Barclays PLC 6-K, filed Dec 10, 2020
Barclays PLC (BCS)
About this 6-K
Barclays PLC filed this 6-K on December 10, 2020.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 6-K
Report of Foreign Private Issuer
Pursuant to Rule 13a-16 or 15d-16
under the Securities Exchange Act of 1934
For the month of December, 2020
Commission File Number: 001-09246
Barclays PLC
(Name of Registrant)
1 Churchill Place
London E14 5HP
England
(Address of Principal Executive Office)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F ☒ Form 40-F ☐
Indicate by check mark whether the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): ☐
Indicate by check mark whether the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): ☐
THIS REPORT ON FORM 6-K SHALL BE DEEMED TO BE INCORPORATED BY REFERENCE IN THE REGISTRATION STATEMENT ON FORM F-3 (NO. 333-223156) OF BARCLAYS PLC AND TO BE A PART THEREOF FROM THE DATE ON WHICH THIS REPORT IS FURNISHED, TO THE EXTENT NOT SUPERSEDED BY DOCUMENTS OR REPORTS SUBSEQUENTLY FILED OR FURNISHED.
The Report comprises the following:
| Exhibit No. |
Description | |||
| 1.1 | — | Underwriting Agreement–Standard Provisions, dated as of May 9, 2018 (incorporated by reference to Exhibit 1.1 of the registrant’s Report of Foreign Issuer on Form 6-K (Film No. 18839430) filed with the Securities and Exchange Commission on May 16, 2018). | ||
| 1.2 | — | Pricing Agreement between Barclays PLC and Barclays Capital Inc., dated December 3, 2020 for the 1.007% Fixed Rate Resetting Senior Callable Notes due 2024. | ||
| 4.1 | — | Senior Debt Securities Indenture, dated as of January 17, 2018, between Barclays PLC and The Bank of New York Mellon, London Branch, as Trustee (incorporated by reference to Exhibit 4.1 of the registrant’s Report of Foreign Issuer on Form 6-K (Film No. 18530382) filed with the Securities and Exchange Commission on January 17, 2018). | ||
| 4.2 | — | Sixth Supplemental Indenture to the Senior Debt Securities Indenture, dated as of May 7, 2020, among Barclays PLC, The Bank of New York Mellon, London Branch, as Trustee and The Bank of New York Mellon SA/NV, Luxembourg Branch, as Senior Debt Security Registrar (incorporated by reference to the Current Report on Form 6-K, dated May 7, 2020 (Film No. 20855734), filed by the registrant with the Securities and Exchange Commission on May 7, 2020). | ||
| 4.3 | — | Eighth Supplemental Indenture to the Senior Debt Securities Indenture, dated as of December 10, 2020, among Barclays PLC, The Bank of New York Mellon, London Branch, as Trustee and The Bank of New York Mellon SA/NV, Luxembourg Branch, as Senior Debt Security Registrar. | ||
| 4.4 | — | The form of Global Security for the 1.007% Fixed Rate Resetting Senior Callable Notes due 2024 (incorporated by reference to the Exhibit A to Exhibit 4.3 above). | ||
| 5.1 | — | Opinion of Cleary Gottlieb Steen & Hamilton, U.S. counsel to Barclays PLC, as to the validity of the 1.007% Fixed Rate Resetting Senior Callable Notes due 2024. | ||
| 5.2 | — | Opinion of Clifford Chance LLP, English counsel to Barclays PLC, as to the validity of the 1.007% Fixed Rate Resetting Senior Callable Notes due 2024. | ||
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, thereunto duly authorized.
| BARCLAYS PLC (Registrant) | ||||||
| Date: December 10, 2020 | By: | /s/ Karen Rowe | ||||
| Name: Karen Rowe | ||||||
| Title: Assistant Secretary | ||||||
Exhibit 1.2
Pricing Agreement
December 3, 2020
Barclays Capital Inc.
As representative of the several Underwriters
named in Schedule I (the “Representative”)
Ladies and Gentlemen:
Barclays PLC (the “Company”) proposes to issue $1,500,000,000 aggregate principal amount of 1.007% Fixed Rate Resetting Senior Callable Notes due 2024 (the “Notes”). Each of the Underwriters hereby undertakes to purchase at the subscription price set forth in Schedule II hereto, the amount of Notes set forth opposite the name of such Underwriter in Schedule I hereto, such payment to be made at the Time of Delivery set forth in Schedule II hereto. The obligations of the Underwriters hereunder are several but not joint.
Each of the provisions of the Underwriting Agreement—Standard Provisions, dated May 9, 2018 (the “Underwriting Agreement”), is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein, (i) with the exception of Section 3(b)(iii) and the paragraph immediately thereafter of the Underwriting Agreement; (ii) provided that the reference in Section 9(c) of the Underwriting Agreement to “Sullivan & Cromwell LLP” shall be deemed a reference to “Cleary Gottlieb Steen & Hamilton LLP”; and each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Agreement, except that each representation and warranty with respect to the Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a representation and warranty as of the date of the Prospectus and also a representation and warranty as of the date of this Agreement in relation to the Prospectus as amended or supplemented relating to the Notes.
Each reference to the Representatives herein and in the provisions of the Underwriting Agreement so incorporated by reference shall be deemed to refer to you. Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. The Representative designated to act on behalf of each of the Underwriters of Designated Securities pursuant to Section 14 of the Underwriting Agreement and the address referred to in such Section 14 is set forth in Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the Base Prospectus, as the case may be, relating to the Designated Securities, in the form heretofore delivered to you, is now proposed to be filed with the Commission.
The Applicable Time for purposes of this Pricing Agreement is 4:30 p.m. New York time on December 3, 2020. The “free writing prospectus” as defined in Rule 405 under the Securities Act for which each party hereto has received consent to use in accordance with Section 7 of the Underwriting Agreement is listed in Schedule III hereto and is attached as Exhibit A hereto.
Notwithstanding and to the exclusion of any other term of the Underwriting Agreement, this Pricing Agreement or any other agreements, arrangements, or understanding between the parties, each party acknowledges and accepts that a BRRD Liability arising under the Underwriting Agreement or this Pricing Agreement may be subject to the exercise of Bail-in Powers by the Relevant Resolution Authority, and acknowledges, accepts, and agrees to be bound by:
(a) the effect of the exercise of Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD Liability of each Covered Party to it under the Underwriting Agreement or this Pricing Agreement, that (without limitation) may include and result in any of the following, or some combination thereof;
| (i) | the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon; |
| (ii) | the conversion of all, or a portion, of the BRRD Liability into shares, other securities or other obligations of the relevant Covered Party or another person, and the issue to or conferral on the other party of such shares, securities or obligations; |
| (iii) | the cancellation of the BRRD Liability; or |
| (iv) | the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; |
(b) the variation of the terms of the Underwriting Agreement or this Pricing Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of Bail-in Powers by the Relevant Resolution Authority.
For these purposes:
“Bail-in Legislation” means in relation to a member state of the European Economic Area which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time.
“Bail-in Powers” means (i) any Write-down and Conversion Powers as defined in the EU Bail-in Legislation Schedule, in relation to the relevant Bail-in Legislation and/or (ii) any U.K. Bail-in Power.
“BRRD” means Directive 2014/59/EU (as amended) establishing a framework for the recovery and resolution of credit institutions and investment firms.
“Covered Party” means any party subject to (i) the Bail-in Legislation and/or (ii) the U.K. Bail-in Power.
“EU Bail-in Legislation Schedule” means the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time at http://www.lma.eu.com/pages.aspx?p=499.
“BRRD Liability” means a liability in respect of which the relevant Write Down and Conversion Powers in the applicable Bail-in Legislation or the U.K. Bail-in Power may be exercised.
“Relevant Resolution Authority” means the resolution authority with the ability to exercise any Bail-in Powers in relation to the relevant Covered Party.
“U.K. Bail-in Power” has the meaning given to it in the Base Prospectus (as defined in Schedule II).
Recognition of the U.S. Special Resolution Regimes
(a) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Pricing Agreement, and any interest and obligation in or under this Pricing Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Pricing Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Pricing Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Pricing Agreement were governed by the laws of the United States or a state of the United States.
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
Singapore Securities and Futures Act Product Classification
Solely for the purposes of its obligations pursuant to sections 309B(1)(a) and 309B(1)(c) of the Securities and Futures Act (Chapter 289 of Singapore) (the “SFA”), the Company has determined, and hereby notifies all relevant persons (as defined in Section 309A of the SFA) that the Notes are “prescribed capital markets products” (as defined in the Securities and Futures (Capital Markets Products) Regulations 2018).
If the foregoing is in accordance with your understanding, please sign and return to us the counterpart hereof, and upon acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein by reference, shall constitute a binding agreement between each of the Underwriters on the one hand and the Company on the other.
[Signature Page Follows]
| Very truly yours, |
| BARCLAYS PLC |
| /s/ Miray Muminoglu |
| Name: Miray Muminoglu |
| Title: Managing Director |
| Accepted as of the date hereof at New York, New York |
| On behalf of itself and each of the other Underwriters |
| BARCLAYS CAPITAL INC. |
| /s/ Kenneth Chang |
| Name: Kenneth Chang |
| Title: Managing Director |
[Signature Page to Pricing Agreement]
SCHEDULE I
| Underwriters | Principal Amount of the Notes |
|||
| Barclays Capital Inc. |
$ | 915,000,000 | ||
| ING Financial Markets LLC |
$ | 60,000,000 | ||
| Lloyds Securities Inc. |
$ | 60,000,000 | ||
| MUFG Securities Americas Inc. |
$ | 60,000,000 | ||
| Société Générale |
$ | 60,000,000 | ||
| Standard Chartered Bank |
$ | 60,000,000 | ||
| Wells Fargo Securities, LLC |
$ | 60,000,000 | ||
| ABN AMRO Securities (USA) LLC |
$ | 18,750,000 | ||
| Banco de Sabadell, S.A. |
$ | 18,750,000 | ||
| Citizens Capital Markets, Inc. |
$ | 18,750,000 | ||
| Danske Markets Inc. |
$ | 18,750,000 | ||
| Drexel Hamilton, LLC |
$ | 18,750,000 | ||
| DZ Financial Markets LLC |
$ | 18,750,000 | ||
| Falcon Square Capital LLC |
$ | 18,750,000 | ||
| KBC Securities USA LLC |
$ | 18,750,000 | ||
| Mizuho Securities USA LLC |
$ | 18,750,000 | ||
| PNC Capital Markets LLC |
$ | 18,750,000 | ||
| RB International Markets (USA) LLC |
$ | 18,750,000 | ||
| U.S. Bancorp Investments, Inc. |
$ | 18,750,000 | ||
| Total |
$ | 1,500,000,000 | ||
SCHEDULE II
Title of Designated Securities:
$1,500,000,000 1.007% Fixed Rate Resetting Senior Callable Notes due 2024.
Price to Public:
100.000% of principal amount.
Subscription Price by Underwriters:
99.750% of principal amount.
Form of Designated Securities:
The Notes will be represented by one or more global notes registered in the name of Cede & Co., as nominee of The Depository Trust Company (“DTC”) issued pursuant to the Senior Debt Securities Indenture dated January 17, 2018 between Barclays PLC and The Bank of New York Mellon, London Branch, as trustee (the “Trustee”), as supplemented by the Eighth Supplemental Indenture to be dated on or about December 10, 2020, among Barclays PLC, the Trustee and The Bank of New York Mellon SA/NV, Luxembourg Branch, as Senior Debt Security Registrar.
Securities Exchange, if any:
The New York Stock Exchange.
Maturity Date:
The stated maturity of the principal of the Notes will be December 10, 2024 (the “Maturity Date”).
Interest Rate:
From (and including) the Issue Date to (but excluding) the Reset Date, the Notes will bear interest at a rate of 1.007% per annum.
From (and including) the Reset Date to (but excluding) the Maturity Date, the applicable per annum interest rate will be equal to the sum, as determined by the Calculation Agent, of the then-prevailing U.S. Treasury Rate (such term subject to the provisions described under “Description of Senior Notes” in the Preliminary Prospectus Supplement (as defined below)), on the Reset Determination Date, plus the Margin.
Capitalized terms not otherwise defined in this section have the meaning set forth in the Preliminary Prospectus Supplement, as supplemented by the final term sheet dated December 3, 2020 for the Notes.
Interest Payment Dates:
Interest will be payable on the Notes semi-annually in arrear on June 10 and December 10 of each year, commencing on June 10, 2021.
Day Count:
30/360, Following, Unadjusted.
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Regular Record Dates:
The close of business on the Business Day immediately preceding each Interest Payment Date (or, if the Notes are held in definitive form, the close of business on the 15th Business Day preceding each Interest Payment Date).
Sinking Fund Provisions:
No sinking fund provisions.
Optional Redemption:
The Notes are redeemable as described under “Description of Senior Notes—Optional Redemption” in the Preliminary Prospectus Supplement, as supplemented by the final term sheet dated December 3, 2020 for the Notes.
Tax Redemption:
The Notes are also redeemable as described under “Description of Senior Notes—Tax Redemption” in the Preliminary Prospectus Supplement.
Loss Absorption Disqualification Event Redemption:
The Notes are also redeemable as described under “Description of Senior Notes—Loss Absorption Disqualification Event Redemption” in the Preliminary Prospectus Supplement.
Events of Default:
The terms of the Notes described under “Senior Events of Default; Dated Subordinated Enforcement Events and Remedies; Limitation on Suits – Senior Events of Default” in the Base Prospectus shall not apply to the Notes and shall be replaced in their entirety by the enforcement events and remedies described under “Description of Senior Notes—Enforcement Events and Remedies” in the Preliminary Prospectus Supplement.
Time of Delivery:
December 10, 2020 by 9.30 a.m. New York time.
Specified Funds for Payment of Subscription Price of Designated Securities:
By wire transfer to a bank account specified by the Company in same day funds.
Value Added Tax:
| (a) | If the Company is obliged to pay any sum to the Underwriters under this Agreement and any value added tax (“VAT”) is properly charged on such amount, the Company shall pay to the Underwriters an amount equal to such VAT on receipt of a valid VAT invoice; |
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| (b) | If the Company is obliged to pay a sum to the Underwriters under this Agreement for any fee, cost, charge or expense properly incurred under or in connection with this Agreement (the “Relevant Cost”) and no VAT is payable by the Company in respect of the Relevant Cost under paragraph (a) above, the Company shall pay to the Underwriters an amount which: |
| (i) | if for VAT purposes the Relevant Cost is consideration for a supply of goods or services made to the Underwriters, is equal to any input VAT incurred by the Underwriters on that supply of goods and services, but only if and to the extent that the Underwriters are unable to recover such input VAT from HM Revenue & Customs (whether by repayment or credit) provided, however, that the Underwriters shall reimburse the Company for any amount paid by the Company in respect of irrecoverable input VAT pursuant to this paragraph (i) if and to the extent such input VAT is subsequently recovered from HM Revenue & Customs (whether by repayment or credit); |
| (ii) | if for VAT purposes the Relevant Cost is a disbursement properly incurred by the Underwriters under or in connection with this Agreement as agent on behalf of the Company, is equal to any VAT paid on the Relevant Cost by the Underwriters provided, however, that the Underwriters shall use best endeavors to procure that the actual supplier of the goods or services which the Underwriters received as agent issues a valid VAT invoice to the Company. |
Closing Location:
Linklaters LLP, One Silk Street, London EC2Y 8HQ, United Kingdom.
Name and address of Representative:
Designated Representative: Barclays Capital Inc.
Address for Notices:
Barclays Capital Inc.
745 Seventh Avenue
New York, NY 10019
Attn: Syndicate Registration
Selling Restrictions:
United Kingdom:
Each Underwriter represents, warrants and agrees with the Company that, in connection with the distribution of the Notes, directly or indirectly, it (1) has only communicated or caused to be communicated, and will only communicate or cause to be communicated, an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000, as amended (the “FSMA”)) received by it in connection with the issue or sale of the Notes in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and (2) has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Notes in, from or otherwise involving the United Kingdom.
Prohibition of Sales to EEA and United Kingdom Retail Investors:
Each Underwriter represents, warrants and agrees with the Company that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Notes to any retail investor in the European Economic Area or in the United Kingdom. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following:
| (i) | a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or |
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| (ii) | a customer within the meaning of Directive (EU) 2016/97, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II. |
Canada:
Each Underwriter represents, warrants and agrees with the Company, with respect to sales of the Notes in Canada, that, directly or indirectly, it shall sell the Notes only to purchasers purchasing as principal that are both “accredited investors” as defined in National Instrument 45-106 Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario) and “permitted clients” as defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations.
Hong Kong:
Each Underwriter represents, warrants and agrees that:
| (i) | it has not offered or sold and will not offer or sell in Hong Kong, by means of any document, any Notes other than to (a) “professional investors” as defined in the Securities and Futures Ordinance (Cap. 571) of Hong Kong (the “SFO”) and any rules made under the SFO; or (b) in other circumstances which do not result in the document being a “prospectus” as defined in the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) of Hong Kong or which do not constitute an offer to the public within the meaning of that Ordinance; and |
| (ii) | it has not issued or had in its possession for the purposes of issue, and will not issue or have in its possession for the purposes of issue, whether in Hong Kong or elsewhere, any advertisement, invitation or document relating to the Notes, which is directed at, or the contents of which are likely to be accessed or read by, the public of Hong Kong (except if permitted to do so under the securities laws of Hong Kong) other than with respect to Notes which are or are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” as defined in the SFO and any rules made under the SFO. |
Japan:
The Notes have not been and will not be registered under the Financial Instruments and Exchange Act of Japan (Act No. 25 of 1948, as amended, the “FIEA”) and accordingly, each Underwriter undertakes that it will not offer or sell any Notes directly or indirectly, in Japan or to, or for the benefit of, any resident of Japan or to others for re-offering or resale, directly or indirectly, in Japan or to any resident of Japan except pursuant to an exemption from the registration requirements of, and otherwise in compliance with the FIEA and other relevant laws and regulations of Japan. As used in this paragraph, “resident of Japan” means any person resident in Japan, including any corporation or other entity organized under the laws of Japan.
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Singapore:
Each Underwriter acknowledges that the prospectus supplement and the accompanying Base Prospectus have not been and will not be registered as a prospectus with the Monetary Authority of Singapore. Accordingly, each Underwriter represents, warrants and agrees that it has not offered or sold any Notes or caused the Notes to be made the subject of an invitation for subscription or purchase and will not offer or sell any Notes or cause the Notes to be made the subject of an invitation for subscription or purchase, and has not circulated or distributed, nor will it circulate or distribute, the prospectus supplement and the accompanying Base Prospectus or any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the Notes, whether directly or indirectly, to any person in Singapore other than (i) to an institutional investor (as defined in Section 4A of the SFA) pursuant to Section 274 of the SFA, (ii) to a relevant person (as defined in Section 275(2) of the SFA) pursuant to Section 275(1) of the SFA, or any person pursuant to Section 275(1A) of the SFA, and in accordance with the conditions specified in Section 275 of the SFA, or (iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA.
Where the Notes are subscribed or purchased under Section 275 of the SFA by a relevant person which is:
| (i) | a corporation (which is not an accredited investor (as defined in Section 4A of the SFA)) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor; or |
| (ii) | a trust (where the trustee is not an accredited investor) whose sole purpose is to hold investments and each beneficiary of the trust is an individual who is an accredited investor, securities or securities-based derivatives contracts (each term as defined in Section 2(1) of the SFA) of that corporation or the beneficiaries’ rights and interest (howsoever described) in that trust shall not be transferred within six months after that corporation or that trust has acquired the Notes pursuant to an offer made under Section 275 of the SFA except: |
| 1. | to an institutional investor or to a relevant person or to any person arising from an offer referred to in Section 275(1A) or Section 276(4)(i)(B) of the SFA; |
| 2. | where no consideration is or will be given for the transfer; |
| 3. | where the transfer is by operation of law; |
| 4. | as specified in Section 276(7) of the SFA; or |
| 5. | as specified in Regulation 37A of the Securities and Futures (Offers of Investments) (Securities and Securities-based Derivatives Contracts) Regulations 2018. |
Taiwan:
Each Underwriter represents, warrants and agrees with the Company that the Notes have not been, and will not be, registered or filed with, or approved by, the Financial Supervisory Commission of Taiwan, the Republic of China (“Taiwan”) and/or other regulatory authority of Taiwan pursuant to applicable securities laws and regulations and may not be sold, offered or otherwise made available within Taiwan through a public offering or in circumstances which constitute an offer within the meaning of the Taiwan Securities and Exchange Act or relevant laws and regulations that requires a registration or filing with or the approval of the Financial Supervisory Commission of Taiwan and/or other regulatory authority of Taiwan. Each Underwriter further represents, warrants and agrees with the Company that no person or entity in Taiwan is authorized to offer, sell or otherwise make available any Notes or the provision of information relating to the prospectus supplement and the Base Prospectus.
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Other Terms and Conditions:
As set forth in the prospectus supplement dated December 3, 2020 relating to the Notes (the “Preliminary Prospectus Supplement”), incorporating the Prospectus dated April 6, 2018 (the “Base Prospectus”) relating to the Notes.
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SCHEDULE III
Issuer Free Writing Prospectus:
Final Term Sheet for the Notes, dated December 3, 2020, attached hereto as Exhibit A.
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EXHIBIT A
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| Free Writing Prospectus Filed pursuant to Rule 433 Registration Statement No. 333-223156 |
$1,500,000,000 1.007% Fixed Rate Resetting Senior Callable Notes due 2024
Barclays PLC
Pricing Term Sheet
| Issuer: | Barclays PLC (the “Issuer”) | |
| Notes: | $1,500,000,000 1.007% Fixed Rate Resetting Senior Callable Notes due 2024 (the “Notes”) | |
| Expected Issue Ratings:1 | Baa2 (Moody’s) / BBB (S&P) / A (Fitch) | |
| Status: | Senior Debt / Unsecured | |
| Legal Format: | SEC registered | |
| Principal Amount: | $1,500,000,000 | |
| Trade Date: | December 3, 2020 | |
| Settlement Date: | December 10, 2020 (T+5) (the “Issue Date”) | |
| Maturity Date: | December 10, 2024 (the “Maturity Date”) | |
| Coupon: | From (and including) the Issue Date to (but excluding) the Reset Date, the Notes will bear interest at a rate of 1.007% per annum. | |
| From (and including) the Reset Date to (but excluding) the Maturity Date, the applicable per annum interest rate will be equal to the sum, as determined by the Calculation Agent, of the then-prevailing U.S. Treasury Rate, on the Reset Determination Date, plus the Margin. | ||
| Reset Date: | December 10, 2023 | |
| Reset Determination Date: | The second Business Day (as defined below) immediately preceding the Reset Date. | |
| Interest Payment Dates: | Interest will be payable semi-annually in arrear on June 10 and December 10 in each year, commencing on June 10, 2021. | |
| U.S. Treasury Rate and Fallbacks: | “U.S. Treasury Rate” means, with respect to the Reset Period, the rate per annum equal to: (1) the yield, under the heading which represents the average for the week immediately prior to the Reset Determination Date, appearing in the most recently published statistical release designated “H.15”, or any successor publication that is published by the Board of Governors of the Federal Reserve System that establishes yields on actively traded U.S. Treasury securities adjusted to constant maturity, under the caption “Treasury constant maturities”, for the maturity of one year; or (2) if such release (or any successor release) is not published during the week immediately prior to the Reset Determination Date or does not contain such | |
| 1 | Note: A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time. |
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| yields, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for the Reset Determination Date.
The U.S. Treasury Rate shall be determined by the Calculation Agent.
If the U.S. Treasury Rate cannot be determined, for whatever reason, as described under (1) or (2) above, “U.S. Treasury Rate” means the rate in percentage per annum as notified by the Calculation Agent to the Issuer equal to the yield on U.S. Treasury securities having a maturity of one year as set forth in the most recently published statistical release designated “H.15” under the caption “Treasury constant maturities” (or any successor publication that is published weekly by the Board of Governors of the Federal Reserve System and that establishes yields on actively traded U.S. Treasury securities adjusted to constant maturity under the caption “Treasury constant maturities” for the maturity of one year) at 5:00 p.m. (New York City time) on the last available date preceding the Reset Determination Date on which such rate was set forth in such release (or any successor release). | ||
| Comparable Treasury Issue: | “Comparable Treasury Issue” means, with respect to the Reset Period, the U.S. Treasury security or securities selected by the Issuer with a maturity date on or about the last day of the Reset Period and that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities denominated in U.S. dollars and having a maturity of one year. | |
| Comparable Treasury Price: | “Comparable Treasury Price” means, with respect to the Reset Determination Date, (i) the arithmetic average of the Reference Treasury Dealer Quotations for the Reset Determination Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, (ii) if fewer than five such Reference Treasury Dealer Quotations are received, the arithmetic average of all such quotations, or (iii) if fewer than two such Reference Treasury Dealer Quotations are received, then such Reference Treasury Dealer Quotation. | |
| Reference Treasury Dealer: | “Reference Treasury Dealer” means, with respect to the Reset Determination Date, each of up to five banks selected by the Issuer, or the affiliates of such banks, which are (i) primary U.S. Treasury securities dealers, and their respective successors, or (ii) market makers in pricing corporate bond issues denominated in U.S dollars. | |
| Reference Treasury Dealer Quotations: | “Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and the Reset Determination Date, the arithmetic average, as determined by the Calculation Agent, of the bid and offered prices (such prices being obtained by the Issuer and furnished to the Calculation Agent) for the applicable Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, at 11:00 a.m. (New York City time) on the Reset Determination Date. | |
| Day Count: | 30/360, Following, Unadjusted. | |
| Business Day: | Any weekday, other than one on which banking institutions are authorized or obligated by law, regulation or executive order to close in London, England or in the City of New York, United States. | |
| Preliminary Prospectus Supplement: | Preliminary Prospectus Supplement dated December 3, 2020 (the “Preliminary Prospectus Supplement,” incorporating the Prospectus dated April 6, 2018 relating to the Notes (the “Base Prospectus”)). If there is any discrepancy or contradiction between this Pricing Term Sheet and the Preliminary Prospectus Supplement, this Pricing Term Sheet shall prevail. | |
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| U.K. Bail-in Power Acknowledgement: | Yes. See section entitled “Description of Debt Securities—Agreement with Respect to the Exercise of U.K. Bail-in Power” in the Base Prospectus. | |
| Ranking: | The ranking of the Notes is described under “Description of Senior Notes—Ranking” in the Preliminary Prospectus Supplement. | |
| Optional Redemption: | The Issuer may, at its option, redeem the Notes (i) in whole or in part, pursuant to the Make-Whole Redemption at any time on or after June 10, 2021 until (but excluding) December 10, 2023 (the “Par Redemption Date”) and/or (ii) in whole but not in part, on the Par Redemption Date, at an amount equal to 100% of their principal amount together with accrued but unpaid interest, if any, on the principal amount of the Notes to be redeemed to (but excluding) the redemption date, on the terms and subject to the provisions set forth in the Preliminary Prospectus Supplement under “Description of Senior Notes—Optional Redemption.”
For purposes of the Make-Whole Redemption, the Discount Factor is 12.5 bps. | |
| Tax Redemption: | The Notes are also redeemable as described under “Description of Senior Notes—Tax Redemption” in the Preliminary Prospectus Supplement. | |
| Loss Absorption Disqualification Event Redemption: | The Notes are also redeemable as described under “Description of Senior Notes—Loss Absorption Disqualification Event Redemption” in the Preliminary Prospectus Supplement. | |
| Events of Default: | The terms of the Notes described under “Senior Events of Default; Dated Subordinated Enforcement Events and Remedies; Limitation on Suits—Senior Events of Default” in the Base Prospectus shall not apply to the Notes and shall be replaced in their entirety by the enforcement events and remedies described under “Description of Senior Notes—Enforcement Events and Remedies” in the Preliminary Prospectus Supplement. | |
| Margin: | 80 bps (the “Margin”) | |
| Benchmark Treasury: | UST 0.250% due November 15, 2023 | |
| Spread to Benchmark: | 80 bps | |
| Reoffer Yield: | 1.007% | |
| Price to Public: | 100.000% | |
| Underwriting Discount: | 0.250% | |
| Net Proceeds: | $1,496,250,000 | |
| Sole Bookrunner: | Barclays Capital Inc. | |
| Senior Co-Managers: | ING Financial Markets LLC, Lloyds Securities Inc., MUFG Securities Americas Inc., Société Générale, Standard Chartered Bank, Wells Fargo Securities, LLC | |
| Co-Managers: | ABN AMRO Securities (USA) LLC, Banco de Sabadell, S.A., Citizens Capital Markets, Inc., Danske Markets Inc., Drexel Hamilton, LLC, DZ Financial Markets LLC, Falcon Square Capital LLC, KBC Securities USA LLC, Mizuho Securities USA LLC, PNC Capital Markets LLC, RB International Markets (USA) LLC, U.S. Bancorp Investments, Inc. | |
| Risk Factors: | An investment in the Notes involves risks. See “Risk Factors” section beginning on page S-13 of the Preliminary Prospectus Supplement. | |
| Denominations: | $200,000 and integral multiples of $1,000 in excess thereof. | |
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| ISIN/CUSIP: | US06738EBQ70 / 06738E BQ7 | |
| Legal Entity Identifier (“LEI”) Code: | 213800LBQA1Y9L22JB70 | |
| Settlement: | The Depository Trust Company; Book-entry; Transferable | |
| Documentation: | To be documented under the Issuer’s shelf registration statement on Form F-3 (No. 333-223156) and to be issued pursuant to the Senior Debt Securities Indenture dated January 17, 2018, between the Issuer and The Bank of New York Mellon, London Branch, as trustee (the “Trustee”), as supplemented by the Eighth Supplemental Indenture, to be entered into on or about the Issue Date, between the Issuer, the Trustee and The Bank of New York Mellon SA/NV, Luxembourg Branch, as Senior Debt Security Registrar. | |
| Listing: | We will apply to list the Notes on the New York Stock Exchange. | |
| Governing Law: | New York law, except for the waiver of set-off provisions which will be governed by English law. | |
| Definitions: | Unless otherwise defined herein, all capitalized terms have the meaning set forth in the Preliminary Prospectus Supplement. | |
The Issuer has filed a registration statement (including the Base Prospectus) and the Preliminary Prospectus Supplement) with the U.S. Securities and Exchange Commission (“SEC”) for this offering. Before you invest, you should read the Base Prospectus and the Preliminary Prospectus Supplement for this offering in that registration statement, and other documents the Issuer has filed with the SEC for more complete information about the Issuer and this offering. You may get these documents for free by searching the SEC online database (EDGAR) at www.sec.gov. Alternatively, you may obtain a copy of the Base Prospectus and the Preliminary Prospectus Supplement from Barclays Capital Inc. by calling 1-888-603-5847.
It is expected that delivery of the Notes will be made for value on or about December 10, 2020, which will be the fifth (5th) business day in the United States following the date of pricing of the Notes. Under Rule 15c6-1 under the Securities Exchange Act of 1934, purchases or sales of Notes in the secondary market generally are required to settle within two (2) business days (T+2), unless the parties to any such transaction expressly agree otherwise. Accordingly, purchasers of the Notes who wish to trade the Notes on the date of the prospectus supplement or the next two (2) succeeding business days, will be required, because the Notes initially will settle within five (5) business days (T+5) in the United States, to specify an alternate settlement cycle at the time of any such trade to prevent a failed settlement. Purchasers of the Notes who wish to trade on the date of the prospectus supplement or the next two (2) succeeding business days should consult their own legal advisers.
No PRIIPs KID — No PRIIPs key information document (KID) has been prepared as not available to retail in EEA or in the United Kingdom.
This communication is being distributed to, and is directed only at, persons in the United Kingdom in circumstances where section 21(1) of the Financial Services and Markets Act 2000, as amended, does not apply (such persons being referred to as “relevant persons”). Any person who is not a relevant person should not act or rely on this communication or any of its contents. Any investment activity (including, but not limited to, any invitation, offer or agreement to subscribe, purchase or otherwise acquire securities) to which this communication relates will only be available to, and will only be engaged with, relevant persons who fall within the manufacturer target market described above.
Singapore Securities and Futures Act Product Classification—Solely for the purposes of its obligations pursuant to sections 309B(1)(a) and 309B(1)(c) of the Securities and Futures Act (Chapter 289 of Singapore) (the “SFA”), the Issuer has determined, and hereby notifies all relevant persons (as defined in Section 309A of the SFA) that the Securities are “prescribed capital markets products” (as defined in the Securities and Futures (Capital Markets Products) Regulations 2018).
To the extent any underwriter that is not a U.S. registered broker-dealer intends to effect any offers or sales of any Notes in the United States, it will do so through one or more U.S. registered broker-dealers in accordance with the applicable U.S. securities laws and regulations.
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Exhibit 4.3
BARCLAYS PLC,
Issuer,
THE BANK OF NEW YORK MELLON, LONDON BRANCH,
as Trustee
and
THE BANK OF NEW YORK MELLON SA/NV, LUXEMBOURG BRANCH
as Senior Debt Security Registrar
EIGHTH SUPPLEMENTAL INDENTURE
Dated as of December 10, 2020
To the Senior Debt Securities Indenture, dated as of January 17, 2018,
Between Barclays PLC
and
The Bank of New York Mellon, London Branch, as Trustee
$1,500,000,000 Principal Amount of 1.007% Fixed Rate Resetting Senior Callable Notes due 2024
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE I | ||||||
| DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION | ||||||
| SECTION 1.01 |
Definitions | 1 | ||||
| SECTION 1.02 |
Effect of Headings | 4 | ||||
| SECTION 1.03 |
Separability Clause | 4 | ||||
| SECTION 1.04 |
Benefits of Instrument | 4 | ||||
| SECTION 1.05 |
Relation to Base Indenture | 4 | ||||
| SECTION 1.06 |
Construction and Interpretation | 5 | ||||
| ARTICLE II | ||||||
| 1.007% FIXED RATE RESETTING SENIOR CALLABLE NOTES DUE 2024 | ||||||
| SECTION 2.01 |
Creation of Series; Establishment of Form | 5 | ||||
| SECTION 2.02 |
Interest | 6 | ||||
| SECTION 2.03 |
Payment of Principal, Interest and Other Amounts | 6 | ||||
| SECTION 2.04 |
Optional Redemption | 7 | ||||
| SECTION 2.05 |
Loss Absorption Disqualification Event Redemption | 9 | ||||
| SECTION 2.06 |
Events of Default | 9 | ||||
| SECTION 2.07 |
Enforcement Events and Remedies | 9 | ||||
| SECTION 2.08 |
Trustee’s Duties | 10 | ||||
| SECTION 2.09 |
Waiver of Certain Past Events of Default | 10 | ||||
| SECTION 2.10 |
Notice of Defaults Following an Event of Default | 11 | ||||
| SECTION 2.11 |
Applicability of the Term “Event of Default.” | 11 | ||||
| SECTION 2.12 |
Certain Acts of Holders Following an Event of Default | 11 | ||||
| SECTION 2.13 |
Notice of Redemption | 11 | ||||
| SECTION 2.14 |
Acknowledgement with respect to Treatment of EEA BRRD Liabilities | 12 | ||||
| SECTION 2.15 |
Acknowledgement with Respect to Treatment of BRRD Liabilities | 13 | ||||
| ARTICLE III | ||||||
| MISCELLANEOUS PROVISIONS | ||||||
| SECTION 3.01 |
Effectiveness | 13 | ||||
| SECTION 3.02 |
Original Issue | 13 | ||||
| SECTION 3.03 |
Ratification and Integral Part | 13 | ||||
| SECTION 3.04 |
Priority | 14 | ||||
| SECTION 3.05 |
Not Responsible for Recitals or Issuance of Securities | 14 | ||||
-i-
| SECTION 3.06 |
Successors and Assigns | 14 | ||||
| SECTION 3.07 |
Counterparts | 14 | ||||
| SECTION 3.08 |
Governing Law | 14 | ||||
| ANNEX I – Interest Terms of the Securities |
I-1 | |||||
| EXHIBIT A – Form of Fixed-to-Flating Rate Global Note |
A-1 | |||||
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EIGHTH SUPPLEMENTAL INDENTURE, dated as of December 10, 2020 (the “Eighth Supplemental Indenture”), among BARCLAYS PLC, a public limited company registered in England and Wales (herein called the “Company”), having its registered office at 1 Churchill Place, London E14 5HP, United Kingdom, THE BANK OF NEW YORK MELLON, LONDON BRANCH, a New York banking corporation, as Trustee and Paying Agent (herein called the “Trustee”), having a Corporate Trust Office at One Canada Square, London E14 5AL, United Kingdom, and THE BANK OF NEW YORK MELLON SA/NV, LUXEMBOURG BRANCH, as Senior Debt Security Registrar, having an office at 2-4 Rue Eugene Ruppert, Vertigo Building – Polaris, Luxembourg, 2453, Luxembourg, to the SENIOR DEBT SECURITIES INDENTURE, dated as of January 17, 2018, between the Company and the Trustee (as heretofore amended and supplemented, the “Base Indenture” and, together with this Eighth Supplemental Indenture, the “Indenture”).
RECITALS OF THE COMPANY
WHEREAS, the Company and the Trustee are parties to the Base Indenture, which provides for the issuance by the Company from time to time of its Senior Debt Securities in one or more series;
WHEREAS, Section 9.01 of the Base Indenture permits supplements thereto without the consent of Holders of Senior Debt Securities to establish the form or terms of Senior Debt Securities of any series as permitted by Sections 2.01 and 3.01 of the Base Indenture;
WHEREAS, as contemplated by Section 3.01 of the Base Indenture, the Company intends to issue an additional series of Senior Debt Securities, to be known as the Company’s “1.007% Fixed Rate Resetting Senior Callable Notes due 2024” (the “Securities”) under the Indenture;
WHEREAS, the Company and the Trustee desire to amend the Base Indenture to change certain execution formalities with respect to Senior Debt Securities issued on or after the date hereof;
WHEREAS, the Company has taken all necessary corporate action to authorize the execution and delivery of this Eighth Supplemental Indenture;
NOW, THEREFORE, THIS EIGHTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company and the Trustee mutually agree as follows with regard to the Securities:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01 Definitions. Except as otherwise expressly provided or unless the context otherwise requires, all terms used in this Eighth Supplemental Indenture that are defined in the Base Indenture shall have the meanings ascribed to them in the Base Indenture.
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The following terms used in this Eighth Supplemental Indenture have the following respective meanings with respect to the Securities only:
“Bail-in Legislation” has the meaning set forth in Section 2.14 hereof.
“Base Indenture” has the meaning set forth in the first paragraph of this Eighth Supplemental Indenture.
“BRRD” has the meaning set forth in Section 2.14 hereof.
“BRRD Party” has the meaning set forth in Section 2.14 hereof.
“Business Day” means any weekday, other than one on which banking institutions are authorized or obligated by law, regulation or executive order to close in London, England or in the City of New York, United States.
“Capital Regulations” means, at any time, the laws, regulations, requirements, standards, guidelines and policies relating to capital adequacy and/or minimum requirement for own funds and eligible liabilities and/or loss absorbing capacity for credit institutions of either (i) the PRA and/or (ii) any other national or European authority, in each case then in effect in the United Kingdom (or in such other jurisdiction in which the Company may be organized or domiciled) and applicable to the Group including, as at the date hereof, CRD and related technical standards.
“Capital Requirements Directive” means Directive 2013/36/EU on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, as amended or replaced from time to time (including as amended by Directive (EU) 2019/878 of the European Parliament and of the Council of May 20, 2019) or similar laws in the United Kingdom.
“Company” has the meaning set forth in the first paragraph of this Eighth Supplemental Indenture, and includes any successor entity.
“CRD” means the legislative package consisting of the Capital Requirements Directive and the CRD Regulation.
“CRD Regulation” means Regulation (EU) No. 575/2013 on prudential requirements for credit institutions and investment firms of the European Parliament and of the Council of June 26, 2013, as amended or replaced from time to time (including as amended by Regulation (EU) 2019/876 of the European Parliament and of the Council of May 20, 2019, to the extent then in application) or similar laws in the United Kingdom.
“Determination Agent” has the meaning set forth in Section 2.04 hereof.
“DTC” means The Depository Trust Company, or any successor clearing system.
“EEA Bail-in Power” has the meaning set forth in Section 2.14 hereof.
“EEA BRRD Liability” has the meaning set forth in Section 2.14 hereof.
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“Eighth Supplemental Indenture” has the meaning set forth in the first paragraph of this Eighth Supplemental Indenture.
“EU Bail-in Legislation Schedule” has the meaning set forth in Section 2.14 hereof.
“Group” means the Company (or any successor entity) and its consolidated subsidiaries.
“Indenture” has the meaning set forth in the first paragraph of this Eighth Supplemental Indenture.
“Interest Payment Date” has the meaning set forth in Annex I hereto.
“Issue Date” has the meaning set forth in Section 2.01(f) hereof.
“Loss Absorption Disqualification Event” means the whole or any part of the principal amount of the Securities Outstanding at any time being excluded from or ceasing to count towards the Company’s and/or the Group’s own funds and eligible liabilities and/or loss absorbing capacity, in each case for the purposes of, and in accordance with, the relevant Capital Regulations, provided that a Loss Absorption Disqualification Event shall not occur if such whole or part of the principal amount of the Securities Outstanding is excluded from, or ceases to count towards, such own funds and eligible liabilities and/or loss absorbing capacity due to the remaining maturity of the Securities being less than the period prescribed by the relevant Capital Regulations.
“Loss Absorption Regulations Event” means that (i) any Capital Regulations become effective with respect to the Company and/or the Group or (ii) there is an amendment to, or change in, any Capital Regulation, or any change in the official application of any Capital Regulation, which becomes effective with respect to the Company and/or the Group.
“Make-Whole Redemption” has the meaning set forth in Section 2.04 hereof.
“Monetary Judgment” has the meaning set forth in Section 2.07(c) hereof.
“Non-Payment Event” has the meaning set forth in Section 2.07(b) hereof.
“Optional Redemption Comparable Treasury Issue” has the meaning set forth in Section 2.04 hereof.
“Optional Redemption Comparable Treasury Price” has the meaning set forth in Section 2.04 hereof.
“Optional Redemption Reference Treasury Dealer” has the meaning set forth in Section 2.04 hereof.
“Optional Redemption Reference Treasury Dealer Quotations” has the meaning set forth in Section 2.04 hereof.
“Optional Redemption Treasury Rate” has the meaning set forth in Section 2.04 hereof.
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“Par Redemption” has the meaning set forth in Section 2.04 hereof.
“Par Redemption Date” has the meaning set forth in Annex I hereto.
“Performance Obligation” has the meaning set forth in Section 2.07(c) hereof.
“Regular Record Date” means the close of business on the Business Day immediately preceding each Interest Payment Date (or, if the Securities are held in definitive form, the close of business on the 15th Business Day preceding each Interest Payment Date).
“Relevant EEA Resolution Authority” has the meaning set forth in Section 2.14 hereof.
“Securities” has the meaning set forth in the Recitals to this Eighth Supplemental Indenture.
“Senior Enforcement Event” has the meaning set forth in Section 2.08 hereof.
“Stated Maturity” has the meaning set forth in Section 2.01(g) hereof.
“Trustee” has the meaning set forth in the first paragraph of this Eighth Supplemental Indenture, and includes any successor entity.
A “Winding-Up Event” with respect to the Securities shall result if (i) a court of competent jurisdiction in England (or such other jurisdiction in which the Company may be organized) makes an order for the Company’s winding-up which is not successfully appealed within thirty (30) days of the making of such order, (ii) the Company’s shareholders adopt an effective resolution for the Company’s winding-up (other than, in the case of either (i) or (ii) above, under or in connection with a scheme of reconstruction, merger or amalgamation not involving a bankruptcy or insolvency) or (iii) following the appointment of an administrator of the Company, the administrator gives notice that it intends to declare and distribute a dividend.
SECTION 1.02 Effect of Headings. The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
SECTION 1.03 Separability Clause. In case any provision in this Eighth Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.04 Benefits of Instrument. Nothing in this Eighth Supplemental Indenture, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under the Indenture.
SECTION 1.05 Relation to Base Indenture. This Eighth Supplemental Indenture constitutes an integral part of the Indenture. Notwithstanding any other provisions of this Eighth Supplemental Indenture, all provisions of this Eighth Supplemental Indenture are expressly and solely for the benefit of the Holders of the Securities and the Trustee and any such provisions shall not be deemed to apply to any other Senior Debt Securities issued under the Base Indenture and shall not be deemed to amend, modify or supplement the Base Indenture for any purpose other than with respect to the Securities.
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SECTION 1.06 Construction and Interpretation. Unless the context otherwise requires:
(a) the words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Eighth Supplemental Indenture, refer to this Eighth Supplemental Indenture as a whole and not to any particular provision of this Eighth Supplemental Indenture;
(b) the terms defined in the singular have a comparable meaning when used in the plural, and vice versa;
(c) the terms “U.S. dollars,” “US$” and “$” refer to the lawful currency for the time being of the United States;
(d) references herein to a specific Section, Article or Exhibit refer to Sections or Articles of, or an Exhibit to, this Eighth Supplemental Indenture;
(e) wherever the words “include,” “includes” or “including” are used in this Eighth Supplemental Indenture, they shall be deemed to be followed by the words “without limitation;”
(f) references to a Person are also to its successors and permitted assigns; and
(g) the use of “or” is not intended to be exclusive unless expressly indicated otherwise.
ARTICLE II
1.007% FIXED RATE RESETTING SENIOR CALLABLE NOTES DUE 2024
SECTION 2.01 Creation of Series; Establishment of Form.
(a) There is hereby established an additional series of Senior Debt Securities under the Base Indenture entitled the “1.007% Fixed Rate Resetting Senior Callable Notes due 2024.”
(b) The Securities shall be issued initially in the form of one or more registered Global Securities that shall be deposited with DTC on the Issue Date. The Global Securities shall be registered in the name of Cede & Co. and executed and issued in substantially the form attached hereto as Exhibit A.
(c) The Company shall issue the Securities in an aggregate principal amount of $1,500,000,000. The Company may from time to time, without the consent of the Holders of the Securities, issue additional securities of such series having the same ranking and same interest rate, Stated Maturity, redemption terms and other terms as the Securities described in this Eighth Supplemental Indenture, except for the price to the public and Issue Date. Any such additional securities subsequently issued shall rank equally and ratably with the Securities in all respects, so that such further securities shall be consolidated and form a single series with the applicable series of the Securities.
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(d) Any proposed transfer of an interest in Securities held in the form of a Global Security shall be effected through the book-entry system maintained by DTC.
(e) The Securities shall not have a sinking fund.
(f) The Securities shall be issued on December 10, 2020 (the “Issue Date”).
(g) The stated maturity of the principal of the Securities shall be December 10, 2024 (the “Stated Maturity”).
(h) The Securities shall be redeemable prior to their Stated Maturity in accordance with Section 2.04 hereof.
(i) The Securities shall be issued in minimum denominations of $200,000 in principal amount and integral multiples of $1,000 in excess thereof.
(j) Section 11.09 of the Base Indenture shall apply to the Securities.
(k) The Securities shall constitute the Company’s direct, unconditional, unsecured and unsubordinated obligations and shall at all times rank pari passu without any preference among themselves. In the event of a winding-up or administration of the Company, the Securities shall rank pari passu with all other outstanding unsecured and unsubordinated obligations of the Company, present and future, except such obligations as are preferred by operation of law.
SECTION 2.02 Interest.
(a) The interest rate on the Securities shall be, or shall be determined, as set forth in Annex I hereto.
(b) The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date shall, as provided in the Indenture, be paid to the Person in whose name the relevant Security (or any Predecessor Senior Debt Security) is registered at the close of business on the Regular Record Date for such interest.
SECTION 2.03 Payment of Principal, Interest and Other Amounts.
(a) Payments of principal of and interest on the Securities shall be made 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 and such payments on Securities represented by a Global Security shall be made through one or more Paying Agents appointed under the Base Indenture to DTC or its nominee, as the Holder or Holders of the Global Security. Initially, the Paying Agent for the Securities shall be The Bank of New York Mellon, London Branch, One Canada Square, London E14 5AL, United Kingdom and the Place of Payment in respect of the Securities shall be the Corporate Trust Office of the Trustee, which as of the date hereof is hereby designated for purposes of the Securities initially as the office or agency of the Trustee located at said address. Initially, the Senior Debt Security Registrar for the Securities shall be The Bank of New York Mellon SA/NV, Luxembourg Branch, 2-4 Rue
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Eugene Ruppert, Vertigo Building – Polaris, Luxembourg, 2453, Luxembourg (which location shall also be a Place of Payment for purposes of Section 3.05(a) of the Base Indenture). The Company at any time and from time to time may change the Paying Agent or, subject to Section 9.01 of the Base Indenture, the Place of Payment, and the Senior Debt Security Registrar without prior notice to the Holders of the Securities, and in such an event the Company may act as Paying Agent or Senior Debt Security Registrar. Payments of principal of and interest on the Securities represented by a Global Security shall be made by wire transfer of immediately available funds; provided, however, that in the case of payments of principal, such Global Security is first surrendered to the Paying Agent. If a date of redemption or repayment or the Stated Maturity is not a Business Day, the Company may pay interest and principal and/or any amount payable upon redemption or repayment of the Securities on the next succeeding Business Day, but interest on that payment will not accrue during the period from and after the date of redemption or repayment or such Stated Maturity.
SECTION 2.04 Optional Redemption. Subject to the notice period and provisions set forth in Sections 11.02 and 11.04 of the Base Indenture, and to the conditions set forth in Section 11.10 of the Base Indenture, the Company may redeem, at its option (A) the Securities at any time outstanding, in whole or in part, at any time on or after June 10, 2021 (six months following the Issue Date and, if any additional Securities are issued after the Issue Date, except for the period of six months beginning on the issue date for any such additional Securities) to (but excluding) the Par Redemption Date, at an amount equal to the higher of (i) 100% of the principal amount of the Securities to be redeemed and (ii) as determined by the Determination Agent, the sum of the present values of the principal (discounted from the Par Redemption Date) and remaining payments of interest to be made on any scheduled Interest Payment Date to the Par Redemption Date for the Securities to be redeemed (not including accrued but unpaid interest, if any, on the principal amount of the Securities) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Optional Redemption Treasury Rate plus 12.5 basis points together with, in either case of (i) or (ii) above, accrued but unpaid interest, if any, on the principal amount of the Securities to be redeemed to (but excluding) the Redemption Date (the “Make-Whole Redemption”) and/or (B) the Securities then outstanding, in whole but not in part, on the Par Redemption Date, at an amount equal to 100% of their principal amount together with accrued but unpaid interest, if any, on the principal amount of the Securities to be redeemed to (but excluding) the Redemption Date (the “Par Redemption”).
“Optional Redemption Treasury Rate” means, with respect to the Redemption Date, the rate per annum equal to: (1) the yield, under the heading which represents the average for the week immediately prior to the calculation date, appearing in the most recently published statistical release designated “H.15,” or any successor publication that is published by the Board of Governors of the Federal Reserve System that establishes yields on actively traded U.S. Treasury securities adjusted to constant maturity, under the caption “Treasury constant maturities,” for the maturity most closely corresponding to the Par Redemption Date (if no maturity is within three months before or after the Par Redemption Date, yields for the two published maturities most closely corresponding to the Optional Redemption Comparable Treasury Issue shall be determined and the Optional Redemption Treasury Rate shall be interpolated or extrapolated from such yields on a straight-line basis, rounding to the nearest month); or (2) if such release (or any successor release) is not published during the week immediately prior to the calculation date or does not contain such yields, the rate per annum equal to the semi-annual equivalent yield to maturity of the Optional Redemption
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Comparable Treasury Issue, calculated using a price for the Optional Redemption Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Optional Redemption Comparable Treasury Price for such Redemption Date; provided that, if the period from the Redemption Date to the Par Redemption Date is less than one year, the weekly average yield on actually traded U.S. Treasury securities adjusted to a constant maturity of one year will be used.
The Optional Redemption Treasury Rate shall be calculated by the Determination Agent on the third Business Day preceding the Redemption Date.
In determining the Optional Redemption Treasury Rate, the below terms will have the following meaning:
“Optional Redemption Comparable Treasury Issue” means, with respect to the Redemption Date, the U.S. Treasury security selected by the Determination Agent as having an actual or interpolated maturity comparable with the remaining term to the Par Redemption Date that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities denominated in U.S. dollars and of comparable maturity to the remaining term to the Par Redemption Date.
“Optional Redemption Comparable Treasury Price” means, with respect to the Redemption Date, (i) the arithmetic average of the Optional Redemption Reference Treasury Dealer Quotations for such Redemption Date (calculated on the third Business Day preceding such Redemption Date), after excluding the highest and lowest such Optional Redemption Reference Treasury Dealer Quotations, or (ii) if fewer than five such Optional Redemption Reference Treasury Dealer Quotations are received, the arithmetic average of all such quotations, or (iii) if fewer than two such Optional Redemption Reference Treasury Dealer Quotations are received, then such Optional Redemption Reference Treasury Dealer Quotation.
“Determination Agent” means an investment bank or financial institution of international standing selected by the Company and which may be an affiliate of the Company.
“Optional Redemption Reference Treasury Dealer” means, with respect to the Redemption Date, each of up to five banks selected by the Company (following, where practicable, consultation with the Determination Agent, if applicable), or the affiliates of such banks, which are (i) primary U.S. government securities dealers, and their respective successors, or (ii) market makers in pricing corporate bond issues.
“Optional Redemption Reference Treasury Dealer Quotations” means, with respect to each Optional Redemption Reference Treasury Dealer and the Redemption Date, the arithmetic average, as determined by the Determination Agent, of the bid and offered prices (as quoted to the Determination Agent by such Optional Redemption Reference Treasury Dealer) for the applicable Optional Redemption Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) at 11:00 a.m., New York time, on the third Business Day preceding such Redemption Date.
Unless the Company defaults on payment of the Redemption Price, interest will cease to accrue on the Redemption Date on the Securities or portions thereof called for redemption. The Trustee has no responsibility for any calculation or determination in respect of the establishment of the Make-Whole Redemption price and shall be entitled to receive and rely conclusively upon an Officer’s Certificate executed in accordance with the Base Indenture that states the Make-Whole Redemption price.
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SECTION 2.05 Loss Absorption Disqualification Event Redemption. If a Loss Absorption Regulations Event occurs on or after the Issue Date that does, or would be likely to (in the opinion of the Company, the PRA or the Relevant U.K. Resolution Authority), result in a Loss Absorption Disqualification Event in respect of the Securities, the Company may, at the Company’s option, at any time, redeem the Securities, in whole but not in part, at a Redemption Price equal to 100% of the principal amount of the Securities being redeemed together with accrued but unpaid interest, if any, on the principal amount of the Securities to be redeemed to (but excluding) the Redemption Date. For the avoidance of doubt, except as otherwise set forth in this Eighth Supplemental Indenture, Article 11 of the Base Indenture shall apply to any redemption of Securities pursuant to this Section 2.05.
SECTION 2.06 Events of Default. The terms of Sections 5.01, 5.02 and 5.03 (except for Sections 5.03(c) and 5.03(f)) of the Base Indenture shall not apply to the Securities and shall be replaced in their entirety by the enforcement events and remedies set forth in Section 2.07 hereof.
SECTION 2.07 Enforcement Events and Remedies.
(a) If a Winding-Up Event occurs, the principal amount of the Securities Outstanding, together with any accrued but unpaid interest thereon, shall become immediately due and payable, without the need of any further action on the part of the Trustee, the Holders or any other Person.
(b) If the Company fails to pay any amount that has become due and payable under the Securities and such failure continues for fourteen (14) days, the Trustee may provide a written notice of such failure to the Company. If within a period of fourteen (14) days following the provision of such notice, the failure continues and has not been cured nor waived (a “Non-Payment Event”), the Trustee may at its discretion and without further notice to the Company institute proceedings in England (or such other jurisdiction in which the Company may be organized) (but not elsewhere) for the Company’s winding-up and/or prove in the Company’s winding-up and/or claim in the Company’s liquidation or administration.
(c) In addition to the remedies for a Non-Payment Event provided in Section 2.07(b) hereof, the Trustee may, without further notice, institute such proceedings against the Company as the Trustee may deem fit to enforce any term, obligation or condition binding on the Company under the Securities or the Indenture (other than any payment obligation of the Company under or arising from the Securities or the Indenture, including, without limitation, payment of any principal or interest, including Additional Amounts) (such obligation, a “Performance Obligation”); provided always that the Trustee (acting on behalf of the Holders and Beneficial Owners of the Securities) and the Holders and Beneficial Owners of the Securities may not enforce, and may not be entitled to enforce or otherwise claim, against the Company any judgment or other award given in such proceedings that requires the payment of money by the Company, whether by way of damages or otherwise (a “Monetary Judgment”), except by proving such Monetary Judgment in the Company’s winding-up and/or by claiming such Monetary Judgment in the Company’s administration.
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(d) By its acquisition of the Securities, each Holder and Beneficial Owner of the Securities acknowledges and agrees that such Holder and Beneficial Owner shall not seek to enforce or otherwise claim, and shall not direct the Trustee (acting on behalf of the Holders and Beneficial Owners of the Securities) to enforce or otherwise claim, a Monetary Judgment against the Company in connection with the Company’s breach of a Performance Obligation, except by proving such Monetary Judgment in the Company’s winding-up and/or by claiming such Monetary Judgment in the Company’s administration.
(e) Other than the limited remedies specified in this Section 2.07 and subject to Section 2.07(f) hereof, no remedy against the Company shall be available to the Trustee (acting on behalf of the Holders and Beneficial Owners of the Securities) or the Holders and Beneficial Owners of the Securities whether for the recovery of amounts owing in respect of such Securities or under the Indenture or in respect of any breach by the Company of any of the Company’s obligations under or in respect of the terms of such Securities or under the Indenture in relation thereto; provided, however, that the Company’s obligations to, and rights of, the Trustee under Section 6.07 of the Base Indenture and the Trustee’s rights to have money collected applied first to pay amounts due to it under such Section pursuant to Section 5.06 of the Base Indenture expressly survive any Senior Enforcement Event.
(f) Notwithstanding the limitation on remedies specified in this Section 2.07, (1) the Trustee shall have such powers as are required to be authorized to it under the Trust Indenture Act in respect of the rights of the Holders of the Securities under the provisions of the Indenture and (2) nothing shall impair the right of a Holder of the Securities under the Trust Indenture Act, absent such Holder’s consent, to sue for any payment due but unpaid with respect to the Securities. No Holder of Securities shall be entitled to proceed directly against the Company except as described in Section 5.07 of the Base Indenture.
SECTION 2.08 Trustee’s Duties. In case of a Senior Enforcement Event with respect to the Securities, the Trustee shall with respect to such Securities exercise such of the rights and powers vested in it by the Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. For these purposes, a “Senior Enforcement Event” shall occur (i) upon the occurrence of a Winding-Up Event, (ii) upon the occurrence of a Non-Payment Event or (iii) upon a breach by the Company of a Performance Obligation with respect to the Securities.
SECTION 2.09 Waiver of Certain Past Events of Default. For purposes of the Base Indenture and with respect to the Securities, Section 5.13 of the Base Indenture shall be replaced in its entirety by the following:
“(a) Holders of not less than a majority in aggregate principal amount of the Outstanding Senior Debt Securities of any series may on behalf of the Holders of all of the Senior Debt Securities of such series waive any past Event of Default that results from a breach by the Company of a Performance Obligation. Holders of a majority of the aggregate principal amount of the Outstanding Senior Debt Securities of such series shall not be entitled to waive any past Event of Default that results from a Winding-Up Event or a Non-Payment Event.
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(b) Upon the occurrence of any waiver permitted by paragraph (a) above, such Event of Default shall cease to exist, and any Event of Default with respect to any series arising therefrom shall be deemed to have been cured and not to have occurred for every purpose of this Senior Debt Securities Indenture, but no such waiver shall extend to any subsequent or other Event of Default or impair any right consequent thereon.”
SECTION 2.10 Notice of Defaults Following an Event of Default. For purposes of the Base Indenture and with respect to the Securities, Section 6.02 of the Base Indenture shall be replaced in its entirety by the following:
“Within ninety (90) days after the occurrence of any Event of Default hereunder with respect to Senior Debt Securities of any series, the Trustee shall transmit in the manner and to the extent provided in Section 1.06 to Holders of Senior Debt Securities of such series notice of such Event of Default hereunder actually known to the Trustee, unless such Event of Default shall have been cured or waived; provided, however, that the Trustee shall be protected in withholding such notice if a trust committee of Responsible Officers of the Trustee determine in good faith that the withholding of such notice is in the interest of the Holders of Senior Debt Securities of such series.”
SECTION 2.11 Applicability of the Term “Event of Default.” For purposes of the Base Indenture, the term “Event of Default” shall mean “Senior Enforcement Event” as defined in this Eighth Supplemental Indenture, except that the term “Event of Default” as used in Sections 3.05(c)(ii) and 6.07 of the Base Indenture and Article 8 of the Base Indenture shall mean “Winding-Up Event.”
SECTION 2.12 Certain Acts of Holders Following an Event of Default. For purposes of the Base Indenture and with respect to the Securities, Section 1.04(d) of the Base Indenture shall be replaced in its entirety by the following:
“Upon receipt by the Trustee from any Holder of Senior Debt Securities of a particular series of any direction referred to in Section 5.12 with respect to Senior Debt Securities of such series, if the Trustee shall not have taken the action specified in such direction, then the Trustee may set a record date for determining the Holders of Outstanding Senior Debt Securities of such series entitled to join in such direction. The Trustee will notify the Company and the Holders of Outstanding Senior Debt Securities of such series of any such record date so fixed. The Holders of Outstanding Senior Debt Securities of such series as of the close of business on such record date, and no other Holders, shall be entitled to join in such direction, whether or not such Holders remain Holders after such record date.”
SECTION 2.13 Notice of Redemption.
(a) Before the Company may redeem the Securities pursuant to Section 2.04 or Section 2.05 hereof or pursuant to Section 11.09 of the Base Indenture, the Company shall deliver via DTC or the relevant clearing system(s) (or, if the Securities are definitive Securities, to the Holders at their addresses shown on the register for the Securities) prior notice of not less than fifteen (15) days, nor more than sixty (60) days, to the Holders of the Securities. The Company shall deliver written notice of such redemption of the Securities to the Trustee at least five (5) Business Days prior to the date on which the relevant notice of redemption is sent to Holders (unless a shorter notice period shall be satisfactory to the Trustee). Such notice shall specify the Company’s election to redeem the Securities and the date fixed for such redemption and shall be irrevocable except in the limited circumstances described in paragraphs (b) below.
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(b) If the Company has delivered a notice of redemption pursuant to paragraph (a) of this Section 2.13, but prior to the payment of the redemption amount with respect to such redemption the Relevant U.K. Resolution Authority exercises its U.K. Bail-in Power with respect to the Securities, such redemption notice shall be automatically rescinded and shall be of no force and effect, and no payment in respect of the redemption amount shall be due and payable.
(c) If any event specified in paragraph (b) above occurs, the Company shall promptly deliver notice to the Holders of the Securities via DTC or the relevant clearing system(s) (or, if the Securities are definitive Securities, to the Holders at their addresses shown on the shown on the register for the Securities) and to the Trustee directly, specifying the occurrence of the relevant event.
SECTION 2.14 Acknowledgement with respect to Treatment of EEA BRRD Liabilities. Notwithstanding and to the exclusion of any other term of the Indenture, this Eighth Supplemental Indenture or any other agreements, arrangements, or understanding between the BRRD Party, on the one hand, and the Company, on the other hand, the Company acknowledges and accepts that an EEA BRRD Liability arising under the Indenture and this Eighth Supplemental Indenture may be subject to the exercise of EEA Bail-in Powers by the Relevant EEA Resolution Authority, and acknowledges, accepts, and agrees to be bound by:
(a) the effect of the exercise of EEA Bail-in Powers by the Relevant EEA Resolution Authority in relation to any EEA BRRD Liability that (without limitation) may include and result in any of the following, or some combination thereof:
(i) the reduction of all, or a portion, of the EEA BRRD Liability or outstanding amounts due thereon;
(ii) the conversion of all, or a portion, of the EEA BRRD Liability into shares, other securities or other obligations of the BRRD Party or another person, and the issue to or conferral on the Company of such shares, securities or obligations;
(iii) the cancellation of the EEA BRRD Liability; or
(iv) the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due including by suspending payment for a temporary period.
(b) the variation of the terms of the Indenture or this Eighth Supplemental Indenture, as deemed necessary by the Relevant EEA Resolution Authority, to give effect to the exercise of EEA Bail-in Powers by the Relevant EEA Resolution Authority in respect of the BRRD Party.
For these purposes:
“Bail-in Legislation” means in relation to a member state of the European Economic Area or the United Kingdom which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time.
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“BRRD” means EU Directive 2014/59/EU of the European Parliament and of the Council establishing a framework for the recovery and resolution of credit institutions and investment firms of May 15, 2014, as amended or replaced from time to time (including as amended by Directive (EU) 2019/879 of the European Parliament and of the Council of May 20, 2019) or similar laws in the United Kingdom.
“BRRD Party” means The Bank of New York Mellon SA/NV, Luxembourg Branch, solely and exclusively in its role as Senior Debt Security Registrar under the Indenture and this Eighth Supplemental Indenture. For the avoidance of doubt, The Bank of New York Mellon, London Branch, as Trustee and Paying Agent and in any other capacity under the Indenture or this Eighth Supplemental Indenture is not a BRRD Party under the Indenture or this Eighth Supplemental Indenture.
“EEA Bail-in Power” means any Write-down and Conversion Powers as defined in the EU Bail-in Legislation Schedule, in relation to the relevant Bail-in Legislation.
“EEA BRRD Liability” means a liability of the BRRD Party to the Company under the Indenture or this Eighth Supplemental Indenture, if any, in respect of which the EEA Bail-in Power may be exercised.
“EU Bail-in Legislation Schedule” means the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time at http://www.lma.eu.com.
“Relevant EEA Resolution Authority” means the resolution authority with the ability to exercise any EEA Bail-in Powers in relation to the BRRD Party.
SECTION 2.15 Acknowledgement with Respect to Treatment of BRRD Liabilities. Any references to the “Trustee” in Article 12.02 of the Base Indenture shall be deemed to refer to the Trustee and The Bank of New York Mellon SA/NV, Luxembourg Branch.
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3.01 Effectiveness. This Eighth Supplemental Indenture shall become effective upon its execution and delivery.
SECTION 3.02 Original Issue. The Securities may, upon execution of this Eighth Supplemental Indenture, be executed by the Company and delivered by the Company to the Trustee for authentication, and the Trustee shall, upon a Company Order, authenticate and deliver such Securities as in such Company Order provided.
SECTION 3.03 Ratification and Integral Part. The Base Indenture as supplemented by this Eighth Supplemental Indenture, is in all respects ratified and confirmed, including without limitation all the rights, immunities and indemnities of the Trustee, and this Eighth Supplemental Indenture shall be deemed an integral part of the Base Indenture in the manner and to the extent herein and therein provided.
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SECTION 3.04 Priority. This Eighth Supplemental Indenture shall be deemed part of the Indenture in the manner and to the extent herein and therein provided. The provisions of this Eighth Supplemental Indenture shall, with respect to the Securities and subject to the terms hereof, supersede the provisions of the Base Indenture to the extent the Base Indenture is inconsistent herewith.
SECTION 3.05 Not Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except the Trustee’s certificate of authentication, shall be taken as the statements of the Company, 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 Eighth Supplemental Indenture or of the Securities, except that the Trustee represents and warrants that it has duly authorized, executed and delivered this Eighth Supplemental Indenture. Neither the Trustee nor any authenticating agent shall be accountable for the use or application by the Company of the Securities or the proceeds thereof.
SECTION 3.06 Successors and Assigns. All covenants and agreements in the Base Indenture, as supplemented and amended by this Eighth Supplemental Indenture, by the Company shall bind its successors and assigns, whether so expressed or not.
SECTION 3.07 Counterparts. This Eighth Supplemental Indenture may be executed manually, by facsimile or by electronic signature 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.
SECTION 3.08 Governing Law. This Eighth Supplemental Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York, except for the waiver of set-off provisions set forth in Section 5.03(c) of the Base Indenture, which shall be governed by and construed in accordance with English law, and except that the authorization and execution of this Eighth Supplemental Indenture and the Securities shall be governed (in addition to the laws of the State of New York relevant to execution) by the respective jurisdictions of organization of the Company and the Trustee, as the case may be.
{Signature Page Follows}
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IN WITNESS WHEREOF, the parties hereto have caused this Eighth Supplemental Indenture to be duly executed as of the day and year first above written.
| BARCLAYS PLC | ||
| By: | /s/ Miray Muminoglu | |
| Name: Miray Muminoglu | ||
| Title: Managing Director | ||
| THE BANK OF NEW YORK MELLON, LONDON BRANCH, AS TRUSTEE AND PAYING AGENT | ||
| By: | /s/ Tom Vanson | |
| Name: Tom Vanson | ||
| Title: Authorized Signatory | ||
| THE BANK OF NEW YORK MELLON SA/NV, LUXEMBOURG BRANCH, AS SENIOR DEBT SECURITY REGISTRAR | ||
| By: | /s/ Tom Vanson | |
| Name: Tom Vanson | ||
| Title: Authorized Signatory | ||
{Signature Page to Eighth Supplemental Indenture}
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ANNEX I
Interest Terms of the Securities
Interest Terms of the Securities
| Interest Rate: | From (and including) the Issue Date to (but excluding) the Reset Date, the Securities will bear interest at a rate of 1.007% per annum (the “Initial Interest Rate”). From (and including) the Reset Date to (but excluding) the Maturity Date (the “Reset Period”), the applicable per annum interest rate (the “Subsequent Interest Rate”) will be equal to the sum, as determined by the Calculation Agent, of the then-prevailing U.S. Treasury Rate (such term subject to the provisions described below) on the Reset Determination Date, plus 0.800% (the “Margin”). | |
| Interest Payment Dates: | Semi-annually in arrear on June 10 and December 10 in each year, commencing on June 10, 2021 (each, an “Interest Payment Date”). If any scheduled Interest Payment Date would fall on a day that is not a Business Day, the Company will pay interest on the next succeeding Business Day, but interest on that payment will not accrue during the period from and after the scheduled Interest Payment Date. | |
| Reset Date: | December 10, 2023 (the “Reset Date”). | |
| Reset Determination Date: | The second Business Day immediately preceding the Reset Date (the “Reset Determination Date”). | |
| Day Count: | 30/360, Following, Unadjusted. | |
| Calculation Agent: | The Bank of New York Mellon, London Branch, or its successor appointed by the Company. | |
| Par Redemption Date: | December 10, 2023. | |
| Calculation of U.S. Treasury Rate: | The Calculation Agent will determine the Subsequent Interest Rate for the Securities by reference to the then-prevailing U.S. Treasury Rate, on the Reset Determination Date. Promptly upon such determination, the Calculation Agent will notify the Company and the Trustee (if the Calculation Agent is not the Trustee) of the Subsequent Interest Rate. All determinations and any calculations made by the Calculation Agent for the purposes of calculating the Subsequent Interest Rate (or component thereof) shall be conclusive and binding on the holders of the Securities, the Company and the Trustee, absent manifest error. The Calculation Agent shall not be responsible to the Company, holders of the Securities or any third party for any failure of any Reference Treasury Dealer to provide quotations as requested of them or as a result of the Calculation Agent having acted on any quotation or other information given by any Reference Treasury Dealer which subsequently may be found to be incorrect or inaccurate in any way. | |
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|
“U.S. Treasury Rate” means, with respect to the Reset Period, the rate per annum equal to: (1) the yield, under the heading which represents the average for the week immediately prior to the Reset Determination Date, appearing in the most recently published statistical release designated “H.15,” or any successor publication that is published by the Board of Governors of the Federal Reserve System that establishes yields on actively traded U.S. Treasury securities adjusted to constant maturity, under the caption “Treasury constant maturities,” for the maturity of one year; or (2) if such release (or any successor release) is not published during the week immediately prior to the Reset Determination Date or does not contain such yields, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Reset Determination Date.
If the U.S. Treasury Rate cannot be determined, for whatever reason, as described under (1) or (2) above, “U.S. Treasury Rate” means the rate in percentage per annum as notified by the Calculation Agent to the Company equal to the yield on U.S. Treasury securities having a maturity of one year as set forth in the most recently published statistical release designated “H.15” under the caption “Treasury constant maturities” (or any successor publication that is published weekly by the Board of Governors of the Federal Reserve System and that establishes yields on actively traded U.S. Treasury securities adjusted to constant maturity under the caption “Treasury constant maturities” for the maturity of one year) at 5:00 p.m. (New York City time) on the last available date preceding the Reset Determination Date on which such rate was set forth in such release (or any successor release).
“Comparable Treasury Issue” means, with respect to the Reset Period, the U.S. Treasury security or securities selected by the Company with a maturity date on or about the last day of the Reset Period and that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities denominated in U.S. dollars and having a maturity of one year.
“Comparable Treasury Price” means, with respect to the Reset Determination Date, (i) the arithmetic average of the Reference Treasury Dealer Quotations for the Reset Determination Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, (ii) if fewer than five such Reference Treasury Dealer Quotations are received, the arithmetic average of all such quotations, or (iii) if fewer than two such Reference Treasury Dealer Quotations are received, then such Reference Treasury Dealer Quotation. |
I-2
| “Reference Treasury Dealer” means, with respect to the Reset Determination Date, each of up to five banks selected by the Company, or the affiliates of such banks, which are (i) primary U.S. Treasury securities dealers, and their respective successors, or (ii) market makers in pricing corporate bond issues denominated in U.S dollars. | ||
| “Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and the Reset Determination Date, the arithmetic average, as determined by the Calculation Agent, of the bid and offered prices (such prices being obtained by the Company and furnished to the Calculation Agent) for the applicable Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, at 11:00 a.m. (New York City time) on the Reset Determination Date. | ||
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EXHIBIT A
Form of Global Security
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.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (OR ANY SUCCESSOR CLEARING SYSTEM) (“DTC”), TO BARCLAYS PLC, OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
This Security is one of a duly authorized issue of securities of the Company (as defined below) (herein called the “Securities” and each, a “Security”) issued and to be issued in one or more series under and governed by the Senior Debt Securities Indenture, dated as of January 17, 2018 (as heretofore amended and supplemented, the “Base Indenture”), as amended and supplemented by the Eighth Supplemental Indenture, dated as of December 10, 2020 (the “Eighth Supplemental Indenture” and, together with the Base Indenture, the “Indenture”).
Notwithstanding any other agreements, arrangements, or understandings between the Company and any Holder or Beneficial Owner of the Securities, by acquiring the Securities, each Holder and Beneficial Owner of the Securities acknowledges, accepts, agrees to be bound by, and consents to, the exercise of any U.K. Bail-in Power by the Relevant U.K. Resolution Authority (as those terms are defined in the Base Indenture) and the provisions set forth in Section 12.01 of the Base Indenture.
In accordance with Article 13 of the Base Indenture, each Holder and Beneficial Owner of the Securities that acquires the Securities in the secondary market shall be deemed to acknowledge, agree to be bound by, and consent to, the same provisions set forth in the Securities and the Indenture to the same extent as the Holders and Beneficial Owners of the Securities that acquire the Securities upon their initial issuance, including, without limitation, with respect to the acknowledgement and agreement to be bound by, and consent to, the terms of the Securities, including in relation to the provisions contained in Section 5.03(c) and Section 12.01 of the Base Indenture.
A-1
1.007% Fixed Rate Resetting Senior Callable Notes due 2024
No. 00[•]
$[•]
CUSIP NO. 06738E BQ7
ISIN NO. US06738EBQ70
COMMON CODE NO. 227225572
BARCLAYS PLC, a company duly incorporated and existing under the laws of England and Wales (herein called the “Company,” which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of US$[•] ([•]) on December 10, 2024 (the “Maturity Date”), except as otherwise provided herein, and to pay interest thereon, in accordance with the terms hereof. Interest shall accrue on this Security from December 10, 2020 or from the most recent Interest Payment Date (as defined below) to which interest has been paid or duly provided for, until the principal hereof is paid or made available for payment. Interest shall be paid semi-annually in arrear on June 10 and December 10 of each year (each, an “Interest Payment Date”). From (and including) December 10, 2020 to (but excluding) December 10, 2023 (the “Reset Date”), the Securities will bear interest at a rate of 1.007% per annum. From (and including) the Reset Date to (but excluding) the Maturity Date, the applicable per annum interest rate (the “Subsequent Interest Rate”) will be equal to the sum, as determined by the Calculation Agent, of the then-prevailing U.S. Treasury Rate (such term subject to the provisions of Annex I to the Eighth Supplemental Indenture) on the second Business Day immediately preceding the Reset Date, plus 0.800%.
Subject to the limitations specified on the reverse of this Security, interest on the Securities shall be computed and payable in arrear and on the basis of a 360-day year of twelve 30-day months.
The Calculation Agent, initially the Bank of New York Mellon, London Branch (the “Calculation Agent”), will determine the Subsequent Interest Rate in any circumstance where the Calculation Agent is so required under the terms of the Securities and the Indenture, in accordance with the provisions set forth in Annex I to the Eighth Supplemental Indenture.
All calculations made by the Calculation Agent for the purposes of calculating the interest rate on the Securities shall be conclusive and binding on the Holders of the Securities, the Company and the Trustee, absent manifest error.
If any scheduled Interest Payment Date is not a Business Day, the Interest Payment Date shall be postponed to the next succeeding Business Day (as defined below), but interest on that payment will not accrue during the period from and after the scheduled Interest Payment Date. If the Maturity Date or date of redemption or repayment is not a Business Day, the payment of interest and principal and/or any amount payable upon redemption or repayment of the Securities will be made on the next succeeding Business Day, but interest on that payment will not accrue during the period from and after such Maturity Date or date of redemption or repayment. If the Securities are redeemed, unless the Company defaults on payment of the Redemption Price, interest will cease to accrue on the Redemption Date on the Securities called for redemption. A “Business Day” means any weekday, other than one on which banking institutions are authorized or obligated by law, regulation or executive order to close in London, England or in the City of New York, United States.
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The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date shall, as provided in the Indenture, be paid to the Person in whose name the relevant Security (or any Predecessor Senior Debt Security) is registered at the close of business on the Regular Record Date for such interest.
No repayment of the principal amount of the Securities or payment of interest on the Securities shall become due and payable after the exercise of any U.K. Bail-in Power by the Relevant U.K. Resolution Authority, unless such repayment or payment would be permitted to be made by the Company under the laws and regulations of the United Kingdom and the European Union applicable to the Company.
Payments of principal of and interest, if any, on the Securities shall be made 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 and such payments shall be made through one or more Paying Agents appointed under the Indenture to the Holder or Holders of this Security. Initially, the Paying Agent for the Securities shall be The Bank of New York Mellon, London Branch, One Canada Square, London E14 5AL, United Kingdom and the Place of Payment in respect of the Securities shall be the Corporate Trust Office of the Trustee, which as of the date hereof is hereby designated for purposes of the Securities initially as the office or agency of the Trustee located at said address. Initially, the Senior Debt Security Registrar for the Securities shall be The Bank of New York Mellon SA/NV, Luxembourg Branch, 2-4 Rue Eugene Ruppert, Vertigo Building – Polaris, Luxembourg, 2453, Luxembourg (which location shall also be a Place of Payment for purposes of Section 3.05(a) of the Base Indenture). The Company at any time and from time to time may change the Paying Agent or, subject to Section 9.01 of the Base Indenture, the Place of Payment, and the Senior Debt Security Registrar without prior notice to the Holders of the Securities, and in such an event the Company may act as Paying Agent or Security Registrar. Payments of principal of and interest on the Securities shall be made by wire transfer of immediately available funds; provided, however, that in the case of payments of principal, this Security is first surrendered to the Paying Agent.
This Security shall be governed by and construed in accordance with the laws of the State of New York, except for the waiver of set-off provisions referenced herein and set forth in Section 5.03(c) of the Base Indenture which shall be governed by and construed in accordance with English law.
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, as defined herein.
THIS SECURITY IS NOT A DEPOSIT AND IS NOT COVERED BY THE U.K. FINANCIAL SERVICES COMPENSATION SCHEME OR INSURED BY THE UNITED STATES FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENT AGENCY OF THE UNITED STATES, THE UNITED KINGDOM OR ANY OTHER JURISDICTION.
A-3
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, facsimile or electronic 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.
A-4
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
| Date: December 10, 2020 | BARCLAYS PLC | |||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
Trustee’s Certificate of Authentication
This is one of the Securities of the series designated herein referred to in the Indenture.
| Date: December 10, 2020 | THE BANK OF NEW YORK MELLON, as Trustee | |||||
| By: |
{Signature Page to Global Security No. [•]}
A-5
(Reverse of Security)
This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities” and each, a “Security”) issued and to be issued in one or more series under and governed by the Senior Debt Securities Indenture, dated as of January 17, 2018 (as heretofore amended and supplemented, the “Base Indenture”), between the Company and The Bank of New York Mellon, London Branch, as Trustee (herein called the “Trustee,” which term includes any successor trustee under the Indenture (as defined below)) as amended and supplemented by the Eighth Supplemental Indenture, dated as of December 10, 2020 (the “Eighth Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), and reference is hereby made to the Indenture, the terms of which are incorporated herein by reference, for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee, the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. Insofar as the provisions of the Indenture may conflict with the provisions set forth in this Security, the Indenture shall control for purposes of this Security. All terms used in this Security that are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
This Security is one of the series designated on the face hereof, limited to an aggregate principal amount of $1,500,000,000, which amount may be increased at the option of the Company if in the future it determines that it may wish to sell additional Securities of this series. References herein to “this series” mean the series designated on the face hereof.
The provisions set forth in Section 10.04 of the Base Indenture are applicable to this Security. In addition, the Company agrees, to the extent the Company has actual knowledge of such information, to provide the Paying Agent with sufficient information about any modification to the terms of the Securities for the purposes of determining whether FATCA Withholding Tax applies to any payment of principal or interest on the Securities.
The Company may redeem the Securities pursuant to Section 2.04 of the Eighth Supplemental Indenture. The Company may also redeem the Securities pursuant to Section 11.09 of the Base Indenture and/or Section 2.05 of the Eighth Supplemental Indenture. Any redemption of Securities by the Company is subject to the notice period and provisions set forth in Sections 11.02 and 11.04 of the Base Indenture and in Section 2.13 of the Eighth Supplemental Indenture, and to the conditions set forth in Section 11.10 of the Base Indenture.
The Company may repurchase the Securities pursuant to Section 11.12 of the Base Indenture.
All authority conferred or agreed to be conferred by each Holder and Beneficial Owner pursuant to this Security, including the consents given by such Holder and Beneficial Owner, shall be binding upon the successors, assigns, heirs, executors, administrators, trustees in bankruptcy and legal representatives of such Holder and Beneficial Owner.
The Securities shall constitute the Company’s direct, unconditional, unsecured and unsubordinated obligations and shall rank as set forth in Section 2.01(k) of the Eighth Supplemental Indenture.
A-6
The Securities are subject to the waiver of set-off provisions set forth in Section 5.03(c) of the Base Indenture.
This Security is subject to the provisions regarding the U.K. Bail-in Power Acknowledgement set forth in Section 12.01 of the Base Indenture, subject to the provisions of Section 2.14 of the Eighth Supplemental Indenture.
The Securities are subject to provisions set forth in Article 5 of the Base Indenture, provided that the terms of Section 5.01, Section 5.02 and Section 5.03 (except for Section 5.03(c) and Section 5.03(f)) of the Base Indenture shall not apply to the Securities and shall be replaced in their entirety by the enforcement events and remedies set forth in the second and third following paragraphs and as contemplated by Section 2.07 of the Eighth Supplemental Indenture.
The Securities will also be subject to the limitation of remedies provisions set forth in Section 2.07 of the Eighth Supplemental Indenture, and the provisions of Section 2.08, Section 2.09, Section 2.10, Section 2.11 and Section 2.12 of the Eighth Supplemental Indenture.
If a Winding-Up Event occurs, the principal amount of this Security, together with any accrued but unpaid interest thereon, shall become immediately due and payable, without the need of any further action on the part of the Trustee, the Holders or any other Person.
If a Non-Payment Event occurs, the Trustee may, at its discretion, and without further notice to the Company, institute proceedings in England (or such other jurisdiction in which the Company may be organized) (but not elsewhere) for the winding-up of the Company and/or prove in a winding-up of the Company and/or claim in a liquidation or administration of the Company.
The Indenture permits the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities to be affected under the Indenture as contemplated by Article 9 of the Base Indenture. To the extent required by the U.S. Trust Indenture Act of 1939, as amended, but otherwise notwithstanding any other provision in this Security, the Holder of this Security shall have the right to receive (subject to Section 3.07 of the Base Indenture) payment of any principal of, and interest on, this Security when due (or, in the case of redemption, on or after the Redemption Date), and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder or holder.
This Security, and any other Securities of this series and of like tenor, are issuable only in registered form without coupons in initial denominations of $200,000 and increments of $1,000 thereafter. The denominations cannot be changed without the consent of the Trustee. The provisions on registration, transfer and exchange of the Securities set forth in Section 3.05 of the Base Indenture are applicable to the Securities.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
A-7
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
This Security shall be governed by and construed in accordance with the laws of the State of New York, except for the waiver of set-off provisions referenced herein and set forth in Section 5.03(c) of the Base Indenture, which shall be governed by and construed in accordance with English law.
A-8
Exhibit 5.1
December 10, 2020
Barclays PLC
1 Churchill Place
London E14 5HP
Ladies and Gentlemen:
We have acted as special U.S. counsel to Barclays PLC, a public limited company incorporated under the law of England and Wales (the “Company”), in connection with the Company’s offering pursuant to a registration statement on Form F-3 (No. 333-223156) of $1,500,000,000 1.007% Fixed Rate Resetting Senior Callable Notes due 2024 (the “Securities”), to be issued under an indenture dated as of January 17, 2018 (as heretofore amended and supplemented, the “Base Indenture”), among the Company, The Bank of New York Mellon, London Branch, as trustee and paying agent (the “Trustee”), and The Bank of New York Mellon SA/NV, Luxembourg Branch, as registrar (the “Registrar”), as supplemented by an eighth supplemental indenture dated as of December 10, 2020 (the “Eighth Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), among the Company, the Trustee and the Registrar. Such registration statement, as amended as of its most recent effective date (December 3, 2020), insofar as it relates to the Securities (as determined for purposes of Rule 430B(f)(2) under the Securities Act of 1933, as amended (the “Securities Act”)), including the documents incorporated by reference therein but excluding Exhibits 25.1, 25.2 and 25.3, is herein called the “Registration Statement.”
In arriving at the opinion expressed below, we have reviewed the following documents
(a) the Registration Statement;
(b) an executed copy of the Base Indenture;
(c) an executed copy of the Eighth Supplemental Indenture; and
(d) a copy of the Securities in global registered form (the “Global Security”) as executed by the Company and authenticated by the Trustee.
In addition, we have made such investigations of law as we have deemed appropriate as a basis for the opinion expressed below.
Barclays PLC, Page 2
In rendering the opinion expressed below, we have assumed the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies. In addition, we have assumed and have not verified the accuracy as to factual matters of each document we have reviewed.
Based on the foregoing, and subject to the further assumptions and qualifications set forth below, it is our opinion that the Securities are valid, binding and enforceable obligations of the Company, entitled to the benefits of the Indenture; provided that we express no opinion as to the validity, binding effect or enforceability of the waiver of set-off provisions set forth in Section 5.03(c) of the Base Indenture (and the corresponding provision in the Global Security), which are governed by English law.
Insofar as the foregoing opinion relates to the validity, binding effect or enforceability of any agreement or obligation of the Company, (a) we have assumed that the Company and each other party to such agreement or obligation has satisfied those legal requirements that are applicable to it to the extent necessary to make such agreement or obligation enforceable against it (except that no such assumption is made as to the Company regarding matters of the federal law of the United States of America or the law of the State of New York that in our experience normally would be applicable to general business entities with respect to such agreement or obligation), (b) such opinion is subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity, (c) we express no opinion with respect to the effect of any mandatory choice of law rules and (d) such opinion is subject to the effect of judicial application of foreign laws or foreign governmental actions affecting creditors’ rights.
We express no opinion as to the subject matter jurisdiction of any United States federal court to adjudicate any action relating to the Securities where jurisdiction based on diversity of citizenship under 28 U.S.C. §1332 does not exist.
The foregoing opinion is limited to the federal law of the United States of America and the law of the State of New York. With respect to matters governed by English law, we have relied on the opinion of Clifford Chance LLP dated December 10, 2020, as English counsel to the Company, which has been filed as Exhibit 5.2 to the Company’s Form 6-K dated December 10, 2020.
We hereby consent to the incorporation by reference of this opinion in the Registration Statement and the use of our name in the prospectus constituting a part of the Registration Statement and the prospectus supplement dated December 3, 2020 relating to the Securities under the heading “Validity of Notes.” In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities and Exchange Commission thereunder.
Barclays PLC, Page 3
The opinion expressed herein is rendered on and as of the date hereof, and we assume no obligation to advise you or any other person, or to make any investigations, as to any legal developments or factual matters arising subsequent to the date hereof that might affect the opinion expressed herein.
| Very truly yours,
| ||
| CLEARY GOTTLIEB STEEN & HAMILTON LLP | ||
| By: | /s/ David I. Gottlieb | |
| David I. Gottlieb, a Partner | ||
Exhibit 5.2
|
CLIFFORD CHANCE LLP
| |||
| 10 UPPER BANK STREET | ||||
| LONDON | ||||
| E14 5JJ | ||||
| TEL +44 20 7006 1000 | ||||
| FAX +44 20 7006 5555 | ||||
| DX 149120 CANARY W HARF 3 | ||||
| www.cliffordchance.com | ||||
| To Barclays PLC 1 Churchill Place London E14 5HP |
Our ref: 70-41008612 Direct Dial: +44 207006 2977 E-Mail: simon.sinclair@cliffordchance.com
10 December 2020 |
Barclays PLC
U.S.$1,500,000,000 1.007 per cent. Fixed Rate Resetting Senior Callable Notes due 2024
(the “Notes”)
We have acted as English legal advisers to Barclays PLC (the “Issuer”) in connection with the issue by the Issuer of the Notes under the senior debt securities indenture entered into on 17 January 2018 (as heretofore amended and supplemented, the “Base Indenture”) between the Issuer and The Bank of New York Mellon, London Branch as trustee (the “Trustee”), as amended and supplemented by the Eighth Supplemental Indenture dated as of 10 December 2020, among the Issuer, the Trustee and The Bank of New York Mellon SA/NV, Luxembourg Branch, as Senior Debt Security Registrar (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”).
| 1. | INTRODUCTION |
| 1.1 | Opinion Documents |
This Opinion relates to the Notes and the Indenture.
| 1.2 | Defined Terms |
| 1.2.1 | “DocuSign Platform” means the cloud based electronic signing platform owned and run by DocuSign Inc. |
| 1.2.2 | Terms defined or given a particular construction in the Indenture shall have the same meaning in this Opinion unless a contrary indication appears. |
CLIFFORD CHANCE LLP IS A LIMITED LIABILITY PARTNERSHIP REGISTERED IN ENGLAND AND WALES UNDER NO. OC323571. THE FIRM’S REGISTERED OFFICE AND PRINCIPAL PLACE OF BUSINESS IS AT 10 UPPER BANK STREET LONDON E14 5JJ. THE FIRM USES THE WORD “PARTNER” TO REFER TO A MEMBER OF CLIFFORD CHANCE LLP OR AN EMPLOYEE OR CONSULTANT WITH EQUIVALENT STANDING AND QUALIFICATIONS. THE FIRM IS AUTHORISED AND REGULATED BY THE SOLICITORS REGULATION AUTHORITY.
| CLIFFORD CHANCE LLP |
| 1.2.3 | Headings in this Opinion are for ease of reference only and shall not affect its interpretation. |
| 1.2.4 | All references in this Opinion to paragraphs mean paragraphs in this Opinion. |
| 1.3 | Legal Review |
In connection with the creation and issue of the Notes and the giving of this Opinion:
| 1.3.1 | we have reviewed the documents referred to in paragraph 1 of Schedule 1 (Documents and Enquiries) and completed the searches and enquiries referred to in paragraph 2 of Schedule 1 (Documents and Enquiries) and any references to such documents in this Opinion are to those documents as originally executed. Certain of such documents have been executed using the DocuSign Platform; |
| 1.3.2 | we have not verified the facts or the reasonableness of any statements (including statements as to foreign law) contained in the Indenture or the Prospectus, save as expressly specified in paragraph 2.3 (Taxation statements in the Prospectus); |
| 1.3.3 | we have not been responsible for ensuring that the Prospectus contains all material facts; and |
| 1.3.4 | we have not been responsible for ensuring that the Prospectus or the Form 6-K comply with the requirements of any competent authority. |
| 1.4 | Applicable Law |
This Opinion is governed by English law, relates only to English law as applied by the English courts as at today’s date and does not extend to the laws of any other jurisdiction (save as described in paragraph 1.5 (Taxation)). All non-contractual obligations and any other matters arising out of or in connection with this Opinion are governed by English law.
| 1.5 | Taxation |
We express no opinion on any taxation matter, and none is implied or may be inferred, save as expressly specified in paragraph 2.3 (Taxation statements in the Prospectus). In respect of those tax matters this Opinion is confined to, and given on the basis of, English law, United Kingdom tax law and Her Majesty’s Revenue and Customs (“HMRC”) published practice in force or applied in the United Kingdom as at today’s date.
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| CLIFFORD CHANCE LLP |
| 1.6 | Assumptions and Reservations |
This Opinion is given on the basis of our understanding of the terms of the Indenture and the Notes, and the assumptions set out in Schedule 2 (Assumptions) and is subject to the reservations set out in Schedule 3 (Reservations). This Opinion is strictly limited to the matters stated in paragraph 2 (Opinion) and does not extend to any other matters.
| 2. | OPINION |
We are of the opinion that:
| 2.1 | Corporate Existence |
The Issuer is a company duly incorporated in England and has the capacity and power to create and issue the Notes, to enter into the Supplemental Indenture and to exercise its rights and perform its obligations under the Notes and the Indenture.
| 2.2 | Authorisation |
The issue of the Notes has been duly authorised by or on behalf of the Issuer.
| 2.3 | Taxation statements in the Prospectus |
The statements in the Base Prospectus under the heading “United Kingdom Taxation of Senior Debt Securities” as amended by the statements in the Prospectus Supplement under the heading “United Kingdom Tax Considerations” are, insofar as they are relevant to the Notes, correct in all material respects.
| 3. | ADDRESSEES AND PURPOSE |
| 3.1.1 | The scope and content of this Opinion solely have regard to the interests of the Issuer in accordance with its instructions. This Opinion is provided in connection with the filing of the Form 6-K and is addressed to and is solely for the Issuer and it may not, without our prior written consent, be relied upon for any other purpose or be disclosed to or relied upon by any other person save as provided below. |
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| CLIFFORD CHANCE LLP |
| 3.1.2 | We hereby consent to the filing of this opinion with the United States Securities and Exchange Commission (the “SEC”) as an exhibit to a Current Report on Form 6-K to be incorporated by reference into the Form F-3 Registration Statement filed with the SEC on 22 February 2018 with pre-effective amendments filed on 27 March 2018 and 4 April 2018 and declared effective by the SEC on 6 April 2018, and the reference to us under the headings “United Kingdom Taxation of Senior Debt Securities”, “Service of Process and Enforcement of Liabilities” and “Validity of Securities” in the Base Prospectus and under the heading “Validity of Notes” in the Prospectus Supplement. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the US Securities Act of 1933, as amended or the rules and regulations of the SEC thereunder. |
/s/ Clifford Chance.
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| CLIFFORD CHANCE LLP |
SCHEDULE 1
DOCUMENTS AND ENQUIRIES
| 1. | DOCUMENTS |
| (a) | The prospectus dated 6 April 2018 relating to, inter alia, the Notes (the “Base Prospectus”). |
| (b) | The prospectus supplement dated 3 December 2020 relating to the Notes (the “Prospectus Supplement” and, together with the Base Prospectus, the “Prospectus”). |
| (c) | The final form of the Form 6-K expected to be filed with the SEC on 10 December 2020 relating to the Notes (the “Form 6-K”). |
| (d) | A copy of the Base Indenture. |
| (e) | A copy of the Supplemental Indenture. |
| (f) | A copy of the global notes representing the Notes dated 10 December 2020 (together, the “Global Notes”). |
| (g) | A copy of the certificate of incorporation of the Issuer dated 20 July 1896. |
| (h) | A copy of the Barclays Bank Act 1984. |
| (i) | A copy of the certificate of incorporation on re-registration of the Issuer dated 15 February 1982. |
| (j) | A copy of the certificate of incorporation on change of name of the Issuer dated 1 January 1985. |
| (k) | A copy of the articles of association of the Issuer as adopted by special resolution passed on 30 April 2010 and amended by special resolution passed on 25 April 2013, certified a true copy by Sophie Lukaszewski. |
| (l) | A copy of the extracts from the minutes of a meeting of the board of directors of the Issuer held on 15 December 2016, certified a true copy by Patrick Gonsalves (the “2016 Resolutions”). |
| (m) | A copy of the extracts from the minutes of a meeting of the board of directors of the Issuer held on 28 March 2018, certified a true copy by Gemma Tremlett (the “2018 Resolutions”). |
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| CLIFFORD CHANCE LLP |
| (n) | A copy of the approval of the Group Finance Director of the Issuer dated 21 February 2017, certified a true copy by Anita Erling. |
| (o) | A copy of the approval of the Group Finance Director of the Issuer dated 20 February 2018, certified a true copy by Sophie Lukaszewski. |
| (p) | A copy of the power of attorney granted by the Issuer dated 19 June 2017, in favour of each of Miray Muminoglu, Timothy Allen, Stuart Frith and Daniel David. |
| (q) | A copy of the power of attorney granted by the Issuer dated 30 March 2020, in favour of Miray Muminoglu and Stuart Frith. |
| 2. | SEARCHES AND ENQUIRIES |
| (a) | A search was conducted with the Registrar of Companies in respect of the Issuer on 10 December 2020. |
| (b) | An enquiry by telephone was made at the Central Index of Winding Up Petitions at the Insolvency and Companies List in London at 10:12 a.m. on 10 December 2020 with respect to the Issuer. The presentation of a petition for the winding up of the Issuer may be subject to the temporary restrictions imposed by Schedule 10 of the Corporate Insolvency and Governance Act 2020 in response to the coronavirus pandemic. |
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| CLIFFORD CHANCE LLP |
SCHEDULE 2
ASSUMPTIONS
| 1. | ORIGINAL AND GENUINE DOCUMENTATION |
| (a) | All signatures (including any electronic signatures), stamps and seals are genuine, all original documents are authentic, all deeds and counterparts were executed in single physical form and all copy documents supplied to us as photocopies or in portable document format (PDF) or other electronic form are genuine, accurate, complete and conform to the originals. |
| (b) | The copies of the certificate of incorporation, certificate of incorporation on change of name, certificate of re-registration and articles of association of the Issuer provided to us are accurate and complete as of the date of this Opinion. |
| (c) | The person whose name and electronic signature appears in the signature block of the Supplemental Indenture and/or any Global Note is the person who signed the Supplemental Indenture and/or such Global Note. |
Where, for the purposes of paragraphs 1(a) and 1(c) of this Schedule 2:
“sign” or “signed” means, in relation to the Supplemental Indenture and/or each Global Note executed with an electronic signature, the process by which the signatory has applied such electronic signature to the Supplemental Indenture and/or such Global Note; and
“electronic signature” means the signature in electronic form applied to the Supplemental Indenture and/or any Global Note that is intended by the signatory to take effect as their signature including, without limitation, an image of the signatory’s handwritten signature, the typed name of the signatory, a signature generated by the signatory with a stylus on a touch pad or screen and any signature created by the signatory in accordance with the processes of an electronic signing platform.
| 2. | CORPORATE AUTHORITY |
| (a) | In resolving to create and issue the Notes and to enter into the Indenture the directors and the Group Finance Director of the Issuer acted in good faith to promote the success of the Issuer for the benefit of its members and in accordance with any other duty. |
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| CLIFFORD CHANCE LLP |
| (b) | Each director of the Issuer has disclosed any interest which he or she may have in the issue of the Notes in accordance with the provisions of the Companies Act 2006 and the Issuer’s articles of association and none of the directors has any interest in the issue of the Notes except to the extent permitted by the Issuer’s articles of association. |
| (c) | The 2016 Resolutions and the 2018 Resolutions were duly passed at a properly constituted and quorate meeting of duly appointed directors of the Issuer and have not been amended or rescinded and are in full force and effect. |
| (d) | The approvals by the Group Finance Director of the Issuer referred to in Schedule 1 (Documents and Enquiries) have not been amended or rescinded and are in full force and effect. |
| (e) | The extracts from the minutes referred to in Schedule 1 (Documents and Enquiries) are true records of the proceedings at the meetings of the board of directors of the Issuer. |
| (f) | That, as at 21 February 2017 and 20 February 2018, Tushar Morzaria was duly appointed as Group Finance Director of the Issuer, as at 17 January 2018, Daniel David held the position of Vice President in the Capital Markets Execution Team of Barclays Treasury, as at 10 December 2020, Miray Muminoglu held the position of Managing Director in the Capital Markets Execution Team of Barclays Treasury and, as at 10 December 2020, Stuart Frith held the position of Director in the Capital Markets Execution Team of Barclays Treasury. |
| (g) | The person, if other than the person whose signature it purports to be, who attached any electronic signature to any of the documents listed in Schedule 1 (Documents and Enquiries) on behalf of another person, had the authority of the latter person to do so. |
| (h) | Any relevant power of attorney granted by the Issuer referred to in Schedule 1 (Documents and Enquiries) had not been revoked and was in full force and effect at the time of execution of the Indenture and/or the Global Notes, as applicable. |
| 3. | CORPORATE CAPACITY OF THE PARTIES |
Each party to the Indenture (other than the Issuer) has the capacity, power and authority to enter into and to exercise its rights and to perform its obligations under the Indenture.
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| CLIFFORD CHANCE LLP |
| 4. | EXECUTION OF INDENTURE AND NOTES |
| (a) | Each party to the Indenture (other than the Issuer) has duly executed and delivered the Indenture. |
| (b) | The terms of the Indenture have been complied with and the Indenture and the Global Notes have each been duly executed and delivered in accordance with the laws of the State of New York. |
| 5. | OTHER DOCUMENTS |
Save for those listed in Schedule 1 (Documents and Enquiries) there is no other agreement, instrument, other arrangement or relationship between any of the parties to the Indenture which modifies, supersedes or conflicts with the Indenture.
| 6. | TAX MATTERS |
The Issuer is resident only in the United Kingdom for United Kingdom tax purposes.
| 7. | SEARCHES AND ENQUIRIES |
There has been no alteration in the status or condition of the Issuer as disclosed by the searches and enquiries referred to in Schedule 1 (Documents and Enquiries). However, it is our experience that the searches and enquiries referred to in paragraphs 2(a) and 2(b) of Schedule 1 (Documents and Enquiries) may be unreliable. In particular, they are not conclusively capable of disclosing whether or not insolvency proceedings have been commenced in England, nor do they indicate whether or not insolvency proceedings have begun elsewhere.
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| CLIFFORD CHANCE LLP |
SCHEDULE 3
RESERVATIONS
| 1. | BANKING ACT 2009 |
The opinions set out in this letter are subject to any limitations arising from any measures taken pursuant to the stabilisation powers under the special resolution regime under the Banking Act 2009, as amended.
| 2. | TAXATION STATEMENTS |
The confirmation provided in paragraph 2.3 (Taxation statements in the Prospectus) is subject to the following specific reservations:
| (a) | We give no confirmation as to any section of the Prospectus other than the confirmation set out in paragraph 2.3 (Taxation statements in the Prospectus); and |
| (b) | The confirmation is given solely on the basis set out in paragraph 2.3 (Taxation statements in the Prospectus) and in particular takes into account the disclaimers and qualifications which are applied to those statements in the Base Prospectus or (as applicable) the Prospectus Supplement and is limited to matters governed by English law, the tax law of the United Kingdom and HMRC’s published practice in force or applied in the United Kingdom as at today’s date. |
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