
applicable expiration date to be given to the Company in writing and to each
Holder of Securities in the manner set forth in SECTION 10.2.
36
With respect to any record date set pursuant to this Section, the party
hereto which sets such record date may designate any day as the "EXPIRATION
DATE" and from time to time may change the expiration date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new expiration date is given to the other parties hereto in writing and
to each Holder of Notes in the manner set forth in SECTION 10.2, on or prior to
the existing expiration date. Notwithstanding the foregoing, no expiration date
shall be later than the 180th day after the applicable record date and, if an
expiration date is not designated with respect to any record date set pursuant
to this Section, the party or parties hereto which set such record date shall be
deemed to have designated the 180th day after such record date as the expiration
date with respect thereto.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Note may do so with regard to all
or any part of the principal amount of such Note or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
Section 9.5 NOTATION ON OR EXCHANGE OF NOTES. If an amendment changes the
terms of a Note, the Trustee may require the Holder of the Note to deliver it to
the Trustee. The Trustee may place an appropriate notation on the Note regarding
the changed terms and return it to the Holder. Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the Note will execute and
upon Company Order the Trustee will authenticate a new Note that reflects the
changed terms. Failure to make the appropriate notation or to issue a new Note
shall not affect the validity of such amendment.
Section 9.6 TRUSTEE TO SIGN AMENDMENTS. The Trustee shall sign any
amendment authorized pursuant to this ARTICLE IX; provided that the Trustee may,
but shall not be obligated to, sign any amendment that adversely affects its own
rights, duties, liabilities or immunities. If it does, the Trustee may but need
not sign it. In signing such amendment the Trustee shall be entitled to receive
indemnity reasonably satisfactory to it and to receive, and (subject to SECTIONS
7.1 and 7.2) shall be fully authorized and protected in relying upon an Opinion
of Counsel and an Officers' Certificate, each stating that such amendment is
authorized or permitted by this Indenture.
ARTICLE X
MISCELLANEOUS
Section 10.1 TRUST INDENTURE ACT CONTROLS. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required or deemed to be included in this Indenture by the TIA, the required or
deemed provision shall control.
Section 10.2 NOTICES.
Any notice or communication provided or permitted by this Indenture to be
given to the Company, the Trustee or the Paying Agent may be given to the
Company, the Trustee or any Paying Agent, as the case may be, and shall be made
in writing by hand-delivery, first-class mail, facsimile or air courier
guaranteeing next-day delivery:
if to the Company:
Xxxxxxx PLC
0 Xxxxxxxxxx Xxxxxxx
Xxxxxx X0X 0XX
Xxxxxx Xxxxxxx
Attention: Group Treasurer
37
With a copy to:
Xxxxxxx PLC
0 Xxxxxxxxxx Xxxxxxx
Xxxxxx X0X 0XX
Xxxxxx Xxxxxxx
Attention: General Counsel
if to the Trustee and Paying Agent:
The Bank of New York
Xxx Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
Attention: Xxxxxx Xxxxxxxx
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one business day after
being timely delivered to a next-day air courier; five business days after being
deposited in the mail postage prepaid; and when receipt is acknowledged by the
recipient's facsimile machine, if sent by facsimile.
The Company, the Trustee or the Paying Agent by notice to the others may
designate additional or different addresses for subsequent notices or
communications. Such notices or communications may also be given by any Holder
of Notes to the Trustee or any Paying Agent through DTC in such manner that such
Trustee or Paying Agent, as the case may be, and DTC may approve for such
purpose.
(b) All notices regarding the Notes shall be published (i) in a leading
English language daily newspaper of general circulation in New York City and
(ii) if and for so long as the Notes are listed on the Luxembourg Stock
Exchange, and for so long as the Luxembourg Stock Exchange rules so require, a
daily newspaper of general circulation in Luxembourg. Such publications will
initially be made in The Wall Street Journal in New York City and the
Luxemburger Wort in Luxembourg. The Company shall also ensure that such notice
is duly published in a manner that complies with the rules and regulations of
any other stock exchange, competent listing authority and/or quotation system on
or by which the Notes are for the time being listed, quoted and/or traded. Any
such notice will be deemed to have been given on the date of the first
publication or, where required to be published in more than one newspaper, on
the date of the first publication in each such newspaper. Furthermore, the
Company shall send all notices via first class mail or a courier delivery
service to the Trustee and the nominee of DTC.
Section 10.3 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS. Holders may
communicate pursuant to TIA Section 312(b) with other Holders with respect to
their rights under this Indenture or the Notes. The Company, the Trustee, the
Registrar and anyone else shall have the protection of TIA Section 312(c).
Section 10.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. Upon any
request or application by the Company to the Trustee to take or refrain from
taking any action under this Indenture, the Company shall furnish to the
Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signer or
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
38
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel, all
such conditions precedent, if any, have been complied with.
Section 10.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(a) a statement that the individual making such certificate or
opinion has read such covenant or condition and the definitions 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 such individual, 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 or not, in the opinion of such
individual, such covenant or condition has been complied with.
In giving such Opinion of Counsel, counsel may rely as to factual matters
on an Officers' Certificate or on certificates of public officials unless such
counsel knows, or in the exercise of reasonable care, should know that the
Officers' Certificate or certificates of public officials or the representations
with respect to such matters are erroneous.
Section 10.6 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 may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such Officer knows, or in the exercise 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 Counsel 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 stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows or in the exercise of reasonable care should
know, that the opinion or representations with respect to such matters are
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 Indenture, they may, but need not, be consolidated and
form one instrument.
Section 10.7 RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR. The Trustee
may make reasonable rules for action by, or a meeting of, Holders. The Registrar
and the Paying Agent may make reasonable rules for their functions.
Section 10.8 PAYMENT ON BUSINESS DAYS. If any Interest Payment Date would
fall on a day that is not a Business Day, the interest payment shall be made on
the next Business Day. If the Maturity Date falls on a day that is not a
Business Day, the payment of interest and principal may be
39
made on the next succeeding Business Day, and no interest on such payment shall
accrue for the period from and after the Maturity Date.
If a regular Record Date is not a Business Day, the Record Date shall not
be affected.
Section 10.9 GOVERNING LAW, ETC.
(a) THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, EXCEPT THAT THE
AUTHORIZATION AND EXECUTION BY THE COMPANY OF THE INDENTURE AND THE NOTES SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF ENGLAND AND
WALES, WITHOUT GIVING EFFECT TO ANY CONTRARY CONFLICT OF LAWS OR CHOICE OF LAW
PROVISIONS OF THE LAWS OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION.
(b) To the extent that the Company or any of its properties,
assets or revenues may have or may hereafter become entitled to, or have
attributed to it, any right of immunity, on the grounds of sovereignty or
otherwise, from any legal action, suit or proceeding, from the giving of any
relief in any such legal action, suit or proceeding, from setoff or
counterclaim, from the jurisdiction of any court, from service of process, from
attachment upon or prior to judgment, from attachment in aid of execution of
judgment, or from execution of judgment, or other legal process or proceeding
for the giving of any relief or for the enforcement of any judgment, in any
jurisdiction in which proceedings may at any time be commenced, with respect to
its obligations, liabilities or any other matter under or arising out of or in
connection with this Indenture or the Notes, the Company hereby irrevocably and
unconditionally waives, and agrees not to plead or claim, any such immunity and
consents to such relief and enforcement.
(c) The Company hereby irrevocably consents and agrees, for the
benefit of the Holders and the Trustee, that any legal action, suit or
proceeding against it with respect to its obligations, liabilities or any other
matter arising out of or in connection with this Indenture or the Notes may be
brought in any United States federal court or New York state court, in each case
located in the Borough of Manhattan, The City of New York, and hereby
irrevocably consents and submits to the non-exclusive jurisdiction of each such
court in personam, generally and unconditionally with respect to any action,
suit or proceeding for itself and in respect of its properties, assets and
revenues.
(d) The Company hereby irrevocably designates, appoints, and
empowers Xxxxxxx Inc., with an office at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, as its designee, appointee and agent (the "AUTHORIZED AGENT") to
receive, accept and acknowledge for and on its behalf, and its properties,
assets and revenues, service of any and all legal process, summons, notices and
documents which may be served in any such action, suit or proceeding brought in
any United States federal court or New York state court which may be made on
such Authorized Agent in accordance with legal procedures prescribed for such
courts. If for any reason such Authorized Agent hereunder shall cease to be
available to act as such, the Company agrees to designate a new designee,
appointee and agent in The City of New York on the terms and for the purposes of
this clause satisfactory to the Trustee. The Company further hereby irrevocably
consents and agrees to the service of any and all legal process, summons,
notices and documents out of any of the aforesaid courts in any such action,
suit or proceeding by serving a copy thereof upon the relevant agent for service
of process referred to in this clause (whether or not the appointment of such
agent shall for any reason prove to be ineffective or such agent shall accept or
acknowledge such service) or by mailing copies thereof by registered or
certified air mail, first class, postage prepaid, to each of them at their
respective addresses specified in or designated pursuant to this Indenture. The
Company further agrees that the failure of any such Authorized Agent to give any
notice of such service to it shall not impair or affect in any way the validity
of such service or any judgment rendered in any action or proceeding based
thereon. Nothing herein shall in any way be deemed to limit the ability of the
Trustee or any Holder to serve any such legal process, summons, notices and
documents in any
40
other manner permitted by applicable law or to obtain jurisdiction over the
Company or bring actions, suits or proceedings against the Company in any
jurisdiction, and in any manner, as may be permitted by applicable law. The
Company hereby irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of venue of any of the aforesaid actions, suits or proceedings arising out of or
in connection with this Indenture or the Notes brought in any United States
federal court or New York state court, in each case located in the Borough of
Manhattan, The City of New York, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
(e) Nothing in this SECTION 10.9 shall affect the right of the
Trustee or any Holder of the Notes to serve process in any other manner
permitted by law.
Section 10.10 SUCCESSORS. All agreements of the Company in this Indenture
and the Notes shall bind its successors. All agreements of the Trustee in this
Indenture shall bind its successors.
Section 10.11 DUPLICATE AND COUNTERPART ORIGINALS. This Indenture may be
executed in any number of counterparts, each of which so executed shall be an
original, but all of them together represent the same agreement.
Section 10.12 SEVERABILITY. In case any provision in this Indenture or in
the Notes 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 10.13 CURRENCY INDEMNITY.
(a) The U.S. dollar is the sole currency of account and payment
for all sums payable by the Company under or in connection with the Notes or
this Indenture with respect to the Notes, including damages. Any amount received
or recovered in currency other than U.S. dollars in respect of the Notes
(whether as a result of, or of the enforcement of, a judgment or order of a
court of any jurisdiction, in the winding-up or dissolution of the Company, any
Subsidiary or otherwise) by any Holder of the Notes in respect of any sum
expressed to be due to it from the Company shall only constitute a discharge of
them under the Notes and this Indenture with respect to the Notes only to the
extent of the U.S. dollar amount which the recipient is able to purchase with
the amount so received or recovered in that other currency on the date of that
receipt or recovery (or, if it is not practicable to make that purchase on that
date, on the first date on which it is practicable to do so). If that U.S.
dollar amount is less than the U.S. dollar amount expressed to be due to the
recipient under the Notes or this Indenture with respect to the Notes, the
Company shall indemnify and hold harmless the recipient against any loss or cost
sustained by it in making any such purchase. For the purposes of this SECTION
10.13, it will be sufficient for the Holder of a Note to certify that it would
have suffered a loss had an actual purchase of U.S. dollars been made with the
amount so received in that other currency on the date of receipt or recovery
(or, if a purchase of U.S. dollars on such date had not been practicable, on the
first date on which it would have been practicable).
(b) The indemnities of the Company contained in this
SECTION 10.13, to the extent permitted by law: (i) constitute a separate and
independent obligation from the other obligations of the Company under the Notes
and this Indenture with respect to the Notes; (ii) shall give rise to a separate
and independent cause of action against the Company; (iii) shall apply
irrespective of any waiver granted by any Holder of the Notes or the Trustee
with respect to the Notes from time to time; and (iv) shall continue in full
force and effect notwithstanding any other judgment, order, claim or proof of
claim for a liquidated amount in respect of any sum due under the Notes or this
Indenture with respect to the Notes or any other judgment or order.
41
Section 10.14 BENEFITS OF INDENTURE. Nothing in this Indenture or the
Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder and the Holders, any benefit of any legal
or equitable right, remedy or claim under this Indenture.
Section 10.15 TABLE OF CONTENTS; HEADINGS. The table of contents and
headings of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not intended to be considered a part hereof
and shall not modify or restrict any of the terms or provisions hereof.
42
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
XXXXXXX PLC
By:
-------------------------------------------
Name:
Title:
THE BANK OF NEW YORK
as Trustee, Paying Agent and Calculation Agent
By:
-------------------------------------------
Name:
Title:
43
EXHIBIT A
FORM OF NOTES
[Include the following legend on all Notes that are Global Registered Notes:
THIS NOTE IS A GLOBAL REGISTERED NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE
REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED,
IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[Include the following legend on all Notes that are Rule 144A Global Notes:
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE US SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR WITH ANY SECURITIES REGULATORY
AUTHORITY IN ANY JURISDICTION, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, US PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) (2) AGREES THAT IT WILL NOT, WITHIN TWO
YEARS AFTER THE LATER OF (x) THE ORIGINAL ISSUANCE OF THIS NOTE AND (y) THE LAST
DATE ON WHICH XXXXXXX PLC (THE "ISSUER") OR ANY AFFILIATE THEREOF WAS THE
BENEFICIAL OWNER OF THIS NOTE (OR ANY PREDECESSOR HEREOF) (THE "RESTRICTED
PERIOD"), RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT PURSUANT TO AN
APPLICABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. THIS LEGEND WILL BE REMOVED AFTER THE EXPIRATION OF THE RESTRICTED
PERIOD. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"US PERSON" HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES
ACT. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT FOR RESALES OF THIS
NOTE.]
[Include the following legend on all Notes that are Regulation S Global Notes:
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE US SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR WITH ANY SECURITIES REGULATORY
AUTHORITY IN ANY JURISDICTION, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, US PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT IT IS NOT A US PERSON AND IS ACQUIRING THIS NOTE IN
AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT, PRIOR TO THE EXPIRATION OF
THE DISTRIBUTION COMPLIANCE PERIOD (DEFINED AS 40 DAYS AFTER THE LATER OF THE
CLOSING DATE WITH RESPECT TO THE NOTES AND THE COMPLETION OF THE DISTRIBUTION OF
THE NOTES), RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A)(1) OUTSIDE THE
UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE
44
SECURITIES ACT OR (2) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A; AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE
STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.]
[Include the following legend on all Certificated Notes that are Notes:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR SUCH
OPINIONS OF COUNSEL, CERTIFICATES AND/OR OTHER INFORMATION AS IT MAY REASONABLY
REQUIRE IN FORM REASONABLY SATISFACTORY TO IT AS PROVIDED FOR IN THE INDENTURE
TO CONFIRM THAT THE TRANSFER COMPLIED WITH THE FOREGOING RESTRICTIONS AS
PROVIDED FOR IN THE INDENTURE.]
45
FORM OF FACE OF NOTE
[Title of Note]
No. [___] Principal Amount U.S.$[______________]
[If the Note is a Global Note include the
following two lines, as revised by the
Schedule of Increases and Decreases in
Global Registered Note attached hereto]
[CUSIP NO. ____________]
[ISIN NO. ____________]
Xxxxxxx PLC, a public company incorporated with limited liability under the
laws of England and Wales promises to pay to [___________], or its registered
assigns, the principal sum of [SPELL OUT IN WORDS] U.S. dollars, [If the Note is
a Global Registered Note, add the following, as revised by the Schedule of
Increases and Decreases in Global Registered Note attached hereto], on [Maturity
Date].
Interest Payment Dates: June 15 and December 15 in each year
Record Dates: June 1 and December 1 in each year
Interest rate: 7% per annum
Additional provisions of this Note are set forth on the other side of this
Note.
46
IN WITNESS WHEREOF, Xxxxxxx PLC has caused this Note to be signed by its
duly authorized officer.
Date: June 21, 2001
XXXXXXX PLC
By:
-------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
The Bank of New York, as Trustee, certifies that this is one of the Notes
referred to in the Indenture.
Date: June 21, 2001
By:
-------------------------------------
Authorized Signatory
47
FORM OF REVERSE SIDE OF NOTE
7% NOTES DUE 2011
1. INTEREST
Xxxxxxx PLC, a public company incorporated with limited liability under the
laws of England and Wales (and its successors and assigns under the Indenture
hereinafter referred to, the "COMPANY"), promises to pay interest on the
principal amount of this Note at the rate per annum shown above.
The Company will pay interest semi-annually in arrears on each Interest
Payment Date of each year commencing December 15, 2001. Interest on the Notes
will accrue from the most recent date to which interest has been paid on the
Notes or, if no interest has been paid, from June 21, 2001. Interest on the
Notes will be payable in U.S. dollars at the Company's office or agency in the
Borough of Manhattan, the City of New York, New York. If interest is required to
be calculated for any period less than a year, other than with respect to
regular semi-annual payments, it will be calculated based on a 360-day year
consisting of twelve 30-day months.
All payments made by the Company in respect of the Notes will be made free
and clear of and without deduction or withholding for or on account of any
Taxes, unless such withholding or deduction is required by law or by the
interpretation or administration thereof. In that event, the Company will pay to
each Holder of the Notes Additional Amounts as provided in the Indenture subject
to the limitations set forth in the Indenture.
2. METHOD OF PAYMENT
On the date on which any principal of or interest on any Note is due and
payable, the Company shall irrevocably deposit with the Trustee or the Paying
Agent in New York, New York [IF A CERTIFICATED NOTE, and in Luxembourg] U.S.
dollar funds sufficient to pay such principal and/or interest. The Company will
pay interest to the Persons who are registered Holders of Notes at the close of
business on the Record Date preceding the Interest Payment Date even if Notes
are cancelled, repurchased or redeemed after the Record Date and on or before
the relevant Interest Payment Date. Holders must surrender Notes to a Paying
Agent to collect principal payments. The Company will pay principal and interest
in U.S. dollars.
Payments (including principal and interest) will be made by the transfer of
immediately available funds to the account specified by DTC with respect to the
Global Registered Note. [IF THIS A CERTIFICATED NOTE, ADD THE FOLLOWING: The
Company will make all payments in respect of a Certificated Note (including
principal and interest) by mailing a check to the registered address of each
Holder thereof; PROVIDED, HOWEVER, that payments on the Notes may also be made,
in the case of a Holder of at least U.S.$1,000,000 aggregate principal amount of
Notes, by wire transfer to a U.S. dollar account maintained by the payee with a
bank in the United States if such Holder elects payment by wire transfer by
giving written notice to the Trustee or the Paying Agent to such effect
designating such account no later than 15 days immediately preceding the
relevant due date for payment (or such other date as the Trustee may accept in
its discretion).]
48
3. PAYING AGENT AND REGISTRAR
Initially, The Bank of New York (the "TRUSTEE"), will act as Trustee,
Paying Agent, Calculation Agent and Registrar. [IF THIS NOTE IS A CERTIFICATED
NOTE, Credit Europeen, S.A. will act as Paying Agent and transfer agent in
Luxembourg.] The Company may appoint and change any Paying Agent, Registrar or
co-registrar without notice to any Holder. The Company may act as Paying Agent,
Registrar or co-registrar.
4. INDENTURE
The Company issued the Notes under an Indenture, dated as of June 21, 2001
(as it may be amended or supplemented from time to time in accordance with the
terms thereof, the "INDENTURE"), among the Company and the Trustee. In the event
of an inconsistency between the terms of the Notes set forth herein and other
terms of the Indenture, the terms set forth in any part of the Indenture other
than in EXHIBIT A thereto shall govern. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the
TIA. Capitalized terms used but not defined herein have the meanings ascribed
thereto in the Indenture. The Notes are subject to all such terms, and Holders
are referred to the Indenture and the TIA for a statement of those terms. Each
Holder, by accepting a Note, agrees to be bound by all of the terms and
provisions of the Indenture, as amended from time to time.
The Notes are general senior unsecured obligations of the Company. Subject
to the conditions set forth in the Indenture and without the consent of the
Holders, the Company may issue Add On Notes. All Notes will be treated as a
single class of securities under the Indenture.
The Indenture imposes certain limitations on, among other things, (i) the
ability of the Company and its Principal Subsidiaries to create Liens to secure
Relevant Indebtedness or (ii) the ability of the Company to consolidate or merge
or transfer, lease or convey all or substantially all of the Company's assets
unless certain conditions are satisfied.
5. REDEMPTION
OPTIONAL TAX REDEMPTION. The Notes may be redeemed on not less than 30 nor
more than 60 days' written notice to the Trustee and, in accordance with the
procedures described in the Indenture, to each Holder of the Notes, at the
option of the Company, in whole, but not in part, at any time, if:
(a) on the occasion of the next payment of interest due under the Notes,
the Company has or will become obliged to pay Additional Amounts as a result of
any change in, or amendment to, the laws or regulations of the Company's
jurisdiction of incorporation or any authority in or of the Company's
jurisdiction of incorporation, having power to tax, or any change in the
application or official interpretation of those laws and regulations, which
change or amendment becomes effective on or after the Issue Date; and
(b) the Company cannot avoid this obligation by taking reasonable measures
available to it, PROVIDED that no notice of Optional Tax Redemption shall be
given earlier than 90 days prior to the earliest date on which the Company would
be obliged to pay such Additional Amounts were a payment in respect of the Notes
then due.
Notes redeemed pursuant to an Optional Tax Redemption will be redeemed at
an amount equal to the principal amount of the Notes being redeemed together
with Additional Amounts, if any, plus any accrued and unpaid interest to (but
excluding) the Redemption Date.
OPTIONAL REDEMPTION. The Notes may also be redeemed, as a whole at any time
or in part from time to time, at the option of the Company, at a redemption
price equal to the greater of:
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(a) 100% of the principal amount of the Notes being redeemed; or
(b) as determined by the Calculation Agent, the sum of the present values
of the remaining scheduled payments of principal and interest on the Notes being
redeemed not including any portion of such payment of interest accrued on the
Redemption Date, from the Redemption Date to the Maturity Date, discounted to
the Redemption Date on a semi-annual basis (assuming a 360-day year consisting
of twelve 30-day months) at the Treasury Rate plus 25 basis points,
plus any accrued and unpaid interest to (but excluding) the Redemption Date and
Additional Amounts, if any.
Notice of any redemption will be mailed at least 30 days but no more than
60 days before the Redemption Date to the Trustee and, in accordance with the
procedures described in the Indenture, to each Holder of Notes to be redeemed.
Unless the Company defaults in payment of the redemption price, on and
after the Redemption Date, interest will cease to accrue on the Notes called for
redemption.
6. DENOMINATIONS; TRANSFER; EXCHANGE
The Notes are in fully registered form without coupons, and only in
denominations of principal amount of U.S.$1,000 and any integral multiples of
U.S.$1,000 in excess thereof. A Holder may transfer or exchange Notes in
accordance with the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents. The Registrar
need not register the transfer of or exchange (i) any Notes selected for
redemption (except, in the case of a Note to be redeemed in part, the portion of
the Note not to be redeemed) for a period beginning 15 days before the mailing
of a notice of Notes to be redeemed and ending on the date of such mailing or
(ii) any Notes for a period beginning 15 days before an Interest Payment Date
and ending on such Interest Payment Date.
7. PERSONS DEEMED OWNERS
The Holder of this Note may be treated as the owner of it for all purposes.
8. UNCLAIMED MONEY
If money for the payment of principal or interest remains unclaimed for two
years, the Trustee or Paying Agent shall pay the money back to the Company at
its written request unless an abandoned property law designates another Person.
After any such payment, Holders entitled to the money must look only to the
Company and not to the Trustee for payment.
9. DISCHARGE PRIOR TO REDEMPTION OR MATURITY
Subject to certain conditions set forth in the Indenture, the Company at
any time may terminate some or all of its obligations under the Notes and the
Indenture if the Company deposits with the Trustee U.S. dollar funds for the
payment of principal of and interest on the Notes to redemption or maturity, as
the case may be.
10. DEFAULTS AND REMEDIES
If an Event of Default occurs and is continuing, and subject to the
provisions set forth in the Indenture, the Trustee or any Holder of a Note may
declare the Note to be due and payable immediately.
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Holders may not enforce the Indenture or the Notes except as provided in
the Indenture. The Trustee may refuse to enforce the Indenture or the Notes
unless it receives reasonable indemnity or security. Subject to certain
limitations, Holders of a majority in principal amount of the Outstanding Notes
may direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders notice of any continuing Default or Event of Default
(except a Default or Event of Default in payment of principal or interest) if it
determines that withholding notice is in their interest.
11. TRUSTEE DEALINGS WITH THE COMPANY
Subject to certain limitations set forth in the Indenture, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Notes and may otherwise deal with and collect obligations
owed to it by the Company or its Affiliates and may otherwise deal with the
Company or its Affiliates with the same rights it would have if it were not
Trustee.
12. AUTHENTICATION
This Note shall not be valid or enforceable unless and until an authorized
signatory of the Trustee (or an Authenticating Agent acting on its behalf)
manually signs the certificate of authentication on the other side of this Note.
13. ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder or an assignee,
such as TEN COM (= tenants in common), TEN ENT (= tenants by the entirety), JT
TEN (= joint tenants with rights of survivorship and not as tenants in common),
CUST (= custodian) and U/G/M/A (= Uniform Gift to Minors Act).
14. GOVERNING LAW
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK, EXCEPT THAT THE AUTHORIZATION AND EXECUTION BY THE
COMPANY OF THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF ENGLAND AND WALES WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAWS OR
CHOICE OF LAWS PROVISIONS OF THE LAWS OF THE STATE OF NEW YORK OR ANY OTHER
JURISDICTION.
15. CURRENCY OF ACCOUNT; CONVERSION OF CURRENCY.
The U.S. dollar is the sole currency of account and payment for all sums
payable by the Company under or in connection with the Notes or the Indenture,
including damages. The Company will indemnify the Holders as provided in respect
of the conversion of currency relating to the Notes and the Indenture.
16. AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITIES.
The Company has agreed that any suit, action or proceeding against the
Company brought by any Holder or the Trustee arising out of or based upon the
Indenture or the Notes may be instituted in any state or federal court in the
Borough of Manhattan, the City of New York, New York. The Company has
irrevocably submitted to the non-exclusive jurisdiction of such courts for such
purpose and waived, to the fullest extent permitted by law, trial by jury and
any objection it may now or hereafter have to the laying of venue of any such
proceeding, and any claim it may now or hereafter have that any proceeding in
any such court is brought in an inconvenient forum. The Company has appointed
Xxxxxxx Inc., with an office at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000
as its authorized agent upon whom all writs, process and summonses may be served
in any suit, action or proceeding arising out of or based upon the Indenture or
the Notes which may be instituted in any
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state or federal court in the Borough of Manhattan, the City of New York. To the
extent that the Company has or hereafter may acquire any immunity (sovereign or
otherwise) from any legal action, suit or proceeding, from jurisdiction of any
court or from set-off or any legal process (whether service or notice,
attachment in aid or otherwise) with respect to itself or any of its property,
the Company has irrevocably waived and agreed not to plead or claim such
immunity in respect of its obligations under the Indenture or the Notes.
17. DEFINED TERMS.
Capitalized terms used but not defined herein shall have the respective
meanings ascribed to them in the Indenture.
The Company will furnish to any Holder upon written request and without
charge to the Holder a copy of the Indenture which has in it the text of this
Note. Requests may be made to: Xxxxxxx PLC, Group Treasurer, 0 Xxxxxxxxxx
Xxxxxxx, Xxxxxx X0X 0XX.
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
----------------------------------------------------
(Print or type assignee's name, address and zip code)
------------------------------------------------------
(Insert assignee's Social Security or Tax I.D. Number)
and irrevocably appoint as agent to transfer this Note on the books of the
Company. The agent may substitute another to act for him.
Date: Your Signature:
------------------------- -------------------------
Signature Guarantee:
-----------------------------------------
(Signature must be guaranteed)
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Note.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
Rule 17Ad-15 under the Securities Exchange Act of 1934.
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[TO BE ATTACHED TO GLOBAL REGISTERED NOTES ONLY:
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Registered Note have
been made:
Date of Amount of decrease in Amount of increase in Principal Amount of Signature of
Exchange Principal Amount of Principal Amount of this Global Registered authorized signatory
this Global Note this Global Registered Note following such of Trustee or Paying
Note decrease or increase Agent
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EXHIBIT B
FORM OF TRANSFER CERTIFICATE FOR TRANSFER TO QIB
[Date]
The Bank of New York
One Canada Xxxxxx
00xx Xxxxx
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
Attention: Xxxxxx Xxxxxxxx
RE: 7% NOTES DUE 2011 (THE "NOTES") OF XXXXXXX PLC (THE "COMPANY")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of June 21, 2001 (as
amended and supplemented from time to time, the "INDENTURE"), between the
Company and The Bank of New York, as Trustee. Capitalized terms used but not
defined herein shall have the meanings given them in the Indenture.
This letter relates to U.S.$[*] aggregate principal amount of Notes [IN
THE CASE OF A TRANSFER OF AN INTEREST IN A REGULATION S GLOBAL NOTE TO A QIB
DURING THE DISTRIBUTION COMPLIANCE PERIOD] which represents an interest in a
Regulation S Global Note beneficially owned by the undersigned (the
"TRANSFEROR") to effect the transfer of such Notes in exchange for an equivalent
beneficial interest in the Rule 144A Global Note.
In connection with such request, and with respect to such Notes, the
Transferor does hereby certify that such Notes are being transferred in
accordance with Rule 144A under the Securities Act of 1933, as amended ("RULE
144A"), to a transferee that the Transferor reasonably believes is purchasing
the Notes for its own account or an account with respect to which the transferee
exercises sole investment discretion, and the transferee, as well as any such
account, is a "QUALIFIED INSTITUTIONAL BUYER" within the meaning of Rule 144A,
in a transaction meeting the requirements of Rule 144A and in accordance with
applicable securities laws of any state of the United States or any other
jurisdiction.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:
----------------------------
-------------------------------
Authorized Signature
55
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S
[Date]
The Bank of New York
One Canada Xxxxxx
00xx Xxxxx
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
Attention: Xxxxxx Xxxxxxxx
RE: 7% NOTES DUE 2011 (THE "NOTES") OF XXXXXXX PLC (THE "COMPANY")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of June 21, 2001 (as
amended and supplemented from time to time, the "INDENTURE"), between the
Company and The Bank of New York, as Trustee. Capitalized terms used but not
defined herein shall have the meanings given them in the Indenture.
In connection with our sale of U.S.$[*] aggregate principal amount of the
Notes [IN THE CASE OF A TRANSFER OF AN INTEREST IN A 144A GLOBAL NOTE TO A
NON-US PERSON IN ACCORDANCE WITH REGULATION S], which represent an interest in a
144A Global Note beneficially owned by the undersigned ("TRANSFEROR"), we
confirm that such sale has been effected pursuant to and in accordance with
Regulation S under the Securities Act of 1933, as amended (the "SECURITIES
ACT"), and, accordingly, we represent that:
(a) the offer of the Notes was not made to a person in the United States;
(b) either (i) at the time the buy order was originated, the transferee
was outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States or (ii)
the transaction was executed in, on or through the facilities of, a designated
off-shore securities market and neither we nor any person acting on our behalf
knows that the transaction has been pre-arranged with a buyer in the United
States;
(c) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S,
as applicable;
(d) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(e) we are the beneficial owner of the principal amount of Notes being
transferred.
In addition, if the sale is made during the Distribution Compliance Period
and the provisions of Rule 904(b)(1) or Rule 904(b)(2) of Regulation S are
applicable thereto, we confirm that such sale has been made in accordance with
the applicable provisions of Rule 904(b)(1) or Rule 904(b)(2), as the case may
be.
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You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this letter have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
----------------------------
-------------------------------
Authorized Signature
57
EXHIBIT D
FORM OF RULE 144 CERTIFICATION
[Date]
The Bank of New York
One Canada Xxxxxx
00xx Xxxxx
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
Attention: Xxxxxx Xxxxxxxx
Re: 7% NOTES DUE 2011 (THE "NOTES") OF XXXXXXX PLC (THE "COMPANY")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of June 21, 2001 (as
amended and supplemented from time to time, the "INDENTURE"), between the
Company and The Bank of New York,, as Trustee. Capitalized terms used but not
defined herein shall have the meanings given them in the Indenture.
In connection with our sale of U.S.$[*] aggregate principal amount of the
Notes [IN THE CASE OF A TRANSFER OF AN INTEREST IN A 144A GLOBAL NOTE] which
represents an interest in a 144A Global Note beneficially owned by the
undersigned ("TRANSFEROR"), we confirm that such sale has been effected pursuant
to and in accordance with Rule 144 under the Securities Act.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:
----------------------------
-------------------------------
Authorized Signature
58
