SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16 OF
THE SECURITIES EXCHANGE ACT OF 1934
For the month of, December 2003
Commission File Number 00110691
Diageo plc
8 Henrietta Place, London W1G 0NB, England
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F:
| Form 20-F þ | Form 40-F o |
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1):
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7):
Indicate by check mark whether the registrant by furnishing the information contained in this Form is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934.
| Yes o | No þ |
If “Yes” is marked, indicate below the file number assigned to the registrant in connection with Rule 12g3-2(b): 82-
THIS REPORT ON FORM 6-K SHALL BE DEEMED TO BE INCORPORATED BY REFERENCE IN THE REGISTRATION STATEMENT ON FORM F-3 (FILE NO. 333-110804) OF DIAGEO PLC, DIAGEO INVESTMENT CORPORATION, DIAGEO CAPITAL PLC AND DIAGEO FINANCE B.V. AND TO BE A PART THEREOF FROM THE DATE ON WHICH THIS REPORT IS FILED, TO THE EXTENT NOT SUPERSEDED BY DOCUMENTS OR REPORTS SUBSEQUENTLY FILED OR FURNISHED.
| SIGNATURES | ||||||||
| Exhibit 1 | ||||||||
| Exhibit 2 | ||||||||
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunder duly authorized.
| Diageo plc | ||||
| Date: | December 9, 2003 | By: | /s/ John Nicholls | |
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| Name: John Nicholls | ||||
| Title: Deputy Secretary | ||||
The attached materials are being furnished to the Securities and Exchange Commission (the “Commission”) pursuant to Rule 13a-16 and Form 6-K under the Securities Exchange Act of 1934, as amended:
| 1. | Indenture, among Diageo Finance B.V., Diageo plc and Citibank, N.A., dated as of December 8, 2003 |
| 2. | Amended and Restated Distribution Agreement, dated as of December 8, 2003, among Diageo Capital plc, Diageo Finance B.V., Diageo Investment Corporation and Diageo plc, on the one hand, and Morgan Stanley & Co. Incorporated, Goldman, Sachs & Co., Lehman Brothers Inc., Merrill, Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities Inc. and Citigroup Global Markets Inc. |
DIAGEO FINANCE B.V.,
Issuer
DIAGEO PLC,
Guarantor
TO
CITIBANK, N.A.,
Trustee
INDENTURE
Dated as of December 8, 2003
Guaranteed Debt Securities
Diageo Finance B.V.
Diageo plc
Certain Sections of this Indenture relating to Sections 310 through 318, inclusive, of the Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
--------------- ---------
Section 310(a)(1) ........................................................................ 609
(a)(2) ........................................................................ 609
(a)(3) ........................................................................ Not Applicable
(a)(4) ........................................................................ Not Applicable
(b) ........................................................................ 608
610
Section 311(a) ........................................................................ 613
(b) ........................................................................ 613
Section 312(a) ........................................................................ 701
702
(b) ........................................................................ 702
(c) ........................................................................ 702
Section 313(a) ........................................................................ 703
(b) ........................................................................ 703
(c) ........................................................................ 703
(d) ........................................................................ 703
Section 314(a) ........................................................................ 704
(a)(4) ........................................................................ 101
1004
(b) ........................................................................ Not Applicable
(c)(1) ........................................................................ 102
(c)(2) ........................................................................ 102
(c)(3) ........................................................................ Not Applicable
(d) ........................................................................ Not Applicable
(e) ........................................................................ 102
Section 315(a) ........................................................................ 601
(b) ........................................................................ 602
(c) ........................................................................ 601
(d) ........................................................................ 601
(e) ........................................................................ 514
Section 316(a) ........................................................................ 101
(a)(1)(A) ........................................................................ 502
512
(a)(1)(B) ........................................................................ 513
(a)(2) ........................................................................ Not Applicable
508
(c) ........................................................................ 104
Section 317(a)(1) ........................................................................ 503
(a)(2) ........................................................................ 1003
Section 318(a) ........................................................................ 107
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TABLE OF CONTENTS
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RECITALS..................................................................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.................................................................................2
Act.........................................................................................2
Affiliate...................................................................................2
Agent Member................................................................................2
Authenticating Agent........................................................................2
Authorized Newspaper........................................................................2
Bearer Security.............................................................................3
Board of Directors..........................................................................3
Board Resolution............................................................................3
Book-Entry Depositary.......................................................................3
Book-Entry Interests........................................................................3
Business Day................................................................................3
Certification Date..........................................................................3
Clearstream.................................................................................3
Commission..................................................................................3
Common Depositary...........................................................................3
Corporate Trust Office......................................................................3
Corporation.................................................................................4
Coupon......................................................................................4
Defaulted Interest..........................................................................4
Depositary..................................................................................4
DTC.........................................................................................4
DTC Agreement...............................................................................4
Encumbrance.................................................................................4
Euroclear Operator..........................................................................4
Event of Default............................................................................4
Exchange Act................................................................................4
Exchange Date...............................................................................4
Expiration Date.............................................................................4
Fungible Bearer Securities..................................................................4
Global Registered Security..................................................................4
Global Security.............................................................................4
Guarantees..................................................................................4
Guarantor...................................................................................4
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Holder......................................................................................4
Indenture...................................................................................4
Interest....................................................................................5
Interest Payment Date.......................................................................5
Investment Company Act......................................................................5
Issuer......................................................................................5
Maturity....................................................................................5
Non-Fungible Bearer Securities..............................................................5
Notice of Default...........................................................................5
Officers' Certificate.......................................................................5
Opinion of Counsel..........................................................................5
Order.......................................................................................5
Original Issue Discount Security............................................................5
Outstanding.................................................................................5
Paying Agent................................................................................6
Permanent Global Bearer Security............................................................6
Person......................................................................................6
Place of Payment............................................................................6
Predecessor Security........................................................................7
Principal Property..........................................................................7
Redemption Date.............................................................................7
Redemption Price............................................................................7
Registered Security.........................................................................7
Regular Record Date.........................................................................7
Responsible Officer.........................................................................7
Restricted Subsidiary.......................................................................7
Securities..................................................................................7
Securities Act..............................................................................8
Security Register and Security Registrar....................................................8
Special Record Date.........................................................................8
Stated Maturity.............................................................................8
Subsidiary..................................................................................8
Temporary Global Bearer Security............................................................8
Trustee.....................................................................................8
Trust Indenture Act.........................................................................8
United States...............................................................................8
U.S. Government Obligations.................................................................8
Vice President..............................................................................9
Section 102. Compliance Certificates and Opinions........................................................9
Section 103. Form of Documents Delivered to Trustee......................................................9
Section 104. Acts of Holders of Securities; Record Dates................................................10
Section 105. Notices, Etc., to Trustee, Issuer and Guarantor............................................12
Section 106. Notice to Holders of Securities; Waiver....................................................12
Section 107. Language of Notices, Etc...................................................................13
Section 108. Conflict with Trust Indenture Act..........................................................13
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Section 109. Effect of Headings and Table of Contents...................................................14
Section 110. Successors and Assigns.....................................................................14
Section 111. Separability Clause........................................................................14
Section 112. Benefits of Indenture......................................................................14
Section 113. Governing Law..............................................................................14
Section 114. Saturdays, Sundays and Legal Holidays......................................................14
Section 115. Appointment of Agent for Service...........................................................14
ARTICLE TWO
SECURITY AND GUARANTEE FORMS
Section 201. Forms Generally............................................................................16
Section 202. Form of Global Security....................................................................17
Section 203. Form of Reverse of Global Security.........................................................19
Section 204. Form of Registered Security................................................................25
Section 205. Form of Reverse of Registered Security.....................................................26
Section 206. Form of Bearer Security....................................................................32
Section 207. Form of Reverse of Bearer Security.........................................................34
Section 208. Form of Coupon.............................................................................40
Section 209. Form of Legend for Global Registered Securities............................................42
Section 210. Form of Trustee's Certificate of Authentication............................................42
Section 211. Guarantee by Guarantor; Form of Guarantee..................................................42
ARTICLE THREE
THE SECURITIES AND GUARANTEES
Section 301. Amount Unlimited; Issuable in Series.......................................................46
Section 302. Denominations..............................................................................49
Section 303. Execution, Authentication, Delivery and Dating.............................................49
Section 304. Temporary Securities.......................................................................51
Section 305. Registration, Registration of Transfer and Exchange........................................52
Section 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons...............................57
Section 307. Payment of Interest; Interest Rights Preserved.............................................58
Section 308. Persons Deemed Owners......................................................................59
Section 309. Cancellation...............................................................................59
Section 310. Computation of Interest....................................................................60
Section 311. CUSIP Numbers..............................................................................60
Section 312. Forms of Certification.....................................................................60
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture....................................................64
Section 402. Application of Trust Money.................................................................65
Section 403. Defeasance and Discharge of Securities of any Series.......................................65
ARTICLE FIVE
REMEDIES
Section 501. Events of Default..........................................................................67
Section 502. Acceleration of Maturity; Rescission and Annulment.........................................68
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee............................69
Section 504. Trustee May File Proofs of Claim...........................................................69
Section 505. Trustee May Enforce Claims Without Possession of Securities................................70
Section 506. Application of Money Collected.............................................................70
Section 507. Limitation on Suits........................................................................70
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest and to Convert....................................................................71
Section 509. Restoration of Rights and Remedies.........................................................71
Section 510. Rights and Remedies Cumulative.............................................................71
Section 511. Delay or Omission Not Waiver...............................................................72
Section 512. Control by Holders of Securities...........................................................72
Section 513. Waiver of Past Defaults....................................................................72
Section 514. Undertaking for Costs......................................................................73
Section 515. Waiver of Stay or Extension Laws...........................................................73
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities........................................................74
Section 602. Notice of Defaults.........................................................................74
Section 603. Certain Rights of Trustee..................................................................74
Section 604. Not Responsible for Recitals or Issuance of Securities.....................................75
Section 605. May Hold Securities........................................................................75
Section 606. Money Held in Trust........................................................................75
Section 607. Compensation and Reimbursement.............................................................76
Section 608. Conflicting Interests......................................................................76
Section 609. Corporate Trustee Required; Eligibility....................................................76
Section 610. Resignation and Removal; Appointment of Successor..........................................76
Section 611. Acceptance of Appointment by Successor.....................................................78
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Section 612. Merger, Conversion, Consolidation or Succession to Business................................79
Section 613. Preferential Collection of Claims Against Issuer or Guarantor..............................79
Section 614. Appointment of Authenticating Agent........................................................79
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE, ISSUER AND THE GUARANTOR
Section 701. Issuer and Guarantor to Furnish Trustee Names and Addresses of Holders.....................81
Section 702. Preservation of Information; Communications to Holders.....................................81
Section 703. Reports by Trustee.........................................................................81
Section 704. Reports by Issuer and Guarantor............................................................82
Section 705. Calculation of Original Issue Discount.....................................................82
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Issuer or Guarantor May Consolidate, Etc., Only on Certain Terms...........................83
Section 802. Successor Substituted......................................................................84
Section 803. Assumption by Guarantor or Subsidiary of Issuer's Obligations..............................84
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.........................................87
Section 902. Supplemental Indentures with Consent of Holders............................................88
Section 903. Execution of Supplemental Indentures.......................................................89
Section 904. Effect of Supplemental Indentures..........................................................89
Section 905. Conformity with Trust Indenture Act........................................................89
Section 906. Reference in Securities to Supplemental Indentures.........................................89
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.................................................91
Section 1002. Maintenance of Office or Agency............................................................91
Section 1003. Money for Securities Payments to Be Held in Trust..........................................92
Section 1004. Additional Amounts.........................................................................93
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Section 1005. Statement by Members of Board of Directors or Officers as to Default.......................94
Section 1006. Existence..................................................................................95
Section 1007. Maintenance of Properties..................................................................95
Section 1008. Payment of Taxes and Other Claims..........................................................95
Section 1009. Limitation on Liens........................................................................95
Section 1010. Limitation on Sales and Leasebacks.........................................................97
Section 1011. Waiver of Certain Covenants................................................................98
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article...................................................................99
Section 1102. Election to Redeem; Notice to Trustee......................................................99
Section 1103. Selection by Trustee of Securities to Be Redeemed..........................................99
Section 1104. Notice of Redemption......................................................................100
Section 1105. Deposit of Redemption Price...............................................................100
Section 1106. Securities Payable on Redemption Date.....................................................100
Section 1107. Securities Redeemed in Part...............................................................101
Section 1108. Optional Redemption Due to Changes in Tax Treatment.......................................101
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article..................................................................103
Section 1202. Satisfaction of Sinking Fund Payments with Securities.....................................103
Section 1203. Redemption of Securities for Sinking Fund.................................................103
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1301. Purposes for Which Meetings May Be Called.................................................103
Section 1302. Call, Notice and Place of Meetings........................................................104
Section 1303. Persons Entitled to Vote at Meetings......................................................104
Section 1304. Quorum; Action............................................................................104
Section 1305. Determination of Voting Rights; Conduct and Adjournment of Meetings.......................105
Section 1306. Counting Votes and Recording Action of Meetings...........................................105
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INDENTURE, dated as of December 8, 2003, among DIAGEO FINANCE B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under Dutch law having its corporate seat in Amsterdam, The Netherlands (the "Issuer"), having its principal offices at Molenwerf 10-12, 1014 BG Amsterdam, The Netherlands, DIAGEO PLC, a public limited company incorporated under the laws of England and Wales (the "Guarantor"), having its principal office at 8 Henrietta Place, London W1M 9AG, England, and CITIBANK, N.A., a national banking association duly organized and existing under the laws of the United States of America, as Trustee hereunder (herein called the "Trustee").
RECITALS
The Issuer has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness (herein called the "Securities"), to be issued in one or more series as in this Indenture provided.
The Guarantor has duly authorized the execution and delivery of this Indenture to provide for the Guarantees by it with respect to the Securities as set forth in this Indenture.
All things necessary to make this Indenture a valid agreement of the Issuer and the Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term "generally accepted accounting principles" with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United Kingdom at the date of such computation and as applied by the Guarantor; and
(4) Unless the context otherwise requires, any reference to an "Article" or a "Section" refers to an Article or a Section, as the case may be, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Agent Member" means a member of, or participant in, DTC.
"Authenticating Agent" means any Person authorized by the Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or in an official language of the country of publication, customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in the place in connection with which the term is used or in the financial community of such place. Where successive publications are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security issued in the form set forth in
Section 204 or established pursuant to Section 201 which is payable to bearer.
"Board of Directors", when used with reference to the Issuer, means its management board, or when used with reference to the Guarantor, the board of directors, or any committee of such board of the Issuer or the Guarantor, as the case may be, duly authorized to act for such board hereunder.
"Board Resolution", when used with reference to the Issuer, means a copy of a resolution certified by any two members of the Board of Directors or, when used with reference to the Guarantor, means a copy of a resolution certified by any member of the Board of Directors or the Secretary or the Assistant Secretary, or, in each case, any person duly appointed by the Board of Directors to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and in each case delivered to the Trustee.
"Book-Entry Depositary" means, with respect to Securities issuable or issued in whole or in part in the form of one or more Global Securities, the Person, if any, appointed as agent by the Issuer for the sole purposes of maintaining records in which it shall record the ownership, transfer and increases or decreases in the principal amount of certificateless depositary interests in registered form ("Book-Entry Interests") representing a 100% interest in a Global Security (or a successor Book-Entry Depositary), and if at any time there is more than one such Person, "Book-Entry Depositary" as used with respect to the Securities shall mean the respective Book-Entry Depositary with respect to particular Securities.
"Book-Entry Interests" has the meaning specified in "Book-Entry Depositary" above.
"Business Day", when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment are authorized or obligated by law or executive order to close.
"Certification Date" shall mean with respect to Securities of any series
(i) if Bearer Securities of such series are not to be initially represented by a
Temporary Global Bearer Security, the date of delivery of the definitive Bearer
Security and (ii) if Bearer Securities of such series are initially represented
by a Temporary Global Bearer Security, the earlier of (A) the Exchange Date with
respect to Securities of such Series and (B) if the first Interest Payment Date
with respect to Securities of such series is prior to such Exchange Date, such
Interest Payment Date.
"Clearstream" means Clearstream Banking, Societe Anonyme.
"Commission" means the United States Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 304.
"Corporate Trust Office" means the principal office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located at 111 Wall Street, 14th Floor, New York, New York 10043, Attention: Corporate Agency and Trust Department, or such other address as the Trustee may designate from time to time by notice to the Holders, the Company and the Guarantor, or the principal corporate trust office of any successor Trustee (or such other address as a successor Trustee may designate from time to time by notice to the Holders, the Company and the Guarantor).
"Corporation" means a corporation, association, company, joint-stock company or business trust.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to Securities of any series issuable or issued in whole or in part in the form of one or more Global Registered Securities, a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities as contemplated by Section 301.
"DTC" means The Depository Trust Company or its nominee.
"DTC Agreement" has the meaning specified in Section 305(a).
"Encumbrance" means any mortgage, pledge, security interest or lien.
"Euroclear Operator" means Morgan Guaranty Trust Company of New York (Brussels office) as operator of the Euroclear system.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the United States Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.
"Exchange Date" has the meaning specified in Section 304.
"Expiration Date" has the meaning specified in Section 104.
"Fungible Bearer Securities" has the meaning specified in Section 305(a).
"Global Registered Security" means a Registered Security that evidences
all or part of the Securities of any series and bears the legend set forth in
Section 206 (or such legend as may be specified as contemplated by Section 301
for such Securities).
"Global Security" means a Security evidencing all or part of the Securities of any series substantially in the form set forth in Section 202 hereof.
"Guarantees" means any Guarantees of the Guarantor endorsed on Securities authenticated and delivered pursuant to this Indenture and shall include the form of Guarantee set forth in Section 208.
"Guarantor" means the Person named as the "Guarantor" in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Guarantor" shall mean such successor Person.
"Holder" means (i) in the case of a Registered Security, a Person in whose name a Security is registered in the Security Register, (ii) in the case of a Global Security, the bearer thereof, (iii) in the case of a Bearer Security, the bearer thereof, and (iv) in the case of a coupon, the bearer thereof.
"Indenture" means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this instrument,
and any such supplemental indenture, the provisions of the Trust Indenture Act
that are deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively. The term "Indenture" shall also include
the terms of particular series of Securities established as contemplated by
Section 301.
"Interest", when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means the Stated Maturity of an instalment of interest on such Security.
"Investment Company Act" means the United States Investment Company Act of 1940 and any statute successor thereto, in each case as amended from time to time.
"Issuer" means the Person named as "Issuer" in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Issuer" shall mean such successor Person. Issuer shall also mean any new issuer of Securities under this Indenture as contemplated by Section 901(1).
"Maturity", when used with respect to any Security, means the date on which the principal of such Security or an instalment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
"Non-Fungible Bearer Securities" has the meaning specified in Section 305(a).
"Notice of Default" means a written notice of the kind specified in
Section 501(4).
"Officers' Certificate" means a certificate delivered to the Trustee signed by any director or the Secretary or any person duly appointed in a Board Resolution of the Guarantor or, in the case of the Issuer, signed by any two members of the Board of Directors or by any other person duly authorized to sign Officers' Certificates by any two members of the Board of Directors. An officer signing an Officers' Certificate given pursuant to Section 1005 shall be the principal executive, financial or accounting officer of the Guarantor, or in the case of the Issuer, the executive, financial or accounting officer so designated by the Board of Directors.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel for the Issuer or the Guarantor, or other counsel acceptable to the Trustee.
"Order" means a written request or order signed, in the case of the Issuer, in the name of the Issuer by any two members of the Board of Directors or any person duly appointed by a Board Resolution of the Issuer or, in the case of the Guarantor, in the name of the Guarantor by any director or the Secretary or any person duly appointed by the Board of Directors of the Guarantor, as the case may be, in each case delivered to the Trustee.
"Original Issue Discount Security" means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Issuer) in trust or set aside and segregated in trust by the Issuer (if the Issuer shall act as its own Paying Agent) for the Holders of such Securities and any coupons appertaining thereto; provided that, if such Securities 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;
(iii) Securities as to which Defeasance has been effected pursuant to
Section 403; and
(iv) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Issuer;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 502, (ii) the principal amount of a Security
denominated in one or more foreign currencies or currency units shall be the
U.S. dollar equivalent, determined in the manner provided as contemplated by
Section 301 on the date of original issuance of such Security, of the principal
amount (or, in the case of an Original Issue Discount Security, the U.S. dollar
equivalent on the date of original issuance of such Security of the amount
determined as provided in (i) above) of such Security, (iii) if the principal
amount payable at Stated Maturity of any Security is not determinable upon
original issuance, the principal amount of such Security that shall be deemed to
be Outstanding shall be the amount as specified or determined as contemplated by
Section 301, and (iv) Securities owned by the Issuer, the Guarantor or any other
obligor upon the Securities or any Affiliate of the Issuer, the Guarantor 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
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities 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 Securities and that the pledgee
is not the Issuer, the Guarantor or any other obligor upon the Securities or any
Affiliate of the Issuer, the Guarantor or of such other obligor.
"Paying Agent" means any Person authorized by the Issuer to pay the principal of or any premium or interest on any Securities on its behalf.
"Permanent Global Bearer Security" has the meaning specified in Section 304.
"Person" means any individual, corporation, partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof.
"Place of Payment" , when used with respect to the Securities of any series, means the place or places where the principal of and any premium and interest on the Securities of that series are payable as specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a mutilated, destroyed, lost or stolen coupon appertains shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security or the Security to which the mutilated, destroyed, lost or stolen coupon appertains, as the case may be.
"Principal Property" means any building, structure or other facility, together with the land upon which it is erected and fixtures comprising a part thereof, located in the United States or the United Kingdom, owned or leased by the Guarantor or any Restricted Subsidiary, the gross book value (without deduction of any depreciation reserves) of which on the date as of which the determination is being made exceeds 2% of consolidated shareholders' equity of the Guarantor, other than (i) any such building, structure or other facility or portion thereof which, in the opinion of the Board of Directors of the Guarantor, is not of material importance to the total business conducted by the Guarantor and its Subsidiaries as an entirety or (ii) any portion of any such property which, in the opinion of the Board of Directors of the Guarantor, is not of material importance to the use or operation of such property.
"Redemption Date", when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
"Registered Security", means any Security issued in the form set forth in Section 203 or established pursuant to Section 201 which is registered in the Security Register. A Global Registered Security is a Registered Security.
"Regular Record Date" for the interest payable on any Interest Payment Date on the Registered Securities of any series means the date specified for that purpose as contemplated by Section 301.
"Responsible Officer" shall mean, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant secretary, assistance treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust 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.
"Restricted Subsidiary" means any Subsidiary (i) substantially all of the physical properties of which are located, or substantially all the operations of which are conducted, within the United States or the United Kingdom and (ii) which owns a Principal Property; provided, however, that the term "Restricted Subsidiary" shall not include any Subsidiary which is principally engaged in leasing or in financing instalment receivables or which is principally engaged in financing the operations of the Guarantor and its consolidated Subsidiaries.
"Securities" has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
"Securities Act" means the United States Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on the Registered Securities of any series means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" , when used with respect to any Security or any instalment of principal thereof or interest thereon, means the date specified in such Security or a coupon representing such instalment of interest as the fixed date on which the principal of such Security or such instalment of principal or interest is due and payable.
"Subsidiary" means a corporation in respect of which more than 50% of the outstanding voting stock or equity interest having by the terms thereof ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether at the time stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned or controlled by the Guarantor or by one or more of its Subsidiaries, or by the Guarantor and one or more Subsidiaries.
"Temporary Global Bearer Security" has the meaning specified in Section 304.
"Trustee" means the Person named as the "Trustee" in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, "Trustee" as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the United States Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed (except as provided in Section 905); provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"United States" means the United States of America (including the States and the District of Columbia) and its possessions (including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands).
"U.S. Government Obligations" means securities which are (i) direct obligations of the United States for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of interest on or principal of the U.S. Government Obligation evidenced by such depository receipt.
"Vice President" , when used with respect to the Issuer or the Guarantor, means any vice president, whether or not designated by a number or a word or words added before or after the title "vice president".
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Issuer or the Guarantor to the Trustee to take any action under any provision of this Indenture, the Issuer or Guarantor shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall be given in the form of an Officers' Certificate, if to be given by any two members of the Board of Directors of the Issuer or an officer of the Guarantor, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(2) 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;
(3) a statement that, in the opinion of each 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
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 103. 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 any two members of the Board of Directors of the Issuer or an officer of the Guarantor may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such representatives know, 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 any two members of the Board of Directors of the Issuer or an officer of the Guarantor stating that the information with respect to such factual matters is in the possession of the Issuer or the Guarantor, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or 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 104. Acts of Holders of Securities; 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 of Securities 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. If Securities of a series are issuable as Bearer Securities, any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of Securities of such series may, alternatively, be embodied in and evidenced by the record of Holders of Securities of such series voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders of Securities of such series duly called and held in accordance with the provisions of Article Thirteen or a combination of such instruments and any such record. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Issuer and the Guarantor. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders of Securities signing such instrument or instruments and so voting at such meeting. Proof of execution of any such instrument or of a writing appointing any such agent or proxy, or of the holding by any person of a Security shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of the Trustee and the Issuer and the Guarantor, if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in Section 1306.
(b) The fact and date of the execution by any Person of any instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The Issuer and the Guarantor may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series 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 Securities of such series, provided that the Issuer and the Guarantor 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 Securities of the relevant series on such record date, or their duly designated proxies, 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, or duly designated proxies, of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Issuer or the Guarantor 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 of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders, or their duly designated proxies, of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Issuer and the Guarantor, at their 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 Securities of the relevant series in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, or their duly designated proxies,
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, or their duly
designated proxies, of the requisite principal amount of Outstanding Securities
of such series 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 of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders, or their duly designated
proxies, of the requisite principal amount of Outstanding Securities of the
relevant series 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 Issuer and
the Guarantor, shall cause notice of such record date, the proposed action by
Holders and the applicable Expiration Date to be given to the Issuer and the
Guarantor in writing and to each Holder of Securities of the relevant series in
the manner set forth in Section 106.
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 party or parties hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 106, 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 Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents or proxies each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.
(d) The principal amount and serial numbers of Registered Securities held by any Person, and the date of holding the same, shall be proved by the Security Register. The principal amount and serial numbers of Global Securities and Bearer Securities held by any Person, and the date of holding the same, may be proved by the production of such Global Securities or Bearer Securities or by a certificate executed, as depositary, by any trust company, bank, banker or other depositary, wherever situated, if such certificate shall be deemed by the Trustee to be satisfactory, showing that at the date therein mentioned such Person had on deposit with such depositary, or exhibited to it, the Global Securities or Bearer Securities therein described; or such facts may be proved by the certificate or
affidavit of the person holding such Global Securities or Bearer Securities, if such certificate or affidavit is deemed by the Trustee to be satisfactory. The Trustee, the Issuer and the Guarantor may assume that such ownership of any Global Security or Bearer Security continues until (1) another certificate or affidavit bearing a later date issued in respect of the same Global Security or Bearer Security is produced, or (2) such Global Security or Bearer Security is produced to the Trustee by some other Person, or (3) such Global Security or Bearer Security is surrendered in exchange for a Registered Security, or (4) such Global Security or Bearer Security is no longer Outstanding. The principal amount and serial numbers of Global Securities or Bearer Securities held by any Person, and the date of holding the same, may also be proved in any other manner which the Trustee deems sufficient.
(e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, the Issuer or the Guarantor in reliance thereon, whether or not notation of such action is made upon such Security.
(f) The provisions of this Section 104 are subject to the provisions of
Section 1305.
Section 105. Notices, Etc., to Trustee, Issuer and Guarantor.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders of Securities or other document provided for or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder of Securities or by the Issuer or the Guarantor shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing (or sent by facsimile and confirmed in writing) to or with the Trustee at its Corporate Trust Office, Attention: Corporate Agency and Trust, or
(2) the Issuer or the Guarantor by the Trustee or by any Holder of Securities shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed (or sent by facsimile and confirmed in writing), in the case of the Issuer, international air mail postage prepaid and addressed to its principal office specified in the first paragraph of this instrument to the attention of its Secretary, or at any other address previously furnished in writing to the Trustee by the Issuer and, in the case of the Guarantor, international air mail postage prepaid and addressed to its principal office specified in the first paragraph of this instrument to the attention of its Secretary, or at any other address previously furnished in writing to the Trustee by the Guarantor.
Section 106. Notice to Holders of Securities; Waiver.
Unless otherwise herein expressly provided, where this Indenture provides for notice to Holders of any event,
(1) such notice shall be sufficiently given to Holders of Registered Securities if in writing and mailed, first-class postage prepaid, to each Holder of a Registered Security affected by such event, at his address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice;
(2) such notice shall be sufficiently given to Holders of Bearer Securities if published in an Authorized Newspaper in London, England and in such other city or cities as may
be specified in such Securities on a Business Day at least twice, the first such publication to be not earlier than the earliest date, and not later than the latest date, prescribed for the giving of such notice; and
(3) such notice shall be sufficiently given to Holders of Global Securities if in writing and mailed, first-class postage prepaid, to each Holder of a Global Security affected by such event, at the address provided to the Trustee by the Holder thereof, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice to Holders of Registered Securities by mail, then such notification as shall be given with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder. In any case where notice to Holders of Registered Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Registered Security shall affect the sufficiency of such notice with respect to other Holders of Registered Securities or the sufficiency of any notice to Holders of Global Securities or Holders of Bearer Securities given as provided herein.
In case by reason of the suspension of publication of any Authorized Newspaper or Authorized Newspapers or by reason of any other cause it shall be impracticable to publish any notice to Holders of Bearer Securities as provided above, then such notification to Holders of Bearer Securities as shall be given with the approval of the Trustee shall constitute sufficient notice to such Holders for every purpose hereunder. Neither the failure to give notice by publication to Holders of Bearer Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of any notice to Holders of Registered Securities or Holders of Global Securities given as provided herein
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice to Holders of Global Securities by mail, then such notification as shall be given with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder. In any case where notice to Holders of Global Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Global Security shall affect the sufficiency of such notice with respect to other Holders of Global Securities or the sufficiency of any notice to Holders of Registered Securities or Holders of Bearer Securities given as provided herein.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Section 107. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act to be a part of and govern this Indenture, the latter provision
shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Issuer or the Guarantor shall bind their respective successors and assigns, whether so expressed or not.
Section 111. Separability Clause.
In case any provision in this Indenture or in the Securities, coupons or the Guarantees 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 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities, coupons or the Guarantees, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders of Securities and coupons, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 113. Governing Law.
This Indenture and the Securities, coupons and the Guarantees shall be governed by and construed in accordance with the laws of the State of New York.
Section 114. Saturdays, Sundays and Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security or the last day on which Holders have the right to convert their Securities shall not be a Business Day at any Place of Payment or conversion, then (notwithstanding any other provision of this Indenture or of the Securities or coupons (other than a provision of any Security which specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if any) or conversion need not be made at such Place of Payment or conversion on such date, but may be made on the next succeeding Business Day at such Place of Payment or conversion with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity or on such last day for conversion.
Section 115. Appointment of Agent for Service.
By the execution and delivery of this Indenture, each of the Issuer and the Guarantor hereby appoints Diageo North America, Inc. as its agent upon which process may be served in any legal action or proceeding which may be instituted in any Federal or State court in the Borough of Manhattan, the City of New York, arising out of or relating to the Securities, the coupons, the Guarantees or this Indenture, but for that purpose only. Service of process upon such agent at the office of Diageo North
America, Inc. at Six Landmark Square, Stamford, Connecticut, 06901-2704, and written notice of said service to the Issuer or the Guarantor by the Person servicing the same addressed as provided by Section 105, shall be deemed in every respect effective service of process upon the Issuer or the Guarantor, respectively, in any such legal action or proceeding, and each of the Issuer and the Guarantor hereby submits to the nonexclusive jurisdiction of any such court in which any such legal action or proceeding is so instituted. Such appointment shall be irrevocable so long as the Holders of Securities or coupons shall have any rights pursuant to the terms thereof or of this Indenture until the appointment of a successor by the Issuer or the Guarantor with the consent of the Trustee and such successor's acceptance of such appointment. Each of the Issuer and the Guarantor further agrees to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of such agent or successor.
ARTICLE TWO
SECURITY AND GUARANTEE FORMS
Section 201. Forms Generally.
The Securities of each series shall be in substantially the form set forth in this Article, or in such other form as shall be established by or pursuant to a Board Resolution of the Issuer or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the members of the Board of Directors executing such Securities, as evidenced by their execution thereof. If Temporary Global Bearer Securities or Permanent Global Bearer Securities are issued as permitted by Section 304, the form thereof shall be established as provided in the preceding sentence. If the forms of Securities or coupons of any series (or any such Temporary Global Bearer Security or Permanent Global Bearer Security) are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by any two members of the Board of Directors of the Issuer delivered to the Trustee at or prior to the delivery of the Order contemplated by Section 303 for the authentication and delivery of such Securities.
The Guarantees by the Guarantor to be endorsed on the Securities of each series shall be in substantially the form set forth in Section 208, or in such other form as shall be established by or pursuant to a Board Resolution of the Guarantor, or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the directors or officers delivering such Guarantees, all as evidenced by such delivery.
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the members of the Board of Directors executing such Securities, as evidenced by their execution of such Securities.
Section 202. Form of Global Security.
[Form of Face of Global Security]
[Insert any legend required by the Internal Revenue Code and the regulations thereunder.]
DIAGEO FINANCE B.V.
[Title of Security]
Payment of Principal[, Premium, if any,]
and Interest Fully and Unconditionally Guaranteed by
DIAGEO PLC
No.______________ CUSIP NO. ______________
DIAGEO FINANCE B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under Dutch law and having its corporate seat in Amsterdam, The Netherlands (herein called the "Issuer", which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to bearer upon presentation and surrender of this Security the principal sum of______________________ on ________________________________________ [if the Security is to bear interest prior to Maturity, insert --, and to pay interest thereon from _____________, 20___ or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually in arrears on ____________ and ____________ in each year] [annually in arrears on ______________ in each year], commencing ___________, 20___, at the rate of ____% per annum, until the principal hereof is paid or made available for payment [if applicable, insert --, provided that any principal and premium, and any such instalment of interest, which is overdue shall bear interest at the rate of __% per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand].] [If the Security is not to bear interest prior to Maturity, insert -- The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity, and in such case the overdue principal and any overdue premium shall bear interest at the rate of ____% per annum (to the extent that the payment of such interest shall be legally enforceable), from the date such amounts are due until they are paid or made available for payment. Interest on any overdue principal shall be payable on demand. Any such interest on any overdue principal or premium which is not so paid on demand shall bear interest at the rate of ____% per annum (to the extent that the payment of such interest on interest shall be legally enforceable), from the date of such demand until the amount so demanded is paid or made available for payment. Interest on overdue interest shall be payable on demand.] [The Trustee shall act as Paying Agent with respect to the Securities of this series.]
[The Issuer, the Guarantor, the Trustee and any agent of the Issuer, the Guarantor or the Trustee may treat the bearer hereof as the owner of this Security for all purposes, whether or not this Security shall be overdue, and none of the Issuer, the Guarantor, the Trustee nor any such agent shall be affected by notice to the contrary.]
[Title to this Security shall pass by delivery.]
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
[All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.]
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof, directly or through an Authenticating Agent, by manual signature of an authorized signatory, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed manually or in facsimile.
Dated:
DIAGEO FINANCE B.V.
Title:
Title:
[SEAL]
Attested:
Section 203. Form of Reverse of Global Security
This Security is one of a duly authorized issue of securities of the Issuer (herein called the "Securities"), issued and to be issued in one or more series under an Indenture, dated as of December 8, 2003 herein called the "Indenture" which term shall have the meaning assigned to it in such instrument), among the Issuer, Diageo plc, a public limited company incorporated under the laws of England and Wales (herein called the "Guarantor", which term includes any successor Person under the Indenture referred to herein), and Citibank, N.A., as Trustee (herein called the "Trustee", which term includes any other successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Issuer, the Guarantor, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [, limited in aggregate principal amount to U.S.$___________].
[If applicable, insert -- The Securities of this series are subject to redemption [if applicable, insert -- (1) on ___________ in any year commencing with the year ______ and ending with the year ______ through operation of the sinking fund for this series at a Redemption Price equal to [insert formula for determining amount] (with the amount in excess of 100% of the principal amount being additional interest), and (2)] at any time [if applicable, insert -- on or after __________, 20____], as a whole or in part, at the election of the Issuer, at the following Redemption Prices (expressed as percentages of the principal amount): If redeemed [if applicable, insert -- on or before _______________, __%, and if redeemed] during the 12-month period beginning _____________ of the years indicated,
Redemption Redemption
Year Price Year Price
---- ----- ---- -----
|
and thereafter at a Redemption Price equal to _____% of the principal amount, together in the case of any such redemption [if applicable, insert -- (whether through operation of the sinking fund or otherwise)] with accrued interest to the Redemption Date, but interest instalments whose Stated Maturity is on or prior to such Redemption Date will be payable only upon presentation and surrender of this Security (at an office or agency located outside the United States, except as herein provided otherwise).]
[If applicable, insert -- The Securities of this series are subject to redemption (1) on ____________ in any year commencing with the year ____ and ending with the year ____, through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [if applicable, insert -- on or after ____________, 20___], as a whole or in part, at the election of the Issuer, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount, with the amount in excess of 100% of the principal amount being additional interest) set forth in the table below: If redeemed during the 12-month period beginning ______________ of the years indicated,
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ----------------- ----------------------
|
and thereafter at a Redemption Price equal to _____% of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest instalments whose Stated Maturity is on or prior to such Redemption Date will be payable only upon presentation and surrender of this Security (at an office or agency located outside the United States, except as herein provided otherwise).]
[If applicable, insert -- Notwithstanding the foregoing, the Issuer may not, prior to _____________, redeem any Securities of this series as contemplated by [If applicable, insert -- Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any refunding operation by the application, directly or indirectly, of moneys borrowed having an interest cost to the Issuer (calculated in accordance with generally accepted financial practice) of less than _____% per annum.]
[If applicable, insert -- The sinking fund for this series provides for
the redemption on ____________ in each year beginning with the year ______ and
ending with the year ______ of [if applicable, insert -- not less than
U.S.$__________ ("mandatory sinking fund") and not more than] U.S.$_________
aggregate principal amount of Securities of this series. Securities of this
series acquired or redeemed by the Issuer otherwise than through [if applicable,
insert -- mandatory] sinking fund payments may be credited against subsequent
[if applicable, insert -- mandatory] sinking fund payments otherwise required to
be made [if applicable, insert -- in the inverse order in which they become
due].]
[If applicable, insert -- The Securities may be redeemed at the option of the Issuer or the Guarantor, in whole but not in part, upon not less than 30 nor more than 60 days' notice given as provided in the Indenture, at any time at a Redemption Price equal to the principal amount thereof plus accrued interest to the date fixed for redemption if (a) as a result of any change in or amendment to the laws or any regulations or rulings promulgated thereunder of the jurisdiction (or of any political subdivision or taxing authority thereof or therein) in which the Issuer or the Guarantor is incorporated (or, in the case of a successor Person to the Issuer or the Guarantor, of the jurisdiction in which such successor Person is organized or any political subdivision or taxing authority thereof or therein) or any change in the official application or interpretation of such laws, regulations or rulings, or any change in the official application or interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which such jurisdiction or such political subdivision or taxing authority (or such other jurisdiction or political
subdivision or taxing authority) is a party, which change, execution or amendment becomes effective on or after __________ (or, in the case of a successor Person to the Issuer or the Guarantor, the date on which such successor Person became such pursuant to the applicable provisions of the Indenture) or (b) a result of any delivery or of any requirement to deliver definitive Registered Securities (having used all reasonable efforts to avoid having to issue such definitive Registered Securities) (i) the Issuer or the Guarantor (or such successor Person) is or would be required to pay additional amounts with respect to the Securities or the Guarantees, respectively, on the next succeeding Interest Payment Date as set forth below or in the Guarantee endorsed hereon or (ii) the Guarantor or any Subsidiary of the Guarantor is or would be required to deduct or withhold tax on any payment to the Issuer to enable the Issuer to make any payment of principal or interest in respect of the Securities and, in each case, the payment of such additional amounts in the case of (i) above or such deduction or withholding in the case of (ii) above cannot be avoided by the use of any reasonable measures available to the Issuer, the Guarantor or the Subsidiary.]
[If applicable, insert -- The Securities may also be redeemed in whole but not in part upon not less than 30 nor more than 60 days' notice given as provided in the Indenture at any time at a Redemption Price equal to the principal amount thereof plus accrued interest to the date fixed for redemption if the Person formed by a consolidation of the Issuer or the Guarantor or into which the Issuer or the Guarantor is merged or to which the Issuer or the Guarantor conveys, transfers or leases its properties and assets substantially as an entirety is required to pay a Holder additional amounts in respect of any tax, assessment or governmental charge imposed on any such Holder or required to be withheld or deducted from any payment to such Holder as a consequence of such consolidation, merger, conveyance, transfer or lease.]
[If applicable, insert -- The Redemption Price of the Securities shall be equal to the applicable percentage of the principal amount at Stated Maturity set forth below:
If Redemption During the Redemption 12-Month Period Commencing Price -------------------------- ---------- |
together with, in each case (except if the Redemption Date shall be a _____________), an amount equal to the applicable Redemption Price multiplied by a fraction the numerator of which is the number of days from but not including the preceding ________________ to and including the Redemption Date multiplied by the difference between the Redemption Price applicable during the 12 months beginning on the _________________ following the Redemption Date (or, in the case of a Redemption Date after ________________, 100%) and the Redemption Price applicable on the Redemption Date and the denominator of which is the total number of days from but not including the _________________ preceding the Redemption Date to and including the next succeeding _____________. The Issuer will also pay to each eligible Holder, or make available for payment to each such Holder, on the Redemption Date any additional interest (as set forth [on the face hereof or] in the Guarantee endorsed hereon) resulting from the payment of such Redemption Price.]
[If applicable, insert -- The Redemption Price of the Securities either in the event of certain changes in the tax treatment or in an event of default would include, in addition to the face amount of the Security, an amount equal to the Original Issue Discount accrued since the issue date. Original Issue Discount (the difference between the Issue Price and the Principal Amount at Maturity of the Security), in the period during which a Security remains outstanding, shall accrue at ___% per annum, on a semi-annual bond equivalent basis using a 360-day year composed of twelve 30-day months, commencing on the Issue Date of this Security.]
[If applicable, insert -- Notice of redemption will be given by mail to Holders of Securities, not less than 30 nor more than 60 days prior to the date fixed for redemption, all as provided in the Indenture.]
[If applicable, insert -- If the Security is subject to redemption of any kind, insert -- In the event of redemption of this Security in part only, a new Security of this series and of like tenor for the unredeemed portion hereof will be issued to the bearer hereof upon the cancellation hereof.]
[If applicable, insert -- The Indenture contains provisions for defeasance at any time of the entire indebtedness on this Security upon compliance by the Issuer or the Guarantor with certain conditions set forth thereon, which provisions apply to this Security.]
[If applicable, insert -- Subject to and upon compliance with the
provisions of the Indenture, the Holder of this Security is entitled, at his
option, at any time after _________________, to convert this Security into
[Describe Securities and conversion mechanics].]
[If applicable, insert -- In the event of conversion of this Security in part only, a new Security or Securities of this series and of like tenor for the unconverted portion hereof will be issued to the Bearer hereof upon the cancellation hereof.]
[If the Security is not an Original Issue Discount Security, insert -- If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to -- insert formula for determining the amount. Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Issuer's obligations in respect of the payment of the principal of and interest, if any, on the Securities of this series shall terminate.]
[If not applicable, delete -- If any deduction or withholding for any present or future taxes, assessments or other governmental charges of the jurisdiction (or any political subdivision or taxing authority thereof or therein) in which the Issuer is incorporated shall at any time be required by such jurisdiction (or any such political subdivision or taxing authority) in respect of any amounts to be paid by the Issuer under the Securities, the Issuer will pay to the Holder of this Security such additional amounts as may be necessary in order that the net amounts paid to such Holder of such Security who, with respect to any such tax, assessment or other governmental charge, is not resident in such jurisdiction, after such deduction or withholding, shall be not less than the amounts specified in such Security to which such Holder is entitled; provided, however, that the Issuer shall not be required to make any payment of additional amounts (i) for or on account of any such tax, assessment or governmental charge imposed by the United States or any political subdivision or taxing authority thereof or therein or (ii) for or on account of:
(1) any tax, assessment or other governmental charge which would not have been imposed but for (i) the existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation) and the taxing jurisdiction or any political subdivision or territory or possession thereof or area subject to its
jurisdiction, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or being or having been present or engaged in trade or business therein or having or having had a permanent establishment therein or (ii) the presentation of a Security (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(2) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(3) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payments of (or in respect of) principal of, or any interest on, the Securities;
(4) any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure to comply by the Holder or the beneficial owner of this Security with a request of the Issuer addressed to the Holder (i) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (ii) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (i) or (ii), is required or imposed by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge; or
(5) any combination of items (1), (2), (3) and (4) above;
nor shall additional amounts be paid (i) with respect to any payment in respect of any Security to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of the jurisdiction (or any political subdivision or taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such additional amounts had it been the Holder of such Security or (ii) in the event that the obligation to pay additional amounts is the result of the issuance of definitive Registered Securities to a Holder of a Predecessor Security at such Holder's request upon the occurrence of an Event of Default and at the time payment is made definitive Registered Securities have not been issued in exchange for the entire principal amount of the Predecessor Securities. The foregoing provisions shall apply mutatis mutandis to any withholding or deduction for or on account of any present or future taxes, assessments or governmental charges of whatever nature of any jurisdiction is which any successor Person to the Issuer is organized, or any political subdivision or taxing authority thereof or therein.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the Guarantor and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Issuer, the Guarantor and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series to waive compliance by the Issuer or the Guarantor with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As set forth in, and subject to, the provisions of the Indenture, no Holder of any Security of this series will have any right to institute any proceeding with respect to the Indenture, the Guarantee endorsed hereon, this Security or for any remedy thereunder, unless such Holder shall have previously given to the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Outstanding Securities of this series shall have made written request, and offered reasonable indemnity, to the Trustee to institute such proceeding as trustee, and the Trustee shall not have received from the Holders of a majority in principal of the Outstanding Securities of this series a direction inconsistent with such request and shall have failed to institute such proceeding within 60 days; provided, however, that such limitations do not apply to a suit instituted by the Holder hereof for the enforcement of payment of the principal [(and premium, if any)] or [any] interest on this Security on or after the respective due dates expressed herein [If applicable, insert -- or to a suit instituted by the Holder hereof for the enforcement of the right to convert this Security in accordance with the Indenture].
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed or to convert this Security as provided in the Indenture.
[No service charge shall be made for any such registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.]
The Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount of this Security shall be $ . The following decreases/increases in the principal amount of this Security have been made:
Date of Total Principal Amount Notation Made by Decrease/ Decrease in Increase in Following such or on Behalf of Increase Principal Amount Principal Amount Decrease/Increase Trustee ---------- ---------------- ---------------- ---------------------- ---------------- ---------- ---------------- ---------------- ---------------------- ---------------- ---------- ---------------- ---------------- ---------------------- ---------------- ---------- ---------------- ---------------- ---------------------- ---------------- ---------- ---------------- ---------------- ---------------------- ---------------- |
Section 204. Form of Registered Security.
[Form of Face of Registered Security]
[Insert any legend required by the Internal Revenue Code and the regulations thereunder.]
DIAGEO FINANCE B.V.
[Title of Security]
Payment of Principal[, Premium, if any,]
and Interest Fully and Unconditionally Guaranteed by
DIAGEO PLC
No.______________ CUSIP NO. ______________
DIAGEO FINANCE B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under Dutch law and having its corporate seat in Amsterdam, The Netherlands (herein called the "Issuer", which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to _______________________________________________, or registered assigns, the principal sum of ____________________ on _______________________________________________________ [if the Security is to bear interest prior to Maturity, insert --, and to pay interest thereon from _____________, 20___ or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually in arrears on ____________ and ____________ in each year] [annually in arrears on ______________ in each year], commencing ___________, 20___, at the rate of ____% per annum, until the principal hereof is paid or made available for payment [if applicable, insert --, provided that any principal and premium, and any such instalment of interest, which is overdue shall bear interest at the rate of __% per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand.] The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the _______ [or _______] (whether or not a Business Day)[, as the case may be,] next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity, and in such case the overdue principal and any overdue premium shall bear interest at the rate of ____% per annum (to the extent that the payment of such interest shall be legally enforceable), from the date such amounts are due until they are paid or made available for payment. Interest on any overdue principal shall be payable on demand. Any such interest on any overdue principal or premium which is not so paid on demand shall bear interest at the rate of ____% per annum (to the extent that the payment of such interest on interest shall be legally enforceable), from the date of such demand until the amount so demanded is paid or made available for payment. Interest on overdue interest shall be payable on demand.]
Payment of the principal of [(and premium, if any)] and [if applicable, insert -- any such] interest on this Security will be made at the office or agency of the Issuer maintained for that purpose in ____________, in [such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts] [If Security is denominated and payable in United States dollars insert currency and method of payment] [if applicable, insert -- ; provided, however, that at the option of the Issuer payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
[All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.]
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof, directly or through an Authenticating Agent, by manual signature of an authorized signatory, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed manually or in facsimile.
Dated:
DIAGEO FINANCE B.V.
Title:
Title:
Section 205. Form of Reverse of Registered Security
This Security is one of a duly authorized issue of securities of the Issuer (herein called the "Securities"), issued and to be issued in one or more series under an Indenture, dated as of December 8, 2003
(herein called the "Indenture" which term shall have the meaning assigned to it in such instrument), among the Issuer, Diageo plc, a public limited company incorporated under the laws of England and Wales (herein called the "Guarantor", which term includes any successor Person under the Indenture referred to herein), and Citibank, N.A., as Trustee (herein called the "Trustee", which term includes any other successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Issuer, the Guarantor, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [, limited in aggregate principal amount to U.S.$___________].
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
(1) on ___________ in any year commencing with the year ______ and ending with
the year ______ through operation of the sinking fund for this series at a
Redemption Price equal to [insert formula for determining amount] (with the
amount in excess of 100% of the principal amount being additional interest), and
(2)] at any time [if applicable, insert -- on or after __________, 20____], as a
whole or in part, at the election of the Issuer, at the following Redemption
Prices (expressed as percentages of the principal amount): If redeemed [if
applicable, insert -- on or before _______________, __%, and if redeemed] during
the 12-month period beginning _____________ of the years indicated,
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
|
and thereafter at a Redemption Price equal to _____% of the principal amount, together in the case of any such redemption [if applicable, insert -- (whether through operation of the sinking fund or otherwise)] with accrued interest to the Redemption Date, but interest instalments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- The Securities of this series are subject to redemption upon not less than 30 days' notice by mail, (1) on ____________ in any year commencing with the year ____ and ending with the year ____, through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [if applicable, insert -- on or after ____________, 20___], as a whole or in part, at the election of the Issuer, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount, with the amount in excess of 100% of the principal amount being additional interest) set forth in the table below: If redeemed during the 12-month period beginning ______________ of the years indicated,
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ----------------- ----------------------
|
and thereafter at a Redemption Price equal to _____% of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest instalments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Issuer may not, prior to _____________, redeem any Securities of this series as contemplated by [If applicable, insert -- Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any refunding operation by the application, directly or indirectly, of moneys borrowed having an interest cost to the Issuer (calculated in accordance with generally accepted financial practice) of less than _____% per annum.]
[If applicable, insert -- The sinking fund for this series provides for
the redemption on ____________ in each year beginning with the year ______ and
ending with the year ______ of [if applicable, insert -- not less than
U.S.$__________ ("mandatory sinking fund") and not more than U.S.$_________]
aggregate principal amount of Securities of this series. Securities of this
series acquired or redeemed by the Issuer otherwise than through [if applicable,
insert -- mandatory] sinking fund payments may be credited against subsequent
[if applicable, insert -- mandatory] sinking fund payments otherwise required to
be made [if applicable, insert -- in the inverse order in which they become
due].]
[If applicable, insert -- The Securities may be redeemed at the option of the Issuer or the Guarantor, in whole but not in part, upon not less than 30 nor more than 60 days' notice given as provided in the Indenture, at any time at a Redemption Price equal to the principal amount thereof plus accrued interest to the date fixed for redemption if (a) as a result of any change in or amendment to the laws or any regulations or rulings promulgated thereunder of the jurisdiction (or of any political subdivision or taxing authority thereof or therein) in which the Issuer or the Guarantor is incorporated (or in the case of a successor Person to the Issuer or the Guarantor, of the jurisdiction in which such successor Person is organized or any political subdivision or taxing authority thereof or therein) or any change in the official application or interpretation of such laws, regulations or rulings, or any change in the official application or interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which such jurisdiction or such political subdivision or taxing authority (or such other jurisdiction or political subdivision or taxing authority) is a party, which change, execution or amendment becomes effective on or after ____________ (or, in the case of a successor Person to the Issuer or the Guarantor, the date on which such successor Person became such pursuant to the applicable provision of the Indenture) or (b) as a result of any delivery or of any requirement to deliver definitive Registered Securities (having used all reasonable efforts to avoid having to issue such definitive Registered Securities), (i) the Issuer or the Guarantor (or such successor Person) is or would be required to pay additional amounts with respect to the Securities or the Guarantees, respectively, on the next succeeding Interest Payment Date as set forth below or in the Guarantee endorsed hereon or (ii) the Guarantor or any Subsidiary of the Guarantor is or would be required to deduct or withhold tax on any payment to the Issuer to enable the Issuer to make any payment of principal or interest in respect of the Securities and, in each case, the payment of such additional amounts in the case of (i) above or such deduction or withholding in the case of (ii) above cannot be avoided by the use of any reasonable measures available to the Issuer, the Guarantor or the Subsidiary.]
[If applicable, insert -- The Securities may also be redeemed in whole but not in part upon not less than 30 nor more than 60 days' notice given as provided in the Indenture at any time at a
Redemption Price equal to the principal amount thereof plus accrued interest to the date fixed for redemption if the Person formed by a consolidation of the Issuer or the Guarantor or into which the Issuer or the Guarantor is merged or to which the Issuer or the Guarantor conveys, transfers or leases its properties and assets substantially as an entirety is required to pay a Holder additional amounts in respect of any tax, assessment or governmental charge imposed on any such Holder or required to be withheld or deducted from any payment to such Holder as a consequence of such consolidation, merger, conveyance, transfer or lease.]
[If applicable, insert -- the Redemption Price of the Securities shall be equal to the applicable percentage of the principal amount at Stated Maturity set forth below:
If Redemption During the Redemption 12-Month Period Commencing Price -------------------------- ----- |
together with, in each case (except if the Redemption Date shall be a _____________), an amount equal to the applicable Redemption Price multiplied by a fraction the numerator of which is the number of days from but not including the preceding ________________ to and including the Redemption Date multiplied by the difference between the Redemption Price applicable during the 12 months beginning on the _________________ following the Redemption Date (or, in the case of a Redemption Date after ________________, 100%) and the Redemption Price applicable on the Redemption Date and the denominator of which is the total number of days from but not including the _________________ preceding the Redemption Date to and including the next succeeding _____________. The Issuer will also pay to each eligible Holder, or make available for payment to each such Holder, on the Redemption Date any additional interest (as set forth [on the face hereof or] in the Guarantee endorsed hereon) resulting from the payment of such Redemption Price.]
[If applicable insert -- The Redemption Price of the Securities either in the event of certain changes in the tax treatment or in an event of default would include, in addition to the face amount of the Security, an amount equal to the Original Issue Discount accrued since the issue date. Original Issue Discount (the difference between the Issue Price and the Principal Amount at Maturity of the Security), in the period during which a Security remains outstanding, shall accrue at ___% per annum, on a semi-annual bond equivalent basis using a 360-day year composed of twelve 30-day months, commencing on the Issue Date of this Security.]
[If applicable insert -- Notice of redemption will be given by mail to Holders of Securities, not less than 30 nor more than 60 days prior to the date fixed for redemption, all as provided in the Indenture.]
[If the Security is subject to redemption of any kind, insert -- In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert -- The Indenture contains provisions for defeasance at any time of the entire indebtedness on this Security upon compliance by the Issuer or the Guarantor with certain conditions set forth thereon, which provisions apply to this Security.]
[If applicable, insert -- Subject to and upon compliance with the
provisions of the Indenture, the Holder of this Security is entitled, at his
option, at any time after _________________, to convert this Security into
[Describe Securities and conversion mechanics].]
[If applicable, insert -- In the event of conversion of this Security in part only, a new Security or Securities of this series and of like tenor for the unconverted portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If the Security is not an Original Issue Discount Security, insert -- If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to -- insert formula for determining the amount. Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Issuer's obligations in respect of the payment of the principal of and interest, if any, on the Securities of this series shall terminate.]
[If not applicable, delete -- If any deduction or withholding for any present or future taxes, assessments or other governmental charges of the jurisdiction (or any political subdivision or taxing authority thereof or therein) in which the Issuer is incorporated shall at any time be required by such jurisdiction (or any such political subdivision or taxing authority) in respect of any amounts to be paid by the Issuer under the Securities, the Issuer will pay to the Holder of this Security, such additional amounts as may be necessary in order that the net amounts paid to such Holder of such Security who, with respect to any such tax, assessment or other governmental charge, is not resident in such jurisdiction, after such deduction or withholding, shall be not less than the amounts specified in such Security to which such Holder is entitled; provided, however, that the Issuer shall not be required to make any payment of additional amounts (i) for or on account of any such tax, assessment or governmental charge imposed by the United States or any political subdivision or taxing authority thereof or therein or (ii) for or on account of:
(1) any tax, assessment or other governmental charge which would not have been imposed but for (i) the existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation) and the taxing jurisdiction or any political subdivision or territory or possession thereof or area subject to its jurisdiction, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or being or having been present or engaged in trade or business therein or having or having had a permanent establishment therein or (ii) the presentation of a Security (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(2) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(3) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payments of (or in respect of) principal of, or any interest on, the Securities;
(4) any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure to comply by the Holder or the beneficial owner of this Security with a
request of the Issuer addressed to the Holder (i) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (ii) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (i) or (ii), is required or imposed by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge; or
(5) any combination of items (1), (2), (3) and (4) above;
nor shall additional amounts be paid (i) with respect to any payment in respect of any Security to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of the jurisdiction (or any political subdivision or taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such additional amounts had it been the Holder of such Security or (ii) in the event that the obligation to pay additional amounts is the result of the issuance of definitive Registered Securities to a Holder of a Predecessor Security at such Holder's request upon the occurrence of an Event of Default and at the time payment is made definitive Registered Securities have not been issued in exchange for the entire principal amount of the Predecessor Securities. The foregoing provisions shall apply mutatis mutandis to any withholding or deduction for or on account of any present or future taxes, assessments or governmental charges of whatever nature of any jurisdiction in which any successor Person to the Issuer is organized, or any political subdivision or taxing authority thereof or therein.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the Guarantor and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Issuer, the Guarantor and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Issuer or the Guarantor with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As set forth in, and subject to, the provisions of the Indenture, no Holder of any Security of this series will have any right to institute any proceeding with respect to the Indenture, the Guarantee endorsed hereon, this Security or for any remedy thereunder, unless such Holder shall have previously given to the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Outstanding Securities of this series shall have made written request, and offered reasonable indemnity, to the Trustee to institute such proceeding as trustee, and the Trustee shall not have received from the Holders of a majority in principal of the Outstanding Securities of this series a direction inconsistent with such request and shall have failed to institute such proceeding within 60 days; provided, however, that such limitations do not apply to a suit instituted by the Holder hereof for the enforcement of payment of the principal [(and premium, if any)] or [any] interest on this Security on or after the respective due dates expressed herein [If applicable insert -- or to a suit instituted by the Holder hereof for the enforcement of the right to convert this Security in accordance with the Indenture]
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed or to convert this Security as provided in the Indenture.
[Insert if only Registered Securities may be issued -- The Securities of this series are issuable only in registered form without coupons in denominations of ________ and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Issuer in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.]
[Insert if Securities of the series may be in registered or bearer form -- Title to Bearer Securities and coupons shall pass by delivery. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of Registered Securities is registrable in the Security Register, upon surrender of a Registered Security for registration of transfer at the office or agency of the Issuer in any place where the principal of and any premium and interest on a Registered Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Security Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing, and thereupon one or more new Registered Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.]
No service charge shall be made for any such registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Issuer, the Guarantor, the Trustee and any agent of the Issuer, the Guarantor or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and none of the Issuers, the Guarantor, the Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Section 206. Form of Bearer Security.
[Form of Face of Bearer Security]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE
LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
[Insert any other legend required by the Internal Revenue Code and the regulations thereunder.]
DIAGEO FINANCE B.V.
[Title of Security]
Payment of Principal[, Premium, if any,]
and Interest Fully and Unconditionally Guaranteed by
DIAGEO PLC
No. ____________
DIAGEO FINANCE B.V., a private company with limited liability (besloten
vennootschap met beperkte aansprakelijkheid) incorporated under Dutch law and
having its corporate seat in Amsterdam, The Netherlands (herein called the
"Issuer", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to bearer
upon presentation and surrender of this Security the principal sum
of______________________ on ________________________________________ [if the
Security is to bear interest prior to Maturity, insert --, and to pay interest
thereon from _____________, 20___ or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, semi-annually in arrears
on ____________ and ____________ in each year] [annually in arrears on
______________ in each year], commencing ___________, 20___, at the rate of
____% per annum, until the principal hereof is paid or made available for
payment [if applicable, insert --, provided that any principal and premium, and
any such instalment of interest, which is overdue shall bear interest at the
rate of __% per annum (to the extent that the payment of such interest shall be
legally enforceable), from the dates such amounts are due until they are paid or
made available for payment, and such interest shall be payable on demand].] [If
the Security is not to bear interest prior to Maturity, insert -- The principal
of this Security shall not bear interest except in the case of a default in
payment of principal upon acceleration, upon redemption or at Stated Maturity,
and in such case the overdue principal and any overdue premium shall bear
interest at the rate of ____% per annum (to the extent that the payment of such
interest shall be legally enforceable), from the date such amounts are due until
they are paid or made available for payment. Interest on any overdue principal
shall be payable on demand. Any such interest on any overdue principal or
premium which is not so paid on demand shall bear interest at the rate of ____%
per annum (to the extent that the payment of such interest on interest shall be
legally enforceable), from the date of such demand until the amount so demanded
is paid or made available for payment. Interest on overdue interest shall be
payable on demand.] Such payments [(including premium, if any)] shall be made,
subject to any laws or regulations applicable thereto and to the right of the
Issuer (limited as provided in the Indenture) to rescind the designation of any
such Paying Agent, at the [main] offices of _______, in ______, in ______,
______ in _______, ______ in ________ and _______ in _______, or at such other
offices or agencies outside the United States (as defined below) as the Issuer
may designate, at the option of the Holder, by United States dollar check drawn
on a bank in The City of New York or by transfer of United States dollars to an
account maintained by the payee with a bank located outside the United States]
[If Security is denominated and payable other than in United States dollars
insert currency and method of payment]. [If Security is to bear interest prior
to maturity] Interest in this Security due on or before Maturity shall be
payable only upon presentation and surrender at such an office or agency of the
interest coupons hereto attached as they severally mature.] No payment of
principal of [, premium, if any] or interest on, this Security shall be made at
any office or agency of the Issuer in the United States or by check mailed to
any address in the United States or by transfer to an account maintained with a
bank located in the United States [If Security is denominated and payable in
United States dollars, insert --; provided, however, that
payment of principal of [(and premium, if any)] and [if applicable, insert -- any such] interest on this Security shall be made at the office of the Issuer's Paying Agent in the Borough of Manhattan, The City of New York, if (but only if) payment in United States dollars of the full amount of such principal, [premium, if any,] or interest as the case may be, at all offices or agencies outside the United States maintained for the purpose by the Issuer in accordance with the Indenture is illegal or effectively precluded by exchange controls or other similar restrictions on the full repayment or receipt of such amounts in United States dollars, as determined by the Issuer .]
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
[All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.]
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof, directly or through an Authenticating Agent, by manual signature of an authorized signatory, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed manually or in facsimile.
Dated:
DIAGEO FINANCE B.V.
Title:
Title:
Section 207. Form of Reverse of Bearer Security
This Security is one of a duly authorized issue of securities of the
Issuer (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of December 8, 2003 herein called the
"Indenture" which term shall have the meaning assigned to it in such
instrument), among the Issuer, Diageo plc, a public limited company incorporated
under the laws of England and Wales (herein called the "Guarantor", which term
includes any successor Person under the Indenture referred to herein), and
Citibank, N.A., as Trustee (herein called the "Trustee", which term includes any
other successor trustee under the Indenture), and reference is hereby made to
the Indenture for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Issuer, the Guarantor, the Trustee and
the Holders of the Securities and of the terms upon which the Securities are,
and are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [, limited in aggregate principal amount to
U.S.$___________]. The Securities of this series are issuable as Bearer
Securities, with interest coupons attached, in the denomination of U.S. $ ______
[, and as Registered Securities, without coupons, in denominations of U.S. $
________ and any integral multiple thereof]. [As
provided in the Indenture and subject to certain limitations therein set forth, Bearer Securities and Registered Securities of this series are exchangeable for a like aggregate principal amount of Registered Securities of this series and of like tenor of any authorized denominations, as requested by the Holder surrendering the same, upon surrender of the Security or Securities to be exchanged, with all unmatured coupons and all matured coupons in default thereto appertaining, at any office or agency described below where Registered Securities of this series may be presented for registration of transfer; provided, however, that Bearer Securities surrendered in exchange for Registered Securities between a Record Date and the relevant Interest Payment Date shall be surrendered without the coupon relating to such Interest Payment Date. Bearer Securities may not be issued in exchange for Registered Securities.]
[If applicable, insert -- The Securities of this series are subject to redemption [if applicable, insert -- (1) on ___________ in any year commencing with the year ______ and ending with the year ______ through operation of the sinking fund for this series at a Redemption Price equal to [insert formula for determining amount] (with the amount in excess of 100% of the principal amount being additional interest), and (2)] at any time [if applicable, insert -- on or after __________, 20____], as a whole or in part, at the election of the Issuer, at the following Redemption Prices (expressed as percentages of the principal amount): If redeemed [if applicable, insert -- on or before _______________, __%, and if redeemed] during the 12-month period beginning _____________ of the years indicated,
Redemption Redemption
Year Price Year Price
---- ----- ---- -----
|
and thereafter at a Redemption Price equal to _____% of the principal amount, together in the case of any such redemption [if applicable, insert -- (whether through operation of the sinking fund or otherwise)] with accrued interest to the Redemption Date, but interest instalments whose Stated Maturity is on or prior to such Redemption Date will be payable only upon presentation and surrender of coupons for such interest (at an office or agency located outside the United States, except as herein provided otherwise).]
[If applicable, insert -- The Securities of this series are subject to redemption (1) on ____________ in any year commencing with the year ____ and ending with the year ____, through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [if applicable, insert -- on or after ____________, 20___], as a whole or in part, at the election of the Issuer, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount, with the amount in excess of 100% of the principal amount being additional interest) set forth in the table below: If redeemed during the 12-month period beginning ______________ of the years indicated,
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ------------ -------------------
|
and thereafter at a Redemption Price equal to _____% of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest instalments whose Stated Maturity is on or prior to such Redemption Date will be payable only upon presentation and surrender of coupons for such interest (at an office or agency located outside the United States, except as herein provided otherwise).]
[If applicable, insert -- Notwithstanding the foregoing, the Issuer may not, prior to _____________, redeem any Securities of this series as contemplated by [If applicable, insert -- Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any refunding operation by the application, directly or indirectly, of moneys borrowed having an interest cost to the Issuer (calculated in accordance with generally accepted financial practice) of less than _____% per annum.]
[If applicable, insert -- The sinking fund for this series provides for
the redemption on ____________ in each year beginning with the year ______ and
ending with the year ______ of [if applicable, insert -- not less than
U.S.$__________ ("mandatory sinking fund") and not more than] U.S.$_________
aggregate principal amount of Securities of this series. Securities of this
series acquired or redeemed by the Issuer otherwise than through [if applicable,
insert -- mandatory] sinking fund payments may be credited against subsequent
[if applicable, insert -- mandatory] sinking fund payments otherwise required to
be made [if applicable, insert -- in the inverse order in which they become
due].]
[If applicable, insert -- The Securities may be redeemed at the option of the Issuer or the Guarantor, in whole but not in part, upon not less than 30 nor more than 60 days' notice given as provided in the Indenture, at any time at a Redemption Price equal to the principal amount thereof plus accrued interest to the date fixed for redemption if (a) as a result of any change in or amendment to the laws or any regulations or rulings promulgated thereunder of the jurisdiction (or of any political subdivision or taxing authority thereof or therein) in which the Issuer or the Guarantor is incorporated (or, in the case of a successor Person to the Issuer or the Guarantor, of the jurisdiction in which such successor Person is organized or any political subdivision or taxing authority thereof or therein) or any change in the official application or interpretation of such laws, regulations or rulings, or any change in the official application or interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which such jurisdiction or such political subdivision or taxing authority (or such other jurisdiction or political subdivision or taxing authority) is a party, which change, execution or amendment becomes effective on or after ___________ (or, in the case of a successor Person to the Issuer or the Guarantor, the date on which such successor Person became such pursuant to the applicable provisions of the Indenture) or (b) a result of any delivery or of any requirement to deliver definitive Registered Securities (having used all reasonable efforts to avoid having to issue such definitive Registered Securities) (i) the Issuer or the Guarantor (or such successor Person) is or would be required to pay additional amounts with respect to the Securities, coupons or the Guarantees on the next succeeding Interest Payment Date as set forth below or in the Guarantee endorsed hereon or (ii) the Guarantor or any Subsidiary of the Guarantor is or would be required to deduct or withhold tax on any payment to the Issuer to enable the Issuer to make any payment of principal or interest in respect of the Securities or coupons and, in each case, the payment of such additional amounts in the case of (i) above or such deduction or withholding in the case of (ii) above cannot be avoided by the use of any reasonable measures available to the Issuer, the Guarantor or the Subsidiary.]
[If applicable, insert -- The Securities may also be redeemed in whole but not in part upon not less than 30 nor more than 60 days' notice given as provided in the Indenture at any time at a Redemption Price equal to the principal amount thereof plus accrued interest to the date fixed for redemption if the Person formed by a consolidation of the Issuer or the Guarantor or into which the Issuer or the Guarantor is merged or to which the Issuer or the Guarantor conveys, transfers or leases its properties and assets substantially as an entirety is required to pay a Holder additional amounts in respect
of any tax, assessment or governmental charge imposed on any such Holder or required to be withheld or deducted from any payment to such Holder as a consequence of such consolidation, merger, conveyance, transfer or lease.]
[If applicable, insert -- The Redemption Price of the Securities shall be equal to the applicable percentage of the principal amount at Stated Maturity set forth below:
If Redemption During the Redemption 12-Month Period Commencing Price -------------------------- ----- |
together with, in each case (except if the Redemption Date shall be a _____________), an amount equal to the applicable Redemption Price multiplied by a fraction the numerator of which is the number of days from but not including the preceding ________________ to and including the Redemption Date multiplied by the difference between the Redemption Price applicable during the 12 months beginning on the _________________ following the Redemption Date (or, in the case of a Redemption Date after ________________, 100%) and the Redemption Price applicable on the Redemption Date and the denominator of which is the total number of days from but not including the _________________ preceding the Redemption Date to and including the next succeeding _____________. The Issuer will also pay to each eligible Holder, or make available for payment to each such Holder, on the Redemption Date any additional interest (as set forth [on the face hereof or] in the Guarantee endorsed hereon) resulting from the payment of such Redemption Price.]
[If applicable, insert -- The Redemption Price of the Securities either in the event of certain changes in the tax treatment or in an event of default would include, in addition to the face amount of the Security, an amount equal to the Original Issue Discount accrued since the issue date. Original Issue Discount (the difference between the Issue Price and the Principal Amount at Maturity of the Security), in the period during which a Security remains outstanding, shall accrue at ___% per annum, on a semi-annual bond equivalent basis using a 360-day year composed of twelve 30-day months, commencing on the Issue Date of this Security.]
[If applicable, insert -- Notice of redemption will be given by
publication in an Authorized Newspaper in London and, if the Securities of this
series are then listed on [The International Stock Exchange of the United
Kingdom and the Republic of Ireland] [the Luxembourg Stock Exchange] [or] any
[other] stock exchange located outside the United States and such stock exchange
shall so require, in [London][Luxembourg] [or] in any [other] required city
outside the United States or, if not practicable, elsewhere in Europe, [and by
mail to Holders of Registered Securities,] not less than 30 nor more than 60
days prior to the date fixed for redemption, all as provided in the Indenture.]
[If applicable, insert -- If the Security is subject to redemption of any kind, insert -- In the event of redemption of this Security in part only, a new Security of this series and of like tenor for the unredeemed portion hereof will be issued to the Bearer hereof upon the cancellation hereof.]
[If applicable, insert -- The Indenture contains provisions for defeasance at any time of the entire indebtedness on this Security upon compliance by the Issuer or the Guarantor with certain conditions set forth thereon, which provisions apply to this Security.]
[If applicable, insert -- Subject to and upon compliance with the
provisions of the Indenture, the Holder of this Security is entitled, at his
option, at any time after _________________, to convert this Security into
[Describe Securities and conversion mechanics].]
[If applicable, insert -- In the event of conversion of this Security in part only, a new Security or Securities of this series and of like tenor for the unconverted portion hereof will be issued to the Bearer hereof upon the cancellation hereof.]
[If the Security is not an Original Issue Discount Security, insert -- If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to -- insert formula for determining the amount. Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Issuer's obligations in respect of the payment of the principal of and interest, if any, on the Securities of this series shall terminate.]
[If not applicable, delete -- If any deduction or withholding for any present or future taxes, assessments or other governmental charges of the jurisdiction (or any political subdivision or taxing authority thereof or therein) in which the Issuer is incorporated shall at any time be required by such jurisdiction (or any such political subdivision or taxing authority) in respect of any amounts to be paid by the Issuer under the Securities or any coupons appertaining thereto, the Issuer will pay to the Holder of this Security or any coupon appertaining hereto such additional amounts as may be necessary in order that the net amounts paid to such Holder of such Security or coupon who, with respect to any such tax, assessment or other governmental charge, is not resident in such jurisdiction, after such deduction or withholding, shall be not less than the amounts specified in such Security or coupon to which such Holder is entitled; provided, however, that the Issuer shall not be required to make any payment of additional amounts (i) for or on account of any such tax, assessment or governmental charge imposed by the United States or any political subdivision or taxing authority thereof or therein or (ii) for or on account of:
(1) any tax, assessment or other governmental charge which would not have been imposed but for (i) the existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation) and the taxing jurisdiction or any political subdivision or territory or possession thereof or area subject to its jurisdiction, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or being or having been present or engaged in trade or business therein or having or having had a permanent establishment therein or (ii) the presentation of a Security or any coupon appertaining thereto (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(2) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(3) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payments of (or in respect of) principal of, or any interest on, the Securities or any coupons appertaining thereto;
(4) any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure to comply by the Holder or the beneficial owner of this Security or any coupon appertaining thereto with a request of the Issuer addressed to the Holder (i) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (ii) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (i) or (ii), is required or imposed by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge; or
(5) any combination of items (1), (2), (3) and (4) above;
nor shall additional amounts be paid (i) with respect to any payment in respect of any Security or any coupon appertaining thereto to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of the jurisdiction (or any political subdivision or taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such additional amounts had it been the Holder of such Security or coupon or (ii) in the event that the obligation to pay additional amounts is the result of the issuance of definitive Registered Securities to a Holder of a Predecessor Security at such Holder's request upon the occurrence of an Event of Default and at the time payment is made definitive Registered Securities have not been issued in exchange for the entire principal amount of the Predecessor Securities. The foregoing provisions shall apply mutatis mutandis to any withholding or deduction for or on account of any present or future taxes, assessments or governmental charges of whatever nature of any jurisdiction is which any successor Person to the Issuer is organized, or any political subdivision or taxing authority thereof or therein.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the Guarantor and the rights of the Holders of the Securities of each series to be affected and any related coupons under the Indenture at any time by the Issuer, the Guarantor and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series and any related coupons, to waive compliance by the Issuer or the Guarantor with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and any coupon appertaining thereto and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As set forth in, and subject to, the provisions of the Indenture, no Holder of any Security of this series or any related coupon will have any right to institute any proceeding with respect to the Indenture, the Guarantee endorsed hereon, this Security or for any remedy thereunder, unless such Holder shall have previously given to the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Outstanding Securities of this series shall have made written request, and offered reasonable indemnity, to the Trustee to institute such proceeding as trustee, and the Trustee shall not have received from the Holders of a majority in principal of the Outstanding Securities of this series a direction inconsistent with such request and shall have failed to institute such proceeding within 60 days; provided, however, that such limitations do not apply to a suit instituted by the Holder hereof for the enforcement of payment of the principal [(and premium, if any)] or [any] interest on this Security or payment on such coupon or any related
coupon on or after the respective due dates expressed herein or in such coupon
[If applicable, insert -- or to a suit instituted by the Holder hereof for the
enforcement of the right to convert this Security in accordance with the
Indenture].
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed or to convert this Security as provided in the Indenture.
Title to Bearer Securities and coupons shall pass by delivery. [As provided in the Indenture and subject to certain limitations therein set forth, the transfer of Registered Securities is registrable in the Security Register, upon surrender of a Registered Security for registration of transfer at the office or agency of the Issuer in any place where the principal of and any premium and interest on a Registered Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Security Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing, and thereupon one or more new Registered Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.]
[No service charge shall be made for any such registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.]
The Issuer, the Guarantor, the Trustee and any agent of the Issuer, the Guarantor or the Trustee may treat the bearer of a Bearer Security and any coupon appertaining thereto, and prior to due presentation of a Registered Security for registration of transfer the Person in whose name a Registered Security is registered, as the owner thereof for all purposes, whether or not the Security or coupon be overdue, and neither the Issuer, the Guarantor, the Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture, the Securities and any coupons appertaining thereto shall be governed by and construed in accordance with the laws of the State of New York.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Section 208. Form of Coupon
[Form of Face of Coupon]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
[Insert any other legend required by the Internal Revenue Code and the regulations thereunder.]
DIAGEO FINANCE B.V.
[Title of Security]
Payment of Principal[, Premium, if any,]
and Interest Fully and Unconditionally Guaranteed by
DIAGEO PLC [R ]*
No. ____________
Unless the Security to which this coupon appertains shall have been called for previous redemption and payment thereof duly provided for on the date set forth hereon, DIAGEO FINANCE B.V. (herein called the "Issuer") will pay to bearer, upon surrender hereof, the amount shown hereon (together with any additional amounts in respect thereof which the Issuer may be required to pay according to the terms of said Security and the Indenture referred to therein) at the Paying Agents set out on the reverse hereof or at such other offices or agencies (which, except as otherwise provided in the Security to which this coupon appertains, shall be located outside the United States of America (including the States and the District of Columbia), and its possessions (including Puerto Rico, the U.S. Virgin Islands, Guam American Samoa Wake Island and the Northern Mariana Islands) (the "United States")) as the Issuer may designate from time to time, at the option of the Holder, [by United States dollar check drawn on a bank in The City of New York or by transfer of United States dollars to an account maintained by the payee with a bank located outside the United States] [If Security is denominated and payable other than in United States dollars insert currency and method of payment], being [one year's] interest then payable on said Security.
DIAGEO FINANCE B.V.
[REVERSE OF COUPON]*
Section 209. Form of Legend for Global Registered Securities
Unless otherwise specified as contemplated by Section 301 for the Securities evidenced thereby, every Global Registered Security authenticated and delivered hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL REGISTERED SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY 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.
Section 210. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially the following form:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Dated:
CITIBANK, N.A.
As Trustee
Section 211. Guarantee by Guarantor; Form of Guarantee.
The Guarantor by its execution of this Indenture hereby agrees with each Holder of a Security or any coupon appertaining thereto (other than any direct or indirect Subsidiary of the Guarantor) of each series authenticated and delivered by the Trustee and with the Trustee on behalf of such Holder (other than any direct or indirect Subsidiary of the Guarantor), to be unconditionally bound by the terms and provisions of the Guarantee set forth below or established pursuant to Section 201 and authorizes the Issuer, in the name and on behalf of the Guarantor, to confirm such Guarantee to the Holder (other than any direct or indirect Subsidiary of the Guarantor) of each such Security or coupon by its execution and
delivery of each such Security, with such Guarantee endorsed thereon,
authenticated and delivered by the Trustee; provided, however, that if a series
of Securities and any coupons appertaining thereto are to be initially offered
and sold to a direct or indirect Subsidiary of the Guarantor, the Officers'
Certificate delivered in respect of such series pursuant to Section 301 may
state that the Securities of such series and such coupons are not entitled to
the benefit of such Guarantee and such Guarantee shall not be endorsed thereon;
provided, further, if such a Subsidiary (or another direct or indirect
Subsidiary of the Guarantor) offers for resale (other than to another direct or
indirect Subsidiary of the Guarantor) any such Security or coupon acquired
directly or indirectly from the Issuer under this Indenture, the Guarantor,
acknowledging good and valuable consideration in connection with such a resale,
by its execution of this Indenture, further agrees with each Holder of any such
Security of each series authenticated and delivered by the Trustee and with the
Trustee on behalf of each such Holder to be unconditionally bound by the terms
and provisions of the Guarantee set forth below or established pursuant to
Section 201 and will authorize the Issuer, pursuant to an additional Officers'
Certificate in the name and on behalf of the Guarantor, to confirm such
Guarantee to the Holder of each such Security or coupon at any time after its
initial execution and delivery to a direct or indirect Subsidiary of the
Guarantor. When delivered pursuant to the provisions of Section 303 hereof,
Guarantees so set forth on the Securities (either at the time of original
issuance or at the time of resale by a direct or indirect Subsidiary of the
Guarantor) shall bind the Guarantor notwithstanding the fact that the Guarantee
does not bear the signature of the Guarantor.
Guarantees to be endorsed on the Securities shall, subject to Section 201, be in substantially the form set forth below:
GUARANTEE
For value received, Diageo plc, a public limited company incorporated under the laws of England and Wales, having its registered office at 8 Henrietta Place, London W1M 9AG, England (herein called the "Guarantor", which term includes any successor Person under the Indenture referred to in the Security upon which this Guarantee is endorsed), hereby fully and unconditionally guarantees to the Holder of the Security upon which this Guarantee is endorsed and any coupon appertaining thereto and to the Trustee on behalf of each such Holder the due and punctual payment of the principal of, premium, if any, and interest on such Security and the due and punctual payment of the sinking fund or analogous payments referred to therein, if any, when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, according to the terms thereof and of the Indenture referred to therein. In case of the failure of Diageo Finance B.V. (the "Issuer", which term includes any successor Person under such Indenture), punctually to make any such payment of principal, premium, if any, or interest or any sinking fund or analogous payment, the Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, and as if such payment were made by the Issuer.
[If not applicable delete -- The Guarantor hereby further agrees, subject to the limitations and exceptions set forth below, that if any deduction or withholding for any present or future taxes, assessments or other governmental charges of the jurisdiction (or any political subdivision or taxing authority thereof or therein) in which the Guarantor is incorporated shall at any time be required by such jurisdiction (or any such political subdivision or taxing authority) in respect of any amounts to be paid by the Guarantor under this Guarantee, then the Guarantor will pay to the Holder of a Security or any coupon appertaining thereto such additional amounts as may be necessary in order that the net amounts paid to the Holder of such Security or coupon who, with respect to any such tax, assessment, or other governmental charge, is not resident in such jurisdiction, after such deduction or withholding, shall be not less than the amounts specified in such Security or coupon to which such Holder is entitled; provided, however, that the Guarantor shall not be required to make any payment of additional amounts (i) for or on
account of any such tax, assessment or governmental charge imposed by the United
States or any political subdivision or taxing authority thereof or therein or
(ii) for or on account of:
(a) any tax, assessment or other governmental charge which would not have
been imposed but for (i) the existence of any present or former connection
between such Holder (or between a fiduciary, settlor, beneficiary, member or
shareholder of, or possessor of a power over, such Holder, if such Holder is an
estate, trust, partnership or corporation) and the taxing jurisdiction or any
political subdivision or territory or possession thereof or area subject to its
jurisdiction, including, without limitation, such Holder (or such fiduciary,
settlor, beneficiary, member, shareholder or possessor) being or having been a
citizen or resident thereof or being or having been present or engaged in trade
or business therein or having or having had a permanent establishment therein or
(ii) the presentation of a Security or any coupon appertaining thereto (where
presentation is required) for payment on a date more than 30 days after the date
on which such payment became due and payable or the date on which payment
thereof is duly provided for, whichever occurs later;
(b) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(c) any tax, assessment, or other governmental charge which is payable otherwise than by withholding from payments of (or in respect of) principal of, premium, if any, or interest on, the Securities or any coupons appertaining thereto;
(d) any tax, assessment or other governmental charge that is imposed or
withheld by reason of the failure to comply by the Holder or the beneficial
owner of a Security or any coupon appertaining thereto with a request of the
Issuer or the Guarantor addressed to the Holder (i) to provide information
concerning the nationality, residence or identity of the Holder or such
beneficial owner or (ii) to make any declaration or other similar claim or
satisfy any information or reporting requirement, which, in the case of (i) or
(ii), is required or imposed by a statute, treaty, regulation or administrative
practice of the taxing jurisdiction as a precondition to exemption from all or
part of such tax, assessment or other governmental charge; or
(e) any combination of items (a), (b), (c) and (d);
nor shall additional interest be paid (i) with respect to any payment of the
principal of, premium, if any, or interest on any Security or any coupon
appertaining thereto to any Holder who is a fiduciary or partnership or other
than the sole beneficial owner of such payment to the extent such payment would
be required by the laws of the jurisdiction (or any political subdivision or
taxing authority thereof or therein) to be included in the income for tax
purposes of a beneficiary or settlor with respect to such fiduciary or a member
of such partnership or a beneficial owner who would not have been entitled to
such additional interest had it been the Holder of the Security or coupon or
(ii) in the event that the obligation to pay additional amounts is the result of
the issuance of definitive Registered Securities to a Holder of a Predecessor
Security at such Holder's request upon the occurrence of an Event of Default and
at the time payment is made definitive Registered Securities have not been
issued in exchange for the entire principal amount of the Predecessor
Securities. The foregoing provision shall apply mutatis mutandis to any
withholding or deduction for or on account of any present or future taxes,
assessments or governmental charges or whatever nature of any jurisdiction in
which any successor Person to the Guarantor is organized, or any political
subdivision or taxing authority thereof or therein.]
The Guarantor hereby agrees that its obligations hereunder shall be as if it were principal debtor and not merely surety, and shall be absolute, full and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of such Security or coupon or such
Indenture, any failure to enforce the provisions of such Security or coupon or such Indenture, or any waiver, modification or indulgence granted to the Issuer with respect thereto, by the Holder of such Security or coupon or the Trustee or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor; provided, however, that, notwithstanding the foregoing, no such waiver, modification or indulgence shall, without the consent of the Guarantor, increase the principal amount of such Security, or increase the interest rate thereon, or increase any premium payable upon redemption thereof, or alter the Stated Maturity thereof, or increase the principal amount of any Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 502 of such Indenture. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest or notice with respect to such Security or coupon or the indebtedness evidenced thereby or with respect to any sinking fund or analogous payment required under such Security or coupon and all demands whatsoever, and covenants that this Guarantee will not be discharged except by payment in full of the principal of, premium, if any, and interest on such Security.
The Guarantor shall be subrogated to all rights of the Holder of such Security or coupon and the Trustee against the Issuer in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of this Guarantee; provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon such right of subrogation until the principal of, premium, if any, and interest on all Securities of the same series and any coupons appertaining thereto issued under such Indenture shall have been paid in full.
No reference herein to such Indenture and no provision of this Guarantee or of such Indenture shall alter or impair the guarantee of the Guarantor, which is absolute and unconditional, of the due and punctual payment of the principal of, premium, if any, and interest on, and any sinking fund or analogous payments with respect to, the Security upon which this Guarantee is endorsed.
This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication of such Security shall have been manually executed by or on behalf of the Trustee under such Indenture.
All terms used in this Guarantee which are defined in such Indenture shall have the meanings assigned to them in such Indenture.
The Guarantee shall be governed by and construed in accordance with the laws of the State of New York.
Executed and dated the date on the face hereof.
DIAGEO PLC
Title:
ARTICLE THREE
THE SECURITIES AND GUARANTEES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution of the Issuer and the Guarantor, as appropriate, and, subject to Section 303, set forth, or determined in the manner provided, in an Officers' Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 304, 305, 306, 906 or 1107 and except for any Securities which, pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder);
(3) whether Securities of the series are to be issuable as Registered Securities, Global Securities, Bearer Securities or both, whether any Securities of the series are to be issuable initially as Temporary Global Bearer Securities and whether any Securities of the series are to be issuable as Permanent Global Bearer Securities with or without coupons and, if so, whether beneficial owners of interests in any such Permanent Global Bearer Security may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 305;
(4) the Person to whom any interest on a Registered Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest; the manner in which, or the Person to whom, any interest on any Global Security of the series shall be payable, if other than by wire transfer in same-day funds to the Holder; the manner in which, or the Person to whom, any interest on any Bearer Security of the series shall be payable, if otherwise than upon presentation and surrender of the coupons appertaining thereto as they severally mature, and the extent to which, or the manner in which, any interest payable on a Temporary Global Bearer Security on an Interest Payment Date will be paid if other than in the manner provided in Section 304;
(5) the date or dates on which the principal of the Securities of the series is payable;
(6) the rate or rates at which the Securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any interest payable on any Registered Securities on any Interest Payment Date;
(7) the place or places where, subject to the provisions of
Section 1002, the principal of and any premium and interest on Securities
of the series shall be payable, any Registered Securities of the series
may be surrendered for registration of transfer, Securities of the series
may be surrendered for exchange or conversion and notices and demands to
or upon the Issuer or the Guarantor in respect of the Securities of the
series and this Indenture may be served;
(8) other than with respect to any redemption of Securities pursuant to Section 1108, the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Issuer or the Guarantor (including the period following the date referred to in Section 1108) and, if other than by a Board Resolution, the manner in which any election by the Issuer to redeem the Securities shall be evidenced;
(9) other than with respect to any redemption of Securities pursuant to Section 1108, the obligation, if any, of the Issuer to redeem or purchase any Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(10) the terms and conditions for conversion or exchange of Securities into preference shares of the Guarantor (including, if applicable, the rights, preferences and privileges of such preference shares) or ordinary shares of the Guarantor, and the terms of any additional redemption rights of the Issuer relating to such terms and conditions for conversion or exchange, whether any such preference shares or ordinary shares may be evidenced by American Depositary Receipts;
(11) the terms of the guarantees by the Guarantor of conversion of the Securities of the series into securities of the Guarantor;
(12) the denominations in which any Registered Securities or Global Securities of the series shall be issuable, if other than denominations of $1,000 and any integral multiple thereof, and the denomination or denominations in which any Bearer Securities of the series shall be issuable, if other than the denomination of $5,000;
(13) the currency, currencies or currency units in which payment of the principal of and any premium and interest on any Securities of the series shall be payable if other than the currency of the United States of America and the manner of determining the equivalent thereof in the currency of the United States of America for purposes of the definition of "Outstanding" in Section 101;
(14) if the amount of principal of or any premium or interest on any Securities of the series may be determined with reference to an index, the manner in which such amounts shall be determined;
(15) if the principal of or any premium or interest on any Securities of the series is to be payable, at the election of the Issuer, the Guarantor or a Holder thereof, in one or more currencies or currency units other than that or those in which the Securities are stated to be payable, the currency, currencies or currency units in which the principal of and any premium and interest on Securities of such series as to which such election is made shall be payable, and the
periods within which and the terms and conditions upon which such election is to be made and the amount so payable (or the manner in which such amount shall be determined);
(16) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(17) the application, if any, of Section 403 to the Securities of the series;
(18) if additional amounts pursuant to Section 1004 will not be payable by the Issuer or the Guarantor;
(19) if the principal amount payable at the Stated Maturity of any Securities of the series is not determinable upon original issuance thereof, the amount which shall be deemed to be the principal amount of such Securities for any other purpose hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date (or, in any such case, the manner in which such principal amount shall be determined);
(20) if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Registered Securities and, in such case, the respective Depositaries for such Global Registered Securities, the form of any legend or legends which shall be borne by any such Global Registered Security in addition to or in lieu of that set forth in Section 206 and, if different from those set forth in Clause (2) of the last paragraph of Section 305, any circumstances in which Securities issued upon any exchange may be registered in the name or names of Persons other than the Depositary for such Global Registered Security or a nominee thereof;
(21) if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and the initial Holder with respect to such Global Security;
(22) any addition to or change in the Events of Default which applies to any Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 502;
(23) any addition to or change in the covenants set forth in Article Ten which applies to Securities of the series; and
(24) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 901(5)).
All Securities of any one series and the coupons appertaining to any Bearer Securities of such series shall be substantially identical except in the case of Registered Securities, as to denomination, and except as may otherwise be provided in or pursuant to the Board Resolution referred to above and (subject to Section 303) set forth, or determined in the manner provided, in the Officers' Certificate referred to above or in any such indenture supplemental hereto.
If any of the terms of the series or the guarantees thereof are established by action taken pursuant to a Board Resolution of the Issuer or the Guarantor, a copy of an appropriate record of such action shall be certified by any director, the Secretary or any person appointed by the Board of Directors
of the Issuer or the Guarantor, as the case may be, each delivered to the Trustee at or prior to the delivery of the Officers' Certificate setting forth the terms of the series or the guarantees thereof.
Section 302. Denominations.
Unless otherwise provided as contemplated by Section 301 with respect to any series of Securities, any Registered Securities or Global Securities of a series shall be issuable in denominations of $1,000 and any integral multiple thereof and any Bearer Securities of a series shall be issuable in the denomination of $5,000.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Issuer by any two members of the Board of Directors. The signature of any such members of the Board of Directors may be manual or facsimile. Coupons shall bear the facsimile signature of any two directors.
Securities, coupons or Guarantees bearing the manual or facsimile signatures of individuals who were at any time the proper representatives of the Issuer or the Guarantor, as the case may be, shall bind the Issuer or the Guarantor, as the case may be, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or Guarantees.
At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Securities of any series, together with any coupons appertaining thereto, executed by the Issuer and if applicable, having endorsed thereon Guarantees of the Guarantor to the Trustee for authentication, together with an Order for the authentication and delivery of such Securities and, if applicable, an Order from the Guarantor approving the delivery of the Guarantees endorsed thereon, and the Trustee in accordance with the Order shall authenticate and deliver such Securities having such Guarantees endorsed thereon; provided, however, that, in connection with its original issuance, no Bearer Security other than Bearer Securities issued in connection with the issuance of certificateless depositary interests and in the form of Global Securities shall be mailed or otherwise delivered to any location in the United States; and provided, further, that a Bearer Security (other than a Temporary Global Bearer Security other than Bearer Securities issued in connection with the issuance of certificateless depositary interests and in the form of Global Securities) may be delivered in connection with its original issuance only if the Person entitled to receive such Bearer Security shall have furnished a certificate in the form set forth in Section 311 (a), dated no earlier than the Certification Date. If any Security shall be represented by a Permanent Global Bearer Security, then, for purposes of this Section and Section 304, the notation of a beneficial owner's interest therein upon original issuance of such Security or upon exchange of a portion of a Temporary Global Bearer Security shall be deemed to be delivery in connection with its original issuance of such beneficial owner's interest in such Permanent Global Bearer Security. Except as permitted by Section 306, the Trustee shall not authenticate and deliver any Bearer Security unless any appurtenant coupons for interest then matured have been detached and cancelled.
If pursuant to Section 301, the Security is to be issued initially without a Guarantee but such a Guarantee is to be endorsed at a later date, the Guarantor shall deliver an Order from the Guarantor approving the delivery of the Guarantees endorsed thereon, and the Trustee in accordance with the Order shall endorse or shall cause to be endorsed on such Securities the Guarantees and shall deliver such Securities having such Guarantees endorsed thereon. If the forms or terms of the Securities of the series, any related coupons and the Guarantees have been established in or pursuant to one or more Board Resolutions as permitted by Sections 201 and 301, in authenticating such Securities and Guarantees, and accepting the additional responsibilities under this Indenture in relation to such Securities, coupons and
Guarantees, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel and Officers' Certificate stating,
(a) that such forms or terms have been established in conformity with the provisions of this Indenture; and
(b) that such Securities, together with any coupons appertaining thereto, and if applicable, Guarantees, when authenticated and delivered by the Trustee and issued by the Issuer and the Guarantor in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Issuer and the Guarantor enforceable in accordance with their terms, subject to such exceptions as such counsel shall specify.
The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the Trustee, being advised in writing by counsel, determines that such action may not lawfully be taken or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability based upon the written advice of counsel.
The Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee's own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers' Certificate otherwise required pursuant to Section 301 or the Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the time of authentication of each Security of such series if such documents (with appropriate modifications) are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued and reasonably contemplate the subsequent issuance of such Securities of such series.
Each Registered Security and each Global Security shall be dated the date of its authentication, and each Bearer Security shall be dated as of the date of original issuance of the first Security of such series to be issued.
No Security, coupon or Guarantee shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on
such Security or the Security to which such coupon appertains (or, if
applicable, the Guarantee) a certificate of authentication substantially in the
form provided for herein executed by the Trustee by manual or facsimile
signature, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security or Guarantee has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Security (or if applicable, the Guarantee) shall have been authenticated and
delivered hereunder but never issued and sold by the Issuer, and the Issuer
shall deliver such Security to the Trustee for cancellation as provided in
Section 309, for all purposes of this Indenture such Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture.
The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee endorsed thereon on behalf of the Guarantor; provided however, that a Guarantee shall not be deemed delivered if pursuant to Section 301 the Security is originally issued without a Guarantee; if the Guarantee is thereafter attached pursuant to an Order of the Guarantor, then after authentication of the Guarantee, the Guarantee shall be deemed delivered. The Trustee in accordance with the Orders shall authenticate the Guarantee and deliver such Securities.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Issuer may execute, and upon Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities and, if applicable, having endorsed thereon Guarantees of the Guarantor substantially of the tenor of definitive Guarantees in lieu of which they are issued, in registered form or, if authorized, in bearer form with one or more coupons or without coupons, and with such appropriate insertions, omissions, substitutions and other variations as the members of the Board of Directors executing such Securities may determine, as evidenced by their execution of such Securities. In the case of any series issuable as Bearer Securities, such temporary Securities may be in global form. A Temporary Global Bearer Security shall be delivered only in compliance with the conditions set forth in Section 303 and this Section 304.
Except in the case of temporary Securities in global bearer form ("Temporary Global Bearer Securities") (which shall be exchanged in accordance with the provisions of the following paragraphs) if temporary Securities of any series are issued, the Issuer will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Issuer in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series (accompanied by any unmatured coupons appertaining thereto), the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor which have endorsed thereon the Guarantees of the Guarantor; provided, however, that no definitive Bearer Security shall be issued in exchange for a Registered Security.
If Temporary Global Bearer Securities of any series are issued, any such Temporary Global Bearer Security shall, unless otherwise provided therein, be delivered to the Common Depositary for the benefit of the Euroclear Operator and Clearstream, for credit to the respective accounts of the beneficial owners of such Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date specified in, or determined pursuant to the terms of, any such Temporary Global Bearer Security of a series (the "Exchange Date") the Issuer shall deliver to the Trustee definitive Securities of that series in aggregate principal amount equal to the principal amount of such Temporary Global Bearer Security executed by the Issuer. On or after the Exchange Date such Temporary Global Bearer Security shall be surrendered by the Common Depositary to the Trustee, as the Issuer's agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities of that series without charge and the Trustee shall authenticate and deliver (at an office or agency outside the United States), in exchange for each portion of such Temporary Global Bearer Security a like aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such Temporary Global Bearer Security to be exchanged; provided however, that unless otherwise specified in such Temporary Global Bearer Security, upon such presentation by the Common Depositary, such Temporary Global Bearer Security must be accompanied by a certificate dated the Exchange Date or a subsequent date and signed by the Euroclear Operator as to the portion of such Temporary Global Bearer Security held for its account then to be exchanged and a certificate dated the Exchange Date or a subsequent date and signed by Clearstream as to the portion of such Temporary Global Bearer Security held for its account then to be exchanged, each in the form set forth in Section 311 (b). The definitive Securities to be delivered in exchange for any such Temporary Global Bearer Security shall be in or in the form of Bearer Securities, Global Securities, Registered Securities, Permanent Global Bearer Securities
(as defined below) or Global Registered Securities, or any combination thereof, as specified as contemplated by Section 301, and, if any combination thereof is so specified, as requested by the beneficial owner thereof.
Unless otherwise specified in the Temporary Global Bearer Security, the interest of a beneficial owner of Securities of a series in a Temporary Global Bearer Security shall be exchanged on the Exchange Date for interest in a permanent global bearer Security (a "Permanent Global Bearer Security") of the same series and of like tenor unless, on or prior to the Exchange Date, such beneficial owner has not delivered to the Euroclear Operator or Clearstream, as the case may be, a certificate in the form set forth in Section 311(a) dated no earlier than the Certification Date, copies of which certificate shall be available from the office of the Euroclear Operator and Clearstream, the Trustee, and any Authenticating Agent appointed for such series of Securities and each Paying Agent and after the Exchange Date, the interest of a beneficial owner of Securities of a series in a Temporary Global Bearer Security shall be exchanged for an interest in a Permanent Global Bearer Security of the same series and of like tenor following such beneficial owner's delivery to the Euroclear Operator or Clearstream, as the case may be, of a certificate in the form set forth in Section 311(a) dated no earlier than the Certification Date. Unless otherwise specified in such Temporary Global Bearer Security any such exchange shall be made free of charge to the beneficial owners of such Temporary Global Bearer Security except that a Person receiving definitive Securities must bear the cost of insurance, postage, transportation and the like in the event that such Person does not take delivery of such definitive Securities in person at the offices of the Euroclear Operator or Clearstream. Definitive Securities in bearer form to be delivered in exchange for any portion of Temporary Global Bearer Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series and of like tenor authenticated and delivered hereunder, except that, unless otherwise specified as contemplated by Section 301, interest payable on a Temporary Global Bearer Security on an Interest Payment Date for Securities of such series shall be payable to Euroclear Operator and Clearstream on such Interest Payment Date upon delivery by the Euroclear Operator and Clearstream to the Trustee of a certificate or certificates in the form set forth in Section 311 (b), for credit without further interest on or after such Interest Payment Date to the respective accounts of the Persons who are the beneficial owners of such Temporary Global Bearer Security on such Interest Payment Date and who have each delivered to the Euroclear Operator or Clearstream, as the case may be, a certificate in the form set forth in Section 311(a). Any interest so received by the Euroclear Operator and Clearstream and not paid as herein provided shall be returned to the Trustee immediately prior to the expiration of two years after such Interest Payment Date in order to be repaid to the Issuer in accordance with Section 1003.
Section 305. Registration, Registration of Transfer and Exchange.
(a) Global Securities. This Section 305(a) shall apply to Global Securities unless otherwise specified, as contemplated by Section 301. Notwithstanding anything in this Indenture to the contrary, unless issued in compliance with United States Treasury Regulations Section 1.163-5(c)(2)(i)(D) ("Non-Fungible Bearer Securities"), such securities ("Fungible Bearer Securities") will be represented by a Global Security deposited with the Book-Entry Depositary which, pursuant to an agreement to be entered into between DTC and the Book-Entry Depositary (the "DTC Agreement"), will issue to DTC in the City of New York one or more certificateless depositary interests (which together represent a 100% interest in the Global Security) registered in the name of DTC or its nominee. Pursuant to the terms of the DTC Agreement, DTC will operate a book-entry system for the securities registered in its name.
Except as otherwise specified as contemplated by Section 301 hereof, any Global
Security shall be exchangeable for definitive Securities only as provided in
this paragraph. A Global Security shall be exchangeable pursuant to this Section
only (i) if the Book-Entry Depositary, if any, notifies the Issuer, the
Guarantor and the Trustee in writing that it is unwilling or unable to continue
to act as Book-Entry Depositary and a successor Book-Entry Depositary is not
appointed by the Issuer or the Guarantor within 120 days of such notification,
(ii) if DTC notifies the Book-Entry Depositary that it is unwilling or unable to
continue to hold the certificateless depositary interests issued by the
Book-Entry Depositary with respect to the Global Securities, or if at any time
DTC is unable to or ceases to be a clearing agency registered under the Exchange
Act and a successor to DTC registered under the Exchange Act is not appointed by
the Book-Entry Depositary at the written request of the Issuer or the Guarantor
within 120 days, (iii) upon the occurrence of an Event of Default under the
Securities of such series upon the request of the holder of a Book-Entry
Interest or (iv) at any time if the Issuer at its option and in its sole
discretion determines that the Global Securities of a particular series should
be exchanged (in whole but not in part) for definitive Registered Securities of
that series. Any Global Security that is exchangeable pursuant to the preceding
sentence shall be exchangeable for, unless otherwise specified or contemplated
by Section 301, definitive Registered Securities bearing interest (if any) at
the same rate or pursuant to the same formula, having the same date of issuance,
the same date or dates from which such interest shall accrue, the same Interest
Payment Dates on which such interest shall be payable or the manner of
determination of such Interest Payment Dates, redemption provisions, if any,
specified currency and other terms and of differing denominations aggregating a
like amount as the Global Security so exchangeable. Definitive Registered
Securities shall be registered in the names of the owners of the beneficial
interests in such Global Securities as such names are from time to time
provided, in the case of Global Securities with respect to which a corresponding
certificateless depositary interest is held by DTC, by the relevant Agent
Members holding interests in such Global Securities (as the names of such Agent
Members are provided to the Issuer from time to time by DTC) and, in all other
cases, by the Holder, to the Trustee. Global Securities which are Fungible
Bearer Securities shall only be exchangeable for definitive Registered
Securities.
Any Global Security that is exchangeable pursuant to the preceding paragraph, unless otherwise specified as contemplated by Section 301, shall be exchangeable for Securities issuable in authorized denominations of a like aggregate principal amount and tenor.
Except as provided above, owners solely of beneficial interests in a Global Security shall not be entitled to receive physical delivery of Securities in definitive form and will not be considered the holders thereof for any purpose under this Indenture.
In the event that a Global Security is surrendered for redemption in part pursuant to Section 1107, either (i) the Issuer shall execute, and the Trustee shall authenticate and deliver to the Holder of such Global Security, without service charge, a new Global Security in a denomination equal to and in exchange for the unredeemed portion of the principal of the Global Security so surrendered or (ii) the Trustee shall endorse Schedule A to such Global Security to reflect the reduction in the principal amount at maturity of such Global Security as a result of such redemption.
The Agent Members, DTC and any beneficial owners shall have no rights under this Indenture with respect to any Global Security held on their behalf by a Holder, or in relation to which they hold, directly or indirectly, Book-Entry Interests, and such Holder shall be treated by the Issuer, the Guarantor, the Trustee, and any agent of the Issuer, the Guarantor or the Trustee as the owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Guarantor, the Trustee, or any agent of the Issuer, the Guarantor or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by a Holder or impair, as between DTC or another clearing agency and its Agent Members and Holders, the operation of customary practices governing the exercise of the rights of a holder of any security, including without limitation the
granting of proxies or other authorization of participants to give or take any request, demand, authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under this Indenture.
In connection with any exchange of interests in a Global Security for
definitive Securities of another authorized form, as provided in this subsection
(a), then without unnecessary delay but in any event not later than the earliest
date on which such interests may be so exchanged, the Issuer shall deliver to
the Trustee definitive Securities in aggregate principal amount equal to the
principal amount of such Global Security or the portion to be exchanged executed
by the Issuer. On or after the earliest date on which such interests may be so
exchanged, such Global Security shall be surrendered by the Holder to the
Trustee, as the Issuer's agent for such purpose, to be exchanged, in whole or
from time to time in part, for definitive Securities without charge and the
Trustee shall authenticate and deliver, in exchange for each portion of such
Global Security, an equal aggregate principal amount of definitive Securities of
authorized denominations as the portion of such Global Security to be exchanged.
Any Global Security that is exchangeable pursuant to this Section 305 shall be
exchangeable for Securities issuable in the denominations specified as
contemplated by Section 301 and registered in such names as the Holder of such
Global Security shall direct. If a definitive Registered Security is issued in
exchange for any portion of a Global Security after the close of business at the
office or agency where such exchange occurs on any record date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, interest will not be payable on such Interest Payment Date in respect of
such definitive Registered Security, but will be payable on such Interest
Payment Date only to the person to whom payments of interest in respect of such
portion of such Global Security are payable.
DTC may grant proxies and otherwise authorize any person, including Agent Members and persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture with respect to the Securities.
(b) The Issuer shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency of such Issuer in a Place of Payment being herein sometimes collectively referred to as the "Security Register") in which, subject to such reasonable regulations as it may prescribe, the Issuer shall provide for the registration of Registered Securities and of transfers of Registered Securities. The Trustee is hereby appointed "Security Registrar" for the purpose of registering Registered Securities and transfers of Registered Securities as herein provided.
Upon surrender for registration of transfer of any Registered Security of any series at the office or agency in a Place of Payment for that series, the Issuer shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount, each such Security having endorsed thereon a Guarantee of the Guarantor.
At the option of the Holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series, of any authorized denominations and of a like tenor and aggregate principal amount upon surrender of the Registered Securities to be exchanged at such office or agency. Whenever any Registered Securities are so surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and deliver, the Registered Securities which the Holder making the exchange is entitled to receive. Bearer Securities may not be issued in exchange for Registered Securities.
At the option of the Holder, upon request confirmed in writing, Bearer Securities of any series may be exchanged for Registered Securities of the same series of any authorized denominations
and of a like aggregate principal amount and tenor, upon surrender of the Bearer Securities to be exchanged at any such office or agency, with all unmatured coupons and all matured coupons in default thereto appertaining. If the Holder of a Bearer Security is unable to produce any such unmatured coupon or coupons or matured coupon or coupons in default, such exchange may be effected if such Bearer Security is accompanied by payment in funds acceptable to the Issuer in an amount equal to the face amount of such missing coupon or coupons, or the surrender of such missing coupon or coupons may be waived by the Issuer and the Trustee if there is furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to any Paying Agent any such missing coupon in respect of which such a payment shall have been made, such Holder shall be entitled to receive the amount of such payment; provided, however, that, except as otherwise provided in Section 1002, interest represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside the United States. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such office or agency in exchange for a Registered Security of the same series and like tenor after the close of business at such office or agency on (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the coupon relating to such Interest Payment Date or proposed date for payment, as the case may be, and interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon when due in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive, each such Security having endorsed thereon a Guarantee of the Guarantor.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any Permanent Global Bearer Security shall be
exchangeable only as provided in this paragraph. If the beneficial owners of
interests in a Permanent Global Bearer Security are entitled to exchange such
interests for Securities of such series and of like tenor and principal amount
of another authorized form and denomination, as specified as contemplated by
Section 301, then without unnecessary delay but in any event not later than the
earliest date on which such interests may be so exchanged, the Issuer shall
deliver to the Trustee definitive Securities of that series in aggregate
principal amount equal to the principal amount of such Permanent Global Bearer
Security, executed by the Issuer, each such Security having endorsed thereon a
Guarantee of the Guarantor. On or after the earliest date on which such
interests may be so exchanged, such Permanent Global Bearer Security shall be
surrendered from time to time in accordance with instructions given to the
Trustee and the Common Depositary (which instructions shall be in writing, but
need not comply with Section 102 or be accompanied by an Opinion of Counsel) by
the Common Depositary or such other depositary or Common Depositary as shall be
specified in the Order with respect thereto to the Trustee, as the Issuer's
agent for such purpose, to be exchanged, in whole or in part, for definitive
Securities of the same series without charge and the Trustee shall authenticate
and deliver, in exchange for each portion of such Permanent Global Bearer
Security, a like aggregate principal amount of definitive Securities of the same
series of authorized denominations and of like tenor as the portion of such
Permanent Global Bearer Security to be exchanged which, unless the Securities of
the series are not issuable both as Bearer Securities and as Registered
Securities, as specified as contemplated by Section 301, shall be in the form of
Bearer Securities or Registered Securities, or any combination thereof, as shall
be specified by the beneficial owner thereof; provided, however, that, no such
exchanges may occur during a period beginning at the opening of business 15 days
before any selection of Securities of that series to be redeemed and ending on
the relevant Redemption Date; and provided, further, that no Bearer Security
delivered in exchange for a portion of a Permanent Global
Bearer Security shall be mailed or otherwise delivered to any location in the United States. Promptly following any such exchange in part, such Permanent Global Bearer Security shall be returned by the Trustee to the Common Depositary or such other depositary or Common Depositary referred to above in accordance with the instructions of the Issuer referred to above. If a Registered Security is issued in exchange for any portion of a Permanent Global Bearer Security after the close of business at the office or agency where such exchange occurs on (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency in the related proposed date for payment of Defaulted Interest, interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of such Registered Security, but will be payable on such Interest Payment Date or proposed date for payment, as the case may be, only to the Person to whom interest in respect of such portion of such Permanent Global Bearer Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of Securities and the Guarantees endorsed thereon shall be the valid obligations of the Issuer and the Guarantor, evidencing the same debt and Guarantees, and entitled to the same benefits under this Indenture, as the Securities and Guarantees endorsed thereon surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Issuer or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Issuer shall not be required (i) to issue, register the transfer of or exchange Registered Securities or Global Securities of any series during a period beginning at the opening of business 15 days before any selection of Securities of that series to be redeemed and ending at the close of business on (A) if Securities of the series are issuable only as Registered Securities or Global Securities, the day of the mailing of the relevant notice of redemption and (B) if Securities of the series are issuable as Bearer Securities, the day of the first publication of the relevant notice of redemption or, if Securities of the series are also issuable as Registered Securities or Global Securities and there is no publication, the mailing of the relevant notice of redemption, or (ii) to register the transfer of or exchange any Registered Security or Global Security so selected for redemption, in whole or in part, except the unredeemed portion of any Security being redeemed in part, or (iii) to exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered Security of that series and like tenor, provided that such Registered Security shall be simultaneously surrendered for redemption.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to Global Registered Securities:
(1) Each Global Registered Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Registered Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Registered Security shall constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global Registered Security may be exchanged for Securities registered, and no transfer of a Global Registered Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Registered Security or a nominee thereof unless (A) such Depositary (i) has notified the Issuer and the Guarantor that it is unwilling or unable to continue as Depositary for such Global Registered Security or (ii) has ceased to be a clearing agency registered under the Exchange Act, (B) there shall have occurred and be continuing an Event of Default with respect to such Global Registered Security or (C) there shall exist such other circumstances, if any, as have been specified for this purpose as contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Registered Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Registered Security or any portion thereof shall be registered in such names as the Depositary for such Global Registered Security shall direct.
(4) Every Security authenticated and delivered upon registration
or transfer of, or in exchange for or in lieu of, a Global Registered
Security or any portion thereof, whether pursuant to this Section,
Section 304, 306, 906 or 1107 or otherwise, shall be authenticated and
delivered in the form of, and shall be, a Global Registered Security,
unless such Security is registered in the name of a Person other than the
Depositary for such Global Registered Security or a nominee thereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons.
If any mutilated Security or Security with a mutilated coupon appertaining thereto is surrendered to the Trustee, the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount having endorsed thereon a Guarantee and bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons if any, appertaining to the surrendered Security, provided, however, that any Bearer Security or any coupon shall be delivered only in accordance with Section 303.
If there shall be delivered to the Issuer, the Guarantor and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Issuer, the Guarantor or the Trustee that such Security
or coupon has been acquired by a bona fide purchaser, the Issuer shall execute
and the Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security, or in exchange for the Security to which a destroyed,
lost or stolen, coupon appertains (with all appurtenant coupons not destroyed,
lost or stolen) a new Security of the same series and of like tenor and
principal amount having endorsed thereon a Guarantee and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or the Security to
which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon has become or is about to become due and payable, the Issuer in its discretion may, instead of issuing a new Security, pay such Security or coupon; provided, however, that principal and any premium and interest on Bearer Securities shall, except as otherwise provided in Section 1002, be payable only at an office or agency located outside the United States.
Upon the issuance of any new Security under this Section, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any, issued pursuant to this Section in lieu of any destroyed, lost or stolen Security or in exchange for a Security to which a destroyed, lost or stolen coupon appertains, shall constitute an original additional contractual obligation of the Issuer and the Guarantor, whether or not the destroyed, lost or stolen Security and its coupons, if any, or the destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and any such new Security and coupons, if any, shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect to any series of Securities, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid, in the case of Registered Securities, to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest and, at the option of the Issuer, may be paid by check mailed to the address of the Person as it appears in the Security Register, in the case of Bearer Securities, upon presentation and surrender of the coupon appertaining thereto in respect of the payment of interest to be paid on such Interest Payment Date or, in the case of Global Securities held by any Holder, to the Holder by wire transfer of same-day funds to the Holder.
Any interest on any Registered Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Issuer, at its election in each case, as provided in Clause (1) or (2) below:
(1) The Issuer may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Issuer shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Registered Security of such series and the date of the proposed payment, and at the same time the Issuer shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Issuer of such Special Record Date and, in the name and at the expense of the Issuer, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to each Holder of Securities of such series the Issuer in the manner set forth in Section 106, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Issuer may make payment of any Defaulted Interest on the Registered Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Issuer to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee.
Defaulted Interest on any Global Securities held by the Book-Entry Depositary may be paid to the Book-Entry Depositary and Defaulted Interest on any Bearer Securities may be paid upon presentation and surrender of the coupon appertaining thereto in respect of the interest due on such Bearer Securities to the person who is the Holder on the record date established by the Issuer for such purposes.
Subject to the foregoing provisions of this Section and Section 305, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of transfer, the Issuer, the Guarantor, the Trustee and any agent of the Issuer, the Guarantor or the Trustee may treat the Person in whose name such Registered Security is registered as the owner of such Registered Security for the purpose of receiving payment of principal of and any premium and (subject to Sections 304, 305 and 307) any interest on such Security and for all other purposes whatsoever, whether or not such Registered Security be overdue, and neither the Issuer, the Guarantor, the Trustee nor any agent of the Issuer, the Guarantor or the Trustee shall be affected by notice to the contrary.
Title to any Global Security and any Bearer Security and any coupons appertaining thereto shall pass by delivery. The Issuer, the Guarantor, the Trustee and any agent of the Issuer, the Guarantor or the Trustee may treat the bearer of any Global Security and any Bearer Security and the bearer of any coupon as the absolute owner of such Security or coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Security or coupon be overdue, and neither the Issuer, the Guarantor, the Trustee nor any agent of the Issuer, the Guarantor or the Trustee shall be affected by notice to the contrary.
Section 309. Cancellation.
All Securities and coupons surrendered for payment, redemption, registration of transfer or exchange or conversion or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. All Bearer Securities and unmatured coupons so delivered shall be held by the Trustee and, upon instruction by an Order, shall be cancelled or held for reissuance. Bearer Securities and unmatured coupons held for reissuance may be reissued only in replacement of mutilated, lost, stolen or destroyed Bearer Securities of the same series and like tenor or the related coupons pursuant to Section 306. All Bearer Securities and unmatured coupons held by the Trustee pending such cancellation or reissuance shall be deemed to be delivered for cancellation for all purposes of this Indenture and the Securities. The Issuer or the
Guarantor may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Issuer or the Guarantor may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Issuer has not issued and sold, and all Securities so delivered shall be promptly canceled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All canceled Securities and coupons held by the Trustee shall be disposed of as directed by an Order.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 311. CUSIP Numbers.
The Issuer in issuing the Securities may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers.
Section 312. Forms of Certification.
(a) Except as otherwise specified as contemplated by Section 301, whenever any provision of this Indenture contemplates that certification be given by a beneficial owner of a portion of the Temporary Global Bearer Security, such certification shall be provided substantially in the form of all the following certificate, with only such changes as shall be approved by the Issuer and the Guarantor:
"CERTIFICATE
DIAGEO FINANCE B.V.
Issuer
[Title of Securities]
Guaranteed as to Payment of Principal,
Premium (if any) and Interest by
DIAGEO PLC
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) that (a)
are foreign branches of United States financial institutions (as defined in U.S.
Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions")
purchasing for their own account or for resale, or (b) acquired the Securities
through foreign branches of United States financial institutions and who hold
the Securities through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you may
advise the Issuer and the Guarantor or its or their agent that it will comply
with the requirements of Section 165(j)(3)(A), (B) or
(C) of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by United States or foreign financial
institutions for purposes of resale during the restricted period (as defined in
U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) and, in addition, if
the owner of the Securities is a United States or foreign financial institution
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) this is to further certify that such financial institution has not
acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of America (including the States and the District of Columbia); and its "possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you by tested telex if the above statement is not correct on the date on which you intend to submit your certificate relating to such Securities to the Trustee, and in the absence of any such notification it may be assumed that this certificate applies as of such date.
This certificate excepts and does not relate to $______ of which interest in the above Securities in respect of which we are not able to certify and as to which we understand exchange and delivery of definitive Securities cannot be made until we do so certify.
We understand that this certificate is required in connection with certain tax laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceedings.
Dated:
(b) Except as otherwise specified as contemplated by Section 301, whenever any provision of this Indenture contemplates that certification be given by the Euroclear Operator or Clearstream in connection with the exchange of a Temporary Global Bearer Security for a Permanent Global Bearer Security, such certification shall be provided substantially in the form of the following certificate, with only such changes as shall be approved by the Issuer and the Guarantor:
"CERTIFICATION
DIAGEO FINANCE B.V.
Issuer
[Title of Securities]
Guaranteed as to Payment of Principal,
Premium (if any) and Interest by
DIAGEO PLC
(the "Securities")
This is to certify that, based solely on certifications we have received
in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Indenture, as of the date hereof, _________
principal amount of the above-captioned Securities (i) is owned by persons that
are not citizens or residents of the United States, domestic partnerships,
domestic corporations or any estate or trust the income of which is subject to
United States Federal income taxation regardless of its source ("United States
persons"), (ii) is owned by United States persons that (a) are foreign branches
of United States financial institutions (as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v) ("financial institutions")) purchasing for their own
account or for resale, or (b) acquired the Securities through foreign branches
of United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case (a)
or (b), each such United States financial institution has agreed, on its own
behalf or through its agent, that we may advise the Issuer and the Guarantor or
its or their agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) is owned by United States or foreign
financial institutions for purposes of resale during the restricted period (as
defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to the
further effect that United States or foreign financial institutions described in
clause (iii) above (whether or not also described in clause (i) or (ii)) have
certified that they have not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States" means the United States of America (including the States and the District of Columbia); and its "possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We further certify (i) that we are not making available herewith for exchange (or, if relevant, exercise of any rights or collection of any interest) any portion of the Temporary Global Bearer Security excepted in such certifications and (ii) that as of the date hereof we have not received any notification from any of our Member Organizations to the effect that the statements made by such Member Organizations with respect to any portion of the part submitted herewith for exchange (or, if relevant, exercise of any rights or collection of any interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws in the United States. In connection therewith, if administrative or
legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certification to any interested party in such proceedings.
Yours faithfully,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
Brussels office, as operator of the
Euroclear System
or
Clearstream Banking, Societe Anonyme
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Order of the Issuer cease to be of further effect (except as to any surviving rights of registration of transfer or exchange or conversion of Securities herein expressly provided for, and any right to receive additional amounts as provided in Section 1004) with respect to the Issuer and the Guarantor, and the Trustee, at the expense of the Issuer, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities of the Issuer theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons appertaining
to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange,
whose surrender is not required or has been waived as
provided in Section 305, (ii) Securities and coupons which
have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306, (iii) coupons
appertaining to Securities called for redemption and
maturing after the relevant Redemption Date, whose
surrender has been waived as provided in Section 1106, and
(iv) Securities and coupons for whose payment money has
theretofore been deposited in trust or segregated and held
in trust by the Issuer or the Guarantor and thereafter
repaid to the Issuer or the Guarantor, as the case may be,
or discharged from such trust, as provided in Section 1003)
have been delivered to the Trustee for cancellation; or
(B) all such Securities and, in the case of (i) or
(ii) below, any coupons appertaining thereto of such Issuer
not theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer,
and the Issuer or the Guarantor, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose an amount sufficient to pay and discharge the entire indebtedness on such Securities and coupons not theretofore delivered to the Trustee for cancellation, for principal and any premium and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Issuer or the Guarantor has paid or caused to be paid all other sums payable hereunder by the Issuer; and
(3) the Issuer has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Issuer and the Guarantor to the Trustee under Section 607, the obligations of the Trustee to any Authenticating Agent under Section 614 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the obligations of the Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust
(without liability for interest or investment) and applied by it, in accordance
with the provisions of the Securities, the coupons and this Indenture, to the
payment, either directly or through any Paying Agent (including the Issuer or
the Guarantor acting as its own Paying Agent) as the Trustee may determine, to
the Persons entitled thereto, of the principal and any premium and interest for
whose payment such money has been deposited with or received by the Trustee or
to make mandatory sinking fund payments or analogous payments as contemplated by
Section 403.
Section 403. Defeasance and Discharge of Securities of any Series.
If this Section 403 is specified, as contemplated by Section 301, to be applicable to Securities of any series and any coupons appertaining thereto, then notwithstanding Section 401, the Issuer and the Guarantor shall be deemed to have paid and discharged the entire indebtedness on all the Outstanding Securities of that series and any coupons appertaining thereto, the provisions of this Indenture as it relates to such Outstanding Securities and coupons (except as to the rights of Holders of Securities and related coupons to receive, from the trust funds described in subparagraph (1) below, payment of the principal of (and premium, if any) and any instalment of principal of (and premium, if any) or interest on such Securities on the Stated Maturity of such principal or instalment of principal of (and premium, if any) or interest on or any mandatory sinking fund payments or analogous payments applicable to the Securities of that series on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and coupons, any rights of Holders of Securities to convert such Securities, the Issuer's and the Guarantor's obligations with respect to such Securities, coupons and Guarantees, respectively, under Sections 304, 305, 306, 1002 and 1003, the rights, powers, trusts, duties and immunities of the Trustee hereunder and the provisions of Section 402 and this Section 403) shall no longer be in effect, and the Trustee, at the expense of the Issuer, shall, upon the Order of the Issuer or the Guarantor, execute proper instruments acknowledging the same, provided that the following conditions have been satisfied:
(1) the Issuer or the Guarantor has deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 609), irrevocably (irrespective of whether the conditions in subparagraphs (2), (3), (4), (5) and (6) below have been satisfied, but subject to the provisions of Section 402 and the last paragraph of Section 1003), as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities of that series and any coupons appertaining thereto, with reference to this Section 403, in the case of a series of Securities denominated in United States dollars, United States money or U.S. Government Obligations, in an amount which, through the payment of interest and principal in respect thereof in accordance with their terms, will provide not later than the opening of business on the due date of any payment referred to in clause (A) or (B) of this subparagraph (1) money in an amount, or a combination thereof, sufficient, in the opinion of an internationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge (A) the principal of (and premium, if any) and interest on such Outstanding Securities and coupons on the Stated Maturity of such principal or instalment of principal or interest and (B) any mandatory sinking fund payments or analogous payments applicable to Securities of such series and any coupons appertaining thereto on the day
on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and coupons;
(2) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Issuer or the Guarantor is a party or by which either is bound;
(3) no Event of Default or event which, with the giving of notice
or lapse of time, or both, would become an Event of Default with respect
to the Securities of that series shall have occurred and be continuing on
the date of such deposit and no Event of Default under Section 501(5) or
Section 501(6) or event which, with the giving of notice or lapse of
time, or both, would become an Event of Default under Section 501(5) or
Section 501(6) shall have occurred and be continuing on the 91st day
after such date;
(4) the Issuer or the Guarantor has delivered to the Trustee an Opinion of Counsel to the effect that, or the Issuer or the Guarantor has received from, or there has been published by, the United States Internal Revenue Service, a ruling to the effect that, Holders of the Securities of that series and any coupons appertaining thereto will not recognize income, gain or loss for United States Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to United States Federal income tax on the same amount and in the same manner and at the same times, as would have been the case if such deposit, defeasance and discharge had not occurred;
(5) if the Securities of that series are then listed on the New York Stock Exchange, Inc., the Issuer or the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that such deposit, defeasance and discharge will not cause such Securities to be delisted; and
(6) the Issuer or the Guarantor has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the defeasance and
discharge of the entire indebtedness on all Outstanding Securities of any
such series and any coupons appertaining thereto as contemplated by this
Section have been complied with.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any series of the Issuer, means any one of the following events with respect to the Issuer or the Guarantor (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be 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):
(1) default in the payment of any interest or payment of any additional interest upon any Security of that series when it becomes due and payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity and (if so established as contemplated by Section 301 in respect of that series), in the case of technical or administrative difficulties only if such default persists for a period of five days; or
(3) default in the deposit of any sinking fund payment, when and as due by the terms of a Security of that series or beyond any period of grace provided with respect thereto; or
(4) default in the performance, or breach, of any covenant or warranty of the Issuer or the Guarantor in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for the benefit of series of Securities other than that series), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified international air mail to the Issuer and the Guarantor by the Trustee or to the Issuer, the Guarantor and the Trustee by the Holders of at least 10% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Issuer or the Guarantor in an involuntary case or proceeding under any applicable Netherlands or United Kingdom, as the case may be, bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Issuer or the Guarantor a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer or the Guarantor under any applicable Netherlands or United Kingdom, as the case may be, law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Issuer or the Guarantor or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 90 consecutive days; or
(6) the commencement by the Issuer or the Guarantor of a voluntary case or proceeding under any applicable Netherlands or United Kingdom, as the case may be, bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Issuer or the Guarantor in an involuntary case or proceeding under any
applicable Netherlands or United Kingdom, as the case may be, bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Netherlands or United Kingdom, as the case may be, law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Issuer or the Guarantor or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Issuer or the Guarantor in furtherance of any such action; or
(7) default in the conversion of any convertible Security of that series in accordance herewith, and continuance of such default for a period of 90 days after there has been given, by registered or certified international air mail to the Issuer and the Guarantor by the Trustee or to the Issuer, the Guarantor and the Trustee by the Holders of at least 10% in principal amount of the Outstanding Securities of that series a written notice specifying such default and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or
(8) any other Event of Default established as contemplated by Section 301 with respect to Securities of that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series of the Issuer at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of such series of the Issuer may declare the principal amount (or, if any of the Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified in the terms thereof) of all of the Securities of such series of the Issuer to be due and payable immediately, by a notice in writing to the Issuer and the Guarantor (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Issuer, the Guarantor and the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Issuer or the Guarantor has paid or deposited with the Trustee a sum sufficient to pay:
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of acceleration and any interest thereon at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee
The Issuer covenants that if
(1) default is made in the payment of any interest or payment of any additional interest, on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof (and, if so provided in the applicable Officers' Certificate, in the case of technical or administrative difficulties only if the delay persists for a period of five days),
the Issuer will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities and coupons, the whole amount then due and payable on such Securities and coupons for principal and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and all amounts due the Trustee under Section 607.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim
In case of any judicial proceeding relative to the Issuer, the Guarantor or any other obligor upon the Securities of a series or the property of the Issuer, the Guarantor or of such other obligor or their creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders of Securities and coupons and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder of Securities and coupons 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 of Securities and coupons, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of a Security or coupon any plan of reorganization, arrangement, adjustment or composition affecting the Securities or coupons or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder of a Security or coupon in any such proceeding; provided, however, that the Trustee may, on behalf of the Holders of Securities and coupons, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors' or other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities or coupons may be prosecuted and enforced by the Trustee without the possession of any of the Securities or coupons or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities and coupons in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or any premium or interest, upon presentation of the Securities or coupons, or both, as the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal of and any premium and interest on the Securities and coupons in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities and coupons for principal and any premium and interest, respectively; and
THIRD: To the payment of the balance, if any, to the Issuer or any other Person or Persons legally entitled thereto.
Section 507. Limitation on Suits.
No Holder of any Security of any series or coupon shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, the Guarantees, the Securities or coupons or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of such series specifying such Event of Default and stating that such notice is a "Notice of Default" hereunder;
(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of such series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest and to Convert.
Notwithstanding any other provision in this Indenture, the Holder of any Security or coupon shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Sections 304, 305 and 307) interest on such Security on the respective Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and, if such Security is convertible, to convert such Security in accordance with this Indenture and to institute suit for the enforcement of such right to convert and such rights shall not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of any Security or coupon has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Issuer, the Guarantor, the Trustee and the Holders of Securities and coupons shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities or coupons is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or
remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or coupon to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders of Securities or coupons may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders of Securities or coupons, as the case may be.
Section 512. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and
(3) the Trustee need not follow any such direction if doing so would in its reasonable discretion either involve it in personal liability or be unduly prejudicial to Holders of Securities not joining in such direction;
provided, further, that the Trustee shall have no obligation to make any determination with respect to any such conflict, personal liability or undue prejudice.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series and any related coupons waive any past default hereunder with respect to such series of the Issuer and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on any Security of such series of the Issuer, or
(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected, or
(3) in the conversion of any Security of such series of such Issuer.
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 default or impair any right consequent thereon.
Section 514. 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, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess reasonable costs against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act; provided that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Issuer or the Guarantor, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series of the Issuer, or to any suit instituted by any Holder of any Security or coupon for the enforcement of the payment of the principal of or any premium or interest on any Security or coupon on or after the Stated Maturity or Maturities expressed in such Security or coupon (or, in the case of redemption, on or after the Redemption Date) or for the enforcement of any right to convert such Security pursuant to this Indenture.
Section 515. Waiver of Stay or Extension Laws.
Each of the Issuer and the Guarantor covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and each of the Issuer and the Guarantor (to the extent that it may lawfully do so) hereby expressly waives 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.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers. Whether or not therein expressly so provided, 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 Section.
Section 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall give the Holders of Securities of such series notice
of such default as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the character specified in
Section 501(4) with respect to such Securities, no such notice to such Holders
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Securities of such series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties, whether such paper or document be delivered in original or by facsimile;
(b) any request or direction of the Issuer or the Guarantor mentioned herein shall be sufficiently evidenced by an Order and any resolution of the Board of Directors of the Issuer or the Guarantor may be sufficiently evidenced by a Board Resolution;
(c) 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, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities of any series or any related coupons pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer or the Guarantor, personally or by agent or attorney, provided that the Trustee shall not be entitled to such information which the Issuer or the Guarantor is prevented from disclosing as a matter of law or contract;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(h) the Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be within the discretion, rights or powers conferred upon it by this Indenture;
(i) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture; and
(j) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to act hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's certificates of authentication, and in any coupons shall be taken as the statements of the Issuer or the Guarantor, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities or coupons. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Issuer of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of any of the Issuer or the Guarantor, in its individual or any other capacity, may become the owner or pledgee of Securities and coupons and, subject to Sections 608 and 613, may otherwise deal with the Issuer and the Guarantor with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on or investment of any money received by it hereunder except as otherwise agreed with and for the exclusive benefit of the Issuer or the Guarantor, as the case may be.
Section 607. Compensation and Reimbursement.
Each of the Issuer and the Guarantor jointly and severally agrees:
(1) to pay to the Trustee from time to time such compensation as shall be agreed from time to time for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except to the extent that any such expense, disbursement or advance may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee and any predecessor Trustee and their agents for, and to hold it harmless against, any loss, liability damages, claims or expense arising out of or in connection with the acceptance or administration of the trust or trusts hereunder and the performance of its duties hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent that any such loss, liability or expense may be attributable to its negligence or bad faith.
The Trustee shall have a lien prior to the Holders of Securities or coupons to payment of amounts due it under this Section 607 from funds held by the Trustee hereunder. "Trustee" for purposes hereof includes any predecessor trustee, but the negligence or bad faith of any trustee shall not affect the rights of any other trustee hereunder.
Section 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. For this purpose the Trustee shall not be deemed to have a conflicting interest by reason of being Trustee for the Securities of any series and Trustee for the Securities of any other series.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder with respect to the
Securities of each series of the Issuer which shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has a combined capital
and surplus of at least U.S.$50,000,000 and its Corporate Trust Office in the
Borough of Manhattan, The City of New York, New York. If such Person 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 and to the extent permitted by the Trust Indenture Act, the combined
capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. If
at any time the Trustee with respect to the Securities of any series shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Issuer. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Issuer and the Guarantor.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written request therefor by the Issuer or the Guarantor or by any Holder who has been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Issuer or the Guarantor or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Issuer by a Board Resolution may remove the Trustee with respect to all Securities, or (ii) subject to Section 514, any Holder of a Security who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Issuer, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Issuer and the Guarantor
and the retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment in accordance with the applicable
requirements of Section 611, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the successor Trustee
appointed by the Issuer. If no successor Trustee with respect to the Securities
of any series shall have been so appointed by the Issuer or the Holders of
Securities of such series and accepted appointment in the manner required by
Section 611, any Holder of a Security who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Issuer shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 106. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to each of the Issuer, the Guarantor and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Issuer, the Guarantor or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series of the Issuer, the Issuer, the Guarantor, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series of the Issuer shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Issuer and the Guarantor or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Issuer and the Guarantor shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) and (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Issuer or Guarantor.
If and when the Trustee shall be or become a creditor of the Issuer or the Guarantor (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of Section 311 of the Trust Indenture Act, but only to the extent therein specified, regarding the collection of claims against the Issuer or the Guarantor (or any such other obligor). For purposes of Section 311(b)(4) and (6) of such Act, the following terms shall mean:
(a) "cash transaction" means any transaction in which full payment for goods or securities sold is made within seven days after delivery of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated or incurred by the Issuer or the Guarantor for the purpose of financing the purchase, processing, manufacturing, shipment, storage or sale of goods, wares or merchandise and which is secured by documents evidencing title to, possession of, or a lien upon, the goods, wares or merchandise or the receivables or proceeds arising from the sale of the goods, wares or merchandise previously constituting the security, provided the security is received by the Trustee simultaneously with the creation of the creditor relationship with the Issuer or the Guarantor arising from the making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation.
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue and upon exchange, registration of transfer or partial conversion or partial redemption thereof or pursuant to Section 306, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee's certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Issuer and shall at all times be a corporation 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.$50,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Issuer. 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 Issuer. 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 Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Issuer and shall give notice of such appointment in the manner provided in Section 106 to all Holders of Securities of the series 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 Section, and the Trustee shall be entitled to be reimbursed for such payments, subject to the provisions of Section 607.
If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series 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 Securities of the series designated therein referred to in the within-mentioned Indenture.
Citibank, N.A.
As Trustee
If all of the Securities of a series may not be originally issued at one time, and if the Trustee does not have an office capable of authenticating Securities upon original issuance located in a Place of Payment where the Issuer wishes to have Securities of such series authenticated upon original issuance, the Trustee, if so requested by the Issuer in writing (which writing need not comply with Section 102 and need not 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 such Issuer with respect of such series of Securities.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE, ISSUER AND THE GUARANTOR
Section 701. Issuer and Guarantor to Furnish Trustee Names and Addresses of Holders.
Each of the Issuer and the Guarantor will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after each Regular Record Date in each year, a list, in such form as the Trustee may reasonably require, containing all the information in the possession or control of the Issuer or the Guarantor, or any of the Issuer's Paying Agents other than the Trustee, as to the names and addresses of the Holders of Securities as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Issuer or the Guarantor of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders of Securities contained in the most recent list furnished to the Trustee as provided in Section 701 and the names and addresses of Holders of Securities received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders of Securities to communicate with other Holders of Securities with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees with the Issuer, the Guarantor and the Trustee that none of the Issuer, the Guarantor 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 of Securities made pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
(a) On or about each July 15 following the date hereof, the Trustee shall transmit to Holders of Securities such reports, if any, dated as of the preceding May 15, concerning the Trustee and its actions under this Indenture as may be required pursuant to Section 313(a) of the Trust Indenture Act in the manner provided pursuant to Section 313(c) thereof. The Trustee shall also transmit to Holders of Securities such reports, if any, as may be required pursuant to Section 313(b) of the Trust Indenture Act at the times and in the manner provided pursuant thereto and to Section 313(c) thereof.
(b) A copy of each such report shall, at the time of such transmission to Holders of Securities, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Issuer. The Issuer will notify the Trustee reasonably promptly when any Securities are listed on any stock exchange.
Section 704. Reports by Issuer and Guarantor.
Each of the Issuer and the Guarantor shall file with the Trustee and the Commission, and transmit to Holders of Securities, such information, documents and other reports, including financial information and statements and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to such Act; provided that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is so required to be filed with the Commission.
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee's receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer's compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers' Certificates).
Section 705. Calculation of Original Issue Discount.
The Issuer shall file with the Trustee promptly at the end of each calendar year (i) a written notice specifying the amount of original issue discount (including daily rates and accrual periods) accrued on Outstanding Securities as of the end of such year and (ii) such other specific information relating to such original issue discount as may then be relevant under the Internal Revenue Code of 1986, as amended from time to time.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Issuer or Guarantor May Consolidate, Etc., Only on Certain Terms.
Neither the Issuer nor the Guarantor shall consolidate with or merge
(which term shall include for the avoidance of doubt a scheme of arrangement)
into any other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and neither the Issuer nor the
Guarantor shall permit any Person to consolidate with or merge into the Issuer
or the Guarantor or convey, transfer or lease its properties and assets
substantially as an entirety to the Issuer or the Guarantor, unless:
(1) in case the Issuer or the Guarantor shall consolidate with or
merge into another Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the Person formed by
such consolidation or into which the Issuer or the Guarantor is merged or
the Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Issuer or the Guarantor substantially as an
entirety shall be a corporation, partnership or trust, shall be organized
and validly existing, under the laws of any applicable jurisdiction and
shall expressly assume, by an indenture supplemental hereto executed and
delivered to the Trustee in form reasonably satisfactory to the Trustee,
the due and punctual payment of the principal of and any premium and
interest (including all additional amounts, if any, payable pursuant to
Section 1004 and subsection (3) below) on all the Securities and the
performance or observance of every covenant of this Indenture on the part
of the Issuer to be performed or observed, and, in the case of the
Guarantor, the due and punctual performance of the Guarantees (including
all additional amounts, if any, payable pursuant to Section 1004 and
subsection (3) below) and the performance of every covenant of this
Indenture on the part of the Guarantor to be performed or observed;
(2) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Issuer, the Guarantor or a Subsidiary as a result of such transaction as having been incurred by the Issuer, the Guarantor or such Subsidiary at the time of 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 happened and be continuing;
(3) the Person formed by such consolidation or into which the Issuer or the Guarantor is merged or to whom the Issuer or the Guarantor has conveyed, transferred or leased its properties or assets (if such Person is organized and validly existing under the laws of a jurisdiction other than the United States, any State thereof, or the District of Columbia) agrees to indemnify the Holder of each Security and coupon against (a) any tax, assessment or governmental charge imposed on any such Holder or required to be withheld or deducted from any payment to such Holder as a consequence of such consolidation, merger, conveyance, transfer or lease; and (b) any costs or expenses of the act of such consolidation, merger, conveyance, transfer or lease;
(4) if, as a result of any such consolidation or merger or such conveyance, transfer or lease, properties or assets of the Issuer or the Guarantor would become subject to a mortgage, pledge, lien, security interest or other encumbrance which would not be permitted by this Indenture, the Issuer, the Guarantor or such successor Person, as the case may be, shall take such steps as shall be necessary effectively to secure the Securities equally and ratably with (or prior to) all indebtedness secured thereby; and
(5) the Issuer or the Guarantor, as the case may be, has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
Section 802. Successor Substituted.
Upon any consolidation of the Issuer or the Guarantor with, or merger of the Issuer or the Guarantor into, any other Person or any conveyance, transfer or lease of the properties and assets of the Issuer or the Guarantor substantially as an entirety in accordance with Section 801, the successor Person formed by such consolidation or into which the Issuer or the Guarantor is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer or the Guarantor, as the case may be, under this Indenture with the same effect as if such successor Person had been named as the Issuer or the Guarantor herein, as the case may be, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities and any coupons appertaining thereto.
Section 803. Assumption by Guarantor or Subsidiary of Issuer's Obligations.
The Guarantor or any Subsidiary of the Guarantor may assume the obligations of the Issuer (or any Person which shall have previously assumed the obligations of the Issuer) for the due and punctual payment of the principal of (and premium, if any), interest on and any other payments with respect to the Securities and any coupons appertaining thereto, for the due and punctual conversion of the Securities in accordance with this Indenture and for the performance of every covenant of this Indenture and the Securities on the part of the Issuer to be performed or observed, provided that:
(1) the Guarantor or such Subsidiary, as the case may be, shall expressly assume such obligations by an indenture supplemental hereto, in form reasonably satisfactory to the Trustee, executed and delivered to the Trustee and if such Subsidiary assumes such obligations, the Guarantor shall, by such supplemental indenture, confirm that its Guarantees shall apply to such Subsidiary's obligations under the Securities, any coupons appertaining thereto and this Indenture, as modified by such supplemental indenture;
(2) the Guarantor or such Subsidiary, as the case may be, shall agree in such supplemental indenture, to the extent provided in the Securities and subject to the limitations and exceptions set forth below, that if any deduction or withholding for any present or future taxes, assessments or other governmental charges of the jurisdiction (or any political subdivision or taxing authority thereof or therein) in which the Guarantor or such Subsidiary is incorporated shall at any time be required by such jurisdiction (or any such political subdivision or taxing authority) in respect of any amounts to be paid by the Guarantor or such Subsidiary, as the case may be, to a Holder, who, with respect to any such taxes, assessments or other governmental charges, is not resident in such jurisdiction, the Guarantor or such Subsidiary, as the case may be, will pay to the Holder of a Security or any coupon appertaining thereto such additional amounts as may be necessary in order that the net amounts paid to the Holder of such Security or coupon, after such deduction or withholding, shall be not less than the amounts specified in such Security or coupon to which such Holder is entitled; provided, however, that the Guarantor or Subsidiary, as the case may be, shall not be required to make any payment of additional amounts (i) for or on account of any such tax, assessment or other governmental charge imposed by the United States or any political subdivision or taxing authority thereof or therein or (ii) for or on account of:
(a) any tax, assessment or other governmental charge which would not
have been imposed but for (i) the existence of any present or former connection
between such Holder (or between a fiduciary, settlor, beneficiary, member or
shareholder of, or possessor of a power over, such Holder, if such Holder is an
estate, trust, partnership or corporation) and the taxing jurisdiction or any
political subdivision or territory or possession thereof or area subject to its
jurisdiction including, without limitation, such Holder (or such fiduciary,
settlor, beneficiary, member, shareholder or possessor) being or having been a
citizen or resident thereof or being or having been present or engaged in trade
or business therein or having or having had a permanent establishment therein or
(ii) the presentation of a Security or coupon (where presentation is required)
for payment on a date more than 30 days after the date on which such payment
became due and payable or the date on which payment thereof is duly provided
for, whichever occurs later;
(b) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(c) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payments of (or in respect of) principal of, premium, if any, or any interest on, the Securities or any coupons appertaining thereto;
(d) any tax, assessment or other governmental charge that is imposed
or withheld by reason of the failure to comply by the Holder or the beneficial
owner of a Security or any coupon appertaining thereto with a request of the
Issuer or the Guarantor addressed to the Holder (i) to provide information
concerning the nationality, residence or identity of the Holder or such
beneficial owner or (ii) to make any declaration or other similar claim or
satisfy any information or reporting requirement, which, in the case of (i) or
(ii), is required or imposed by a statute, treaty, regulation or administrative
practice of the taxing jurisdiction as a precondition to exemption from all or
part of such tax, assessment or other governmental charge; or
(e) any combination of items (a), (b), (c), and (d);
nor shall additional interest be paid (i) with respect to any payment of the
principal of, premium, if any, or any interest on any Security or coupon
appertaining thereto to any Holder who is a fiduciary or partnership or other
than the sole beneficial owner of such payment to the extent such payment would
be required by the laws of such jurisdiction (or any political subdivision or
taxing authority thereof or therein) to be included in the income for tax
purposes of a beneficiary or settlor with respect to such fiduciary or a member
of such partnership or a beneficial owner who would not have been entitled to
such additional interest had it been the Holder of the Security or coupon or
(ii) in the event that the obligation to pay additional amounts is the result of
the issuance of definitive Registered Securities to a Holder of a Predecessor
Security at such Holder's request upon the occurrence of an Event of Default and
at the time payment is made definitive Registered Securities have not been
issued in exchange for the entire principal amount of the Predecessor
Securities. The foregoing provisions shall apply mutatis mutandis to any
withholding or deduction for or on account of any present or future taxes,
assessments or governmental charges of whatever nature of any jurisdiction in
which any successor Person to the Guarantor or such Subsidiary is organized, or
any political subdivision or taxing authority thereof or therein.
(3) 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; and
(4) the Guarantor or such Subsidiary, as the case may be, shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such assumption and
such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
Upon any such assumption, the Guarantor or such Subsidiary shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture with the same effect as if the Guarantor or such Subsidiary had been named as an "Issuer" herein, and the Person named as an "Issuer" in the first paragraph of this instrument or any successor Person which shall theretofore have become such in the manner prescribed in this Article shall be released from its liability as obligor upon the Securities or any coupons appertaining thereto.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the Issuer, when authorized by a Board Resolution, the Guarantor, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Issuer or the Guarantor and the assumption by any such successor of the covenants of the Issuer or the Guarantor herein and in the Securities or Guarantees or to add another Issuer to this Indenture for future issuances; or
(2) to add to the covenants of the Issuer or of the Guarantor for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Issuer or the Guarantor; or
(3) to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to provide that Bearer Securities may be registrable as to principal, to change or eliminate any restrictions on the payment of principal of or any premium or interest on Bearer Securities, to permit Bearer Securities to be issued in exchange for Registered Securities, to permit Bearer Securities to be issued in exchange for Bearer Securities of other authorized denominations or to permit or facilitate the issuance of Securities in uncertificated form, provided that any such action shall not adversely affect the interests of the Holders of Securities of any series or any related coupons in any material respect; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (i) shall neither (A) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Security with respect to such provision or
(ii) shall become effective only when there is no such Security
Outstanding; or
(6) to add Guarantees to the Securities of any series to which the Guarantees shall not have already been attached; or
(7) to secure the Securities pursuant to Section 1009; or
(8) to establish the form or terms of Securities of any series and any related coupons and the Guarantees thereof, each as permitted by Sections 201 and 301; or
(9) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any
of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611(b); or
(10) to reduce the conversion price of the Securities of any series other than pursuant to this Indenture; or
(11) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided that such action pursuant to this clause
(11) shall not adversely affect the interests of the Holders of Securities
of any series or any related coupons in any material respect.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Issuer, the Guarantor and the Trustee, the Issuer, when authorized by a Board Resolution, the Guarantor, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series and any related coupons under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any instalment of principal of or interest on, any Security or any coupon appertaining thereto, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or change any obligation of the Issuer or the Guarantor to pay additional amounts pursuant to Section 1004 (except as contemplated by Section 801(1) and permitted by Section 901(1)), or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502, or the coin or currency in which, any Security or any premium or interest thereon is payable, or modify or affect in any manner adverse to the interests of the Holders of Securities of any series the conversion rights of such Securities, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date) or of any such right of conversion, or
(2) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
(3) change any obligation of the Issuer or the Guarantor to maintain an office or agency in the places and for the purposes specified in Section 1002, or
(4) modify any of the provisions of this Section, Section 513 or
Section 1011, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, provided, however, that this clause shall not be deemed to require
the consent of
any Holder of a Security or coupon with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1011, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(9), or
(5) modify or affect in any manner adverse to the interests of the Holders of any Securities or any related coupons the terms and conditions of the obligations of the Guarantor in respect of the due and punctual payment of the principal thereof (and premium, if any) and interest, if any, thereon or any sinking fund payments provided in respect thereof or the obligations of the Guarantor in respect of any rights of conversion of any Securities.
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder and of any coupons appertaining thereto shall be bound thereby, except as otherwise expressed therein.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as in effect at the time of the execution thereof.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Issuer and the Guarantor shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Issuer and the Guarantor, to any such supplemental indenture may be prepared and executed by the Issuer, the Guarantees of the Guarantor may be endorsed thereon and such securities may be authenticated and delivered by the Trustee in exchange for Outstanding Securities of
such series.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
The Issuer covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of and any premium and interest on the Securities of that series in accordance with the terms of the Securities, any coupons appertaining thereto and this Indenture. Unless otherwise specified as contemplated by Section 301 with respect to any series of Securities, any interest due on Bearer Securities on or before Maturity shall be payable only upon presentation and surrender of the several coupons for such interest instalments as are evidenced thereby as they severally mature.
Section 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Global Securities and/or Registered Securities, the Issuer will maintain in each Place of Payment for such series an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer, exchange or conversion and where notices and demands to or upon the Issuer in respect of the Securities of that series and this Indenture may be served. If Securities of a series are issuable as Bearer Securities, the Issuer will maintain (A) in the Borough of Manhattan, The City of New York, an office or agency where any Registered Securities of that series may be presented or surrendered for payment, where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series may be surrendered for exchange or conversion, where notices and demands to or upon the Issuer in respect of the Securities of that series and this Indenture may be served and where Bearer Securities of that series and related coupons may be presented or surrendered for payment in the circumstances described in the second following paragraph (and not otherwise), (B) subject to any laws or regulations applicable thereto, in a Place of Payment for that series which is located outside the United States, an office or agency where Securities of that series and related coupons may be presented and surrendered for payment (including payment of any additional amounts payable on Securities of that series pursuant to Section 1004), and (C) subject to any laws or regulations applicable thereto, in a Place of Payment for that series located outside the United States, an office or agency where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series may be surrendered for exchange or conversion and where notices and demands to or upon the Issuer in respect of the Securities of that series and this Indenture may be served.
The Guarantor will maintain in the Borough of Manhattan, The City of New York, an office or agency where notices and demands to or upon the Guarantor in respect of Securities of any series, any coupons appertaining thereto and this Indenture may be served.
Each of the Issuer and the Guarantor will give prompt written notice to the Trustee of the location, and any change in the location, of any such office or agency. If at any time the Issuer or the Guarantor shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, except that Bearer Securities of that series and the related coupons may be presented and surrendered for payment (including payment of any additional amounts payable on Bearer Securities of that series pursuant to Section 1004) or conversion at any Paying Agent for such series located outside the United States, and the Issuer and the Guarantor hereby appoint the same as its agent to receive all respective presentations, surrenders, notices and demands.
No payment of principal, premium or interest on Bearer Securities shall be made at any office or agency of the Issuer in the United States or by check mailed to any address in the United States
or by transfer to an account maintained with a bank located in the United States; provided, however, that, if the Securities of a series are denominated and payable in United States dollars, payment of principal of and any premium and interest on any Bearer Security (including any additional amounts payable on Securities of such series pursuant to Section 1004) shall be made at the office of the Issuer's Paying Agent in the Borough of Manhattan, The City of New York, if (but only if) payment in United States dollars of the full amount of such principal, premium, interest or additional amounts, as the case may be, at all offices or agencies outside the United States maintained for the purpose by the Issuer in accordance with this Indenture is illegal or effectively precluded by exchange controls or other similar restrictions.
The Issuer may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Issuer of its obligation to maintain an office or agency in accordance with the requirements set forth above for Securities of any series for such purposes. The Issuer will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Issuer or the Guarantor shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of or any premium or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Issuer shall have one or more Paying Agents for any series of Securities, it will, prior to each due date of the principal of or any premium or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Issuer will promptly notify the Trustee of its action or failure so to act.
The Issuer will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will (i) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the continuance of any default by the Issuer (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series, and upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series.
The Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Issuer or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Issuer or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Issuer or the Guarantor, in trust for the payment of the principal of or any premium or interest on any Security of any series and remaining unclaimed for two years after such principal, premium or interest has become
due and payable shall be paid to the Issuer on its Order, or (if then held by the Issuer or the Guarantor) shall be discharged from such trust; and the Holder of such Security or any coupon appertaining thereto shall thereafter, as an unsecured general creditor, look only to the Issuer or the Guarantor for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer or the Guarantor as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Issuer cause to be published once, in an Authorized Newspaper in each Place of Payment, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Issuer.
Section 1004. Additional Amounts.
Unless otherwise specified in any Board Resolution of the Issuer or
the Guarantor establishing the terms of Securities of a series or the Guarantees
relating thereto in accordance with Section 301, if any deduction or withholding
for any present or future taxes, assessments or other governmental charges of
the jurisdiction (or any political subdivision or taxing authority thereof or
therein) in which the Issuer or the Guarantor is incorporated, shall at any time
be required by such jurisdiction (or any such political subdivision or taxing
authority) in respect of any amounts to be paid by the Issuer of principal of or
interest on a Security of any series, or by the Guarantor under the Guarantees,
the Issuer or the Guarantor, as the case may be, will pay to the Holder of a
Security of such series such additional amounts as may be necessary in order
that the net amounts paid to such Holder of such Security who, with respect to
any such tax, assessment or other governmental charge, is not resident in such
jurisdiction, after such deduction or withholding, shall be not less than the
amounts specified in such Security to which such Holder is entitled; provided,
however, that the Issuer or the Guarantor, as the case may be, shall not be
required to make any payment of additional amounts (i) for or on account of any
such tax, assessment or governmental charge imposed by the United States or any
political subdivision or taxing authority thereof or therein or (ii) for or on
account of: (a) any tax, assessment or other governmental charge which would not
have been imposed but for (i) the existence of any present or former connection
between such Holder (or between a fiduciary, settler, beneficiary, member or
shareholder of, or possessor of a power over, such Holder, if such Holder is an
estate, trust, partnership or corporation) and the taxing jurisdiction or any
political subdivision or territory or possession thereof or area subject to its
jurisdiction, including, without limitation, such Holder (or such fiduciary,
settler, beneficiary, member, shareholder or possessor) being or having been a
citizen or resident thereof or being or having been present or engaged in trade
or business therein or having or having had a permanent establishment therein or
(ii) the presentation of a Security of such series (where presentation is
required) for payment on a date more than 30 days after the date on which such
payment became due and payable or the date on which payment thereof is duly
provided for, whichever occurs later; (b) any estate, inheritance, gift, sale,
transfer, personal property or similar tax, assessment or other governmental
charge; (c) any tax, assessment or other governmental charge which is payable
otherwise than by withholding from payments of (or in respect of) principal of,
or any interest on, the Securities of such series; (d) any tax, assessment or
other governmental charge that is imposed or withheld by reason of the failure
to comply by the Holder or the beneficial owner of the Security of such series
with a request of the Issuer or the Guarantor addressed to the Holder (i) to
provide information concerning the nationality, residence or identity of the
Holder or such beneficial owner or (ii) to make any declaration or other similar
claim or satisfy any information or reporting requirements, which, in the case
of (i) or (ii), is required or imposed by a statute, treaty, regulation or
administrative practice of the taxing jurisdiction as a precondition to
exemption from all or part of such tax, assessment or other governmental charge;
or (e) any combination of items (a), (b), (c) and (d) above; nor shall
additional amounts be paid (i) with respect to any payment of the principal of,
or any interest on, any Security of such series to any Holder who is a fiduciary
or partnership or other than the sole beneficial owner of such payment to the
extent such payment would be
required by the laws of the jurisdiction (or any political subdivision or taxing
authority thereof or therein) to be included in the income for tax purposes of a
beneficiary or settler with respect to such fiduciary or a member of such
partnership or a beneficial owner who would not have been entitled to such
additional amounts had it been the Holder of such Security or (ii) if the
payment is in respect of a definitive Registered Security issued at the request
of a holder of a Book-Entry Security following an Event of Default and at the
time the payment is made definitive Registered Securities have not been issued
in exchange for the entire principal amounts of the Securities. (Sections 205,
803 and 1004). The foregoing provisions shall apply mutandis mutandis to any
withholding or deduction for or on account of any present or future taxes,
assessments or governmental charges of whatever nature of any jurisdiction in
which any successor Person to the Issuer or the Guarantor, as the case may be,
is organized, or any political subdivision or taxing authority thereof or
therein; provided, however, that such payment of additional amounts may be
subject to such further exceptions as may be established in the terms of such
Securities established as contemplated by Section 301. Subject to the foregoing
provisions, whenever in this Indenture there is mentioned, in any context, the
payment of the principal of or any premium or interest on, or in respect of, any
Security of any series or payment of any related coupon or the net proceeds
received on the sale or exchange of any Security of any series, such mention
shall be deemed to include mention of the payment of additional amounts provided
for in this Section to the extent that, in such context, additional amounts are,
were or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of additional amounts (if applicable)
in any provisions hereof shall not be construed as excluding additional amounts
in those provisions hereof where such express mention is not made.
If the terms of the Securities of a series established as contemplated by Section 301 do not specify that additional amounts pursuant to the Section will not be payable by the Issuer or the Guarantor, at least 10 days prior to the first Interest Payment Date with respect to that series of Securities (or if the Securities of that series will not bear interest prior to Maturity, the first day on which a payment of principal and any premium is made), and at least 10 days prior to each date of payment of principal and any premium or interest if there has been any change with respect to the matters set forth in the below-mentioned Officers' Certificate, the Issuer will furnish the Trustee and the Issuer's principal Paying Agent or Paying Agents, if other than the Trustee, with an Officers' Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of and any premium or interest on the Securities of that series shall be made to Holders of Securities of that series or any related coupons without withholding for or on account of any tax, assessment or other governmental charge described in the Securities of that series. If any such withholding shall be required, then such Officers' Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders of Securities or coupons and the Issuer or the Guarantor, as the case may be, will pay to the Trustee or such Paying Agent or Paying Agents the additional amounts required by this Section. Each of the Issuer and the Guarantor covenant to indemnify each of the Trustee and any Paying Agent for, and to hold each of them harmless against, any loss, liability or expense arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers' Certificate furnished pursuant to this Section, except to the extent that any such loss, liability or expense is due to its own negligence or bad faith.
Section 1005. Statement by Members of Board of Directors or Officers as to Default.
Each of the Guarantor and the Issuer of Outstanding Securities will deliver to the Trustee, within 120 days after the end of each fiscal year of the Guarantor ending after the date hereof, an Officers' Certificate, stating whether or not to the best knowledge of the signers thereof the Issuer or the Guarantor, as the case may be, is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Issuer or the Guarantor shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
Section 1006. Existence.
Subject to Article Eight, the Issuer and the Guarantor each will do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises; provided, however, that the Issuer and the Guarantor shall not be required to preserve any such right or franchise if its respective Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Issuer or the Guarantor, as the case may be, and that the loss thereof is not disadvantageous in any material respect to the Holders.
Section 1007. Maintenance of Properties.
The Issuer and the Guarantor each will cause all properties used or
useful in the conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Issuer or the Guarantor, as the case may be, may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent the Issuer or the Guarantor, as the case may be, from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Issuer or the Guarantor, as the case
may be, desirable in the conduct of its business or the business of any
Subsidiary and not disadvantageous in any material respect to the Holders.
Section 1008. Payment of Taxes and Other Claims.
The Issuer and the Guarantor each will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (1) all taxes, assessments and governmental charges levied or imposed upon the Issuer, the Guarantor or any Subsidiary or upon the income, profits or property of the Issuer, the Guarantor or any Subsidiary, and (2) all lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon the property of the Issuer, the Guarantor or any Subsidiary; provided, however, that the Issuer or the Guarantor, as the case shall be, 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.
Section 1009. Limitation on Liens.
So long as any of the Securities are Outstanding, the Guarantor shall not, and the Guarantor shall procure that no Restricted Subsidiary will, create or permit to subsist any Encumbrance on the whole or any part of any Principal Property or upon any shares or stock of any Restricted Subsidiary to secure any present or future indebtedness for borrowed money without making, or causing such Restricted Subsidiary to make, effective provision whereby the Securities and any coupons appertaining thereto (together with, if the Guarantor shall so determine, any other indebtedness of the Guarantor or such Restricted Subsidiary then existing or thereafter created which is not subordinate to the Securities) shall be secured equally and ratably with (or, at the option of the Guarantor or such Restricted Subsidiary, prior to) such indebtedness for borrowed money, so long as such indebtedness for borrowed money shall be so secured; provided, however, that the above shall not apply to:
(1) any Encumbrance subsisting on or prior to the date hereof;
(2) any Encumbrance arising by operation of law and not securing amounts more than ninety (90) days overdue or otherwise being contested in good faith;
(3) judgment Encumbrances not giving rise to an Event of Default;
(4) any Encumbrance subsisting over a Principal Property, shares or stock of any Restricted Subsidiary (which becomes a Restricted Subsidiary after the date hereof) prior to the date of such Restricted Subsidiary becoming a Restricted Subsidiary, provided that such Encumbrance was not created in contemplation of such Restricted Subsidiary becoming a Restricted Subsidiary;
(5) any Encumbrance over any Principal Property (or documents of title thereto), shares or stock of any Restricted Subsidiary acquired by the Guarantor or any Restricted Subsidiary as security for, or for indebtedness incurred to finance, all or part of the price of its acquisition, development, redevelopment, modification or improvement;
(6) any Encumbrance over any Principal Property (or documents of title thereto), shares or stock of any Restricted Subsidiary which is acquired by the Guarantor or any Restricted Subsidiary subject to such Encumbrance;
(7) any Encumbrance to secure indebtedness for borrowed money incurred in connection with a specifically identifiable project where the Encumbrance relates to a Principal Property involved in such project and acquired by the Guarantor or any Restricted Subsidiary after the date hereof and the recourse of the creditors in respect of such indebtedness is limited to such project and Principal Property;
(8) any Encumbrance arising solely by operation of law over any credit balance or cash held in any account with a financial institution;
(9) rights of financial institutions to offset credit balances in connection with the operation of cash management programs established for the benefit of the Guarantor and/or any Restricted Subsidiary;
(10) any Encumbrance securing indebtedness of the Guarantor or any Restricted Subsidiary for borrowed money incurred in connection with the financing of accounts receivable;
(11) any Encumbrance incurred or deposits made in the ordinary course
of business, including, but not limited to, (a) any mechanics',
materialmen's, carriers', workmen's, vendors' or other like Encumbrances,
(b) any Encumbrances securing amounts in connection with workers'
compensation, unemployment insurance and other types of social security,
and (c) any easements, rights-of-way, restrictions and other similar
charges;
(12) any Encumbrance upon specific items of inventory or other goods and proceeds of the Guarantor or any Restricted Subsidiary securing the Guarantor's or any such Restricted Subsidiary's obligations in respect of bankers' acceptances issued or created for the account of such person to facilitate the purchase, shipment or storage of such inventory or other goods;
(13) any Encumbrance incurred or deposits made securing the performance of tenders, bids, leases, statutory obligations, surety and appeal bonds, government contracts, performance and return-of-money bonds and other obligations of like nature incurred in the ordinary course of business;
(14) any Encumbrance on any Principal Property of the Guarantor or any Restricted Subsidiary in favor of the Federal Government of the United States or the government of any
State thereof, or the government of the United Kingdom, or the European Communities, or any instrumentality of any of them, securing the obligations of the Guarantor or any Restricted Subsidiary pursuant to any contract or payments owed to such entity pursuant to applicable laws, rules, regulations or statutes;
(15) any Encumbrance securing taxes or assessments or other applicable governmental charges or levies;
(16) any Encumbrance securing industrial revenue, development or similar bonds issued by or for the benefit of the Guarantor or any of its Restricted Subsidiaries, provided that such industrial revenue, development or similar bonds are non-recourse to the Guarantor or such Restricted Subsidiary;
(17) any extension, renewal or replacement (or successive extensions, renewals or replacements), as a whole or in part, of any Encumbrance referred to in clauses (1) to (16), inclusive, for amounts not exceeding the principal amount of the borrowed money secured by the Encumbrance so extended, renewed or replaced, provided that such extension, renewal or replacement Encumbrance is limited to all or a part of the same Principal Property, shares or stock of the Restricted Subsidiary that secured the Encumbrance extended, renewed or replaced (plus improvements on such Principal Property); and
(18) Encumbrances in favor of the Guarantor or any subsidiary of the Guarantor.
Notwithstanding the foregoing, the Guarantor or any Restricted Subsidiary may create or permit to subsist Encumbrances over any Principal Property, shares or stock of any of the Restricted Subsidiaries so long as the aggregate amount of indebtedness for borrowed money secured by all such Encumbrances (excluding therefrom the amount of the indebtedness secured by Encumbrances set forth in clauses (1) through (18), inclusive, above) does not exceed 15% of the consolidated shareholders' equity of the Guarantor.
Section 1010. Limitation on Sales and Leasebacks.
So long as any of the Securities are Outstanding, the Guarantor shall not, and the Guarantor shall procure that no Restricted Subsidiary will, enter into any arrangement with any bank, insurance company or other lender or investor (not including the Guarantor or any Subsidiary), or to which any such lender or investor is a party, providing for the leasing by the Guarantor or a Restricted Subsidiary for a period, including renewals, in excess of three years of any Principal Property which has been owned by the Guarantor or a Restricted Subsidiary for more than six months and which has been or is to be sold or transferred by the Guarantor or any Restricted Subsidiary to such lender or investor or to any person to whom funds have been or are to be advanced by such lender or investor on the security of such Principal Property (herein referred to as a "sale and leaseback transaction") unless either:
(1) the Guarantor or such Restricted Subsidiary could create indebtedness secured by an Encumbrance pursuant to Section 1009 on the Principal Property to be leased back in an amount equal to the indebtedness attributable to such sale and leaseback transaction without equally and ratably securing the Securities and any coupons appertaining thereto; or
(2) the Guarantor, within one year after the sale or transfer shall
have been made by the Guarantor or a Restricted Subsidiary, applies an
amount equal to the greater of (i) the net proceeds of the sale of the
Principal Property sold and leased back pursuant to such arrangement or
(ii) the fair market value of the Principal Property so sold and leased
back at the time of
entering into such arrangement (as determined by any two Directors of the Guarantor) to (A) the retirement of indebtedness for money borrowed, incurred or assumed by the Guarantor or any Restricted Subsidiary which by its terms matures at, or is extendible or renewable at the option of the obligor to, a date more than twelve months after the date of incurring, assuming or guaranteeing such indebtedness or (B) investment in any Principal Property.
Section 1011. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for
Securities of such series, the Issuer and the Guarantor may, with respect to the
Securities of any series, omit in any particular instance to comply with any
term, provision or condition set forth in any covenant provided pursuant to
Section 301(21), 901(2) or 901(8) for the benefit of the Holders of Securities
of such series or in either of Sections 1009 and 1010 or any term, provision or
condition set forth in an indenture supplemental hereto, if before the time for
such compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Issuer and the
Guarantor and the duties of the Trustee in respect of any such term, provision
or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Issuer to redeem any Securities of any series or issuance shall be evidenced by a Board Resolution. In case of any redemption at the election of the Issuer of all or less than all the Securities of any series (including any such redemption affecting only a single Security), the Issuer shall, at least 60 days prior to the Redemption Date fixed by the Issuer (unless a shorter notice shall be reasonably satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture the Issuer shall furnish the Trustee with an Officers' Certificate evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all of the Securities of such series and of a specified tenor are to be redeemed or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of a portion of the principal amount of Securities of such series, provided that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination which shall not be less than the minimum authorized denomination for such Security. If less than all of the Securities of such series and of a specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence, and the Trustee shall promptly notify the Issuer in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amounts thereof to be redeemed.
The provisions of the preceding paragraph shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106 to each Holder of Securities to be redeemed not less than 30 nor more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, plus accrued interest, if any,
(3) if less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the identification (and, in the case of partial redemption of any Securities, the principal amounts) of the particular Securities to be redeemed and if less than all the Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal amount of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price, plus accrued interest, if any, will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,
(5) the place or places where each such Security, together in the case of a Bearer Security with all coupons appertaining thereto, if any, maturing after the Redemption Date, is to be surrendered for payment of the Redemption Price, plus accrued interest, if any,
(6) that the redemption is for a sinking fund, if such is the case,
(7) the current conversion price and the date on which the right to convert such Securities or portions thereof will expire, and
(8) the CUSIP number or numbers, if any, with respect to such Securities.
A notice of redemption published as contemplated by Section 106 need not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the Issuer shall be given by the Issuer or, at the Issuer's request, by the Trustee in the name and at the expense of the Issuer and shall be irrevocable.
Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Issuer shall deposit with the Trustee or with a Paying Agent (or, if the Issuer or the Guarantor is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed (other than those theretofore surrendered for conversion) on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Issuer shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest and the coupons for such interest appertaining to any Bearer Securities so to be redeemed, except to the extent provided below, shall be void. Upon surrender of any such Security for redemption in accordance with said notice, together with all coupons, if any, appertaining thereto maturing after the Redemption Date, such Security shall be paid by the Issuer at the Redemption Price, together with accrued interest to the Redemption Date; provided, however, that instalments of interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of coupons for such interest, and provided, further, that unless otherwise specified as contemplated by Section 301, instalments of interest on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be accompanied by all appurtenant coupons maturing after the Redemption Date, such Security may be paid after deducting from the Redemption Price an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon or coupons may be waived by the Issuer, the Guarantor and the Trustee if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to the Trustee or any Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder shall be entitled to receive the amount so deducted; provided, however, that interest represented by coupons shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, only in the case of Registered Securities, if the Issuer or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Issuer shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
Section 1108. Optional Redemption Due to Changes in Tax Treatment.
Each series of Securities contained in one or more particular issues may be redeemed at the option of the Issuer or the Guarantor, in whole but not in part, at any time (except in the case of Securities that have a variable rate of interest, which may be redeemed on any Interest Payment Date) at a Redemption Price equal to the principal amount thereof plus accrued interest to the date fixed for redemption (except in the case of Outstanding Original Issue Discount Securities which may be redeemed at the Redemption Price specified by the terms of such series of Securities) if, (a) as a result of any change in or amendment to the laws or any regulations or rulings promulgated thereunder of the jurisdiction (or of any political subdivision or taxing authority thereof or therein) in which the Issuer or
the Guarantor is incorporated (or, in the case of a successor Person to the Issuer or the Guarantor, of the jurisdiction in which such successor Person is organized or any political subdivision or taxing authority thereof or therein) or any change in the official application or interpretation of such laws, regulations or rulings, or any change in the official application or interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which such jurisdiction or such political subdivision or taxing authority (or such other jurisdiction or political subdivision or taxing authority) is a party, which change, execution or amendment becomes effective on or after the date specified for such series pursuant to the terms of the Security or Section 301(8) (or in the case of a successor Person to the Issuer or the Guarantor, the date on which such successor Person became such pursuant to Sections 801 and 802 or in the case of an assumption by the Guarantor or its Subsidiary of obligations of the Issuer under the Securities pursuant to Section 803, the date of such assumption) or (b) as a result of any delivery or of any requirement to deliver definitive Registered Securities (having used all reasonable efforts to avoid having to issue such definitive Registered Securities), (i) the Issuer or Guarantor (or such successor Person) is or would be required to pay additional amounts with respect to the Securities or the Guarantees, as the case may be, on the next succeeding Interest Payment Date as described in Section 208 or Section 1004 or (ii) the Guarantor or any Subsidiary of the Guarantor is or would be required to deduct or withhold tax on any payment to the Issuer to enable the Issuer to make any payment of principal, premium, if any, or interest and, in each case, the payment of such additional amounts in the case of (i) above or such deductions or withholding in the case of (ii) above cannot be avoided by the use of any reasonable measures available to the Issuer, the Guarantor or the Subsidiary. Prior to the giving of notice of redemption of such Securities pursuant to this Indenture, the Issuer or the Guarantor will deliver to the Trustee an Officers' Certificate, stating that the Issuer or the Guarantor is entitled to effect such redemption and setting forth in reasonable detail a statement of circumstances showing that the conditions precedent to the right of the Issuer or the Guarantor to redeem such Securities pursuant to this Section have been satisfied.
Further, if, pursuant to Section 801(3)(a) of this Indenture, a Person into which the Issuer or the Guarantor is merged or to whom the Issuer or the Guarantor has conveyed, transferred or leased its properties or assets has been or would be required to pay any additional amounts as therein provided, each series of Securities may be redeemed at the option of such Person in whole, but not in part, at any time (except in the case of Securities that have a variable rate of interest, which may be redeemed on any Interest Payment Date), at a redemption price equal to the principal amount thereof plus accrued interest to the date fixed for redemption (except in the case of Outstanding Original Issue Discount Securities which may be redeemed at the Redemption Price specified by the terms of such series of Securities). Prior to the giving of notice of redemption of such Securities pursuant to this Indenture, such Person shall deliver to the Trustee an Officers' Certificate, stating that such Person is entitled to effect such redemption and setting forth in reasonable detail a statement of circumstances showing that the conditions precedent to the right of such Person to redeem such Securities pursuant to this Section have been satisfied.
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities, the cash
amount of any sinking fund payment may be subject to reduction as provided in
Section 1202. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of such Securities.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Issuer (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto, and
(2) may apply as a credit Securities of a series which have been redeemed either
at the election of the Issuer pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments pursuant to
the terms of such Securities, in each case in satisfaction of all or any part of
any sinking fund payment with respect to the Securities of such series required
to be made pursuant to the terms of such Securities as provided for by the terms
of such Securities; provided that the Securities to be credited have not been
previously so credited. The Securities to be so credited shall be received and
credited for such purpose by the Trustee at the Redemption Price, as specified
in the Securities so to be redeemed, for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any Securities, the Issuer will deliver to the Trustee an Officers' Certificate specifying the amount of the next ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 1202 and will also deliver to the Trustee any Securities to be so delivered. Not less than 50 days prior to each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at the expense of the Issuer in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1301. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable as Bearer Securities, a meeting of Holders of
Securities of such series may be called at any time and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of Securities of such series.
Section 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities of any series for any purpose specified in Section 1301, to be held at such time and at such place in the Borough of Manhattan, The City of New York, or in London as the Trustee shall determine. Notice of every meeting of Holders of Securities of any series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 106, not less than 21 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Issuer or the Guarantor, pursuant to a
Board Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 1301, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Issuer, the Guarantor or the Holders of Securities of
such series in the amount specified above, as the case may be, may determine the
time and the place in the Borough of Manhattan, The City of New York, or in
London, for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this Section.
Section 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any series, a Person shall be (1) a Holder of one or more Outstanding Securities of such series, or (2) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such series by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Securities of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the Issuer, the Guarantor and their respective counsel.
Section 1304. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a series shall constitute a quorum for a meeting of Holders of Securities of such series. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 1302(a), except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting shall state expressly the percentage, as provided above, of the principal amount of the Outstanding Securities of such series which shall constitute a quorum.
Any resolution passed or decision taken at any meeting of Holders of Securities of any series duly held in accordance with this Section shall be binding on all the Holders of Securities of such
series and the related coupons, whether or not presented or represented at the meeting.
Section 1305. Determination of Voting Rights; Conduct and Adjournment of Meetings.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the holding
of Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner specified in
Section 104 or by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 104 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Issuer, the Guarantor or by Holders of Securities as provided in Section 1302(b), in which case the Issuer, the Guarantor or the Holders of Securities of the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall be entitled to one vote for each $1,000 principal amount of the Outstanding Securities of such series held or represented by him: provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant to Section 1302 at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting, and the meeting may be held as so adjourned without further notice.
Section 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities of any series shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each meeting of Holders of Securities of any series shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 1302 and, if applicable, Section 1304. Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to the Issuer and the Guarantor, and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.
* * * * *
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed on their respective behalves, all as of the day and year first above written.
DIAGEO FINANCE B.V.
By: /s/ D.M.F. Leese
------------------------------------
Name: D.M.F. Leese
Title: Director
By: /s/ M.C.T.M. Gerichhausen
------------------------------------
Name: M.C.T.M. Gerichhausen
Title: Director
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DIAGEO PLC
By: /s/ N.C. Rose
------------------------------------
Name: N.C. Rose
Title: Finance Director
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CITIBANK, N.A.
By: /s/ John J. Byrnes
------------------------------------
Name: John J. Byrnes
Title: Vice President
Attest:
By: /s/ Barbara E. Bennett
------------------------------------
Name: Barbara E. Bennett
Title: Assistant Vice President
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
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On December 8, 2003, before me personally came John J. Byrnes, to me known, who, being by me duly sworn, did depose and say that he is a Vice President of Citibank, N.A., one of the corporations described in and which executed the foregoing instrument; and that he signed his name thereto by like authority.
By: /s/ Nanette Murphy
------------------------------------
Name: Nanette Murphy
----------------------------------
Notary Public, State of New York
No. 01MU6086415
Qualified in Kings County
Commission Expires 1/21/07
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[NOTARIAL SEAL]
EXECUTION COPY
DIAGEO CAPITAL PLC
DIAGEO FINANCE B.V.
DIAGEO INVESTMENT CORPORATION
Up to U.S.$2,000,000,000
MEDIUM-TERM NOTES
Guaranteed as to Payment of Principal,
Premium (if any) and Interest by
DIAGEO PLC
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
December 8, 2003
Morgan Stanley & Co. Incorporated
("Morgan Stanley")
1585 Broadway
New York, New York 10036
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
4 World Financial Center, Floor 15
New York, New York 10080
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Diageo Capital plc, a public limited company incorporated under the laws of
Scotland (the "Scottish Issuer"), Diageo Finance B.V., a private company with limited liability (besloten vennootschap met beperke aansprakelijkheid) incorporated under Dutch law with its corporate seat at Amsterdam, The Netherlands (the "Dutch Issuer"), Diageo Investment Corporation, a Delaware corporation (the "U.S. Issuer") (each an "Issuer", and together, the "Issuers"), propose severally to issue and sell from time to time their Medium-Term Notes, Due 18 Months to 30 Years from Date of Issue (the "Securities"), at an aggregate initial offering price up to U.S.$2,000,000,000 (or the equivalent thereof at the time of original issuance in one or more foreign currencies or composite currencies), and each of them agrees with each of you (individually, an "Agent", and collectively, the "Agents") as set forth in this Agreement. With respect to Securities issued by the U.S. Issuer, the Securities are to be issued pursuant to the provisions of an indenture, dated as of June 1, 1999 (the "U.S. Indenture"), among the U.S. Issuer, Diageo plc, as Guarantor (the "Guarantor"), and Citibank, N.A., as Trustee (the "Trustee"). With respect to Securities issued by the Scottish Issuer, the Securities are to be issued pursuant to the provisions of an indenture, dated as of August 3, 1998 (the "Scottish Indenture"), among the Scottish Issuer, the Guarantor and the Trustee. With respect to the Securities issued by the Dutch Issuer, the Securities are to be issued pursuant to the provisions of an indenture, dated as of December 8, 2003, among the Dutch Issuer, the Guarantor and the Trustee (the "Dutch Indenture", and together with the U.S. Indenture and the Scottish Indenture, the "Indentures"). The Securities are to be unconditionally guaranteed (the "Guarantees") as to payment of principal and interest by the Guarantor. Because the Securities are limited in aggregate initial offering price to U.S.$2,000,000,000 (or the equivalent thereof at the time of original issuance in one or more foreign currencies or composite currencies), an issuance of the Securities by one of the Issuers will correspondingly reduce the amount of Securities available to be issued by the other Issuers.
Subject to the terms and conditions stated herein and to the reservation by each of the Issuers and the Guarantor of the right to sell Securities directly on their own behalf, each of the Issuers hereby (i) appoints each Agent as an agent of such Issuer for the purpose of soliciting and receiving offers to purchase Securities from such Issuer pursuant to Section II(a) hereof and (ii) agrees that, except as otherwise contemplated herein, whenever it determines to sell Securities directly to any Agent as principal, it will enter into a separate agreement (each a "Terms Agreement"), which may be oral and confirmed in writing or which may be substantially in the form of Annex I hereto, relating to such sale in accordance with Section II(b) hereof.
The Issuers and the Guarantor have filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form F-3 (Registration No. 333-110804) including a prospectus, relating to the Securities to be issued severally from time to time by the Issuers. The applicable Issuer also has filed with, or proposes to file with, the Commission pursuant to Rule 424 under the Securities Act of 1933, as amended (the "Securities Act"), a Prospectus Supplement specifically relating to the Securities (the "Prospectus Supplement"). Upon request, but not without the agreement of each applicable Agent, the applicable Issuer may also file a Rule 462(b) Registration Statement in accordance with Rule 462(b) under the Securities Act. The registration
statement as amended to the Commencement Date (as hereinafter defined) and any Rule 462(b) Registration Statement that becomes effective thereafter is hereinafter referred to as the "Registration Statement" and the related prospectus, as amended, covering the Securities in the form first used to confirm sales of the Securities is hereinafter referred to as the "Basic Prospectus". The Basic Prospectus as supplemented by the Prospectus Supplement specifically relating to the Securities in the form first used to confirm sales of the Securities is hereinafter referred to as the "Prospectus". Any reference in this Agreement to the Registration Statement, the Basic Prospectus, any preliminary form of Prospectus (including the Basic Prospectus, a "preliminary prospectus") previously filed with the Commission pursuant to Rule 424 or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 6 of Form F-3 under the Securities Act which were filed under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the "Exchange Act") on or before the date of this Agreement or the date of the Basic Prospectus, any preliminary prospectus or the Prospectus, as the case may be; and any reference to "amend", "amendment" or "supplement" with respect to the Registration Statement, the Basic Prospectus, any preliminary prospectus or the Prospectus shall be deemed to refer to and include any documents filed under the Exchange Act after the date of this Agreement, or the date of the Basic Prospectus, any preliminary prospectus or the Prospectus, as the case may be, which are deemed to be incorporated by reference therein. Any reference to "Rule 462(b) Registration Statement" shall be deemed to refer to a registration statement and any amendments thereto filed pursuant to Rule 462(b) relating to the offering covered by the initial Registration Statement. The obligations of the Issuers under this Agreement shall be several and not joint.
I.
The applicable Issuer (as to itself) and the Guarantor (as to each Issuer and to itself) represents and warrants to each of the Agents that:
(a) The Registration Statement has become effective, no stop order suspending the effectiveness of the Registration Statement is in effect and no proceedings for such purpose are pending before or threatened by the Commission.
(b) (i) The Registration Statement, when it became effective, did not contain, and, as amended or supplemented, if applicable, did not or will not, as the case may be, contain at the time of such amendment or supplement, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply, as the case may be, in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iii) the Prospectus does not or will not, as the case may be, as of the date of the Prospectus and as at the Closing Date, contain and, as amended or supplemented, if applicable, at the time of such amendment or supplement, will not contain any untrue statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and warranties set
forth in this paragraph I(b) do not apply (A) to statements or omissions in the
Registration Statement or the Prospectus, as amended or supplemented, if
applicable, based upon information concerning any Agent furnished to the Issuers
or the Guarantor in writing by such Agent expressly for use therein or (B) to
the Statement of Eligibility and Qualification of the Trustee on Form T-1 and
(iv) each document, if any, filed or to be filed pursuant to the Exchange Act
and incorporated by reference in the Prospectus complied or will comply when so
filed in all material respects with the Exchange Act.
(c) Each preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act and the rules and regulations of the Commission thereunder.
(d) Each Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended, and has been duly authorized, executed and delivered by the applicable Issuer and duly authorized, executed and delivered by the Guarantor and is a valid and legally binding agreement of such Issuer and the Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(e) There has not been any material adverse identifiable change, or any development involving a prospective material adverse identifiable change in the condition, financial or otherwise, or in the earnings, business or operations of the Guarantor and its subsidiaries, taken as a whole, from that set forth in the Prospectus.
(f) The financial statements, and the related notes thereto, included in the Registration Statement and the Prospectus present fairly the consolidated financial position of the Guarantor, and its consolidated subsidiaries as of the dates indicated and the results of its operations and the changes in its consolidated cash flows for the periods specified; said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis; the supporting schedules included in the Registration Statement present fairly the information required to be stated therein; and, if applicable, the pro forma financial information, and the related notes thereto, included in the Registration Statement and the Prospectus has been prepared in accordance with the applicable requirements of the Securities Act and is based upon good faith estimates and assumptions believed by the Guarantor to be reasonable.
(g) The execution and delivery by the Guarantor of, and the performance by the Guarantor of its obligations under, this Agreement, any applicable Terms Agreement, the Guarantees and the Indentures will not contravene any provision of the Memorandum and Articles of Association of the Guarantor or any agreement or other instrument binding upon the Guarantor or any of its subsidiaries, in each case, that is material to the Guarantor and its subsidiaries, taken as a whole, or any material judgment, order or
decree of any governmental body, agency or court having jurisdiction over the Guarantor or any such subsidiary.
II.
(a) On the basis of the representations and warranties of each of the Issuers and the Guarantor, and subject to the terms and conditions herein set forth, each of the Agents hereby severally and not jointly agrees, as agent of each of the Issuers and the Guarantor, to use its reasonable best efforts to solicit and receive offers to purchase the Securities from the Issuers upon the terms and conditions set forth in the Prospectus as amended or supplemented from time to time. Each of the Issuers and the Guarantor reserve the right (i) to accept offers to purchase Securities, to solicit offers to purchase Securities and to sell Securities to or through one or more agents other than the Agents or to agree with another agent that such agent shall become an Agent hereunder, in each case, without obtaining the consent of the Agents, provided, however, that the Guarantor will notify the Agents promptly following the issuance and sale of any Security issued and sold in respect of any offer so accepted and (ii) to sell, and may solicit and accept offers to purchase, Securities directly on their own behalf, and, in the case of any such sale not resulting from a solicitation made by any Agent, no commission will be payable with respect to such sale.
If any other agent is to be named as an Agent under this Agreement, such agent and the Issuers and the Guarantor will execute an agreement substantially in the form of Annex III hereto, whereupon such agent shall become a party to this Agreement and shall be subject to the same obligations and receive the same benefits as an Agent would be subject to or would receive hereunder. If any other agent is to be appointed as Agent by the applicable Issuer and the Guarantor solely in connection with a particular issue of Securities, such agent and the applicable Issuer and the Guarantor will execute an agreement substantially in the form of Annex IV hereto.
Procedural details relating to the issue and delivery of Securities, the solicitation of offers to purchase Securities and the payment in each case therefor shall be as set forth in the Administrative Procedures, attached hereto as Annex II, as they may be amended from time to time by written agreement between the Agents, the Issuers and the Guarantor (the "Procedures"). The provisions of the Procedures shall apply to all transactions contemplated hereunder other than those made pursuant to a Terms Agreement. Each Agent and each of the Issuers and the Guarantor agree to perform the respective duties and obligations specifically provided to be performed by each of them in the Procedures. The Issuers and the Guarantor will furnish to the Trustee a copy of the Procedures as from time to time in effect.
Each of the Issuers as to itself reserves the right, in its sole discretion, to instruct the Agents to suspend at any time, for any period of time or permanently, the solicitation of offers to purchase the Securities from such Issuer. As soon as practicable after receipt of notice from any of the Issuers, the Agents will suspend solicitation of offers to purchase Securities from such Issuer until such time as such Issuer has advised the
Agents that such solicitation may be resumed. While such solicitation is suspended, such Issuer shall not be required to deliver any certificates, opinions or letters in accordance with Sections V(i), V(j) and V(k); provided, however, that if the Registration Statement or Prospectus is amended or supplemented during the period of suspension (other than by an amendment or supplement providing solely for a change in the interest rates, redemption provisions, amortization schedules or maturities offered on the Securities or for a change the Agents deem to be immaterial), no Agent shall be required to resume soliciting offers to purchase Securities until such Issuer has delivered such certificates, opinions and letters as such Agent may reasonably request.
Unless otherwise agreed by the applicable Issuer and the applicable Agent at the time of any sale of a Security by such Issuer through such Agent, each Issuer agrees to pay each Agent a commission (or grant an equivalent discount) at the time of settlement of any sale of a Security by such Issuer as a result of a solicitation made by such Agent, in an amount equal to the following applicable percentage of the principal amount (or, in the case of zero coupon or deep discount Securities, the following applicable percentage of the aggregate offering price) of such Security sold:
COMMISSION
(PERCENTAGE OF
AGGREGATE AMOUNT
RANGE OF MATURITIES OF SECURITIES SOLD)
------------------- -------------------
From 18 months to less than 2 years......................... 0.200%
From 2 years to less than 3 years........................... 0.250%
From 3 years to less than 4 years........................... 0.350%
From 4 years to less than 5 years........................... 0.450%
From 5 years to less than 6 years........................... 0.500%
From 6 years to less than 7 years........................... 0.550%
From 7 years to less than 10 years.......................... 0.600%
From 10 years to less than 15 years......................... 0.625%
From 15 years to less than 20 years......................... 0.700%
From 20 years to and including 30 years..................... 0.750%
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Each Agent shall communicate to the applicable Issuer, orally or in writing, each offer to purchase Securities received by such Agent as agent that in its judgment should be considered by such Issuer. Such Issuer shall have the sole right to accept offers to purchase Securities and may reject any offer in whole or in part. Each Agent shall have the right to reject any offer to purchase Securities that it considers to be unacceptable, and any such rejection shall not be deemed a breach of its agreements contained herein.
(b) Each sale of Securities to any Agent as principal shall be made in accordance with the terms of this Agreement and (unless the applicable Issuer, the Guarantor and such Agent shall otherwise agree) a Terms Agreement which will provide for the sale of such Securities to, and the purchase thereof by, such Agent. A Terms Agreement may also specify certain provisions relating to the reoffering of such Securities by such Agent. The commitment of any Agent to purchase Securities as principal, whether pursuant to any Terms Agreement or otherwise, shall be deemed to have been made on the basis of the representations and warranties of the applicable Issuer and the Guarantor herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the principal amount of Securities to be purchased by any Agent pursuant thereto, the price to be paid to the applicable Issuer for such Securities, any provisions relating to rights of, and default by, underwriters acting together with such Agent in the reoffering of the Securities and the time and date and place of delivery of and payment for such Securities. Such Terms Agreement shall also specify requirements, if any, for opinions of counsel, accountants' letters and officers' certificates pursuant to Sections V and VI hereof.
For each sale of Securities to an Agent as principal that is not made pursuant to a Terms Agreement, the procedural details relating to the issue and delivery of such Securities and payment therefor shall be as set forth in the Procedures. For each such sale of Securities to an Agent as principal as to which no other commission is agreed, the applicable Issuer agrees to pay such Agent a commission (or grant an equivalent discount) as provided in Section II(a) hereof and in accordance with the schedule set forth therein. Securities may also be sold by any Agent to or through dealers who may resell to investors. The Agents may pay all or part of their discount or commission to such dealers.
Each time and date of delivery of and payment for Securities to be purchased by an Agent as principal, whether set forth in a Terms Agreement or in accordance with the Procedures, is referred to herein as a "Time of Delivery".
(c) Each Issuer and the Guarantor acknowledge that the obligations of the Agents under this Agreement are several and not joint.
(d) The documents required to be delivered pursuant to Section VI hereof on the Commencement Date (as defined below) shall be delivered to the Agents at the offices of Sullivan & Cromwell LLP, 1 New Fetter Lane, London EC4A 1AN at 9:00 a.m., New York City time, on the date of this Agreement, which date and time of such delivery may be postponed by agreement among the Agents, the Issuers and the Guarantor but in no event shall be later than the day prior to the date on which solicitation of offers to purchase Securities is commenced or on which any Terms Agreement is executed (such time and date being referred to herein as the "Commencement Date").
III.
Each Agent agrees, with respect to any Security denominated in a currency other
than U.S. dollars, as agent, directly or indirectly, not to solicit offers to purchase, and as principal under any Terms Agreement or otherwise, directly or indirectly, not to offer, sell or deliver, such Security except as permitted by applicable law of the country issuing such currency.
IV.
(a) Each Agent severally represents and agrees that (i) it has not offered or sold and, prior to the expiry of the period of six months from the date of issue of the Securities, will not offer or sell any such Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995, (ii) it has complied and will comply with all applicable provisions of the Financial Services and Markets Act 2000 (the "FSMA") with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom and (iii) it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue and sale of such Securities in circumstances in which Section 21(1) of the FSMA does not apply to the applicable Issuer or the Guarantor.
(b) Other than as provided below, each Agent severally represents and agrees that in relation to Securities issued by the Scottish Issuer, it will only solicit sales of, and communicate to the Scottish Issuer offers to purchase, Securities with (i) minimum denominations of $1,000 or more and (ii) principal amount of $5,000,000 or more. If an Agent solicits sales of, and communicates to the Scottish Issuer, Securities that do not meet the above criteria, such Agent severally represents and agrees that the Securities will otherwise meet the applicable requirements of The New York Stock Exchange, Inc. necessary to list the Securities.
(c) Each Agent severally represents and agrees in relation to Securities issued by the Dutch Issuer that such Securities may only be offered and such offer may only be announced: (a) if those Securities each have a denomination of at least EUR50,000 (or its foreign currency equivalent); or (b) to persons who trade or invest in securities in the conduct of their profession or trade (which includes banks, securities intermediaries (including dealers and brokers), insurance companies, pension funds, other institutional investors and commercial enterprises which as an ancillary activity regularly invest in securities) ("professional investors"), provided that the offer, the applicable Pricing Supplement and each announcement of the offer states that the offer is exclusively made to those persons; or (c) to persons who are established, domiciled or have their residence (collectively, "are resident") outside The Netherlands, provided that (i) the offer, the applicable Pricing Supplement and each announcement of the offer states that the offer is not and will not be made to persons who are resident in The Netherlands, (ii) the offer and the applicable Pricing Supplement and each announcement of the offer comply with
the laws and regulations of any state where persons to whom the offer is made are resident and (iii) a statement by the Dutch Issuer that those laws and regulations are complied with is submitted to The Netherlands Authority for the Financial Markets (Autoriteit Financiele Markten, the "AFM") before the offer is made and is included in the applicable Pricing Supplement and each such announcement; or (d) to a combination of: (i) persons who are professional investors and (ii) persons who are resident outside The Netherlands; provided that (A) the offer, the applicable Pricing Supplement and each announcement of the offer states that the offer is and will only be made to persons who are professional investors and to persons who are not resident in The Netherlands, (B) the offer, the applicable Pricing Supplement and each announcement of the offer comply with the laws and regulations of any state where persons to whom the offer is made are resident and (C) a statement by the Dutch Issuer that those laws and regulations are complied with is submitted to the AFM before the offer is made and is included in the applicable Pricing Supplement and each such announcement; or (e) otherwise in accordance with the 1995 Act on the Supervision of the Securities Trade (Wet toezicht effectenverkeer 1995, the "Dutch Securities Act"). In addition, bearer zero coupon Securities and other Securities which qualify as savings certificates as defined in the Netherlands Savings Certificates Act (Wet inzake spaarbewijzen) may only be transferred or accepted through the mediation of either the Netherlands Issuer or a Member of Euronext Amsterdam N.V. with due observance of the Savings Certificates Act (including registration requirements), provided that no mediation is required in respect of (i) the initial issue of those Securities to the first holders thereof, (ii) any transfer or acceptance by individuals who do not act in the conduct of a profession or trade and (iii) the transfer or acceptance of those Securities, if they are physically issued outside The Netherlands and are not distributed in The Netherlands in the course of primary trading or immediately thereafter.
V.
Each of the Issuers (as to itself) and the Guarantor (as to each of the Issuers and to itself) covenant and agree with each Agent:
(a) (i) To make no amendment or supplement to the Registration Statement or the Prospectus (A) prior to the Commencement Date which shall be reasonably disapproved by any Agent promptly after reasonable notice thereof or (B) after the date of any Terms Agreement or other agreement by an Agent to purchase Securities as principal and prior to the related Time of Delivery which shall be reasonably disapproved by any Agent party to such Terms Agreement or so purchasing as principal promptly after reasonable notice thereof; (ii) to prepare, with respect to any Securities to be sold through or to such Agent pursuant to this Agreement, a Pricing Supplement containing Sale Information (as defined in Annex II hereto) with respect to such Securities in a form previously approved by such Agent and to file such Pricing Supplement pursuant to Rule 424(b) under the Act not later than the close of business of the Commission on the fifth business day after the date on which such Pricing Supplement is first used; (iii) to make no amendment or supplement to the Registration Statement or Prospectus other than any Pricing Supplement containing only Sale Information with respect to the relevant
Securities, at any time prior to having afforded each Agent a reasonable
opportunity to review and comment thereon; provided, however, that the
requirements in clauses (i) and (iii) of this Section V(a) shall not apply with
respect to an amendment or supplement which relates to Securities sold through
or to agents other than the Agents and contains no new information other than
the terms of such Securities and the plan of distribution thereof; (iv) to
maintain without amendment the Guarantee for so long as there are any Securities
outstanding; (v) to file promptly all reports or information statements required
to be filed by such Issuer or the Guarantor with the Commission pursuant to
Section 13(a), 13(c), or 15(d) of the Exchange Act for so long as the delivery
of a prospectus is required in connection with the offering or sale of the
Securities, and during such same period to advise such Agent, promptly after any
Issuer or the Guarantor receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or has become effective or any
supplement to the Prospectus or any amended Prospectus (other than any Pricing
Supplement that relates to Securities not purchased through or by such Agent)
has been filed with the Commission, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any prospectus
relating to the Securities, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the
Commission for the amendment or supplement of the Registration Statement or
Prospectus or for additional information; and (vi) in the event of the issuance
of any such stop order or of any such order preventing or suspending the use of
any such prospectus or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal.
(b) Promptly from time to time to take such action as such Agent reasonably may request to qualify the Securities for offering and sale under the securities laws of such jurisdictions as such Agent may request and to comply with such laws so as to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution or sale of the Securities, provided, however, that in connection therewith none of the Issuers nor the Guarantor shall be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction.
(c) To furnish such Agent with a copy of the Registration Statement and each amendment thereto, with a copy of the Prospectus and each amendment or supplement thereto, and additional copies of the Prospectus as each time amended or supplemented, other than any Pricing Supplement (except as provided in the Procedures), in the form in which it is filed with the Commission pursuant to Rule 424 under the Act, and with copies of the documents incorporated by reference therein, all in such quantities as such Agent may reasonably request from time to time; and if at any time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Act, the Exchange Act or the Trust Indenture Act, to notify such Agent
promptly by telephone (with confirmation in writing) and request such Agent, in its capacity as agent of the Issuers and the Guarantor, to suspend solicitation of offers to purchase Securities from the Issuers (and, if so notified such Agent shall cease such solicitations as soon as practicable, but in any event not later than one business day after notification); and if the Issuers or the Guarantor shall decide to amend or supplement the Registration Statement or the Prospectus as then amended or supplemented, to so advise such Agent promptly by telephone (with confirmation in writing) and to prepare and to cause to be filed with the Commission an amendment or supplement to the Registration Statement or the Prospectus as then amended or supplemented that will correct such statement or omission or effect such compliance; provided, however, that if, at any time prior to the expiration of nine months after the Time of Delivery with respect to any Securities, such Agent continues to own Securities purchased from any Issuer by such Agent as principal, such Issuer and the Guarantor shall promptly prepare and deliver to such Agent such an amendment or supplement that will correct such statement or omission; provided further, however, that if at any time nine months or more after the Time of Delivery with respect to any Securities, such Agent continues to own Securities purchased from any Issuer by such Agent as principal, such Issuer and the Guarantor, upon such Agent's request but at the sole expense of such Agent, shall prepare and deliver to such Agent as many copies as such Agent shall request of such an amendment or supplement. If all documents, certificates, opinions and letters furnished to the Agents pursuant to Section V(e), (i), (j) and (k) in connection with the preparation and filing of such amendment or supplement are satisfactory in all respects to the Agents, upon the filing with the Commission of such amendment or supplement to the Prospectus or upon the effectiveness of such amendment to the Registration Statement, the Agents will resume the solicitation of offers to purchase Securities hereunder.
(d) To make generally available to its security holders as soon as practicable, but in any event not later than eighteen months after (i) the effective date of the Registration Statement, (ii) the effective date of each post-effective amendment to the Registration Statement, and (iii) the date of each filing by the Guarantor with the Commission of an annual report on Form 20-F that is incorporated by reference in the Registration Statement, an earning statement of the Guarantor and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including, at the option of the Guarantor, Rule 158).
(e) For a period of three years after the completion of the sale of all the Securities, to furnish to such Agent copies of all reports or other communications of the Guarantor (financial or other) furnished to stockholders, and deliver to such Agent as soon as they are available, copies of any reports and financial statements of such Issuer or the Guarantor furnished to or filed with the Commission or any United States or United Kingdom or other European national securities exchange on which any class of securities of such Issuer or the Guarantor is listed.
(f) That, from the date of any Terms Agreement with such Agent and continuing to and including the related Time of Delivery, not to offer, sell, contract to sell
or otherwise dispose of, in each case in the United States, any debt securities of the Issuers or the Guarantor which both mature more than one year after such Time of Delivery and are substantially similar to the Securities, without the prior written consent of such Agent, such consent not to be unreasonably withheld.
(g) That each acceptance by any of the Issuers of an offer to purchase Securities hereunder (including any purchase by such Agent as principal not pursuant to a Terms Agreement), and each execution and delivery by any of the Issuers and the Guarantor of a Terms Agreement with such Agent, and each amendment or supplement of the Registration Statement or the Basic Prospectus by any of the Issuers or the Guarantor, shall be deemed to be an affirmation to such Agent that the representations and warranties of such Issuer and the Guarantor contained in or made pursuant to this Agreement are true and correct as of the date of such acceptance or of such Terms Agreement or of such amendment or supplement, as the case may be, as though made at and as of such date, and an undertaking that such representations and warranties will be true and correct as of the settlement date for the Securities relating to such acceptance or as of the Time of Delivery relating to such sale, as the case may be, as though made at and as of such date (except that such representations and warranties shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented to each such date).
(h) That reasonably in advance of each time the Registration Statement or the Prospectus shall be amended or supplemented other than by a prospectus supplement containing only terms of a particular offering of securities and each time any of the Issuers sells Securities to such Agent as principal pursuant to a Terms Agreement and such Terms Agreement specifies the delivery of an opinion or opinions by Davis Polk & Wardwell, counsel to the Agents, as a condition to the purchase of Securities pursuant to such Terms Agreement, such Issuer and the Guarantor shall furnish to such counsel such papers and information as they may reasonably request to enable them to furnish to such Agent the opinion or opinions referred to in Section VI(d) hereof.
(i) (A) That each time the Registration Statement or Prospectus shall be amended or supplemented other than by a prospectus supplement containing only terms of a particular offering of securities and each time any of the Issuers sells Securities to such Agent as principal pursuant to a Terms Agreement and such Terms Agreement specifies the delivery of an opinion under this Section V(i)(A) as a condition to the purchase of Securities pursuant to such Terms Agreement, such Issuer and the Guarantor shall furnish or cause to be furnished forthwith to such Agent a written opinion of Sullivan & Cromwell LLP, United States counsel for the Issuers and the Guarantor, or other counsel for the Issuers and the Guarantor satisfactory to such Agent, dated the date of such amendment, supplement, incorporation or Time of Delivery relating to such sale, as the case may be, in form reasonably satisfactory to such Agent, to the effect that such Agent may rely on the opinion of such counsel referred to in Section VI(a) hereof which was last furnished to such Agent to the same extent as though it were dated the date of such letter authorizing reliance (except that in the case of an opinion delivered at a time other than a Time of Delivery or the filing of the Guarantor's annual report on Form 20-F
such opinion need cover only the matters referred to in the last paragraph of
Section VI(a) and except that the statements in such last opinion shall be
deemed to relate to the Registration Statement and Prospectus as amended and
supplemented to such date) or, in lieu of such opinion, an opinion of the same
tenor as the opinion of such counsel referred to in Section VI(a) hereof but
modified to relate to the Registration Statement and the Prospectus as amended
and supplemented to such date.
(B) That each time the Registration Statement or the Prospectus shall be amended or supplemented other than by either a prospectus supplement containing only terms of a particular offering of securities and each time any of the Issuers sells Securities to such Agent as principal pursuant to a Terms Agreement and such Terms Agreement specifies the delivery of an opinion under this Section V(i)(B) as a condition to the purchase of Securities pursuant to such Terms Agreement, such Issuer and the Guarantor shall furnish or cause to be furnished forthwith to such Agent a written opinion of Slaughter and May, English counsel for the Guarantor, or other counsel for the Guarantor satisfactory to such Agent, dated the date of such amendment, supplement, incorporation or Time of Delivery relating to such sale, as the case may be, in form and substance reasonably satisfactory to such Agent, to the effect that such Agent may rely on the opinion of such counsel referred to in Section VI(b) hereof which was last furnished to such Agent to the same extent as though it were dated the date of such letter authorizing reliance (except that the statements in such last opinion shall be deemed to relate to the Registration Statement or the Prospectus as amended and supplemented to such date) or, in lieu of such opinion, an opinion of the same tenor as the opinion of such counsel referred to in Section VI(b) hereof but modified to relate to the Registration Statement and the Prospectus as amended and supplemented to such date.
(C) That each time the Registration Statement or the Prospectus shall be amended or supplemented other than by a prospectus supplement containing only terms of a particular offering of securities and each time the Scottish Issuer sells Securities to such Agent as principal pursuant to a Terms Agreement and such Terms Agreement specifies the delivery of an opinion under this Section V(i)(C) as a condition to the purchase of Securities pursuant to such Terms Agreement, such Issuer shall furnish or cause to be furnished forthwith to such Agent a written opinion of Morton Fraser, Scottish counsel for the Scottish Issuer and the Guarantor, or other counsel for the Scottish Issuer and the Guarantor satisfactory to such Agent, dated the date of such amendment, supplement, incorporation or Time of Delivery relating to such sale, as the case may be, in form reasonably satisfactory to such Agent, to the effect that such Agent may rely on the opinion of such counsel referred to in Section VI(c) hereof which was last furnished to such Agent to the same extent as though it were dated the date of such letter authorizing reliance (except that the statements in such last opinion shall be deemed to relate to the Registration Statement or the Prospectus as amended and supplemented to such date) or, in lieu of such opinion, an opinion of the same tenor as the opinion of such counsel referred to in Section VI(c) hereof but modified to relate to the Registration Statement and the Prospectus as amended and supplemented to such date.
(D) That each time the Registration Statement or the Prospectus shall be amended or supplemented other than by either a prospectus supplement containing only terms of a particular offering of securities and each time the Dutch Issuer sells Securities to such Agent as principal pursuant to a Terms Agreement and such Terms Agreement specifies the delivery of an opinion under this Section V(i)(D) as a condition to the purchase of Securities pursuant to such Terms Agreement, such Issuer and the Guarantor shall furnish or cause to be furnished forthwith to such Agent a written opinion of Houthoff Buruma, Dutch counsel for the Dutch Issuer and the Guarantor, or other counsel for the Dutch Issuer and the Guarantor satisfactory to such Agent, dated the date of such amendment, supplement, incorporation or Time of Delivery relating to such sale, as the case may be, in form and substance reasonably satisfactory to such Agent, to the effect that such Agent may rely on the opinion of such counsel referred to in Section VI(d) hereof which was last furnished to such Agent to the same extent as though it were dated the date of such letter authorizing reliance (except that the statements in such last opinion shall be deemed to relate to the Registration Statement or the Prospectus as amended and supplemented to such date) or, in lieu of such opinion, an opinion of the same tenor as the opinion of such counsel referred to in Section VI(d) hereof but modified to relate to the Registration Statement and the Prospectus as amended and supplemented to such date.
(j) That each time the Registration Statement or the Prospectus shall be amended or supplemented to include financial statements or other financial information which are different from the financial statements or other financial information then included in the Registration Statement or the Prospectus, including by the filing of the Guarantor's annual report on Form 20-F or the Guarantor's report on Form 6-K containing consolidated financial statements for the first six months of the Guarantor's then current fiscal year, and each time any of the Issuers sells Securities to such Agent as principal pursuant to a Terms Agreement and such Terms Agreement specifies the delivery of a letter under this Section V(j) as a condition to the purchase of Securities pursuant to such Terms Agreement, the applicable Issuer and the Guarantor shall cause the independent auditors who have audited the financial statements of such Issuer, the Guarantor and their subsidiaries included in the Registration Statement and the Prospectus forthwith to furnish such Agent a letter, dated the date of such amendment, supplement or Time of Delivery relating to such sale, as the case may be, in form reasonably satisfactory to such Agent, of the same tenor as the letter referred to in Section VI(f) hereof but modified to relate to the Registration Statement and the Prospectus as amended or supplemented to the date of such letter, with such changes as may be necessary to reflect changes in the financial statements and other information derived from the accounting records of such Issuer and the Guarantor, to the extent such financial statements and other information are available as of a date not more than three business days prior to the date of such letter; provided, however, that, with respect to any financial information or other matter, such letter may reconfirm as true and correct at such date as though made at and as of such date, rather than repeat, statements with respect to such financial information or other matter made in the letter referred to in Section VI(f) hereof which was last furnished to such Agent.
(k) That each time the Registration Statement or the Prospectus shall be amended or supplemented other than by a prospectus supplement containing only terms of a particular offering of securities and each time any of the Issuers sells Securities to such Agent as principal and the applicable Terms Agreement specifies the delivery of a certificate under this Section V(k) as a condition to the purchase of Securities pursuant to such Terms Agreement, the applicable Issuer and the Guarantor shall furnish or cause to be furnished forthwith to such Agent a certificate or certificates, dated the date of such supplement, amendment or Time of Delivery relating to such sale, as the case may be, in such form and executed by such officers of such Issuer and the Guarantor as shall be reasonably satisfactory to such Agent, to the effect that the statements contained in the certificate or certificates referred to in Section VI(j) hereof which was last furnished to such Agent are true and correct in all material respects at such date as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to such date) or, in lieu of such certificate or certificates, a certificate or certificates of the same tenor as the certificate or certificates referred to in said Section VI(j) but modified to relate to the Registration Statement and the Prospectus as amended and supplemented to such date; each such officer may certify to the best of his or her knowledge.
(l) To offer to any person who has agreed to purchase Securities
as the result of an offer to purchase solicited by such Agent the right to
refuse to purchase and pay for such Securities if, on the related settlement
date fixed pursuant to the Procedures, any condition set forth in Section VI(g),
(h), (i) or (j) hereof shall not have been satisfied (it being understood that
the judgment of such person with respect to the impracticability or
inadvisability of such purchase of Securities shall be substituted, for purposes
of this Section V(l), for the respective judgment of an Agent with respect to
certain matters referred to in such Sections VI(g) and (i), and that such Agent
shall have no duty or obligation whatsoever to exercise the judgment permitted
under such Section VI(g) and (i) on behalf of any such person).
(m) Each of the Issuers (as to itself) and the Guarantor (as to each of the Issuers and to itself) covenant and agree with each Agent that the Issuers and the Guarantor will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Issuers' and the Guarantor's counsel and accountants in connection with the issuance of the Securities, the preparation, printing and filing of the Registration Statement, any Preliminary Prospectus, the Prospectus and any Pricing Supplements and all other amendments and supplements thereto, and the mailing and delivering of copies thereof to such Agent; (ii) the reasonable fees, disbursements and expenses of counsel for the Agents in connection with the establishment and updating of the program contemplated hereby, any opinions to be rendered by such counsel hereunder and the transactions contemplated hereunder; (iii) the cost of printing, preparing by word processor or reproducing any Terms Agreement, any Indenture, any Blue Sky and Legal Investment Memoranda and any other documents in connection with the offering, purchase, sale and delivery of the Securities; (iv) all expenses in connection with the qualification of the Securities for offering and sale under state securities laws as provided in Section V(b) hereof, including fees and disbursements of counsel for the Agents in
connection with such qualification and in connection with the Blue Sky and legal investment surveys; (v) any fees charged by securities rating services for rating the Securities; (vi) the cost of preparing the Securities (including any global Securities); and (vii) the reasonable fees and expenses of the Trustee and any agent of the Trustee and any transfer or paying agent of the Issuers or of the Guarantor and the reasonable fees and disbursements of counsel for the Trustee and any such agent in connection with the Indentures and the Securities. Except as provided in Sections VII and VIII hereof, each Agent shall pay all other expenses it incurs.
VI.
The obligation of any Agent, as agent of each of the Issuers and the Guarantor, at any time ("Solicitation Time") to solicit offers to purchase the Securities and the obligation of any Agent to purchase Securities as principal, pursuant to any Terms Agreement or otherwise, shall in each case be subject, in such Agent's discretion, to the condition that all representations and warranties and other statements of the applicable Issuer and the Guarantor herein (and, in the case of an obligation of an Agent under a Terms Agreement, in or incorporated in such Terms Agreement by reference) are true and correct at and as of the Commencement Date and any applicable date referred to in Section V(k) hereof that is prior to such Solicitation Time or Time of Delivery, as the case may be, and at and as of such Solicitation Time or Time of Delivery, as the case may be, the condition that prior to such Solicitation Time or Time of Delivery, as the case may be, such Issuer and the Guarantor shall have performed in all material respects all of their respective obligations hereunder theretofore to be performed, and the following additional conditions:
(a) Sullivan & Cromwell LLP, United States counsel for the Issuers
and the Guarantor, or other counsel for the Issuers and the Guarantor
satisfactory to such Agent, shall have furnished to such Agent their written
opinion, dated the Commencement Date and each applicable date referred to in
Section V(i)(A) hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, in form and substance satisfactory to such Agent,
to the effect that:
(i) if applicable, the U.S. Issuer has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware;
(ii) assuming the Scottish Indenture has been duly authorized, executed and delivered by the Scottish Issuer insofar as the laws of Scotland are concerned, the Scottish Indenture has been duly executed and delivered by the Scottish Issuer, and, assuming the Scottish Indenture has been duly authorized, executed and delivered by the Guarantor insofar as the laws of England are concerned, the Scottish Indenture has been duly executed and delivered by the Guarantor, has been duly qualified under the Trust Indenture Act of 1939 and constitutes a valid and legally binding obligation of the Scottish Issuer and the Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights and to general equity principles;
(iii) assuming the Dutch Indenture has been duly authorized, executed and delivered by the Dutch Issuer insofar as the laws of the Netherlands are concerned, the Dutch Indenture has been duly executed and delivered by the Dutch Issuer, and, assuming the Dutch Indenture has been duly authorized, executed and delivered by the Guarantor insofar as the laws of England are concerned, the Dutch Indenture has been duly executed and delivered by the Guarantor, has been duly qualified under the Trust Indenture Act of 1939 and constitutes a valid and legally binding obligation of the Dutch Issuer and the Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles;
(iv) the Calculation Agency Agreement, dated as of December 8, 2003 (the "Calculation Agency Agreement") among the Scottish Issuer, the Dutch Issuer, the U.S. Issuer, the Guarantor and Citibank, N.A. has been duly authorized, executed and delivered by the U.S. Issuer and, assuming the Calculation Agency Agreement has been duly authorized, executed and delivered by the Scottish Issuer insofar as the laws of Scotland are concerned, the Calculation Agency Agreement has been duly executed and delivered by the Scottish Issuer and, assuming the Calculation Agency Agreement has been duly authorized, executed and delivered by the Dutch Issuer insofar as the laws of the Netherlands are concerned, the Calculation Agency Agreement has been duly executed and delivered by the Dutch Issuer and, assuming the Calculation Agency Agreement has been duly authorized, executed and delivered by the Guarantor insofar as the laws of England are concerned, the Calculation Agency Agreement has been duly executed and delivered by the Guarantor, and constitutes a valid and legally binding obligation of the U.S. Issuer, the Dutch Issuer, the Scottish Issuer and the Guarantor enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(v) the Exchange Rate Agency Agreement, dated as of December 8, 2003 (the "Exchange Rate Agency Agreement") among the Scottish Issuer, the Dutch Issuer, the U.S. Issuer, the Guarantor and Citibank, N.A. has been duly authorized, executed and delivered by the U.S. Issuer and, assuming the Exchange Rate Agency Agreement has been duly authorized, executed and delivered by the Scottish Issuer insofar as the laws of Scotland are concerned, the Exchange Rate Agency Agreement has been duly executed and delivered by the Scottish Issuer and, assuming the Exchange Rate Agency Agreement has been duly authorized, executed and delivered by the Dutch Issuer insofar as the laws of the Netherlands are concerned, the Exchange Rate Agency Agreement has been duly authorized, executed and delivered by the Dutch Issuer and, assuming the Exchange Rate Agency Agreement has been duly authorized, executed and delivered by the Guarantor insofar as the laws of England are concerned, the Exchange Rate Agency Agreement has been duly executed and delivered by the Guarantor, and constitutes a valid and legally binding obligation of the U.S. Issuer, the Dutch Issuer, the Scottish
Issuer and the Guarantor enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(vi) the U.S. Indenture has been duly authorized, executed and delivered by the U.S. Issuer and, assuming the U.S. Indenture has been duly authorized, executed and delivered by the Guarantor insofar as the laws of England are concerned, the U.S. Indenture has been duly executed and delivered by the Guarantor, has been duly qualified under the Trust Indenture Act of 1939, and constitutes a valid and legally binding obligation of the U.S. Issuer and the Guarantor enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(vii) the Securities have been duly authorized by the U.S. Issuer and, assuming the Securities have been duly authorized by the Scottish Issuer insofar as the laws of Scotland are concerned, the Securities have been duly authorized by the Scottish Issuer and, assuming the Securities have been duly authorized by the Dutch Issuer insofar as the laws of the Netherlands are concerned, the Securities have been duly authorized by the Dutch Issuer and when the terms of a particular Security and of its issuance and sale have been duly authorized and established by all necessary corporate action in conformity with the applicable Indenture, and such Security has been duly completed, executed, authenticated and issued in accordance with the applicable Indenture and delivered against payment in accordance with this Agreement, such Security will constitute valid and legally binding obligations of the applicable Issuer, enforceable in accordance with their terms and entitled to the benefits provided by the applicable Indenture and Guarantee, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles; when a particular Security has been duly authorized, executed, authenticated, issued and delivered by the Scottish Issuer, the Dutch Issuer, or the U.S. Issuer, and the Guarantee corresponding to such Security has been duly executed, issued and delivered by the Guarantor, such Guarantee will constitute a valid and legally binding obligation of the Guarantor enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles; in rendering such opinion at any time other than pursuant to a Terms Agreement such counsel may assume that at the time of issuance, sale and delivery of each particular Security the authorization of the Securities will not have been modified or rescinded and, with respect to each Security, that such Security and the Guarantee endorsed thereon will conform to the respective forms of the Securities examined by them (such latter assumption may be made even if such opinion is rendered pursuant to a Terms Agreement) and that the Trustee's certificate of authentication of such Note will be manually signed by one of the Trustee's authorized officers; such counsel may also assume that at the time of the issuance, sale and delivery of each particular Security there will not have occurred any change in law affecting the validity, legally binding character or enforceability of such Security or the
corresponding Guarantee and that the issuance, sale and delivery of such Security and such Guarantee, all of the terms of such Security and such Guarantee and the performance by the Issuers and the Guarantor of their respective obligations thereunder will comply with applicable law and with each requirement or restriction imposed by any court or governmental body having jurisdiction over the Issuers or the Guarantor and will not result in a default under or a breach of any agreement or instrument then binding upon the Issuers or the Guarantor;
(viii) this Agreement and any applicable Terms Agreement have been duly authorized, executed and delivered by the U.S. Issuer and assuming this Agreement and any applicable Terms Agreement have been duly authorized, executed and delivered by the Scottish Issuer insofar as the laws of Scotland are concerned, have been duly executed and delivered by the Scottish Issuer and, assuming this Agreement and any applicable Terms Agreement have been duly authorized, executed and delivered by the Dutch Issuer insofar as the laws of the Netherlands are concerned, have been duly authorized, executed and delivered by the Dutch Issuer and, assuming this Agreement and any applicable Terms Agreement have been duly authorized, executed and delivered by the Guarantor insofar as the laws of England are concerned, have been duly executed and delivered by the Guarantor;
(ix) the execution and delivery by the Issuers and the Guarantor of the Indentures and the Distribution Agreement do not, and the completion, execution and issuance of each particular Security and Guarantee in accordance with the Indentures and the sale by the applicable Issuer of such Security in accordance with this Agreement and any applicable Terms Agreement and the performance by such Issuer and the Guarantor of their respective obligations under the Indentures, the Agreement and any applicable Terms Agreement, the Securities, and the Guarantees will not, in the case of the U.S. Issuer, violate the U.S. Issuer's Certificate of Incorporation or By-laws, or violate any Federal law of the United States, the law of the State of New York or, in the case of the U.S. Issuer, the General Corporation Law of the State of Delaware, applicable to such Issuer or the Guarantor; provided, however, that, with respect to this paragraph VI(a)(ix), such counsel need express no opinion with respect to Federal or state securities laws, other anti-fraud laws, fraudulent transfer laws and laws that restrict transactions between United States persons and citizens or residents of certain foreign countries or specifically designated nationals and organizations; provided, further, that insofar as performance by each of the Issuers and the Guarantor of their respective obligations under the Indentures, this Agreement, any applicable Terms Agreement, the Securities, and the Guarantees is concerned, such counsel need express no opinion as to bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights;
(x) the applicable Issuer is not an "investment company" or a company "controlled" by an "investment company" required to be registered under the United States Investment Company Act of 1940.
In rendering such opinion, such counsel may state that their opinion is limited to
the Federal laws of the United States, the laws of the State of New York and the
General Corporation Law of the State of Delaware and such counsel may (i) note
that, as to matters of English law, the Agents have received the opinion of
Slaughter and May, English counsel for the Guarantor, rendered pursuant to
Section VI(b), the opinion of Morton Fraser, Scottish counsel to the Scottish
Issuer rendered pursuant to Section VI(c) and the opinion of Houthoff Buruma,
Dutch counsel to the Dutch Issuer rendered pursuant to Section VI(d); (ii)
assume that the Scottish Issuer has been duly incorporated and is an existing
company under the laws of Scotland; (iii) assume that the Dutch Issuer has been
duly incorporated and is an existing company under the laws of the Netherlands;
(iv) assume that the Guarantor has been duly incorporated and is an existing
public limited company under the laws of England and Wales; (v) each Security
issued by the Scottish Issuer or the Dutch Issuer will be duly executed and
delivered in accordance with the laws of Scotland or The Netherlands, as
applicable; and (vi) assume that the Guarantees have been authorized in
accordance with the laws of England and Wales and the Guarantee corresponding to
each Security will be duly executed and delivered in accordance with the laws of
England and Wales.
Such counsel may also state that, with your approval, they have relied as to certain matters or information obtained from public officials, officers of the Issuers and the Guarantor and other sources believed by them to be responsible, and that they have assumed that the Indentures have been duly authorized, executed and delivered by the Trustee and that the signatures on all documents examined by them are genuine, assumptions which they have not independently verified.
Such counsel shall also state that they have reviewed the Registration Statement, the Basic Prospectus and the Prospectus Supplement and participated in discussions with representatives of the applicable Issuer and the Guarantor and their English and, if applicable, Scottish and/or Dutch law counsel, representatives of the accountants for the applicable Issuer and the Guarantor and representatives of the Agents and their U.S. counsel; and on the basis of the information that they gained in the course of the performance of such services, considered in the light of their understanding of the applicable law and the experience they have gained through their practice in this field, such counsel shall confirm to the Agents that each part of the Registration Statement, when such part became effective, and the Basic Prospectus, as supplemented by the Prospectus Supplement as of the date of the Prospectus Supplement, appeared on their face to be appropriately responsive in all material respects to the requirements of the Securities Act, the Trust Indenture Act of 1939 and the applicable rules and regulations of the Commission thereunder; and nothing that has come to the attention of such counsel has caused them to believe (a) that any part of the Registration Statement, when such part became effective, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Basic Prospectus as supplemented by the Prospectus Supplement as of the date of the Prospectus Supplement, contained any untrue statement of material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading or (b) that, in the course of specified procedures performed by them
subsequent to the effective date of the Registration Statement, the Basic Prospectus, as supplemented by a Prospectus Supplement, as of the date of such opinion contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such opinion may state (1) that such counsel do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, Basic Prospectus or the Prospectus Supplement except for those made under the captions "Description of Debt Securities and Guarantees" and "Taxation--United States Taxation" in the Basic Prospectus and "Description of Notes" and "Plan of Distribution" in the Prospectus Supplement insofar as they relate to the provisions of documents therein described and (2) that they do not express any opinion or belief as to the financial statements or other financial data or as to any statement made by English counsel to the Guarantor with respect to English law, any statement made by the Scottish counsel to the Scottish Issuer with respect to Scottish law or any statement made by the Dutch counsel to the Dutch Issuer with respect to Dutch law, in each case, contained in the Registration Statement, the Basic Prospectus or any Prospectus Supplement, or documents incorporated by reference therein, or as to the statement of the eligibility and qualification of the Trustee under the Indentures under which the Securities are being issued.
(b) Slaughter and May, English counsel for the Guarantor, or other English counsel for the Guarantor satisfactory to such Agent, shall have furnished to such Agent their written opinion, dated the Commencement Date and each applicable date referred to in Section V(i)(B) hereof that is on or prior to such Solicitation Time or Time of Delivery, as the case may be, in form and substance satisfactory to such Agent, to the effect that:
(i) the Guarantor is a public limited company duly incorporated under the laws of England and Wales and is a validly existing company;
(ii) the execution and delivery of the Indentures, the Guarantees, this Agreement, the Calculation Agency Agreement, the Exchange Rate Agency Agreement, and any applicable Terms Agreement have been duly authorized by the Guarantor and the Indentures, the Guarantees, this Agreement, and any applicable Terms Agreement will have been duly executed and delivered by the Guarantor;
(iii) the choice of the laws of the State of New York as the governing law of each Indenture, the Guarantees, this Agreement, the Calculation Agency Agreement, the Exchange Rate Agency Agreement, and any applicable Terms Agreement is a valid choice of law; the validity and binding nature of the obligations contained in each Indenture, the Guarantees, this Agreement, the Calculation Agency Agreement, and any applicable Terms Agreement are expressed to be governed by New York law;
(iv) on the assumption that the Indentures, the Guarantees, this Agreement, the Calculation Agency Agreement, the Exchange Rate Agency Agreement, and any applicable Terms Agreement create valid and binding obligations of the parties under
New York law, English law will not prevent any provisions of the Indentures, the Guarantees, this Agreement, the Calculation Agency Agreement, or any applicable Terms Agreement from being valid and binding obligations of the Guarantor;
(v) the execution and delivery by the Guarantor of, and the performance by the Guarantor of its obligations under, the Indentures, the Guarantees, this Agreement, the Calculation Agency Agreement, the Exchange Rate Agency Agreement, and any applicable Terms Agreement will not contravene (i) any law of England and Wales in a manner which would render such performance, insofar as it relates to the Guarantor's payment obligations, unlawful; or (ii) the Memorandum and Articles of Association of the Guarantor;
(vi) there are no required authorizations, approvals or consents of, or registration or filing with, any court, governmental or regulatory authority of or with the United Kingdom required in connection with the execution, delivery and performance of this Agreement, the Calculation Agency Agreement, the Exchange Rate Agency Agreement, any applicable Terms Agreement, the Guarantees, and the Indentures by the Guarantor;
(vii) a final and conclusive judgment against the Guarantor for a definite sum of money entered by any Federal or State court in the United States of America in any suit, action or proceeding arising out of or in connection with either Indenture, the Guarantees, this Agreement, the Calculation Agency Agreement, the Exchange Rate Agency Agreement, or any applicable Terms Agreement would be enforced by the English courts, without re-examination or re-litigation of the matters adjudicated upon, by the English courts, provided that:
(a) the judgment was not obtained by fraud;
(b) the enforcement of the judgment would not be contrary to English public policy;
(c) the judgment was not obtained in proceedings contrary to natural justice;
(d) the judgment is not inconsistent with an English judgment in respect of the same matter;
(e) the judgment is not for multiple damages; and
(f) enforcement proceedings are instituted within six years after the date of the judgment;
(viii) assuming that the submission to the non-exclusive jurisdiction of any Federal or State court in the Borough of Manhattan, The City of New York (the "New York Courts") contained in each Indenture, this Agreement, and any applicable Terms Agreement is valid and binding under New York law, (a) English law will not prevent the same from being valid and binding upon the Guarantor, (b) the Guarantor is not prevented by its Memorandum and Articles of Association or any overriding principles of English law from agreeing to waive any objection, pursuant to the Indentures, this
Agreement, or any applicable Terms Agreement to the venue of proceedings in the New York Courts and (c) such waiver is valid and binding under the laws of England and Wales;
(ix) service of process effected in the manner set forth in
Section XIII of this Agreement and Section 115 of each Indenture, assuming its
validity and effectiveness under New York law, will be effective, insofar as the
laws of England and Wales are concerned, to confer valid jurisdiction over the
Guarantor;
(x) the Guarantor has the power to submit, and has taken all
necessary corporate action to submit, to the jurisdiction of any New York Court,
and to appoint Diageo North America, Inc. as its authorized agent for the
purposes and to the extent described in Section XIII of this Agreement and in
Section 115 of each Indenture; and
(xi) the statements in the "Enforceability of Certain Civil Liabilities", "Description of Debt Securities and Guarantees --Payment of Additional Amounts" and "Taxation--United Kingdom Taxation" sections of the Prospectus, insofar as they are summaries of tax considerations or refer to statements of law or legal conclusions, in all material respects present fairly the information shown.
In giving such opinion, such counsel may state that such opinion is
confined to and given on the basis of English law as currently applied by the
English courts and on the basis that it will be governed by and construed and
have effect in accordance with English law. Such opinion also may state that
nothing therein is to be taken as indicating that the remedy of an order for
specific performance or the issue of an injunction would be available in an
English court in respect of the obligations arising under either Indenture, the
Guarantees, this Agreement, the Calculation Agency Agreement, the Exchange Rate
Agency Agreement, or any applicable Terms Agreement in that such remedies are
available only at the discretion of the court and are not usually granted where
damages would be an adequate remedy. Also in giving such opinion, such counsel
may rely upon the opinion or opinions of counsel named in paragraph (a) of this
Section VI as to matters of New York and United States federal law.
(c) If applicable, Morton Fraser, Scottish counsel for the Scottish Issuer and the Guarantor, or other counsel for the Scottish Issuer and the Guarantor satisfactory to such Agent, shall have furnished to such Agent their written opinion, dated the Commencement Date and each applicable date referred to in Section V(i)(C) hereof that is on or prior to such Solicitation Time or Time of Delivery, as the case may be, in form and substance satisfactory to such Agent, to the effect that:
(i) the Scottish Issuer is a public limited company, duly incorporated, validly existing and registered under the laws of Scotland, and has the full corporate power and authority to execute, deliver and perform its obligations under the Scottish Indenture, the Securities, this Agreement, the Calculation Agency Agreement, the Exchange Rate Agency Agreement, and any applicable Terms Agreement;
(ii) the Scottish Indenture, the Calculation Agency Agreement, and the Exchange Rate Agency Agreement, have been duly authorized, executed and delivered by the Scottish Issuer and, on the assumption that the Scottish Indenture and the Calculation Agency Agreement create valid and binding obligations of the parties under New York law, Scottish law will not prevent any provision of the Scottish Indenture, the Calculation Agency Agreement, or the Exchange Rate Agency Agreement from being a valid and binding obligation of the Scottish Issuer, subject to all limitations resulting from bankruptcy, insolvency, liquidation, receivership, administration, reorganization of the Scottish Issuer and court schemes, moratoria and similar laws of general application affecting the enforcement of creditors' rights applicable to the Scottish Issuer;
(iii) the Securities have been duly authorized, executed, authenticated and issued and delivered by the Scottish Issuer and, on the assumption that the Securities create valid and binding obligations of the parties thereto under New York law, Scottish law will not prevent any provision of the Securities from being a valid and binding obligation of the Scottish Issuer subject to all limitations resulting from bankruptcy, insolvency, liquidation, receivership, administration and reorganization of the Scottish Issuer and court schemes, moratoria and similar laws of general application affecting the enforcement of creditors' rights applicable to the Scottish Issuer;
(iv) this Agreement and any applicable Terms Agreement have been duly authorized, executed, and delivered by the Scottish Issuer and, on the assumption that this Agreement and any applicable Terms Agreement create valid and binding obligations of the parties hereto under New York law, Scottish law will not prevent any provision of this Agreement or any applicable Terms Agreement from being a valid and binding obligation of the Scottish Issuer subject to all limitations resulting from bankruptcy, insolvency, liquidation, receivership, administration and reorganization of the Scottish Issuer and court schemes, moratoria and similar laws of general application affecting the enforcement of creditors' rights applicable to the Scottish Issuer;
(v) the execution and delivery by the Scottish Issuer of, and the performance by the Scottish Issuer of its obligations under, this Agreement, any applicable Terms Agreement, the Securities, the Calculation Agency Agreement, the Exchange Rate Agency Agreement, and the Indenture will not contravene any provision of Scottish law or the Memorandum and Articles of Association of the Scottish Issuer or any agreement or other instrument binding upon the Scottish Issuer or any of its subsidiaries that, in each case, is material to the Scottish Issuer or any of its subsidiaries, taken as a whole, or any material judgment, order or decree of any governmental body, agency or court having jurisdiction over the Scottish Issuer or any such subsidiary;
(vi) there are no required authorizations, approvals or consents of, or registration or filing with, any governmental or regulatory authority of or with the United Kingdom required in connection with the execution, delivery and performance of the Securities by the Scottish Issuer, or of this Agreement, any applicable Terms Agreement, the Scottish Indenture, the Calculation Agency Agreement, and the Exchange Rate Agency Agreement by the Scottish Issuer;
(vii) the choice of law of the State of New York to govern the Scottish Indenture, the Calculation Agency Agreement, the Exchange Rate Agency Agreement, this Agreement, any applicable Terms Agreement and the Securities is competent in terms of Scottish law and will be recognized and given effect to by the courts in Scotland; the validity and binding nature of the obligations contained in the Scottish Indenture, the Calculation Agency Agreement, the Exchange Rate Agency Agreement, this Agreement, any applicable Terms Agreement and the Securities are governed by New York law;
(viii) a judgment duly obtained in the courts of New York or Federal courts of the United States of America sitting in New York in respect of the Scottish Indenture, the Calculation Agency Agreement, the Exchange Rate Agency Agreement, this Agreement, any applicable Terms Agreement or the Securities will be enforceable in Scotland, provided that such judgment:
(a) is based on the exercise of personal jurisdiction by the court issuing the judgment;
(b) is for a debt or an ascertained sum of money;
(c) is final and conclusive;
(d) is not inconsistent with a decree of a Scottish court in respect of the same matter;
(e) is sought to be enforced by properly instituted and served proceedings within five years of the date of such judgment; and is not challengeable on the grounds of:
(1) absence of jurisdiction;
(2) fraud;
(3) public policy;
(4) natural justice;
(5) being a fine or penalty; or
(6) res judicata;
(ix) the submission to the non-exclusive jurisdiction of any Federal or State court in the Borough of Manhattan, The City of New York (the "New York Courts") contained in this Agreement, the Scottish Indenture, and any applicable Terms Agreement is valid under Scottish law, and the Scottish Issuer is not prevented by its Memorandum and Articles of Association or any overriding principles of Scottish law from agreeing to waive any objection, pursuant to this Agreement, the Scottish Indenture, or any applicable Terms Agreement to the venue of proceedings in the New York Courts, and such waiver is valid and binding under the laws of Scotland;
(x) service of process effected in the manner set forth in Section XIII of this Agreement and Section 115 of the Scottish Indenture, assuming its validity and
effectiveness under New York law, will be effective, insofar as the laws of Scotland are concerned, to confer valid jurisdiction over the Scottish Issuer;
(xi) the Scottish Issuer has the power to submit, and has taken
all necessary corporate action to submit, to the jurisdiction of any New York
Court, and to appoint Diageo North America, Inc. as its authorized agent for the
purposes and to the extent described in Section XIII of this Agreement and in
Section 115 of the Scottish Indenture; and
In rendering such opinion, such counsel may state that they do not express any opinion concerning any law other than the laws operative for the time being in Scotland and that their opinion is based on the laws of Scotland in force on the date thereof and is addressed to the Agents solely for their own benefit in relation to the offering of the Securities and, except with their prior written consent, is not to be transmitted or disclosed to or used or relied upon by any other person or used or relied upon by the Agents or other addresses thereof for any other purpose.
Such opinion may also state that nothing therein is to be taken as
indicating that the remedy of a decree of specific implement or the grant of the
prayer of a petition for interdict would be available in a Scottish court in
respect of the obligations arising under the Scottish Indenture, the Guarantee,
this Agreement, or any applicable Terms Agreement in that such remedies are
available only at the discretion of the court and are not usually granted where
damages would be an adequate remedy. Also in giving such opinion, such counsel
may rely upon the opinion or opinions of counsel named in paragraph (a) of this
Section VI to matters of New York and United States federal law.
(d) If applicable, Houthoff Buruma, Dutch counsel for the Dutch Issuer and the Guarantor, or other counsel for the Dutch Issuer and the Guarantor satisfactory to such Agent, shall have furnished to such Agent their written opinion, dated the Commencement Date and each applicable date referred to in Section V(i)(D) hereof that is on or prior to such Solicitation Time or Time of Delivery, as the case may be, in form and substance satisfactory to such Agent, to the effect that:
(i) the Dutch Issuer has been incorporated and is existing as a legal entity (rechtspersoon) in the form of a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) under Netherlands law;
(ii) the Dutch Issuer has the corporate power to enter into and perform the Dutch Indenture, this Agreement, the Calculation Agency Agreement, the Exchange Agency Agreement and any applicable Terms Agreement and to issue and perform the Securities;
(iii) the Dutch Issuer has taken all necessary corporate action to authorize its entry into, and performance of, the Dutch Indenture, this Agreement, the Calculation Agency Agreement, the Exchange Agency Agreement, any applicable Terms Agreement and the Securities;
(iv) the Dutch Issuer has validly signed the Dutch Indenture, this Agreement, the Calculation Agency Agreement, the Exchange Agency Agreement, any applicable Terms Agreement and the Securities;
(v) under Netherlands law, the choice of New York law as the governing law of the Dutch Indenture, this Agreement, the Calculation Agency Agreement, the Exchange Agency Agreement, any applicable Terms Agreement and the Securities is recognized as a valid choice of law;
(vi) the Dutch Indenture, this Agreement, the Calculation Agency Agreement, the Exchange Agency Agreement, any applicable Terms Agreement and the Securities will, according to the courts of the Netherlands correctly applying New York law as the law expressed to be governing the Dutch Indenture, this Agreement, the Calculation Agency Agreement, the Exchange Agency Agreement, any applicable Terms Agreement and the Securities, constitute valid, binding and enforceable obligations of the Dutch Issuer;
(vii) no governmental or regulatory consents, approvals or authorizations are required by the Dutch Issuer under Netherlands law in connection with its entry into or performance of the Dutch Indenture, this Agreement, the Calculation Agency Agreement, the Exchange Agency Agreement, any applicable Terms Agreement or for the issue and performance of the Securities;
(viii) under Netherlands law, there are no registration, filing or similar formalities required to ensure the validity, binding effect and enforceability of the Dutch Indenture, this Agreement, the Calculation Agency Agreement, the Exchange Agency Agreement, any applicable Terms Agreement and the Securities against the Dutch Issuer, except for the purpose of complying with the Dutch Securities Act;
(ix) under Netherlands law, there exists no requirement as to the form of the Dutch Indenture, this Agreement, the Calculation Agency Agreement, the Exchange Agency Agreement, any applicable Terms Agreement and the Securities if they satisfy the formal requirements of New York law;
(x) the entry into and performance of the Dutch Indenture, the Agreement, the Calculation Agency Agreement, the Exchange Agency Agreement and any applicable Terms Agreement, and the issue and performance of the Securities, by the Dutch Issuer does not conflict with or result in a violation of the Articles of Association of the Dutch Issuer or Netherlands law which would affect the validity, binding effect and enforceability of the Dutch Indenture, this Agreement, the Calculation Agency Agreement, the Exchange Agency Agreement, any applicable Terms Agreement and the Securities against the Dutch Issuer;
(xi) under Netherlands law, the Agents are permitted to commence proceedings against the Dutch Issuer in a Netherlands court of competent jurisdiction for claims arising under this Agreement;
(xii) a judgment rendered by a court in the State of New York will not be recognized and enforced by the Netherlands courts. However, if a person has obtained a final and conclusive judgment for the payment of money rendered by a court in the State of New York (the "foreign court") which is enforceable in the United States of America (the "foreign judgment") and files his claim with the Netherlands court of competent jurisdiction, the Netherlands court will generally give binding effect to the foreign judgment insofar as it finds that the jurisdiction of the foreign court has been based on grounds which are internationally acceptable and that proper legal procedures have been observed, unless the foreign judgment contravenes Netherlands public policy;
(xiii) no payment by the Dutch Issuer under the Dutch Indenture or the Securities is subject to Netherlands withholding tax (bronbelasting); and
(xiv) the statements in the Basic Prospectus under the heading "Taxation - Netherlands Taxation", to the extent that they are statements as to Netherlands law, are correct in all material respects.
In giving such opinion, such counsel may state that such opinion is
confined to and given on the basis of Dutch law as currently applied by the
Dutch courts and on the basis that it will be governed by and construed and have
effect in accordance with Dutch law. Such opinion also may state that nothing
therein is to be taken as indicating that the remedy of an order for specific
performance or the issue of an injunction would be available in a Dutch court in
respect of the obligations arising under the Dutch Indenture, the Guarantee,
this Agreement or any applicable Terms Agreement in that such remedies are
available only at the discretion of the court and are not usually granted where
damages would be an adequate remedy. Also in giving such opinion, such counsel
may rely upon the opinion or opinions of counsel named in paragraph (a) of this
Section VI as to matters of New York and United States federal law.
(e) Davis Polk & Wardwell, counsel to the Agents, shall have
furnished to such Agent (i) such opinion or opinions, dated the Commencement
Date, covering certain of the matters referred to in subparagraph (ii), (iii),
(iv), (v), (vi), and (vii) and the last paragraph of clause (a) of this Section
VI, and (ii) if and to the extent requested by such Agent, with respect to each
applicable date referred to in Section V(h) hereof that is on or prior to such
Solicitation Time or Time of Delivery, as the case may be, an opinion or
opinions, dated such applicable date, to the effect that such Agent may rely on
the opinion or opinions which were last furnished to such Agent pursuant to this
Section VI(e) to the same extent as though it or they were dated the date of
such letter authorizing reliance (except that the statements in such last
opinion or opinions shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to such date) or, in any case, in
lieu of such an opinion or opinions, an opinion or opinions of the same tenor as
the opinion or opinions referred to in clause (i) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
date; and in each case such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters; in giving such opinion, such counsel may rely upon the opinion or
opinions of counsel named in
paragraph (b) of this Section VI as to matters of English law, of counsel named in paragraph (c) of this Section VI as to matters of Scottish law and of counsel named in paragraph (d) of this Section VI as to matters of Dutch law.
(f) On the Commencement Date and on each applicable date referred to in Section V(j) hereof that is on or prior to such Solicitation Time or Time of Delivery, as the case may be, the independent auditors who have audited the financial statements of the Issuers and the Guarantor and their subsidiaries included in the Registration Statement and the Prospectus shall have furnished to such Agent a letter, dated the Commencement Date or such applicable date, as the case may be, in form and substance reasonably satisfactory to such Agent, containing statements and information of the type ordinarily included in accountants' "comfort letters" to agents or underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus, both as amended or supplemented.
(g) There shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations, of the Guarantor and its subsidiaries, taken as a whole, from that set forth in the Registration Statement and Prospectus, as amended or supplemented, that, in the reasonable judgment of each applicable Agent, is material and adverse and that makes it, in the reasonable judgment of such applicable Agent, after consultation with the applicable Issuer and the Guarantor, impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus and Prospectus Supplement.
(h) There shall not have been any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the applicable Issuer's or the Guarantor's securities by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(i) There shall not have occurred any of the following: (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, any of The New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of
Trade, (ii) trading of any securities of any of the Issuers or the Guarantor
shall have been suspended on any exchange or in any over-the-counter market,
(iii) a general moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State authorities or (iv) there
shall have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the reasonable judgment of
the applicable Agent, is material and adverse and, in the case of any of the
events specified in clauses (i) through (iv), such event singly or together with
any other such event, makes it, in the reasonable judgment of such Agent, after
consultation with the Issuers and the Guarantor, impracticable to market the
Securities on the terms and in the manner contemplated in the Prospectus as
amended or supplemented.
(j) The applicable Issuer or Issuers and the Guarantor shall have
furnished or caused to be furnished to such Agent certificates of officers of
such Issuer and the Guarantor dated the Commencement Date and each applicable
date referred to in Section V(k) hereof that is on or prior to such Solicitation
Time or Time of Delivery, as the case may be, in such form and executed by such
officers of such Issuer and the Guarantor as shall be reasonably satisfactory to
such Agent, as to the accuracy of the representations and warranties of such
Issuer and the Guarantor herein at and as of the Commencement Date or such
applicable date, as the case may be, as to the performance in all material
respects by such Issuer and the Guarantor of all of their obligations hereunder
to be performed at or prior to the Commencement Date or such applicable date, as
the case may be, as to the matters set forth in subsection (g) and (h) of this
Section VI, and as to such other matters as such Agent may reasonably request.
(k) The applicable Prospectus Supplement shall have been filed with the Commission pursuant to Rule 424 within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and no stop order suspending the effectiveness of the Registration Statement shall be in effect.
(l) With respect to the Securities issued by the Scottish Issuer, the Securities and the Guarantees to be delivered shall have been approved for listing on The New York Stock Exchange, Inc. or any other internationally recognized stock exchange that is recognized within the meaning of Section 841 of the United Kingdom Income and Corporation Taxes Act 1988, as amended (or any successor provision thereto).
VII.
Each Issuer and the Guarantor jointly and severally agree to indemnify and hold harmless each Agent and each person, if any, who controls any Agent within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including without limitation the legal fees and other expenses incurred in connection with any suit, action or proceeding on any claim asserted) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus (as amended or supplemented if the applicable Issuer or the Guarantor shall have furnished any amendments or supplements thereto) or any preliminary prospectus, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to the Agents furnished to an Issuer or the Guarantor in writing by any Agent expressly for use therein; provided, however, the foregoing indemnity with respect to any untrue statement or omission or alleged untrue statement or omission made in a preliminary prospectus shall not inure to the benefit of any Agent (or any person controlling such Agent) from whom the person asserting any such loss, liability, claim, damage or expense purchased any of the Securities that are the subject thereof if such person was not sent or given a copy of the Prospectus (or the Prospectus as amended or supplemented) (if the applicable Issuer
or the Guarantor shall have furnished any amendments or supplements thereto to the Agents), at or prior to the written confirmation of the sale of such Securities to such person and the untrue statement or omission or alleged untrue statement or omission made in such preliminary prospectus was corrected in the Prospectus (or the Prospectus as amended or supplemented).
Each Agent agrees, severally and not jointly, to indemnify and hold harmless each of the Issuers and the Guarantor, their respective directors, their respective officers who sign the Registration Statement and each person, if any, who controls each of the Issuers or the Guarantor within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Issuers and the Guarantor to each Agent, but only with reference to information relating to such Agent furnished to the Issuers or the Guarantor in writing by such Agent expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus, or any amendment or supplement thereto.
In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to either of the two preceding paragraphs, such person (hereinafter called the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (hereinafter called the "indemnifying party") in writing (or by facsimile and confirmed in writing) and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, (ii) the indemnifying party has failed within a reasonable time to retain counsel reasonably satisfactory to the indemnified party or (iii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties, and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by Morgan Stanley or, if Morgan Stanley is not an indemnified party and is not reasonably likely to become an indemnified party, by the Agents that are indemnified parties, in the case of parties indemnified pursuant to the second preceding paragraph and by the applicable Issuer or Issuers and the Guarantor in the case of parties indemnified pursuant to the first preceding paragraph. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there shall be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the third sentence of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceedings.
If the indemnification provided for in the first or second paragraph of this Section VII is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the applicable Issuer and the Guarantor, on the one hand, and such Agent, on the other hand, from the offering of the Securities to which such loss, claim, damage, liability or action in respect thereof relates or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the applicable Issuer and the Guarantor, on the one hand, and of such Agent, on the other hand, in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the applicable Issuer and the Guarantor, on the one hand, and such Agent, on the other hand, shall be deemed to be in the same respective proportions as the net proceeds from such offering (before deducting expenses) received by the applicable Issuer and the total discounts and commissions received by such Agent, in respect thereof. The relative fault of the applicable Issuer and the Guarantor, on the one hand, and of such Agent, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by such Issuer and the Guarantor, on the one hand, or by such Agent, on the other hand, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The applicable Issuer, the Guarantor and each Agent agree that it would not be just and equitable if contribution pursuant to this Section VII were determined by pro rata allocation (even if the Agents were treated as one entity for such purpose) or by any other method or allocation that does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section VII, no Agent shall be required to contribute any amount in excess of the amount by which the total price at which the Securities referred to in the preceding paragraph and purchased by it or through it were sold exceeds the amount of any damages that such Agent has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Agents' respective obligations to contribute pursuant to this Section VII are several in proportion to the respective principal amounts of Securities purchased by them or through them to which such loss, claim, damage, liability or action in respect thereof relates, and not joint. The remedies provided for in this Section VII are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
VIII.
Each Agent, in soliciting offers to purchase Securities from the
Issuers and in performing the other obligations of such Agent hereunder (other
than in respect of any purchase by an Agent as principal, pursuant to a Terms
Agreement or otherwise), is acting solely as agent for the applicable Issuer or
Issuers and the Guarantor and not as principal. Each Agent will make reasonable
efforts to assist each Issuer in obtaining performance by each purchaser whose
offer to purchase Securities from such Issuer was solicited by such Agent and
has been accepted by such Issuer, but such Agent shall not have any liability to
such Issuer or the Guarantor in the event such purchase is not consummated for
any reason. If any of the Issuers shall default on its obligation to deliver
Securities to a purchaser whose offer it has accepted, such Issuer and the
Guarantor shall (i) hold each Agent harmless against any loss, claim or damage
arising from or as a result of such default by such Issuer or the Guarantor and
(ii) notwithstanding such default, pay to the Agent that solicited such offer
any commission to which it would be entitled in connection with such sale.
IX.
The respective indemnities, agreements, representations, warranties and other statements of the Agents, the Issuers and the Guarantor contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement or any applicable Terms Agreement, (ii) any investigation made by or on behalf of any Agent or any person controlling any Agent or by or on behalf of any of the Issuers, the Guarantor, their respective officers or directors or any other person controlling the Issuers or the Guarantor and (iii) acceptance of and payment for any of the Securities.
X.
The provisions of this Agreement authorizing the solicitation of offers
to purchase Securities from any of the Issuers may be suspended or terminated at
any time by such Issuer and the Guarantor as to any Agent or by any Agent upon
the giving of written notice of such suspension or termination to such Agent or
such Issuer, as the case may be. In the event of such suspension or termination
with respect to any Agent, (x) this Agreement shall remain in full force and
effect with respect to any Agent as to which such suspension or termination has
not occurred, (y) this Agreement shall remain in full force and effect with
respect to the rights and obligations of any party which have previously accrued
or which relate to Securities which are already issued, agreed to be issued or
the subject of a pending offer at the time of such suspension or termination and
(z) in any event, this Agreement shall remain in full force and effect insofar
as the fourth paragraph of Section II(a) with respect to solicitations made
prior to such suspension or termination, Section V(e), Section V(m), Section
VII, Section VIII and Section IX are concerned.
XI.
Except as otherwise specifically provided herein or in the Procedures,
all statements, requests, notices and advices hereunder shall be in writing, or
by telephone if promptly confirmed in writing, and if to Morgan Stanley shall be
sufficient in all respects when delivered or sent by facsimile transmission or
registered mail to 1585 Broadway, New York, New York 10036, Attention: Manager,
Credit Department (telefax: 212-703-4575) with a copy to 1585 Broadway, New
York, New York 10036, Attention: Managing Director, Debt Syndicate (telefax:
212-764-7490); if to Goldman, Sachs & Co., 388 Greenwich Street, New York, New
York 10004, Attention: Medium Term Note Department (telefax: 212-816-5831); if
to Lehman Brothers Inc., 745 Seventh Avenue, New York, New York 10019,
Attention: Fixed Income Syndicate/Medium Term Note Desk (telefax: 212-526-0943);
if to Merrill Lynch, Pierce, Fenner & Smith Incorporated, 250 Vesey Street,
World Financial Tower (North Tower), 15th Floor, New York, New York 10281,
Attention: Transaction Management Group; if to J.P. Morgan Securities Inc., 270
Park Avenue, New York, New York 10017, Attention: MTN Trading Desk (telefax:
212-834-6081); if to Citigroup Global Markets Inc., 388 Greenwich Street, New
York, New York 10013, Attention: Medium-Term Note Department (telefax:
212-816-0949); and if to Diageo Capital plc, Diageo Finance B.V., Diageo
Investment Corporation or Diageo plc, 8 Henrietta Place, London W1G 0NB,
Attention: Company Secretary (telefax: 011-44-20-7927-4637).
XII.
This Agreement and any Terms Agreement shall be binding upon, and inure solely to the benefit of, the parties hereto or thereto, respectively, and to the extent provided in Section VII and Section VIII hereof, the officers and directors of each of the Issuers and the Guarantor and any person who controls any Agent or any of the Issuers or the Guarantor, and their respective personal representatives, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this Agreement or any Terms Agreement. No purchaser of any of the Securities through or from any Agent hereunder shall be deemed a successor or assign by reason merely of such purchase.
XIII.
Each of the Scottish Issuer, the Dutch Issuer and the Guarantor has appointed Diageo North America, Inc. as its authorized agent (the "Authorized Agent") upon which process may be served in any action based on this Agreement that may be instituted in any state or federal court in the City, County and State of New York by any Agent or by any person controlling any Agent, and expressly accepts the jurisdiction of any such court in respect of such action. Unless otherwise agreed by the Agents and their counsel, such appointment shall be irrevocable for a period of three years from and after the completion of sale of all the Securities unless and until a successor Authorized Agent shall be appointed and such successor shall accept such appointment for the remainder of such three-year period. Each of the Scottish Issuer, the Dutch Issuer and the Guarantor represents to each of the Agents that it has notified the Authorized Agent of such designation and appointment and that Authorized Agent has accepted the same in writing. The Scottish Issuer, the Dutch Issuer and the Guarantor will take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment or appointments in full force and effect as aforesaid. Service of process upon the Authorized Agent and written notice of such service to the Scottish Issuer, the Dutch issuer or the Guarantor (mailed or delivered as aforesaid) shall be deemed, in every respect, effective service of process upon the Scottish Issuer, the Dutch Issuer or the Guarantor (as the case may be). Notwithstanding the foregoing, any action based on this Agreement may be instituted by any Agent against the Scottish Issuer, the Dutch Issuer or the Guarantor in any competent court in Scotland, the Netherlands or England and Wales (as the case may be).
XIV.
Time shall be of the essence in this Agreement and any Terms Agreement. As used herein, the term "business day" shall mean any day when the office of the Commission in Washington, D.C. is normally open for business and when banking institutions are not generally authorized or required by law or regulation to close in London.
XV.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
XVI.
This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
If the foregoing is in accordance with your understanding, please sign and return to us ten counterparts hereof, whereupon this letter and the acceptance by each of you thereof shall constitute a binding agreement between each of the Issuers and the Guarantor and each of you in accordance with its terms.
Very truly yours,
DIAGEO CAPITAL PLC
By /s/ S.M. Bunn
-----------------------------------
Name S.M. Bunn
Title Director
|
DIAGEO FINANCE B.V.
By /s/ D.M.F. Leese
-----------------------------------
Name D.M.F. Leese
Title Director
By /s/ M.C.T.M. Gerichhausen
-----------------------------------
Name M.C.T.M. Gerichhausen
Title Director
|
DIAGEO INVESTMENT CORPORATION
By /s/ Aren Korte
-----------------------------------
Name Aren Korte
Title Director
|
DIAGEO PLC
By /s/ N.C. Rose
-----------------------------------
Name N.C. Rose
Title Finance Director
|
The foregoing Agreement is hereby confirmed and accepted as of the date first above written.
MORGAN STANLEY & CO. INCORPORATED
By /s/ Michael Fusco
------------------------------------------
Name: Michael Fusco
Title: Executive Director
|
GOLDMAN, SACHS & CO.
By /s/ Goldman, Sachs & Co.
----------------------------------------
Name:
Title:
|
LEHMAN BROTHERS INC.
By /s/ Martin Goldberg
------------------------------------------
Name: Martin Goldberg
Title: Senior Vice President
|
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
By /s/ Diane Kenna
------------------------------------------
Name: Diane Kenna
Title: Authorized Signatory
|
J.P. MORGAN SECURITIES INC.
By /s/ Carl J. Mehldau Jr.
------------------------------------------
Name: Carl J. Mehldau Jr.
Title: Vice President
|
CITIGROUP GLOBAL MARKETS INC.
By /s/ Martha Bailey
------------------------------------------
Name:/ Martha Bailey
Title: Senior Vice President
|
Annex I
[DIAGEO CAPITAL PLC]
[DIAGEO FINANCE B.V.]
[DIAGEO INVESTMENT CORPORATION]
Up to U.S.[$2,000,000,000]
MEDIUM-TERM NOTES
Guaranteed as to Payment of Principal,
Premium (if any) and Interest by
DIAGEO PLC
TERMS AGREEMENT
Date: ___________
[Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036]
[Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004]
[Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019]
[Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower, 10th Floor
World Financial Center
New York, New York 10281]
[J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017]
[Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013]
Ladies and Gentlemen:
[Diageo Capital plc] [Diageo Finance B.V.] [Diageo Investment
Corporation] (the "Issuer") and Diageo plc (the "Guarantor") propose, subject to the terms and conditions stated herein and in the Amended and Restated Distribution Agreement, dated December 8, 2003 (the "Distribution Agreement"), among the Issuer, the Guarantor and the other issuer thereunder on the one hand and Morgan Stanley & Co. Incorporated, Goldman, Sachs & Co., Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities Inc. and [Citigroup Global Markets Inc.] (the "Agents") on the other, to issue and sell to [purchasers] the securities specified in the Schedule hereto (the "Purchased Securities"). Each of the provisions of the Distribution Agreement not specifically related to the solicitation by the Agents, as agents of the Issuer and the Guarantor, of offers to purchase Securities is incorporated herein by reference in its entirety, and shall be deemed to be part of this Terms Agreement to the same extent as if such provisions had been set forth in full herein, and each capitalized term herein that is not defined herein and is defined in the Distribution Agreement shall have the meaning set forth in the Distribution Agreement. Nothing contained herein or in the Distribution Agreement shall make any party hereto an agent of the Issuer or the Guarantor or make such party subject to the provisions therein relating to the solicitation of offers to purchase securities from the Issuer, solely by virtue of its execution of this Terms Agreement. Each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Terms Agreement, except that each representation and warranty in Section I of the Distribution Agreement which makes reference to the Prospectus shall be deemed to be a representation and warranty as of the date of the Distribution Agreement in relation to the Prospectus (as therein defined), and also a representation and warranty as of the date of this Terms Agreement in relation to the Prospectus as amended and supplemented to relate to the Purchased Securities.
An amendment to the Registration Statement, or a supplement to the Prospectus, as the case may be, relating to the Purchased Securities, in the form heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the provisions of the Distribution Agreement incorporated herein by reference, the Issuer agrees to issue and sell to [purchasers], and [each severally] agree[s] to purchase from the Issuer, the Purchased Securities, at the time and place, in the principal amount and (notwithstanding the commission schedule set forth in the Distribution Agreement) at the purchase price set forth in the Schedule hereto.
If the foregoing is in accordance with your understanding, please sign and return to us _______ counterparts hereof, whereupon this letter, including those provisions of the Distribution Agreement incorporated herein by reference, and the acceptance by [each of] you thereof shall constitute a binding agreement between [each of] you and the Issuer and the Guarantor.
[DIAGEO CAPITAL PLC]
[DIAGEO FINANCE B.V.]
[DIAGEO INVESTMENT CORPORATION]
Title:
Title:]
DIAGEO PLC
Title:
Accepted:
[MORGAN STANLEY & CO. INCORPORATED
[GOLDMAN, SACHS & CO.
[LEHMAN BROTHERS INC.
[MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
[J.P. MORGAN SECURITIES INC.
[CITIGROUP GLOBAL MARKETS INC.
Schedule to Annex I
Issuer of Purchased Securities:
Title of Purchased Securities:
[ %] Medium-Term Notes, Due [ ]
Aggregate Principal Amount:
[U.S. $ or units of other specified currency]
[Price to Public:]
Purchase Price by:
[Purchasers and Amounts for Each]
[ %] of the principal amount of the Purchased Securities [, plus accrued interest from to ] [and accrued amortization if any, from to ]
Method of and Specified Funds for Payment of Purchase Price:
[By wire transfer to a bank account specified by the Issuer in immediately available funds]
Indenture:
Time of Delivery:
Closing Location:
Maturity:
Interest Rate:
[If fixed: [ %] per annum]
[If floating, state formula]
Interest Payment Dates:
each [months and dates], commencing [date]
Interest Accrual Date:
Settlement:
[book entry] [certified form]
Documents to be Delivered:
The following documents referred to in the Distribution Agreement shall be delivered as a condition to the closing:
[(1) The reliance letter or opinion or opinions of counsel to the Agents referred to in Section V(h).]
[(2) The reliance letter or opinion of counsel to the Issuers and the Guarantor referred to in Section V(i)(A).]
[(3) The reliance letter or opinion of counsel to the Guarantor referred to in Section V(i)(B).]
[(4) The reliance letter or opinion of counsel to the Scottish Issuer and the Guarantor referred to in Section V(i)(C).]
[(5) The reliance letter or opinion of counsel to the Dutch Issuer and the Guarantor referred to in Section V(i)(D).]
[(6) The accountants' letter referred to in Section V(j).]
[(7) The officers' certificate or certificates referred to in
Section V(k).]
Other Provisions (including Book-Entry Depositary and syndicate provisions, if
applicable):
[If Diageo Finance B.V.: Appropriate Dutch selling restriction.]
Annex II
Administrative Procedures
These Procedures relate to the Securities defined in the Amended and Restated Distribution Agreement, dated December 8, 2003 (the "DISTRIBUTION AGREEMENT"), among Diageo Capital plc (the "SCOTTISH ISSUER"), Diageo Finance B.V. (the "DUTCH ISSUER"), Diageo Investment Corporation (the "U.S. ISSUER") (each of the Scottish Issuer and the U.S. Issuer being referred to herein as an "ISSUER" and, together, the "ISSUERS"), Diageo plc (the "GUARANTOR") and Morgan Stanley & Co. Incorporated, Goldman, Sachs & Co., Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities Inc. and Citigroup Global Markets Inc. (together, the "AGENTS"), to which these Procedures are attached as Annex II.
Defined terms used herein and not defined herein shall have the meanings given such terms in the Distribution Agreement, in the Prospectus (as defined in the Distribution Agreement) as amended or supplemented or in the Indentures (as defined in the Distribution Agreement).
The procedures to be followed with respect to the settlement of sales of Securities directly by either of the Issuers to purchasers solicited by an Agent, as agent, are set forth below. The terms and settlement details related to a purchase of Securities by an Agent, as principal, from either of the Issuers will be set forth in a Terms Agreement pursuant to the Distribution Agreement, unless such Issuer, the Guarantor and such Agent otherwise agree as provided in Section II(b) of the Distribution Agreement, in which case the procedures to be followed in respect of the settlement of such sale will be as set forth below. An Agent, in relation to a purchase of a Security by a purchaser solicited by such Agent, is referred to herein as the "SELLING AGENT" and, in relation to a purchase of a Security by such Agent as principal other than pursuant to a Terms Agreement, as the "PURCHASING AGENT".
Each of the Issuers will advise each Agent in writing of those persons with whom such Agent is to communicate regarding offers to purchase Securities and the related settlement details.
Each Security will be represented by a global security in registered form (each a "GLOBAL Security") or by a certificate issued in definitive registered form (a "CERTIFICATED SECURITY"). Each Security will be authenticated by the Trustee, pursuant to the terms if the Indentures. Thereafter,
o if the Security is a Global Security in registered form, it will be delivered to the Trustee, as agent for The Depository Trust Company ("DTC"), and recorded, in the book-entry system maintained by DTC (and as so recorded, is referred to herein as a "BOOK-ENTRY SECURITY"); and
o if the Security is a Certificated Security, it will be delivered to a person
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designated by an Agent, as set forth in the applicable Pricing Supplement.
An owner of a Book-Entry Security will not be entitled to receive a certificate representing such a Security, except as provided in the Indentures.
Each Global Security of the Scottish Issuer or the Dutch Issuer shall be listed by the Scottish Issuer or the Dutch Issuer, as applicable, on The New York Stock Exchange (the "NYSE") or any other internationally recognized stock exchange that is recognized within the meaning of Section 841 of the United Kingdom Income and Corporation Taxes Act 1988, as amended (or any successor provision thereto). The Scottish Issuer and the Dutch Issuer have executed and delivered an application to list the Securities on the NYSE and such application has been approved by the NYSE, subject to the condition that the Securities represented by each Global Security must meet the NYSE's listing requirements, including a minimum principal amount requirement, which, as of the date of the Distribution Agreement is U.S.$5,000,000. The procedures for effecting the listing of each Global Securities are described below.
Part I hereof contains procedures applicable to both Certificated Securities and Book-Entry Securities. Certificated Securities will be issued in accordance with the further procedures set forth in Part II hereof, and Book-Entry Securities will be issued in accordance with the further procedures set forth in Part III hereof.
I. Procedures Generally Applicable
Posting Rates by Issuer:
Each of the Issuers and the Agents will discuss from time to time the rates of interest per annum to be borne by and the maturity of Securities that may be sold as a result of the solicitation of offers by an Agent. Each of the Issuers may establish a fixed set of interest rates and maturities for an offering period ("posting"). If an Issuer decides to change already posted rates, it will promptly advise the Agents to suspend solicitation of offers until the new posted rates have been established with the Agents.
Acceptance of Offers by Issuer:
Subject to Section IV(b) of the Distribution Agreement, each Agent will promptly advise the applicable Issuer by telephone or other appropriate means of all reasonable offers to purchase Securities, other than those rejected by such Agent. Each Agent may, in its discretion reasonably exercised, reject any offer received by it in whole or in part. Each Agent also may make offers to either of the Issuers to purchase Securities as a Purchasing Agent. Each Issuer will have the sole right to accept offers to purchase Securities and may reject any such offer in whole or in part.
The applicable Issuer will promptly notify the Selling Agent or Purchasing Agent, as the case may be, of its acceptance or rejection of an offer to purchase Securities. If such Issuer accepts an offer to purchase Securities, it and the Guarantor will confirm such acceptance in writing to the Selling Agent or Purchasing Agent, as the case may be, and
II-2
will promptly notify the Trustee and (in the case of an acceptance by the Scottish Issuer that will result in the issuance of a Scottish Book-Entry Security and in the case of an acceptance by the Dutch Issuer that will result in a Dutch Book-Entry Security) the Book-Entry Depositary, with written confirmation following thereafter.
Communication of Sale Information to Issuer by Selling Agent:
After the acceptance of an offer by either of the Issuers and the Guarantor, the Selling Agent or Purchasing Agent, as the case may be, will communicate the following details of the terms of such offer (the "Sale Information") to such Issuer by telephone (confirmed in writing) or by facsimile transmission or other acceptable written means:
(1) Principal amount of Securities to be purchased;
(2) If a Fixed Rate Security, the interest rate and the initial Interest Payment Date;
(3) Maturity Date;
(4) Specified Currency and, if the Specified Currency is other than U.S. dollars, the Exchange Rate Agent;
(5) Index Currency, if applicable;
(6) Issue Price;
(7) Selling Agent's commission or Purchasing Agent's discount, as the case may be;
(8) Net proceeds to the Issuer;
(9) Settlement Date;
(10) If a redeemable Security, such of the following as are applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par),
(iii) Amount (% of par) that the Redemption Price shall decline (but not below par) on each anniversary of the Redemption Commencement Date, and
(iv) Other applicable provisions;
(11) If a Floating Rate Security, such of the following as are applicable:
(i) Base Rate,
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(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates with respect to Securities issued by the U.S. Issuer,
(xii) Calculation Agent, and
(xiii) Reporting Service, Designated LIBOR Telerate Page, Designated CMT Telerate Page or Designated Telerate Maturity Index, if applicable;
(12) If the amount of principal and/or interest payable on a Security will be determined by reference to an index or formula, a full description of such index or formula and all other applicable terms;
(13) If an Original Issue Discount ("OID") Security:
(i) Total Amount of OID,
(ii) Yield to Maturity, and
(iii) Initial Accrual Period OID;
(14) Name, address and taxpayer identification number of the registered owners, if applicable;
(15) Denomination of certificates to be delivered at settlement;
(16) Book-Entry Security or Certificated Security; and
(17) Such other terms as are necessary to complete the applicable terms of the Security.
II-4
Preparation of Pricing Supplement by Issuer:
If either of the Issuers accepts an offer to purchase a Security, it will prepare a Pricing Supplement, substantially in the form attached hereto, along with a transmittal letter, as Annex II-A (Annex II-A-1 in respect of Fixed Rate Securities and Annex II-A-2 in respect of Floating Rate Securities). Such Issuer will supply at least one copy of such Pricing Supplement to each applicable Selling Agent or Purchasing Agent, as the case may be, not later than 5:00 p.m., New York City time, on the business day following the date of acceptance of such offer, or if such Issuer and the purchaser agree to settlement on the date of such acceptance, not later than Noon, New York City time, on such date. Such Issuer will arrange to have ten Pricing Supplements filed with the Commission in accordance with the applicable paragraph of Rule 424(b) under the Securities Act.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will promptly deliver to the purchaser of a Security a written confirmation of the sale and delivery and payment instructions. In addition, the Selling Agent will deliver to such purchaser or its agent the Prospectus as amended or supplemented (including the Pricing Supplement) in relation to such Security prior to or together with the earlier of the delivery to such purchaser or its agent of (a) the confirmation of sale or (b) the Security.
II. Procedures Applicable to Certificated Securities
Date of Settlement
All offers solicited by a Selling Agent or made by a Purchasing Agent and accepted by either of the Issuers will be settled on a date (the "Settlement Date") which is the third business day after the date of acceptance of such offer (or the fourth business day thereafter, if on the date of acceptance such acceptance is made after 4:30 p.m., New York City time), unless such Issuer and the purchaser agree to settlement (a) on any other business day after the acceptance of such offer or (b) with respect to an offer accepted by such Issuer prior to 10:00 a.m., New York City time, on the date of such acceptance.
Instruction from Issuer to Trustee for Preparation of Certificated Securities:
After receiving the Sale Information from the Selling Agent or Purchasing Agent, as the case may be, the applicable Issuer will communicate such Sale Information (together with the name of the Selling Agent or Purchasing Agent, as applicable) to the Trustee by telephone (confirmed in writing by such Issuer and the Guarantor) or, in conjunction with the Guarantor, by facsimile transmission or other acceptable written means.
Such Issuer and the Guarantor will instruct the Trustee by facsimile transmission or other acceptable written means to authenticate and deliver the Certificated Securities no later than 2:15 p.m., New York City time, on the Settlement Date. Such instruction will be given by such Issuer and the Guarantor prior to 3:00 p.m., New York City time,
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on the business day prior to the Settlement Date unless the Settlement Date is
the date of acceptance by such Issuer of the offer to purchase Certificated
Securities in which case such instruction will be given by such Issuer by 11:00
a.m., New York City time.
Preparation and Delivery of Certificated Securities by Trustee and Receipt of Payment Therefor:
The Trustee will prepare each Certificated Security and appropriate receipts that will serve as the documentary control of the transaction.
In the case of a sale of Certificated Securities to a purchaser solicited by an Agent, the Trustee will, by 2:15 p.m., New York City time, on the Settlement Date, deliver the securities to the Selling Agent for the benefit of the purchaser of such Certificated Securities against delivery by the Selling Agent of a receipt therefor. On the Settlement Date the Selling Agent will deliver payment for such Certificated Securities in immediately available funds to such Issuer in an amount equal to the issue price of the Certificated Securities less the Selling Agent's commission; provided that the Selling Agent reserves the right to withhold payment for which it has not received funds from the purchaser. Such Issuer shall not use any proceeds advanced by a Selling Agent to acquire securities.
In the case of a sale of Certificated Securities to a Purchasing Agent, the Trustee will, by 2:15 p.m., New York City time, on the Settlement Date, deliver the certificated Securities to the Purchasing Agent against delivery of payment for such Certificated Securities in immediately available funds to such Issuer in an amount equal to the issue price of the Certificated Securities less the Purchasing Agent's discount.
Failure of Purchaser to Pay Selling Agent
If a purchaser (other than a Purchasing Agent) fails to make payment to the Selling Agent for a Certificated Security, the Selling Agent will promptly notify the Trustee and the applicable Issuer thereof by telephone (confirmed in writing) or by facsimile transmission or other acceptable written means. The Selling Agent will immediately return the Certificated Security to the Trustee. Immediately upon receipt of such Certificated Security by the Trustee, such Issuer will return to the Selling Agent an amount equal to the amount previously paid to such Issuer in respect of such Certificated Security. If such failure shall have occurred for any reason other than default by the Selling Agent to perform its obligations hereunder or under the Distribution Agreement, such Issuer will reimburse the Selling Agent on an equitable basis for its loss of the use of funds during the period when they were credited to the account of such Issuer, provided that the Selling Agent promptly notifies such Issuer that such reimbursement is due and provided further that the Selling Agent reimburses such Issuer for any amounts previously paid to the Selling Agent by such Issuer for such loss of use of funds if the Selling Agent is also so reimbursed by such purchaser for such loss of use of funds.
The Trustee will cancel the Certificated Security in respect of which the failure occurred, make appropriate entries in its records and, unless otherwise instructed by such
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Issuer, destroy the Certificated Security.
III. Procedures Applicable to Book-Entry Securities
In connection with the qualification of the Book-Entry Securities for eligibility in the book-entry system maintained by DTC, the Trustee will perform the custodial, document control and administrative functions described below, in accordance with its respective obligations under a Letter of Representations from the U.S. Issuer and the Trustee to DTC, dated as of March 26, 2002 (the "U.S. LETTER OF REPRESENTATIONS"), a Letter of Representations from the Scottish Issuer and the Trustee to DTC, dated as of March 26, 2002 (the "SCOTTISH LETTER OF REPRESENTATIONS") and a letter of Representations from the Dutch Issuer and the Trustee to DTC, dated as of o, 2003 (the "DUTCH LETTER OF REPRESENTATIONS"), as well as under a Medium-Term Note Certificate Agreement between the Trustee and DTC, dated as of October 31, 1988 (the "CERTIFICATE AGREEMENT"), and the Trustee's obligations as a participant in DTC, including DTC's Same-Day Funds Settlement System.
Settlement Procedures
After the acceptance of an offer by either of the Issuers and the Guarantor, the Selling Agent or Purchasing Agent, as the case may be, will communicate promptly, but in no event later than 3:00 p.m. New York City time on the business day following the acceptance of an offer by the applicable Issuer or 10:00 a.m. on the business day prior to the settlement date whichever is earlier, the Sale Information to such Issuer by telephone (confirmed in writing) or by facsimile transmission or other acceptable written means.
A. After receiving the Sale Information from the Selling Agent or Purchasing Agent, the applicable Issuer and the Guarantor will communicate such Sale Information (together with the name of the Selling Agent or Purchasing Agent, as applicable) to the Trustee by facsimile transmission or other acceptable written means. The Trustee will assign a CUSIP number to the Global Security from a list of CUSIP numbers previously delivered to the Trustee by such Issuer representing such Book-Entry Security and then advise such Issuer and the Selling Agent or Purchasing Agent, as the case may be, of such CUSIP number.
B. If applicable, the Scottish Issuer shall file with the Commission a registration statement on Form 8-A, substantially in the form attached hereto, relating to the Securities represented by such Global Security. The Scottish Issuer shall copy the applicable Agents on such application and on all correspondence with the Commission relating to such registration statement. The parties agree that there shall be no settlement with respect to such Global Security prior to such registration statement becoming effective pursuant to the regulations of the Commission.
C. If applicable, the Dutch Issuer shall file with the Commission a registration statement on Form 8-A, substantially in the form attached hereto, relating to the Securities represented by such Global Security. The Dutch Issuer shall copy the
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applicable Agents on such application and on all correspondence with the Commission relating to such registration statement. The parties agree that there shall be no settlement with respect to such Global Security prior to such registration statement becoming effective pursuant to the regulations of the Commission.
In the case of a Global Security issued by the Scottish Issuer or the Dutch Issuer, the Scottish Issuer or the Dutch Issuer, as applicable, shall send to the NYSE a copy of the Pricing Supplement and the Form 8-A relating to the Securities represented by each Global Security in order to effect the listing of such Securities on the NYSE. The relevant Issuer may also execute and deliver an application to list the Securities represented by such Global Security on another internationally recognized stock exchange that is recognized within the meaning of Section 841 of the United Kingdom Income and Corporation Taxes Act 1988, as amended (or any successor provision thereto). To be eligible for listing on The New York Stock Exchange, the Securities represented by such Global Security must meet such exchange's listing requirements, including a minimum principal amount requirement, which, as of the date of the Distribution Agreement, is U.S.$5,000,000. The Scottish Issuer or the Dutch Issuer, as applicable, shall copy the applicable Agents on such application and on all correspondence with the relevant stock exchange relating to such application, including the listing approval by such stock exchange. The parties agree that there shall be no settlement with respect to such Global Security prior to the relevant stock exchange approving such listing subject only to official notice of issuance.
D. The Trustee will enter a pending deposit message through DTC's Participant Terminal System, providing the following settlement information to DTC and DTC shall forward such information to such Agent:
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such Book-Entry Security;
(3) Whether such Global Security will represent any other Book-Entry Security (to the extent known at such time);
(4) Number of participant accounts maintained by DTC on behalf of the Selling Agent or Purchasing Agent, as the case may be;
(5) The interest payment period;
(6) Initial Interest Payment Date for such Book-Entry Security, the number of days by which such date succeeds the record date for DTC's purposes (which, in the case of Floating Rate Securities which reset daily or weekly, shall be the date five calendar days immediately preceding the applicable Interest Payment Date and in the case of all other Book-Entry Securities shall be the Regular Record Date, as defined in the Security) and, if calculable at that time, the amount of interest payable on such Interest
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Payment Date; and
(7) Whether such Security is an amortizing Security (by an appropriate notation in the comments field of DTC's Participant Terminal System).
The Trustee shall additionally inform DTC as to whether the Book-Entry Security is being submitted to DTC pursuant to the U.S. Letter of Representations (relating to Global Securities issued by the U.S. Issuer), the Scottish Letter of Representations (relating to Global Securities issued by the Scottish Issuer) or the Dutch Letter of Representations (relating to the Global Securities issued by the Dutch Issuer)).
E. The Trustee will complete and authenticate the Global Security previously delivered by such Issuer representing such Book-Entry Security.
F. DTC will credit such Book-Entry Security to the Trustee's participant account at DTC.
G. The Trustee will enter a Same Day Funds Settlement System ("SDFS") deliver order through DTC's Participant Terminal System instructing DTC to (i) debit such Book-Entry Security to the Trustee's participant account and credit such Book-Entry Security to such Agent's participant account and (ii) debit such Agent's settlement account and credit the Trustee's settlement account for an amount equal to the price of such Book-Entry Security less such Agent's commission. The entry of such a deliver order shall constitute a representation and warranty by the Trustee to DTC that (a) the Global Security representing such Book-Entry Security has been issued and authenticated and (b) the Trustee is holding such Global Security pursuant to the Certificate Agreement.
H. Such Agent will enter an SDFS deliver order through DTC's Participant Terminal System instructing DTC (i) to debit such Book-Entry Security to such Agent's participant account and credit such Book-Entry Security to the participant accounts of the relevant participants with respect to such Book-Entry Security and (ii) to debit the settlement accounts of such relevant participants and credit the settlement account of such Agent for an amount equal to the price of such Book-Entry Security.
I. Transfers of funds in accordance with SDFS deliver orders described in Settlement Procedures "F" and "G" will be settled in accordance with SDFS operating procedures in effect on the settlement date.
J. Upon confirmation of receipt of funds, the Trustee will transfer to the account of such Issuer maintained at the Trustee, New York, New York, or such other account as such Issuer may have previously specified to the Trustee, funds available for immediate use in the amount transferred to the Trustee in accordance with Settlement Procedure "F".
K. Upon request, the Trustee will send to such Issuer a statement setting forth the principal amount of Book-Entry Securities outstanding as of that date under the
II-9
Indentures.
L. Such Agent will confirm the purchase of such Book-Entry Security to the purchaser either by transmitting to the relevant participants with respect to such Book-Entry Security a confirmation order or orders through DTC's institutional delivery system or by mailing a written confirmation to such purchaser.
M. DTC will at any time, upon request of such Issuer or the Trustee, promptly furnish to the Issuer or the Trustee a list of the names and addresses of the participants for whom DTC has credited Book-Entry Securities.
Date of Settlement:
The receipt by the applicable Issuer of immediately available funds in payment for a Book-Entry Security and the authentication and issuance of the Global Security representing such Book-Entry Security shall constitute "settlement" with respect to such Book-Entry Security. All offers accepted by such Issuer will be settled on the third business day (or the fourth business day if on the date of acceptance such acceptance is made after 4:30 p.m. New York City time) pursuant to the timetable for settlement set forth below unless such Issuer and the purchaser agree to settlement on another day which shall be no earlier than the next business day.
Settlement Procedure Timetable:
For orders of Book-Entry Securities solicited by an Agent, as agent, and accepted by the applicable Issuer for settlement on the first business day after the sale date, Settlement Procedures "A" through "I" set forth above shall be completed as soon as possible but not later than the respective times (New York City time) set forth below:
SETTLEMENT
PROCEDURE TIME
--------- ----
A 12:00 noon on the sale date
B 2:00 p.m. on the sale date
C 2:00 p.m. on the sale date
D 9:00 a.m. on settlement date
E 10:00 a.m. on settlement date
F 2:00 p.m. on settlement date
G-H 4:45 p.m. on settlement date
I 5:00 p.m. on settlement date
|
If a sale is to be settled more than one business day after the sale date, Settlement Procedures "A", "B" and "C" shall be completed as soon as practicable but not later than
II-10
2:00 p.m. on the first business day after the sale date. If the initial interest rate for a Floating Rate Book-Entry Security has not been determined at the time that the Selling Agent or Purchasing Agent, as the case may be, communicates the Sale Information to the applicable Issuer, Settlement Procedures "A", "B" and "C" shall be completed as soon as such rate has been determined but no later than 2:00 p.m. on the business day after the sale date. Settlement Procedure "H" is subject to extension in accordance with any extension of fedwire closing deadlines and in the other events specified in the SDFS operating procedures in effect on the settlement date.
If settlement of a Book-Entry Security is rescheduled or canceled, the Trustee, upon obtaining knowledge thereof, will deliver to DTC, through DTC's Participation Terminal System, a cancellation message to such effect by no later than 2:00 p.m. New York City time on the business day immediately preceding the scheduled settlement date.
Failure to Settle:
If the Trustee fails to enter an SDFS deliver order with respect to a Book-Entry Security pursuant to Settlement Procedure "F", the Trustee may deliver to DTC, through DTC's Participant Terminal System, as soon as practicable a withdrawal message instructing DTC to debit such Book-Entry Security to the Trustee's participant account, provided that the Trustee's participant account contains a principal amount of the Global Security representing such Book-Entry Security that is at least equal to the principal amount to be debited. If a withdrawal message is processed with respect to all the Book-Entry Securities represented by a Global Security, the Trustee will mark such Global Security "canceled", make appropriate entries in the Trustee's records and send such canceled Global Security to the Company. The CUSIP number assigned to such Global Security shall, in accordance with CUSIP Service Bureau procedures, be canceled and not immediately reassigned. If a withdrawal message is processed with respect to one or more, but not all, of the Book-Entry Securities represented by a Global Security, the Trustee will exchange such Global Security for two Global Securities, one of which shall represent such Book-Entry Security or Securities and shall be canceled immediately after issuance and the other of which shall represent the remaining Book-Entry Securities previously represented by the surrendered Global Security and shall bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Security is not timely paid to the participants with respect to such Book-Entry Security by the beneficial purchaser thereof (or a person, including an indirect participant in DTC, acting on behalf of such purchaser), such participants and, in turn, the Agent for such Book-Entry Security may enter deliver orders through DTC's Participant Terminal System debiting such Book-Entry Security to such participant's account and crediting such Book-Entry Security to such Agent's account and then debiting such Book-Entry Security to such Agent's participant account and crediting such Book-Entry Security to the Trustee's participant account and shall notify the applicable Issuer and the Trustee thereof. Thereafter, the Trustee will (i) immediately notify such Issuer of such order and such Issuer shall transfer to such Agent funds available for immediate use in an amount equal to the price of such
II-11
Book-Entry Security which was credited to the account of such Issuer maintained at the Trustee in accordance with Settlement Procedure "I", and (ii) deliver the withdrawal message and take the related actions described in the preceding paragraph. If such failure shall have occurred for any reason other than default by the applicable Agent to perform its obligations hereunder or under the Distribution Agreement, such Issuer will reimburse such Agent on an equitable basis for the loss of its use of funds during the period when the funds were credited to the account of such Issuer.
Notwithstanding the foregoing, upon any failure to settle with respect to a Book-Entry Security, DTC may take any actions in accordance with its SDFS operating procedures then in effect. In the event of a failure to settle with respect to one or more, but not all, of the Book-Entry Securities to have been represented by a Global Security, the Trustee will provide, in accordance with Settlement Procedure "D", for the authentication and issuance of a Global Security representing the other Book-Entry Securities to have been represented by such Global Security and will make appropriate entries in its records.
The Issuers will, from time to time, furnish the Trustee with a sufficient quantity of Securities.
II-12
Pricing Supplement No. Dated
Rule 424(b)[(2)]
(To Prospectus dated December 8, 2003 and
File No. 333-110804
Prospectus Supplement dated December 8, 2003) CUSIP:
Diageo [Capital plc/Finance B.V./Investment Corporation]
Medium-Term Notes - Fixed Rate
--------------------------------------------------------------------------------
Principal Amount: Interest Rate:
Agents Discount or Commission: Stated Maturity Date:
Nets Proceeds to Issuer: Issue Date:
--------------------------------------------------------------------------------
Interest Payment Dates:
|
Redemption:
[ ] The Notes cannot be redeemed prior to the Stated Maturity Date,
[ ] The Notes may be redeemed prior to the Stated Maturity Date.
Redemption Commencement Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction: % until Redemption Percentage is
100% of the principal amount.
Optional Repayment:
[ ] The Notes cannot be repaid prior to the Stated Maturity Date
[ ] The Notes can be repaid prior to the Stated Maturity Date at the option of
the holder of the Notes.
Option Repayment Dates:
Repayment Price: %
Currency:
Specified Currency: Exchange Rate Agent: Citibank, N.A.
Minimum Denominations:
Original Issue Discount: [ ] Yes [ ] No
|
Total Amount of OID: Yield to Maturity:
Initial Accrual Period:
Form: [X] Book-Entry [ ] Certificated
Agent: [ ] [Morgan Stanley & Co. Incorporated]
[ ] Other
Agent acting in the capacity as indicated below:
[ ] Agent [ ] Principal
If as principal:
[ ] The Notes are being offered at varying prices related to
prevailing market prices at the time of resale.
[ ] The Notes are being offered at a fixed initial public offering
price of % of principal amount.
If as Agent:
The Notes are being offered at a fixed initial public offering price of
% of Principal Amount.
Trustee: Citibank, N.A.
Other Provisions: [If Diageo Finance B.V.: Appropriate Dutch selling restriction.]
Terms not defined above have the meanings given to such terms in the Prospectus Supplement, dated December 8, 2003.
II-13
Pricing Supplement No. Dated
Rule 424(b) [(2)]
(To Prospectus dated December 8, 2003 and
File No. 333-110804
Prospectus Supplement dated December 8, 2003) CUSIP:
Diageo [Capital plc/Finance B.V./Investment Corporation] Medium-Term Notes - Floating Rate
--------------------------------------------------------------------------------
Principal Amount: Initial Interest Rate:
Agent's Discount or Commission: Original Issue Date:
Net Proceeds to Issuer: Stated Maturity Date:
--------------------------------------------------------------------------------
Calculation Agent: Citibank, N.A. Calculation Dates:
Interest Rate Basis:
[ ] CD Rate [ ] EURIBOR [ ] Prime Rate
[ ] CMT Rate [ ] Federal Funds Rate [ ] Treasury Rate
|
[ ] Commercial Paper Rate [ ] LIBOR [ ] Other (see attached)
If LIBOR, Designated LIBOR Page: [ ] LIBOR Reuters, Reuters Page:
[ ] LIBOR Moneyline Telerate,
Moneyline Telerate Page:
If CMT Rate, Designated CMT Maturity Index:
Designated CMT Moneyline Telerate Page:
Interest Reset Dates: Spread (+/-) Interest Reset Period: Spread Multiplier: Interest Payment Dates: Maximum Interest Rate: Index Maturity: Minimum Interest Rate: Index Currency: Interest Determination Dates: |
Redemption:
[ ] The Notes cannot be redeemed prior to the Stated Maturity Date.
[ ] The Notes may be redeemed prior to Stated Maturity Date.
Redemption Commencement Date:
Initial Redemption Percentage: %
Annual Redemption Percentage Reduction: % until Redemption Percentage is 100% of the Principal Amount.
Repayment:
[ ] The Notes cannot be repaid prior to the Stated Maturity Date.
[ ] The Notes can be repaid prior to the Stated Maturity Date at the option
of the holder of the Notes.
Optional Repayment Date(s):
Repayment Price: %
Currency:
Specified Currency: Exchange Rate Agent: Citibank, N.A.
Minimum Denominations:
Original Issue Discount: [ ] Yes [ ] No
Total Amount of OID: Yield to Maturity:
Initial Accrual Period:
Form: [X] Book-Entry [ ] Certificated
|
Agent: [ ] [Morgan Stanley & Co. Incorporated]
[ ] Other
II-14
Agent acting in the capacity as indicated below:
[ ] Agent [ ] Principal
If as principal:
[ ] The Notes are being offered at varying prices related to prevailing
market prices at the time of resale.
[ ] The Notes are being offered at a fixed initial public offering price of
% of principal amount.
If as Agent:
The Notes are being offered at a fixed initial public offering price of %
of principal amount.
Trustee: Citibank, N.A.
Other Provisions: [If Diageo Finance B.V.: Appropriate Dutch selling restriction.]
Terms not defined above have the meanings given to such terms in the Prospectus Supplement, dated December 8, 2003.
II-15
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
[Scotland/The Netherlands] None
---------------------------------------- -------------------
(State of Incorporation or Organization) (I.R.S. Employer
Identification No.)
[Edinburgh Park, 5 Lochside Way, Edinburgh, Scotland] [EH12 9DT]
[Molenwerf 10-12, Amsterdam, The Netherlands] [1014 BG]
----------------------------------------------------- ------------
(Address of Principal Executive Office) (Zip Code)
|
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [X]
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [ ]
Securities Act registration statement file number to which this form relates:
No. 333-110804 (If applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
------------------- ------------------------------
[ o % Medium-Term Notes due o ] The New York Stock Exchange
|
Securities to be registered pursuant to Section 12(g) of the Act:
II-16
INFORMATION REQUIRED IN REGISTRATION STATEMENT
The Registrant has filed with the Securities and Exchange Commission (the "Commission") pursuant to Rule 424(b) under the Securities Act of 1933 ("Rule 424(b)") a pricing supplement dated [o] (the "Pricing Supplement") and a prospectus supplement dated December 8, 2003 (the "Prospectus Supplement") to a prospectus dated December 8, 2003 (the "Prospectus"), relating to the Securities to be registered hereunder included in the Registrant's Registration Statement on Form F-3 (File No. 333-110804), as amended, declared effective by the Commission on December 8, 2003. The Registrant incorporates by reference the Prospectus, the Prospectus Supplement and the Pricing Supplement to the extent set forth below.
Item 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
Reference is made to the information set forth in the Pricing Supplement and under the headings "Description of Notes" in the Prospectus Supplement and "Description of Debt Securities and Guarantees" and "Taxation" in the Prospectus, which information is incorporated herein by reference.
Item 2. EXHIBITS.
Pursuant to the Instructions as to Exhibits with respect to Form 8-A, the following exhibits are being filed with the Commission in connection with this Registration Statement:
(A) Prospectus, Prospectus Supplement and Pricing Supplement (incorporated herein to the extent provided above by reference to the Registrant's above-referenced filings with the Securities and Exchange Commission).
(B) 1.1 [Indenture, among the Registrant, Diageo plc, as
Guarantor (the "Guarantor"), and Citibank, N.A., as
Trustee, dated as of August 3, 1998 (the "Indenture")
(incorporated by reference to Exhibit 4.1 filed in the
Registrant's Registration Statement No. 333-8874)]
[Indenture, among the Registrant, Diageo plc, as
Guarantor (the "Guarantor") and Citibank, N.A., as
Trustee, dated as of December 8, 2003 (the "Indenture")
(incorporated by reference to o ].
1.2 Form of Global Security and Guarantees relating thereto
(included in Exhibit 1.1 hereof).
1.3 Officer's Certificate of the Registrant and the
Guarantor pursuant to Section 301 of the Indenture
setting forth the terms of the Securities.
|
II-17
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized.
[Diageo Capital plc] [Diageo Finance B.V.]
(Registrant)
Date: By:
-------------------------------------
Name:
Title:
[Date: By:
-------------------------------------
Name:
Title:]
|
II-18
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION OF EXHIBIT
----------- ----------------------
1.1 [Indenture, among the Registrant, Diageo plc, as Guarantor
(the "Guarantor"), and Citibank, N.A., as Trustee, dated as of
August 3, 1998 (the "Indenture") (incorporated by reference to
Exhibit 4.1 filed in Registrant's Registration Statement No.
333-8874)] [Indenture, among the Registrant, Diageo plc, as
Guarantor (the "Guarantor") and Citibank, N.A., as Trustee,
dated as of December 8, 2003 (the "Indenture") (incorporated
by reference to o)].
1.2 Form of Global Security and Guarantees relating thereto
(included in Exhibit 1.1 hereof).
1.3 Officer's Certificate of the Registrant and the Guarantor
pursuant to Section 301 of the Indenture setting forth the
terms of the Securities.
|
II-19
Annex III
Form of Dealer Accession Agreement
[Date]
[Name of Dealer]
[Address]
Re: Diageo Capital plc, Diageo Finance B.V. and Diageo Investment Corporation - Medium-Term Notes Program
Ladies and Gentlemen:
Reference is hereby made to the Amended and Restated Distribution Agreement, dated December 8, 2003 (the "Distribution Agreement"), among Diageo Capital plc ("Diageo Capital"), Diageo Finance B.V. ("Diageo Finance") and Diageo Investment Corporation ("Diageo Investment", and together with Diageo Capital and Diageo Finance, the "Issuers"), Diageo plc (the "Guarantor"), on the one hand, and Morgan Stanley & Co. Incorporated, Goldman, Sachs & Co., Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities Inc. and Citigroup Global Markets Inc. (the "Agents"), on the other, in connection with the issue and sale of the Issuers' Medium-Term Notes Due 18 Months to 30 Years from Date of Issue (the "Securities") guaranteed as to payment of principal, premium (if any) and interest by the Guarantor. A copy of the Distribution Agreement has been previously delivered to you and, to the extent applicable, the provisions thereof are incorporated by reference herein and deemed to be part of this Agreement to the same extent as if such provisions had been set forth in full herein.
Also, copies of the following additional documents have been delivered to you:
(1) the [U.S.] [Dutch] [Scottish] Indenture, as amended or supplemented as of the date hereof;
(2) the Prospectus as amended or supplemented as of the date hereof, in such numbers of copies as you have reasonably requested; and
(3) a copy of each of the most recently delivered documents referred to in Section VI of the Distribution Agreement.
In accordance with Section II of the Distribution Agreement we hereby confirm that, with effect from the date hereof, you shall become a party to the Distribution Agreement and shall be entitled to all the rights and the benefits of the Distribution Agreement (including the benefits of any Term Agreement attached thereto) to the same
III-1
extent and on the same terms as if you were originally appointed as an Agent pursuant to the Distribution Agreement. You agree that, with effect from the date hereof, you shall be subject to all the obligations of an Agent under the Distribution Agreement.
Terms used but not defined herein shall have the meaning assigned to them in the Distribution Agreement.
This Agreement is governed by, and shall be construed in accordance with, New York law.
Please confirm your acceptance of the foregoing by signing this letter and returning it to us, whereupon this letter, including those provisions of the Distribution Agreement incorporated by reference herein, shall constitute a binding agreement between you and [Diageo Investment], [Diageo Finance], [Diageo Capital] and the Guarantor.
[DIAGEO INVESTMENT CORPORATION]
By:_____________________________
Name:
Title:
[DIAGEO FINANCE B.V.]
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
[DIAGEO CAPITAL PLC]
By:_____________________________
Name:
Title:
[DIAGEO PLC]
By:_____________________________
Name:
Title:
III-2
Agreed as of the date first above written:
[DEALER]
By:________________________________
cc: [TRUSTEE]
III-3
Annex IV
Form of One-Time Appointment Agreement
[Date]
[Name of Dealer]
[Address]
Re: [Diageo Investment Corporation] [Diageo Finance B.V.] [Diageo Capital plc] -
o Medium-Term Notes due o (the "Notes")
Ladies and Gentlemen:
Reference is hereby made to the Amended and Restated Distribution Agreement, dated December 8, 2003 (the "Distribution Agreement"), among Diageo Capital plc ("Diageo Capital"), Diageo Finance B.V. ("Diageo Finance") and Diageo Investment Corporation ("Diageo Investment", and together with Diageo Capital and Diageo Finance, the "Issuers"), Diageo plc (the "Guarantor"), on the one hand, and Morgan Stanley & Co. Incorporated, Goldman, Sachs & Co., Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities Inc. and Citigroup Global Markets Inc. (the "Appointed Agents"), on the other, in connection with the issue and sale of the Issuers' Medium-Term Notes Due 18 Months to 30 Years from Date of Issue (the "Securities") guaranteed as to payment of principal, premium (if any) and interest by the Guarantor. For purposes of this Agreement, the Securities include the Notes. A copy of the Distribution Agreement has been previously delivered to you and, to the extent applicable, the provisions thereof are incorporated by reference herein and deemed to be part of this Agreement to the same extent as if such provisions had been set forth in full herein.
Also, copies of the following additional documents have been delivered to you:
(1) the [U.S.] [Dutch] [Scottish] Indenture, as amended or supplemented as of the date hereof;
(2) the Prospectus as amended or supplemented as of the date hereof, in such numbers of copies as you have reasonably requested; and
(3) a copy of each of the most recently delivered documents referred to in Section VI of the Distribution Agreement.
IV-1
In accordance with Section II of the Distribution Agreement we hereby confirm that, solely for the purpose of offering and selling the Notes, you are hereby entitled to all the rights and the benefits of the Distribution Agreement (including the benefits of any Term Agreement attached thereto) to the same extent and on the same terms as if you were an Appointed Agent pursuant to the Distribution Agreement. You agree that you shall be subject to all the obligations that an Appointed Agent would have under the Distribution Agreement for purposes of the offer and sale of the Notes.
Terms used but not defined herein shall have the meaning assigned to them in the Distribution Agreement.
This Agreement is governed by, and shall be construed in accordance with, New York law.
Please confirm your acceptance of the foregoing by signing this letter and returning it to us, whereupon this letter, including those provisions of the Distribution Agreement incorporated by reference herein, shall constitute a binding agreement between you and [Diageo Investment] [Diageo Finance] [Diageo Capital] and the Guarantor.
[DIAGEO INVESTMENT CORPORATION]
[DIAGEO FINANCE B.V.]
[DIAGEO CAPITAL PLC]
By:___________________________________
Name:
Title:
[By:__________________________________
Name:
Title: ]
[DIAGEO PLC]
By:___________________________________
Name:
Title:
IV-2
Agreed as of the date first above written:
[DEALER]
By:________________________________
cc: [TRUSTEE]
IV-3