WPP plc F-3ASR, filed Mar 19, 2026
WPP plc (WPP)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WPP plc
(Exact name of Registrant as specified in its charter)
Jersey
(State or other jurisdiction of incorporation or organization)
Not applicable
(I.R.S. Employer Identification Number)
Sea Containers
18 Upper Ground
London SE1 9GL, United Kingdom
Telephone:
(011 44) 20 7282 4600
(Address and telephone number of Registrant’s principal executive offices)
| WPP Finance 2010 (Exact name of Registrant as specified in its charter) England and Wales (State or other jurisdiction of incorporation or organization) Not applicable (I.R.S. Employer Identification Number) Sea Containers 18 Upper Ground London SE1 9GL, United Kingdom Telephone: (011 44) 20 7282 4600 (Address and telephone number of Registrant’s principal executive offices) |
WPP 2025 LLC (Exact name of Registrant as specified in its charter) Delaware (State or other jurisdiction of incorporation or organization) 39-3674912 (I.R.S. Employer Identification Number) 3 World Trade Center 175 Greenwich Street New York NY 10007, United States Telephone: (011 44) 20 7282 4600 (Address and telephone number of Registrant’s principal executive offices) |
(FOR CO-REGISTRANTS, PLEASE SEE “TABLE OF CO-REGISTRANTS” ON THE FOLLOWING PAGE)
__________________________
Andrea Harris, Esq.
Group Chief Counsel
Sea Containers
18 Upper Ground
London SE1 9GL, United Kingdom
Telephone: (011 44) 20 7282 4600
(Name, address, including zip code, and telephone number, including area code, of agent for service)
__________________________
Copies to:
Sachin A. Davé, Esq.
Allen Overy Shearman Sterling LLP
One Bishops Square
London E1 6AD, United Kingdom
Tel: (011 44) 20 3088 0000
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this registration statement.
__________________________
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging growth company ☐
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
† The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
TABLE OF CO-REGISTRANTS
|
Exact Name as Specified in Charter |
State or Other Jurisdiction of Incorporation or Organization |
I.R.S Employer Identification Number |
Address, Including Zip Code and Telephone Number, Including Area Code, of Principal Executive Offices |
| WPP Jubilee Limited | England and Wales | Not Applicable |
Sea Containers 18 Upper Ground London SE1 9GL, United Kingdom Telephone: (011 44) 20 7282 4600 |
| WPP 2005 Limited | England and Wales | Not Applicable |
Sea Containers 18 Upper Ground London SE1 9GL, United Kingdom Telephone: (011 44) 20 7282 4600 |
PROSPECTUS
WPP FINANCE 2010
WPP 2025 LLC
DEBT SECURITIES
GUARANTEED BY
WPP PLC
WPP JUBILEE LIMITED
WPP 2005 LIMITED
__________________________
Each of WPP Finance 2010 and WPP 2025 LLC may from time to time offer debt securities, which will be guaranteed by WPP plc, WPP Jubilee Limited and WPP 2005 Limited and which may be guaranteed by other entities through this prospectus. This prospectus describes some of the general terms that may apply to these securities and the general manner in which these securities may be offered. Each time we offer and sell debt securities, the specific terms of the debt securities, including the offering price, and the specific manner in which they may be offered, will be described in supplements to this prospectus. The supplements may also add, update or change information contained in this prospectus with respect to that offering. You should read this prospectus and any applicable prospectus supplement(s) carefully before you make a decision to invest.
We may sell securities to or through underwriters, dealers, agents or to other purchasers. If any underwriters, dealers or agents are involved in the sale of any of the debt securities, the accompanying prospectus supplement will set forth the names of any underwriters, dealers or agents and any applicable purchase price, fee commission or discount arrangement between or among them will be set forth, or will be calculable from the information set forth, in the applicable prospectus supplement. See sections of this prospectus titled “About this Prospectus” for more information.
__________________________
Investing in our debt securities involves certain risks. See the “Risk Factors” section beginning on page 2 of this prospectus and any similar section contained in the applicable prospectus supplement to read about certain factors you should consider before making a decision to invest in our debt securities.
Neither the U.S. Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined that this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
This prospectus may not be used to sell securities unless it is accompanied by a prospectus supplement.
__________________________
The date of this prospectus is March 19, 2026.
Table of Contents
| About This Prospectus | 1 |
| Risk Factors | 2 |
| Where You Can Find More Information | 3 |
| Incorporation of Certain Documents by Reference | 4 |
| Cautionary Statements Concerning Forward-Looking Statements | 5 |
| The Issuers and The Guarantors | 1 |
| Use of Proceeds | 2 |
| Description of Debt Securities and Guarantees | 3 |
| Taxation | 4 |
| Experts | 5 |
| Legal Matters | 6 |
| Enforceability of Civil Liabilities | 7 |
| PART II | 8 |
i
About This Prospectus
This prospectus is part of a registration statement that we filed with the U.S. Securities and Exchange Commission (the “SEC”) using a “shelf” registration process. Under this shelf registration process, each of WPP Finance 2010 and WPP 2025 LLC may from time to time offer debt securities, with guarantees of WPP plc, WPP Jubilee Limited and WPP 2005 Limited and, to the extent so indicated in an applicable prospectus supplement or otherwise established following the offer and sale of a series of debt securities, guarantees of other entities.
This prospectus only provides a general description of the securities that we may offer and the method by which the securities may be offered. Each time we offer securities, we will provide a prospectus supplement containing specific information about the terms of the securities that are the subject of the offering and the terms of the offering itself. We may also authorize one or more free writing prospectuses that may contain material information relating to these offerings. The terms in such prospectus supplement or free writing prospectus may vary from the terms described in this prospectus. As a result, the summary description of the debt securities in this prospectus is subject to, and qualified by reference to, the descriptions of the particular terms of any debt securities contained in any related prospectus supplement. The prospectus supplement or free writing prospectus may also add, update or change information contained in this prospectus. You should read both this prospectus and any related prospectus supplement or free writing prospectus together with the additional information described under the headings “Where You Can Find More Information” and “Incorporation of Certain Documents by Reference” prior to purchasing any of the debt securities offered by this prospectus. However, if there are any inconsistencies between the information contained herein and the information contained in an accompanying prospectus supplement or free writing prospectus, the information in the prospectus supplement or free writing prospectus, as applicable, shall prevail. Each prospectus supplement will be filed with the SEC.
As used in this prospectus, the “Group” and “WPP Group” refer to WPP plc and its consolidated subsidiaries; the “Issuers” refers collectively to WPP Finance 2010 and WPP 2025 LLC, excluding their respective subsidiaries and affiliates; the “Subsidiary Guarantors” refers to WPP Jubilee Limited and WPP 2005 Limited, excluding their respective subsidiaries and affiliates; and the “Parent Guarantor” refers to WPP plc, excluding its subsidiaries and affiliates. References to the “Guarantors” refers collectively to the Parent Guarantor and the Subsidiary Guarantors, in each case unless the context otherwise requires or unless otherwise specified. References to “we”, “our” and “us” refer to the Issuers and WPP plc, collectively, in each case unless the context otherwise requires or unless otherwise specified.
References to “U.S. Dollars,” “USD,” “US$” and “$” in this prospectus are to United States dollars, the legal currency of the United States. Discrepancies in any table between totals and sums of the amounts listed are due to rounding. Certain amounts and percentages have been rounded; consequently, certain figures may add up to be more or less than the total amount and certain percentages may add up to be more or less than 100% due to rounding. In particular and without limitation, amounts expressed in millions contained in this prospectus have been rounded to a single decimal place for the convenience of readers.
WPP plc publishes its consolidated financial statements in pounds sterling (“£” or “sterling”), the lawful currency of the United Kingdom.
| 1 |
Risk Factors
Investing in the debt securities offered using this prospectus and any applicable prospectus supplement or free writing prospectus involves risk. Before you make a decision to buy such debt securities, we urge you to carefully review the risks described under “Risk Factors” in our Annual Report on Form 20-F for the fiscal year ended December 31, 2025, which is incorporated by reference in this prospectus, and any risk factors described in or incorporated by reference in the applicable prospectus supplement or any free writing prospectus or similar sections in any documents incorporated by reference in this prospectus.
| 2 |
Where You Can Find More Information
We file or furnish annual reports and other information with or to the SEC that you may obtain through the SEC’s EDGAR electronic filing system on the SEC’s website, at http://www.sec.gov. The address of the SEC’s internet site is provided solely for the information of prospective investors and is not intended to be an active link. Other documents establishing the terms of the offered debt securities are or may be filed as exhibits to the registration statement or documents incorporated by reference in the registration statement. Statements in this prospectus or any prospectus supplement or free writing prospectus about these documents are summaries and each statement is qualified in all respects by reference to the document to which it refers. You should refer to the actual documents for a more complete description of the relevant matters. You may inspect a copy of the registration statement through the SEC’s website, as provided above.
| 3 |
Incorporation of Certain Documents by Reference
The SEC allows us to “incorporate by reference” the information we file with or furnish to it, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus, and certain later information that we file with or furnish to the SEC may automatically update and supersede earlier information filed with or furnished to the SEC or included in this prospectus or a prospectus supplement. We incorporate by reference the following documents:
| · | WPP plc’s annual report on Form 20-F for the year ended December 31, 2025, filed with the SEC on March 19, 2026 (the “2025 Annual Report”); |
| · | any future annual reports on Form 20-F that WPP plc files with the SEC after the date of this prospectus, and prior to the termination of the offering of the securities offered by this prospectus; and |
| · | any future reports on Form 6-K that WPP plc files or furnishes to the SEC after the date of this prospectus that are identified in such reports as being incorporated by reference in this prospectus. |
You can obtain any of the documents incorporated by reference in this prospectus through us, or from the SEC. Documents incorporated by reference are available from us without charge, excluding all exhibits unless an exhibit has been specifically incorporated by reference into this prospectus, by requesting them in writing or by telephone from us at the following address: Sea Containers, 18 Upper Ground, London SE1 9GL, United Kingdom, Telephone; +44 (0) 20 7282 4600.
| 4 |
Cautionary Statements Concerning Forward-Looking Statements
Except for historical statements and discussions, statements contained or incorporated by reference in this prospectus constitute “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended and Section 21E of the Exchange Act. Other documents of WPP plc filed with or furnished to the SEC, including those incorporated by reference in this prospectus, may also include forward-looking statements, and other written or oral forward-looking statements have been made and may in the future be made from time to time by us or on our behalf.
These forward-looking statements may include, among other things, plans, objectives, beliefs, intentions, strategies, projections and anticipated future economic performance based on assumptions and the like that are subject to risks and uncertainties. These statements can be identified by the fact that they do not relate strictly to historical or current facts. They use words such as ‘aim’, ‘anticipate’, ‘believe’, ‘estimate’, ‘expect’, ‘forecast’, ‘guidance’, ‘intend’, ‘may’, ‘will’, ‘should’, ‘potential’, ‘possible’, ‘predict’, ‘project’, ‘plan’, ‘target’, and other words and similar references to future periods but are not the exclusive means of identifying such statements. As such, all forward-looking statements involve risk and uncertainty because they relate to future events and circumstances that are beyond our control. Actual results or outcomes may differ materially from those discussed or implied in the forward-looking statements. Therefore, you should not rely on such forward-looking statements, which speak only as of the date they are made, as a prediction of actual results or otherwise. Important factors which may cause actual results to differ include but are not limited to those described under “Forward-Looking Statements” before Item 1 and in Item 3D, captioned “Risk Factors” in the Group’s most recent Annual Report on Form 20-F. In light of these and other uncertainties, the forward-looking statements included in this document should not be regarded as a representation by the Group that the Group’s plans and objectives will be achieved. Neither the Group, nor any of its directors, officers or employees, provides any representation, assurance or guarantee that the occurrence of any events anticipated, expressed or implied in any forward-looking statements will actually occur. Other than in accordance with its legal or regulatory obligations (including under the Market Abuse Regulation, the UK Listing Rules and the Disclosure and Transparency Rules of the Financial Conduct Authority), the Group undertakes no obligation to update or revise any such forward-looking statements, whether as a result of new information, future events or otherwise. This discussion is provided as permitted by the U.S. Private Securities Litigation Reform Act of 1995.
| 5 |
The Issuers and The Guarantors
The Group’s organizational structure brings together media intelligence, data solutions, creative services, production capabilities, enterprise solutions and strategic counsel on a national, multinational and global scale. In February 2026, the Group announced the simplification of its structure into four operating units: WPP Media, WPP Production, WPP Enterprise Solutions and WPP Creative.
The Issuers
WPP Finance 2010 was incorporated on October 26, 2010, and is a private unlimited liability company incorporated under the laws of England and Wales (company number 07419716). It is an indirect, wholly owned subsidiary of WPP plc.
WPP 2025 LLC was incorporated on August 6, 2025, and is a limited liability company incorporated under the laws of Delaware. WPP 2025 LLC’s registered office is located at Corporate Creations Network Inc., 1521 Concord Pike, Suite 201, Wilmington DE 19803, United States. It is an indirect, wholly owned subsidiary of WPP plc.
The Guarantors
WPP plc was incorporated on October 25, 2012, as a public company limited by shares under the laws of Jersey (registration number 111714) and became the ultimate parent of the Group on January 2, 2013, in connection with the re-domiciliation of the Group to the United Kingdom for UK income tax purposes.
WPP Jubilee Limited was incorporated on November 8, 2012, as a private limited company under the laws of England and Wales (company number 08286875). WPP Jubilee Limited’s registered office is located at Sea Containers House, 18 Upper Ground, London SE1 9GL, United Kingdom. It is an indirect, wholly owned subsidiary of WPP plc.
WPP 2005 Limited (formerly WPP Group plc) was incorporated on March 1, 1971, and is now a private limited company incorporated under the laws of England and Wales (company number 01003653). WPP 2005 Limited’s registered office is located at Sea Containers House, 18 Upper Ground, London SE1 9GL, United Kingdom. It is an indirect, wholly owned subsidiary of WPP plc. WPP 2005 Limited was the ultimate parent of the Group until October 25, 2005.
| II-1 |
Use of Proceeds
Unless otherwise disclosed in connection with a particular offering of securities in a prospectus supplement, we intend to use the net proceeds from the sale of the debt securities for general corporate purposes of the Group.
| II-2 |
Description of Debt Securities and Guarantees
We may offer from time to time debt securities of any of the Issuers and guarantees thereof by the Guarantors. We will set forth in the applicable prospectus supplement or other offering material a description of the debt securities and guarantees which may be offered under this prospectus.
| II-3 |
Taxation
The applicable prospectus supplement or free writing prospectus will describe certain United Kingdom, United States federal income tax and Jersey tax considerations, if applicable, to a particular series of debt securities.
| II-4 |
Experts
The financial statements as of December 31, 2025 and December 31, 2024 and for each of the years ended December 31, 2025 and December 31, 2024 and management’s assessment of the effectiveness of internal control over financial reporting (which is included in Management’s Report on Internal Control over Financial Reporting) as of December 31, 2025 incorporated in this prospectus by reference to the Annual Report on Form 20-F for the year ended December 31, 2025 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting. PricewaterhouseCoopers LLP is a member of the Institute of Chartered Accountants in England and Wales.
The financial statements for the year ended December 31, 2023, incorporated by reference in this prospectus, have been audited by Deloitte LLP, an independent registered public accounting firm, as stated in their report. Such financial statements are incorporated by reference in reliance upon the report of such firm, given their authority to act as experts in accounting and auditing.
| II-5 |
Legal Matters
Certain legal matters with respect to United States, New York, Delaware and English law will be passed upon for us by Allen Overy Shearman Sterling LLP. Certain legal matters with respect to Jersey law will be passed upon by Mourant Ozannes (Jersey) LLP regarding the guarantees of WPP plc. If counsel for any underwriter, dealers or agent passes on legal matters in connection with an offering made by this prospectus, we will name that counsel in the prospectus supplement relating to the offering.
| II-6 |
Enforceability of Civil Liabilities
WPP Finance 2010 is a private unlimited liability company incorporated under the laws of England and Wales. WPP 2025 LLC is a private limited liability company incorporated under the laws of Delaware. WPP plc is a public company limited by shares incorporated under the laws of Jersey. WPP Jubilee Limited and WPP 2005 Limited are private limited liability companies incorporated under the laws of England and Wales. Some of the directors and officers of the Issuers and the Guarantors, and certain of the experts named herein, reside outside of the United States. In addition, a substantial portion of the Issuers’ and the Guarantors’ assets are located outside of the United States. As a result, it may be difficult or impossible for investors to effect service of process within the United States against the Issuers and the Guarantors or their respective directors and officers and certain experts or to enforce against any of them judgments, including those obtained in original actions or in actions to enforce judgments of the U.S. courts, predicated upon the civil liability provisions of the U.S. federal securities laws.
The Issuers and the Guarantors have expressly submitted to the non-exclusive jurisdiction of the U.S. federal or state courts sitting in the Borough of Manhattan, The City of New York for the purpose of any suit, action or procedure to enforce the debt securities or the related guarantees and have appointed Corporate Creations Network Inc., 600 Mamaroneck Avenue, #400 Harrison, NY 10528, United States to accept service of process in any such action.
| II-7 |
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 8. Indemnification of Directors and Officers.
WPP 2025 LLC’s Operating Agreement provides:
“Neither the Shareholder, any Manager nor any officer of the Company (each, an “Indemnified Party”) shall be liable to the Company for any loss, damage or claim incurred by reason of any act or omission performed or omitted by the Indemnified Party in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on the Indemnified Party by this Agreement, except that the Indemnified Party shall be liable for any such loss, damage or claim incurred by reason of the Indemnified Party’s willful misconduct or gross negligence. To the fullest extent permitted by applicable law, the Indemnified Party shall be entitled to indemnification from the Company for any loss damage or claim incurred by the Indemnified Party by reason of any act or omission performed or omitted by the Indemnified Party in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on the Indemnified Party, except that the Indemnified Party shall not be entitled to be indemnified in respect of any loss, damage, or claim incurred by the Indemnified Party by reason of willful misconduct or gross negligence with respect to such acts or omissions; provided, however, that any indemnity under this Article IV shall be provided out of and to the extent of Company assets only, and the Shareholder shall not have any liability on account thereof. Notwithstanding anything herein to the contrary, the indemnification afforded herein shall be subject to, and no broader than permitted by, the laws of Delaware and all laws applicable to WPP plc and its subsidiaries, including, without limitation, the Companies Act 2006 of England and Wales and all applicable limitations set forth therein, in the absence of the approval of the Shareholder.”
Article 148 of WPP plc’s Articles of Association provides:
“As far as the legislation allows, the Company may:
| (a) | indemnify any director of the Company (or of an associated body corporate) against any liability; |
| (b) | indemnify a director of a company that is a trustee of an occupational pension scheme for employees (or former employees) of the Company (or of an associated body corporate) against liability incurred in connection with the company’s activities as trustee of the scheme; |
| (c) | purchase and maintain insurance against any liability for any director referred to in (a) or (b) above; and |
| (d) | provide any director referred to in (a) or (b) above with funds (whether by loan or otherwise) to meet expenditure incurred or to be incurred by them in defending any criminal, regulatory or civil proceedings or in connection with an application for relief (or to enable any such director to avoid incurring such expenditure). |
The powers given by this article shall not limit any general powers of the Company to grant indemnities, purchase and maintain insurance or provide funds (whether by way of loan or otherwise) to any person in connection with any legal or regulatory proceedings or applications for relief.”
Article 52 of WPP Jubilee Limited’s Articles of Association provides:
| “(1) | Subject to paragraph (2), a relevant director of the company or an associated company may be indemnified out of the company’s assets against— |
| (a) | any liability incurred by that director in connection with any negligence, default, breach of duty or breach of trust in relation to the company or an associated company, |
| II-8 |
| (b) | any liability incurred by that director in connection with the activities of the company or an associated company in its capacity as a trustee of an occupational pension scheme (as defined in section 235(6) of the Companies Act 2006), |
| (c) | any other liability incurred by that director as an officer of the company or an associated company. |
| (2) | This article does not authorise any indemnity which would be prohibited or rendered void by any provision of the Companies Acts or by any other provision of law. |
| (3) | In this article— |
| (a) | companies are associated if one is a subsidiary of the other or both are subsidiaries of the same body corporate, and |
| (b) | a “relevant director” means any director or former director of the company or an associated company.” |
References to the “Companies Acts” in Article 52 above are to the company law provisions of the Companies Act 2006; Part 2 of the Companies (Audit, Investigations and Community Enterprise) Act 2004 (c. 27) (community interest companies), and the provisions of the Companies Act 1985 (c. 6) and the Companies Consolidation (Consequential Provisions) Act 1985 (c. 9) that remain in force, in so far as they apply to WPP Jubilee Limited.
Model Article 52 (incorporated into WPP 2005 Limited’s Articles of Association pursuant to Article 1.1) provides:
| “(1) | Subject to paragraph (2), a relevant director of the company or of an associated company may be indemnified out of the company’s assets against: |
| (a) | any liability incurred by that director in connection with any negligence, default, breach of duty or breach of trust in relation to the company or an associated company; |
| (b) | any liability incurred by that director in connection with the activities of the company or an associated company in its capacity as a trustee of an occupational pension scheme (as defined in section 235(6) of the Companies Act); |
| (c) | any other liability incurred by that director as an officer of the company or an associated company. |
| (2) | This article does not authorise any indemnity which would be prohibited or rendered void by any provision of the Companies Act or by any other provision of law. |
| (3) | In this article: |
| (a) | companies are associated if one is a subsidiary of the other or both are subsidiaries of the same body corporate; and |
| (b) | a “relevant director” means any director or former director of the Company or of an associated company.” |
References to the “Companies Acts” in Article 52 above are to the company law provisions of the Companies Act 2006; Part 2 of the Companies (Audit, Investigations and Community Enterprise) Act 2004 (c. 27) (community interest companies), and the provisions of the Companies Act 1985 (c. 6) and the Companies Consolidation (Consequential Provisions) Act 1985 (c. 9) that remain in force, in so far as they apply to WPP 2005 Limited.
| II-9 |
Articles 77 and 212 of the Companies (Jersey) Law 1991 (as amended), applicable to WPP plc, provide as follows:
“77. Indemnity of officers and former officers
| (1) | Subject to paragraphs (2) and (3), any provision, whether contained in the articles of, or in a contract with, a company or otherwise, whereby the company or any of its subsidiaries or any other person, for some benefit conferred or detriment suffered directly or indirectly by the company, agrees to exempt any person from, or indemnify any person against, any liability which by law would otherwise attach to the person by reason of the fact that the person is or was an officer of the company shall be void. |
| (2) | Paragraph (1) does not apply to a provision for exempting a person from or indemnifying the person against: |
| (a) | any liabilities incurred in defending any proceedings (whether civil or criminal)— |
| (i) | in which judgment is given in the person’s favour or the person is acquitted, |
| (ii) | which are discontinued otherwise than for some benefit conferred by the person or on the person’s behalf or some detriment suffered by the person, or |
| (iii) | which are settled on terms which include such benefit or detriment and, in the opinion of a majority of the directors of the company (excluding any director who conferred such benefit or on whose behalf such benefit was conferred or who suffered such detriment), the person was substantially successful on the merits in the person’s resistance to the proceedings; |
| (b) | any liability incurred otherwise than to the company if the person acted in good faith with a view to the best interests of the company; |
| (c) | any liability incurred in connection with an application made under Article 212 in which relief is granted to the person by the court; or |
| (d) | any liability against which the company normally maintains insurance for persons other than directors. |
| (3) | Nothing in this Article shall deprive a person of any exemption or indemnity to which the person was lawfully entitled in respect of anything done or omitted by the person before the coming into force of this Article. |
| (4) | This Article does not prevent a company from purchasing and maintaining for any such officer insurance against any such liability.” |
“212 Power of court to grant relief in certain cases
| (1) | If in proceedings for negligence, default, breach of duty or breach of trust against an officer of a company or a person employed by a company as auditor it appears to the court that that officer or person is or may be liable in respect of the negligence, default, breach of duty or breach of trust, but that the person has acted honestly and that having regard to all the circumstances of the case (including those connected with his or her appointment) he or she ought fairly to be excused for the negligence, default, breach of duty or breach of trust, the court may relieve the person, either wholly or partly, from his or her liability on such terms as it thinks fit. |
| (2) | If an officer or person mentioned in paragraph (1) has reason to apprehend that a claim will or might be made against the person in respect of negligence, default, breach of duty or breach of trust, he or she may apply to the court for relief; and the court on the application has the same power to relieve the person as it would have had if proceedings against him or her for negligence, default, breach of duty or breach of trust had been brought.” |
| II-10 |
WPP plc maintains an insurance policy for its directors and officers in respect of liabilities arising from any act, error or omission while acting in their capacities as directors or officers of WPP plc or any associated company.
Sections 232—235 and Section 1157 of the Companies Act 2006 of England and Wales, applicable to WPP Finance 2010, WPP Jubilee Limited and WPP 2005 Limited, provide as follows:
“232 Provisions protecting directors from liability
| (1) | Any provision that purports to exempt a director of a company (to any extent) from any liability that would otherwise attach to him in connection with any negligence, default, breach of duty or breach of trust in relation to the company is void. |
| (2) | Any provision by which a company directly or indirectly provides an indemnity (to any extent) for a director of the company, or of an associated company, against any liability attaching to him in connection with any negligence, default, breach of duty or breach of trust in relation to the company of which he is a director is void, except as permitted by— |
| (a) | section 233 (provision of insurance), |
| (b) | section 234 (qualifying third party indemnity provision), or |
| (c) | section 235 (qualifying pension scheme indemnity provision). |
| (3) | This section applies to any provision, whether contained in a company’s articles or in any contract with the company or otherwise. |
| (4) | Nothing in this section prevents a company’s articles from making such provision as has previously been lawful for dealing with conflicts of interest.” |
“233 Provision of insurance
Section 232(2) (voidness of provisions for indemnifying directors) does not prevent a company from purchasing and maintaining for a director of the company, or of an associated company, insurance against any such liability as is mentioned in that subsection.”
“234 Qualifying third-party indemnity provision
| (1) | Section 232(2) (voidness of provisions for indemnifying directors) does not apply to qualifying third party indemnity provision. |
| (2) | Third party indemnity provision means provision for indemnity against liability incurred by the director to a person other than the company or an associated company. |
Such provision is qualifying third party indemnity provision if the following requirements are met.
| (3) | The provision must not provide any indemnity against— |
| (a) | any liability of the director to pay— |
| (i) | a fine imposed in criminal proceedings, or |
| (ii) | a sum payable to a regulatory authority by way of a penalty in respect of non-compliance with any requirement of a regulatory nature (however arising); or |
| II-11 |
| (b) | any liability incurred by the director— |
| (i) | in defending criminal proceedings in which he is convicted, or |
| (ii) | in defending civil proceedings brought by the company, or an associated company, in which judgment is given against him, or |
| (iii) | in connection with an application for relief (see subsection (6)) in which the court refuses to grant him relief. |
| (4) | The references in subsection (3)(b) to a conviction, judgment or refusal of relief are to the final decision in the proceedings. |
| (5) | For this purpose— |
| (a) | a conviction, judgment or refusal of relief becomes final— |
| (i) | if not appealed against, at the end of the period for bringing an appeal, or |
| (ii) | if appealed against, at the time when the appeal (or any further appeal) is disposed of; and |
| (b) | an appeal is disposed of— |
| (i) | if it is determined and the period for bringing any further appeal has ended, or |
| (ii) | if it is abandoned or otherwise ceases to have effect. |
(6) The reference in subsection (3)(b)(iii) to an application for relief is to an application for relief under— section 661(3) or (4) (power of court to grant relief in case of acquisition of shares by innocent nominee), or section 1157 (general power of court to grant relief in case of honest and reasonable conduct).”
“235 Qualifying pension scheme indemnity provision
| (1) | Section 232(2) (voidness of provisions for indemnifying directors) does not apply to qualifying pension scheme indemnity provision. |
| (2) | Pension scheme indemnity provision means provision indemnifying a director of a company that is a trustee of an occupational pension scheme against liability incurred in connection with the company’s activities as trustee of the scheme. |
Such provision is qualifying pension scheme indemnity provision if the following requirements are met.
| (3) | The provision must not provide any indemnity against— |
| (a) | any liability of the director to pay— |
| (i) | a fine imposed in criminal proceedings, or |
| (ii) | a sum payable to a regulatory authority by way of a penalty in respect of non-compliance with any requirement of a regulatory nature (however arising); or |
| (b) | any liability incurred by the director in defending criminal proceedings in which he is convicted. |
| (4) | The reference in subsection (3)(b) to a conviction is to the final decision in the proceedings. |
| II-12 |
| (5) | For this purpose— |
| (a) | a conviction becomes final— |
| (i) | if not appealed against, at the end of the period for bringing an appeal, or |
| (ii) | if appealed against, at the time when the appeal (or any further appeal) is disposed of; and |
| (b) | an appeal is disposed of— |
| (i) | if it is determined and the period for bringing any further appeal has ended, or |
| (ii) | if it is abandoned or otherwise ceases to have effect. |
| (6) | In this section “occupational pension scheme” means an occupational pension scheme as defined in section 150 (5) of the Finance Act 2004 (c. 12) that is established under a trust.” |
“1157 Power of court to grant relief in certain cases
| (1) | If in proceedings for negligence, default, breach of duty or breach of trust against— |
| (a) | an officer of a company, or |
| (b) | a person employed by a company as auditor (whether he is or is not an officer of the company), |
it appears to the court hearing the case that the officer or person is or may be liable but that he acted honestly and reasonably, and that having regard to all the circumstances of the case (including those connected with his appointment) he ought fairly to be excused, the court may relieve him, either wholly or in part, from his liability on such terms as it thinks fit.
| (2) | If any such officer or person has reason to apprehend that a claim will or might be made against him in respect of negligence, default, breach of duty or breach of trust— |
| (a) | he may apply to the court for relief, and |
| (b) | the court has the same power to relieve him as it would have had if it had been a court before which proceedings against him for negligence, default, breach of duty or breach of trust had been brought. |
| (3) | Where a case to which subsection (1) applies is being tried by a judge with a jury, the judge, after hearing the evidence, may, if he is satisfied that the defendant (in Scotland, the defender) ought in pursuance of that subsection to be relieved either in whole or in part from the liability sought to be enforced against him, withdraw the case from the jury and forthwith direct judgment to be entered for the defendant (in Scotland, grant decree of absolvitor) on such terms as to costs (in Scotland, expenses) or otherwise as the judge may think proper.” |
Item 9. Exhibits
Reference is made to the Exhibit Index included herewith which is incorporated herein by reference.
Item 10. Undertakings.
(a) Each of the undersigned registrants hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
| II-13 |
(i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; and
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof;
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering;
(4) To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Securities Act of 1933, need not be furnished, provided, that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, a post-effective amendment need not be filed to include financial statements and information required by section 10(a)(3) of the Securities Act of 1933, or Item 8.A. of Form 20-F if such financial statements and information are contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement;
(5) That, for the purpose of determining liability under the Securities Act of 1933, to any purchaser:
(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
| II-14 |
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of the registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section (10)(a) of the Securities Act of 1933, shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be the new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date; and
(6) That, for the purpose of determining liability of the registrants under the Securities Act of 1933, to any purchaser in the initial distribution of the securities, each undersigned registrant undertakes that in a primary offering of securities of such registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, such registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: (i) any preliminary prospectus or prospectus of the registrant relating to the offering required to be filed pursuant to Rule 424; (ii) any free writing prospectus relating to the offering prepared by or on behalf of the registrant or used or referred to by the registrant; (iii) the portion of any other free writing prospectus relating to the offering containing material information about the registrant or its securities provided by or on behalf of the registrant; and (iv) any other communication that is an offer in the offering made by the registrant to the purchaser.
(b) Each of the undersigned registrants hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933, may be permitted to directors, officers and controlling persons of each of the registrants pursuant to the foregoing provisions, or otherwise, each of the registrants has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act of 1933, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by a registrant of expenses incurred or paid by a director, officer or controlling person of such registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, such registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933, and will be governed by the final adjudication of such issue.
| II-15 |
SIGNATURES OF WPP FINANCE 2010
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in London, England, on March 19, 2026.
| WPP FINANCE 2010 | ||
| By: |
/S/ Alexander Ashby | |
| Name: | Alexander Ashby | |
| Title: | Director | |
Power of Attorney
KNOW ALL PERSONS BY THESE PRESENT, that each person whose signature appears below hereby constitutes and appoints Joanne Wilson, Balbir Kelly-Bisla, Andrea Harris and Mark Povey, jointly and severally, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments, including post-effective amendments, and supplements to this Registration Statement on Form F-3 (and any and all additional registration statements, including registration statements filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as they or he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities indicated, on March 19, 2026.
| Signature | Title | |
|
/s/ Alexander Ashby |
Director | |
| Alexander Ashby | ||
|
/s/ Paul New |
Director | |
| Paul New |
| II-16 |
SIGNATURES OF WPP 2025 LLC
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in New York, United States, on March 19, 2026.
| WPP 2025 LLC | ||
| By: |
/S/ Paul Stasiulis | |
| Name: | Paul Stasiulis | |
| Title: | Manager | |
Power of Attorney
KNOW ALL PERSONS BY THESE PRESENT, that each person whose signature appears below hereby constitutes and appoints Alexander Ashby, Joanne Wilson, Balbir Kelly-Bisla, Andrea Harris and Mark Povey, jointly and severally, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments, including post-effective amendments, and supplements to this Registration Statement on Form F-3 (and any and all additional registration statements, including registration statements filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as they or he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities indicated, on March 19, 2026.
| Signature | Title | |
|
/s/ Paul Stasiulis |
Manager | |
| Paul Stasiulis | ||
|
/s/ Thomas Graziano |
Manager | |
| Thomas Graziano |
| II-17 |
SIGNATURES OF WPP PLC
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in London, England, on March 19, 2026.
| WPP PLC | ||
| By: |
/s/ Joanne Wilson | |
| Name: | Joanne Wilson | |
| Title: | Director | |
Power of Attorney
KNOW ALL PERSONS BY THESE PRESENT, that each person whose signature appears below hereby constitutes and appoints Alexander Ashby, Balbir Kelly-Bisla, Andrea Harris and Mark Povey, jointly and severally, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments, including post-effective amendments, and supplements to this Registration Statement on Form F-3 (and any and all additional registration statements, including registration statements filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as they or he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities indicated, on March 19, 2026.
| Signature | Title | |
|
/s/ Cindy Rose |
Group Chief Executive Officer | |
| Cindy Rose | ||
|
/s/ Joanne Wilson |
Group Chief Financial Officer | |
| Joanne Wilson | ||
|
/s/ Philip Jansen |
Non-Executive Director | |
| Philip Jansen | ||
|
/s/ Tom Ilube |
Non-Executive Director | |
| Tom Ilube | ||
|
/s/ Jasmine Whitbread |
Non-Executive Director | |
| Jasmine Whitbread | ||
|
/s/ Sandrine Dufour |
Non-Executive Director | |
| Sandrine Dufour | ||
|
/s/ Keith Weed |
Non-Executive Director | |
| Keith Weed | ||
|
/s/ Simon Dingemans |
Non-Executive Director | |
| Simon Dingemans |
| II-18 |
SIGNATURES OF WPP 2005 LIMITED
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in London, England, on March 19, 2026.
| WPP 2005 LIMITED | ||
| By: |
/S/ Alexander Ashby | |
| Name: | Alexander Ashby | |
| Title: | Director | |
Power of Attorney
KNOW ALL PERSONS BY THESE PRESENT, that each person whose signature appears below hereby constitutes and appoints Joanne Wilson, Balbir Kelly-Bisla, Andrea Harris and Mark Povey, jointly and severally, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments, including post-effective amendments, and supplements to this Registration Statement on Form F-3 (and any and all additional registration statements, including registration statements filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as they or he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities indicated, on March 19, 2026.
| Signature | Title | |
|
/s/ Alexander Ashby |
Director | |
| Alexander Ashby | ||
|
/s/ Paul New |
Director | |
| Paul New | ||
| II-19 |
SIGNATURES OF WPP JUBILEE LIMITED
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in London, England, on March 19, 2026.
| WPP JUBILEE LIMITED | ||
| By: |
/S/ Alexander Ashby | |
| Name: | Alexander Ashby | |
| Title: | Director | |
KNOW ALL PERSONS BY THESE PRESENT, that each person whose signature appears below hereby constitutes and appoints Joanne Wilson, Balbir Kelly-Bisla, Andrea Harris and Mark Povey, jointly and severally, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments, including post-effective amendments, and supplements to this Registration Statement on Form F-3 (and any and all additional registration statements, including registration statements filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as they or he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities indicated, on March 19, 2026.
| Signature | Title | |
|
/s/ Alexander Ashby |
Director | |
| Alexander Ashby | ||
|
/s/ Paul New |
Director | |
| Paul New | ||
| II-20 |
Exhibit Index
____________
* Filed herewith
Exhibit 1
FORM OF UNDERWRITING AGREEMENT
[ISSUER]
U.S.$[ ]
[ ]% Senior Notes Due 20[ ]
Fully and Unconditionally Guaranteed by
WPP plc
WPP 2005 Limited and WPP Jubilee Limited
[ ], 20[ ]
[REPRESENTATIVES]
As for themselves and as Representatives
of the other several Underwriters listed
on Schedule 1 hereto
Ladies and Gentlemen:
[ISSUER], a [ ] incorporated in [ ] (the “Issuer”), proposes to issue and sell to the several underwriters named in Schedule 1 hereto (the “Underwriters”), for whom you are acting as representatives (the “Representatives”), U.S.$[ , , ] aggregate principal amount of its [ ]% Senior Notes Due 20[ ] (the “Notes”). The Notes will be fully and unconditionally guaranteed (the “Guarantees”) by WPP plc, a public limited company incorporated in Jersey (the “Parent Guarantor”), WPP 2005 Limited, a private limited company incorporated in England and Wales and WPP Jubilee Limited, a private limited company incorporated in England and Wales (collectively with the Parent Guarantor, the “Guarantors”). The Notes and the Guarantees are referred to collectively as the “Securities.”
The Securities will be issued under an indenture (the “Base Indenture”), dated as of [ ], 20[ ], among the Issuer, the Guarantors, Citibank, N.A., a national banking association, as registrar and paying agent (the “Registrar and Paying Agent”) and Wilmington Trust, National Association, a national banking association, as trustee (the “Trustee”), as supplemented by the Supplemental Indenture dated as of the Closing Date (as defined below) (the Base Indenture as so supplemented being referred to as the “Indenture”). To the extent there are no additional Underwriters listed on Schedule 1 other than you, the term “Representatives” as used herein means you as Underwriters, and the terms “Representatives” and “Underwriters” shall mean either the singular or plural as the context requires. The use of the neuter in this Agreement shall include the feminine and masculine wherever appropriate. Any reference herein to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 6 of Form F-3 which were filed under the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be; and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference. Certain terms used herein that are not defined in text are defined in Section 22 hereof.
| 1 |
The Issuer and the Guarantors hereby confirm their agreement with the several Underwriters concerning the purchase and sale of the Notes, as follows:
| 1. | Registration Statement. |
| (a) | The Issuer has prepared and filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Securities Act”), a registration statement on Form F-3ASR (File No. 333-[ ]), including a prospectus, relating to the Securities. Such registration statement, as amended at the time it becomes effective, including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the registration statement at the time of its effectiveness (“Rule 430 Information”), is referred to herein as the “Registration Statement”; and as used herein, the term “Preliminary Prospectus” means each prospectus included in such registration statement (and any amendments thereto) before it becomes effective, any prospectus filed with the Commission pursuant to Rule 424(a) under the Securities Act and the prospectus included in the Registration Statement at the time of its effectiveness that omits Rule 430 Information, and the term “Prospectus” means the prospectus in the form first used (or made available upon request of purchasers pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales of the Securities. If the Issuer has filed an abbreviated registration statement pursuant to Rule 462(b) under the Securities Act (the “Rule 462 Registration Statement”), then any reference herein to the term “Registration Statement” shall be deemed to include such Rule 462 Registration Statement. Any reference in this Agreement to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 6 of Form F-3 under the Securities Act, as of the effective date of the Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case may be, and any reference to “amend”, “amendment” or “supplement” with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), that are deemed to be incorporated by reference therein. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Registration Statement and the Prospectus. |
| (b) | At or prior to the time when sales of the Notes were first made (the “Time of Sale”), the Issuer has prepared the following information (collectively, the “Time of Sale Information”): a Preliminary Prospectus dated [ ], 20[ ] and each “free-writing prospectus” (as defined pursuant to Rule 405 under the Securities Act) listed on Schedule 2 hereto as constituting part of the Time of Sale Information. |
| 2. | Purchase of Notes by the Underwriters. |
| (a) | The Issuer agrees to issue and sell the Notes to the several Underwriters as provided in this Agreement, and each Underwriter, in reliance on the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Issuer the respective principal amount of the Notes set forth opposite such Underwriter's name in Schedule 1 hereto at a price equal to [ ]% of the principal amount of the Notes, plus accrued interest, if any, from [ ], 20[ ] to the Closing Date (as defined below). The Issuer will not be obligated to deliver any of the Notes except upon payment for all the Notes to be purchased as provided herein. |
| 2 |
| (b) | The Issuer understands that the Underwriters intend to make a public offering of the Notes as soon after the effectiveness of this Agreement as in the judgment of the Representatives is advisable, and initially to offer the Notes on the terms set forth in the Time of Sale Information. The Issuer acknowledges and agrees that the Underwriters may offer and sell Notes to or through any affiliate of an Underwriter and that any such affiliate may offer and sell Notes purchased by it to or through any Underwriter. |
| (c) | Payment for and delivery of the Notes will be made at the offices of [ ], at [ ] at or around [ ] A.M., New York City time, on [ ], 20[ ], or at such other time or place on the same or such other date, not later than the third business day thereafter, as the Representatives and the Issuer may agree upon in writing. The time and date of such payment and delivery is referred to herein as the “Closing Date”. |
| (d) | Payment for the Notes shall be made by wire transfer in immediately available funds to the account(s) specified by the Issuer to the Representatives against delivery to the nominee of The Depository Trust Company, for the account of the Underwriters, of one or more global notes representing the Notes (collectively, the “Global Note”), with any transfer taxes payable in connection with the sale of the Notes from the Issuer to the Underwriters and the initial distribution by the Underwriters duly paid by the Issuer. The Global Note will be made available for inspection by the Representatives not later than [ ], New York City time, on the business day prior to the Closing Date. |
| (e) | The Issuer and the Guarantors acknowledge and agree that the Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Issuer and the Guarantors with respect to the offering of Notes contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Issuer, the Guarantors or any other person. Additionally, neither the Representatives nor any other Underwriter is advising the Issuer, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Issuer and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Issuer or the Guarantors with respect thereto. Any review by the Underwriters of the Issuer, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Issuer, Guarantors or any other person. The Issuer agrees that it will not claim that the Underwriters have rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Issuer, in connection with such transactions or the process leading thereto. |
| 3. | Representations and Warranties of the Issuer and the Guarantors. The Issuer and the Guarantors, jointly and severally, represent and warrant to each Underwriter as of the date hereof and as of the Closing Date as set forth below in this Section 3. |
| (a) | Preliminary Prospectus. No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, complied in all material respects with the Securities Act and did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuer and the Guarantors make no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer and the Guarantors in writing by such Underwriter through the Representatives expressly for use in any Preliminary Prospectus. |
| 3 |
| (b) | Time of Sale Information. The Time of Sale Information, at the Time of Sale did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuer and the Guarantors make no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer and the Guarantors in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus, the Time of Sale Information or the Prospectus. No statement of material fact included in the Prospectus has been omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information that is required to be included in the Prospectus has been omitted therefrom. |
| (c) | Issuer Free Writing Prospectus. The Issuer and the Guarantors (including their agents and representatives, other than the Underwriters in their capacity as such) have not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes (each such communication by the Issuer and the Guarantors or their agents and representatives (other than a communication referred to in clauses (i) (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Schedule 2 hereto, including a Pricing Term Sheet substantially in the form of Schedule 2 hereto, which constitute part of the Time of Sale Information and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complies in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, at the Time of Sale, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuer and the Guarantors make no representation or warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer and the Guarantors in writing by such Underwriter through the Representatives expressly for use in any Issuer Free Writing Prospectus. |
| (d) | Registration Statement and Prospectus. The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Issuer. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Issuer or related to the offering has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuer makes no representation or warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer or the Guarantors in writing by such Underwriter through the Representatives expressly for use in the Registration Statement and the Prospectus and any amendment or supplement thereto. |
| 4 |
| (e) | Incorporated Documents. The documents incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information, when they were filed with the Commission conformed in all material respects to the requirements of the Exchange Act and none of such documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Registration Statement, the Prospectus or the Time of Sale Information, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. |
| (f) | Financial Statements. The financial statements and the related notes thereto included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and present fairly the consolidated financial position of the Group, as the case may be, as of the dates indicated and the results of its operations and the changes in its cash flows for the periods specified; such financial statements have been prepared in conformity with International Financial Reporting Accounting Standards as issued by the International Accounting Standards Board, applied on a consistent basis throughout the periods covered thereby, and the supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein; and the other financial information included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus has been derived from the accounting records of the Group, as the case may be, and presents fairly the information shown thereby. |
| (g) | No Material Adverse Change. Since the respective dates as of which information is given in the Registration Statement, the Time of Sale Information and the Final Prospectus, except as otherwise stated therein, (A) there has been no change or development that (i) could reasonably be expected to have a material adverse effect on the performance of this Agreement or the Indenture, or the consummation of any of the transactions contemplated hereby or thereby or (ii) could reasonably be expected to have a material adverse effect on the prospects, financial condition, operations, earnings, business or properties of the Group, taken as a whole, whether or not arising from transactions in the ordinary course of business (any such effect described in (i) or (ii) being referred to as a “Material Adverse Effect”), (B) there have been no transactions entered into by the Group, other than those in the ordinary course of business, which are material with respect to the Group taken as a whole, and (C) except for regular interim and final dividends on the ordinary shares of the Parent Guarantor (the “Ordinary Shares”) in amounts per share that are consistent with past practice, there has been no dividend or distribution of any kind declared, paid or made by the Issuer or the Parent Guarantor on any class of its share capital or stock. |
| 5 |
| (h) | Organization and Good Standing. Each of the Issuer and the Guarantors and their subsidiaries (i) has been duly incorporated or organized and is validly existing as a corporation or company in good standing (where applicable) under the laws of the jurisdiction in which it is incorporated or organized, (ii) has corporate or entity power and authority to own, lease and operate its properties (as applicable) and to conduct its business as now conducted and as described in the Time of Sale Information and the Final Prospectus and to enter into and perform its obligations under this Agreement and (iii) to the extent applicable, is duly qualified as a foreign corporation or company to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect. All of the issued share capital or stock of each of the Issuer and each Guarantor, as applicable, and each subsidiary of the Guarantors has been duly authorized and validly issued, is fully paid and non-assessable; all of the issued and outstanding share capital or stock of each such subsidiary owned by the Issuer or the Guarantors, directly or through subsidiaries, is owned free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity except (i) as otherwise disclosed in the Time of Sale Information and the Final Prospectus, or (ii) where (A) the failure to be duly authorized, validly issued, fully paid and non-assessable, or (B) the existence of a security interest, mortgage, pledge, lien, encumbrance, claim or equity, would not result in a Material Adverse Effect. |
| (i) | Capitalization. The Parent Guarantor has the capitalization as set forth in the Registration Statement, the Time of Sale Information and the Prospectus under the heading “Capitalization”. None of the outstanding shares of capital or stock of the Guarantors or the Issuer was issued in violation of the pre-emptive or similar rights of any securityholder of the Guarantors or the Issuer. |
| (j) | Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by each of the Issuer and the Guarantors. |
| (k) | Indenture. The Indenture has been duly authorized, and when executed and delivered by the Issuer, the Guarantors, the Registrar and Paying Agent and the Trustee will constitute a valid and legally binding agreement of the Issuer and the Guarantors enforceable against the Issuer and the Guarantors in accordance with its terms, except (i) as such enforceability may be limited by bankruptcy, insolvency, examinership, reorganization or similar laws affecting creditors’ rights generally and (ii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. |
| (l) | The Notes. The Notes have been duly authorized and, at the Closing Date, will be in the form contemplated by, and entitled to the benefits of, the Indenture, will have been duly executed by the Issuer and, when authenticated, issued and delivered in the manner provided for in the Indenture and delivered against payment of the purchase price therefor as provided in this Agreement, will constitute valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, except (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and (ii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. |
| (m) | The Guarantees. The Guarantees have been duly authorized and, at the Closing Date, will be in the form contemplated by, and entitled to the benefits of, the Indenture, will have been duly executed by the Guarantors and, when the Notes have been authenticated, issued and delivered in the manner provided in the Indenture and delivered against payment of the purchase price for the Notes as provided in this Agreement will constitute valid and binding obligations of the Guarantors, enforceable against the Guarantors in accordance with their terms, except (i) as such enforceability may be limited by bankruptcy, insolvency, examinership, reorganization or similar laws affecting creditors’ rights generally and (ii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. |
| 6 |
| (n) | No Conflicts. The execution, delivery and performance of this Agreement, the Indenture and the Securities, and the consummation of the transactions contemplated herein and in the Time of Sale Information and the Final Prospectus (including the issuance and sale of the Notes and the use of the proceeds from the sale of the Notes as described in the Time of Sale Information and the Final Prospectus under the caption “Use of Proceeds”) and compliance by the Issuer and the Guarantors with their obligations hereunder and under the Indenture and the Securities do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Group, pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in (i) any violation of the provisions of the respective memoranda and articles of association, charters or by-laws of the Issuer, the Guarantors or any of their respective material subsidiaries or (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Group or (iii) any of their assets, properties or operations (except, in the case of clause (i) as it relates to subsidiaries (other than the Guarantors), and in the case of clause (ii) or (iii), for such violations that would not result in a Material Adverse Effect). |
| (o) | No Defaults. None of the Issuer, the Guarantors or any of their respective subsidiaries are in (i) violation of their respective memoranda and articles of association, charters or by-laws or (ii) violation of any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Issuer, the Guarantors or any of their respective subsidiaries or any of their properties or (iii) default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Issuer, the Guarantors or any of their respective subsidiaries are a party or by which they or any of them may be bound, or to which any of the property or assets of the Issuer, the Guarantors or any of their respective subsidiaries is subject (collectively, “Agreements and Instruments”) except, in the case of clause (i) as it relates to subsidiaries other than the Guarantors, and in the case of clause (ii) or (iii), for such violations or defaults that would not result in a Material Adverse Effect. |
| (p) | No Labor Disputes. (i) No labor dispute with the employees of the Group exists or, to the knowledge of the Parent Guarantor, is imminent, and (ii) the Parent Guarantor is not aware of any existing or imminent labor disturbance by the employees of any of the Group’s principal suppliers, customers or contractors which, in either case, may reasonably be expected to result in a Material Adverse Effect. |
| (q) | Legal Proceedings. There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Parent Guarantor, threatened, against or affecting the Group, which is required to be disclosed in the Time of Sale Information or the Final Prospectus (other than as disclosed therein), or which might reasonably be expected to result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect the properties or assets thereof or the consummation of the transactions contemplated in this Agreement or the Indenture or the performance by the Issuer or any Guarantor of their obligations hereunder or thereunder; the aggregate of all pending legal or governmental proceedings to which the Group is a party or of which any of their respective property or assets is the subject which are not described in the Time of Sale Information and the Final Prospectus, including ordinary routine litigation incidental to the business, could not reasonably be expected to result in a Material Adverse Effect. |
| 7 |
| (r) | Intellectual Property. The Group owns or possesses, or can acquire on reasonable terms, adequate patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, trade names or other intellectual property (collectively, “Intellectual Property”) necessary to carry on the business now operated by it, and the Group has not received any notice and is not otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect the interest of the Group therein, and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, singly or in the aggregate, would result in a Material Adverse Effect. |
| (s) | Licenses and Permits. The Group possesses such permits, licenses, approvals, consents and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by it (except for such permits, licenses, approvals, consents and other authorizations which the failure to obtain would not result in a Material Adverse Effect); the Group is in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, have a Material Adverse Effect; all of the Governmental Licenses are valid and in full force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not have a Material Adverse Effect; and the Group has not received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect. |
| (t) | Title to Real and Personal Property. The Group has good and marketable title to all real property owned by it, and good title to all other properties owned by it, in each case, free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or encumbrances of any kind except such as (a) are described in the Time of Sale Information and the Final Prospectus or (b) do not, singly or in the aggregate have a Material Adverse Effect; and all of the leases and subleases material to the business of the Group, and under which any member of the Group holds properties described in the Time of Sale Information and the Final Prospectus, are in full force and effect, and the Group has not received any notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Group under any of the leases or subleases material to the business of the Group, taken as a whole, or affecting or questioning the rights of the Group of the continued possession of the leased or subleased premises under any such lease or sublease. |
| (u) | Certain Environmental Matters. Except as described in the Time of Sale Information Package and the Final Prospectus and except as would not, singly or in the aggregate, result in a Material Adverse Effect, (A) the Group is not in violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products (collectively, “Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”), (B) the Group has all permits, authorizations and approvals required under any applicable Environmental Laws and is in compliance with their requirements, (C) there are no pending or threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigation or proceedings relating to any Environmental Laws against the Group and (D) there are no events or circumstances that might reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or governmental body or agency, against or affecting the Group relating to Hazardous Materials or any Environmental Laws. |
| 8 |
| (v) | No Consents or Approvals. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority, body or agency is necessary or required in connection with the transactions contemplated herein, or in the Indenture, except (A) the filing of approved listing particulars or an approved prospectus or (B) such as may be required under the blue sky laws of any jurisdiction in which the Notes are offered and sold. |
| (w) | Sarbanes-Oxley Act. The Parent Guarantor is in compliance in all material respects with the applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations of the Commission adopted pursuant thereto as such rules and regulations currently apply to it (collectively, the “Sarbanes-Oxley Act”). There is and has been no failure on the part of any of the Parent Guarantor’s officers or directors, in their capacities as such, to comply with any applicable provisions of the Sarbanes-Oxley Act. |
| (x) | Stamp Duty; Taxes. No ad valorem stamp duty, stamp duty reserve tax or other similar tax or duty are payable under applicable laws or regulations of the United Kingdom (i) in connection with the creation or original issuance and sale of the Notes, (ii) with respect to the execution, delivery and performance of this Agreement or the Indenture or (iii) with respect to any payments made to the Underwriters pursuant to this Agreement. |
| (y) | Withholding Tax. Except as described in the Time of Sale Information and the Final Prospectus, payments made by the Issuer under the Notes or the Guarantors under the Guarantees to holders will not be subject to any withholdings or similar charges for or on account of taxation under the laws of the United Kingdom or the United States. |
| (z) | Submission of Jurisdiction. Each of the Issuer and the Guarantors has the power to submit and pursuant to Section 16 of this Agreement has legally, validly, effectively and irrevocably submitted, to the nonexclusive jurisdiction of any federal or state court in the State of New York, County of New York, Borough of Manhattan and has the power to designate, appoint and empower and pursuant to Section 16 of this Agreement has legally, validly, effectively and irrevocably designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any federal or state court in the State of New York. |
| (aa) | No Restrictions on Subsidiary Distributions. No subsidiary of the Parent Guarantor is currently prohibited, directly or indirectly, from paying any dividends to the Parent Guarantor, from making any other distribution on such subsidiary’s share capital or stock, from repaying to the Parent Guarantor any loans or advances to such subsidiary from the Parent Guarantor or from transferring any of such subsidiary’s property or assets to Parent Guarantor or any subsidiary of the Parent Guarantor, except as described in or contemplated in the Time of Sale Information and the Final Prospectus (exclusive of any amendment or supplement thereto) and except as could not reasonably be expected to affect the ability of the Issuer or the Guarantors to make payments on the Securities or otherwise to have a Material Adverse Effect. |
| 9 |
| (bb) | Compliance with Foreign Corrupt Practices Act. Save in respect of matters addressed in the SEC’s offer of settlement dated September 2, 2021 and the SEC’s cease-and-desist order dated September 24, 2021 in the matter of the Parent Guarantor (Administrative Proceeding File No. 3-20595) (to the extent relevant, the “SEC Proceedings”) (i) none of the Issuer, the Guarantors or any Principal Subsidiaries (defined below) nor, to the best knowledge of the Issuer and the Guarantors, any director, officer, employee or agent acting on behalf of any Issuer, Guarantor or Principal Subsidiary, as the case may be, is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”) or any other anti-bribery or anti-corruption law or regulation of any other jurisdiction, including without limitation, making use of the mail or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything in value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of FCPA or any other anti-bribery or anti-corruption law or regulation of any other jurisdiction; and (ii) the Issuer, the Guarantors and, to the best knowledge of the Issuer and the Guarantors, the Principal Subsidiaries, have conducted their businesses in compliance with the FCPA and any other anti-bribery or anti-corruption law or regulation of any other jurisdiction and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith, except in all cases where any such violation or non-compliance would not individually or in the aggregate have a Material Adverse Effect. |
| (cc) | Cybersecurity. Except as would not, individually or in the aggregate reasonably be expected to have a Material Adverse Effect, (i) the Parent Guarantor’s and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform in all material respects as required in connection with the operation of the business of the Parent Guarantor and its subsidiaries as currently conducted, and to the knowledge of the Parent Guarantor, are free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other computer viruses; and (ii) the Parent Guarantor and its, subsidiaries have implemented and maintained commercially reasonable controls, policies, procedures, and safeguards, consistent with applicable law, that are intended to maintain and protect their material confidential information and trade secrets and the integrity, continuous operation, redundancy and security of their IT Systems and data (including personal or personally identifiable data (such data, “Personal Data”)) used or held for use in connection with their businesses; and (iii) to the knowledge of the Parent Guarantor and its subsidiaries, there have been no security breaches, violations, outages or unauthorized uses of or accesses to (or other security incident, including any ransomware attack, compromising) such IT Systems or Personal Data, except for those that have been remedied without material cost or liability or the duty to notify any other Person under applicable privacy laws, nor any incidents under internal review or investigations by any governmental authority relating to the same. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the Parent Guarantor and its subsidiaries are presently, and have been, in compliance with all applicable laws or statutes and all applicable judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, and contractual obligations to which the Parent Guarantor and its subsidiaries are bound relating to the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification. |
| (dd) | Compliance with Anti-Money Laundering. Save in respect of matters addressed in the SEC Proceedings, the operations of each Issuer, each Guarantor and each Principal Subsidiary are and have been conducted at all times in compliance with applicable financial record keeping and money laundering statutes in the United Kingdom, Jersey and of all jurisdictions in which the Issuer, the Guarantors and the Principal Subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer, Guarantors or any Principal Subsidiaries with respect to Money Laundering Laws is pending which, if determined adversely to the Issuer or the Guarantors or any such Principal Subsidiary would individually or in the aggregate have a Material Adverse Effect and, to the best of the Issuer’s and the Guarantors knowledge, no such actions, suits or proceedings are threatened or contemplated. |
| (ee) | Compliance with Sanctions. None of the Issuer, the Guarantors or any Principal Subsidiaries nor, to the best knowledge of the Issuer and the Guarantors, any director, officer, agent or employee of any of the Issuer, the Guarantors or any Principal Subsidiaries are currently the subject of any Sanctions nor is it located, organized or resident in a country or territory, which country or territory is the subject of Sanctions and the Issuer and the Guarantors will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person, or in any country or territory, that, at the time of such funding, is the subject or the target of Sanctions or (ii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions. |
| 10 |
| (ff) | Investment Company Act. Neither the Issuer nor any Guarantor is, and after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Time of Sale Information and the Final Prospectus none of them will be, an “investment company” as defined in the Investment Company Act, without taking account of any exemption arising out of the number of holders of the Guarantors’ or the Issuer’s securities. |
| (gg) | Disclosure Controls. The Parent Guarantor maintains an effective system of “disclosure controls and procedures” (as defined in Rule 13a-15(e) under the Exchange Act) that is designed to ensure that information required to be disclosed by the Issuer and the Guarantors in reports that each files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Parent Guarantor’s management as appropriate to allow timely decisions regarding required disclosure. The Parent Guarantor has carried out evaluations of the effectiveness of its disclosure controls and procedures as required by Rule 13a-15 under of the Exchange Act. |
| (hh) | Any certificate signed by any officer of the Issuer or any Guarantor and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Notes shall be deemed a representation and warranty by the Issuer or such Guarantor, as to matters covered thereby, to each Underwriter. |
As used in this Section 3:
“Principal Subsidiary” means any subsidiary of WPP plc whose consolidated revenue shall have exceeded 5 per cent. of the consolidated revenues of the Group taken as a whole for the preceding financial year.
| 4. | Offering by Underwriters. It is understood that the several Underwriters propose to offer the Notes for sale to the public as set forth in the Final Prospectus. Each Underwriter, severally and not jointly, agrees that it has not offered or sold, and will not offer or sell, any Notes except in accordance with the selling restrictions set forth in the Final Prospectus. |
| 5. | Expenses. The Issuer agrees or, failing the Issuer, the Parent Guarantor agrees to pay the costs and expenses relating to the following matters: (i) the costs and expenses relating to the preparation of the Indenture, the issuance of the Notes and the fees of the Trustee; (ii) the costs and expenses relating to the preparation, printing or reproduction and filing under the Securities Act of the Registration Statement, any Preliminary Prospectus, the Time of Sale Information and the Final Prospectus and each amendment or supplement to any of them; (iii) the costs and expenses relating to the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, any Preliminary Prospectus, the Time of Sale Information and the Final Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Notes; (iv) the costs and expenses relating to the preparation, printing, authentication, issuance and delivery of certificates for the Notes; (v) any ad valorem stamp duty, stamp duty reserve tax or similar issuance, registration or transfer taxes or duties in connection with the original issuance and sale of the Notes; (vi) the costs and expenses relating to the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Notes; (vii) the registration of the Securities under the Exchange Act; (viii) the costs and expenses relating to any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states specified pursuant to Section 8(f) (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (ix) all costs and expenses relating to the rating of the Notes by Moody’s Investors Services Inc., S&P Global Ratings, a division of S&P Global Inc., and Fitch Ratings Ltd; (x) the transportation and other expenses incurred by or on behalf of the representatives of the Issuer and the Guarantors in connection with presentations to prospective purchasers of the Notes; (xi) [the costs and expenses of listing the Notes on the [EXCHANGE] including the fees and expenses of the Issuer’s and the Guarantors’ listing agent] and the filing with the relevant securities exchange of the approved listing particulars or prospectus; (xii) the costs and expenses relating to marketing materials including any electronic road show and graphic art materials; (xiii) the fees and expenses of the Issuer’s and the Guarantors’ accountants and the fees and expenses of counsel (including local and special counsel) for the Issuer and the Guarantors; (xiv) any filings required to be made with the Financial Industry Regulatory Authority; and (xv) all other costs and expenses incident to the performance by each of the Issuer and the Guarantors of its obligations hereunder. |
| 11 |
It is understood, however, that except as provided in this Section 5 and in Section 10 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Notes by them and, unless otherwise agreed with the Issuer and the Guarantors in writing, any advertising expenses relating to the offer of the Notes.
| 6. | Agreements. The Issuer and the Guarantors agree with each Underwriter that: |
| (a) | Delivery of Copies. The Issuer and the Guarantors will, if requested by the Representatives, furnish to the Representatives, without charge, (i) signed copies of the Registration Statement (including exhibits thereto) as originally filed and each amendment thereto; and (ii) to each Underwriter (A) conformed copy of the Registration Statement as originally filed and each amendment thereto (including exhibits thereto) (B) during the Prospectus Delivery Period (as defined below), as many copies of the Prospectus (including all amendments and supplements thereto and documents incorporated by reference therein) and each Issuer Free Writing Prospectus as the Representatives may reasonably request. As used herein, the term “Prospectus Delivery Period” means such period of time after the first date of the public offering of the Notes as in the opinion of counsel for the Underwriters a prospectus relating to the Notes is required by law to be delivered (or required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the Notes by any Underwriter or dealer. |
| (b) | Amendments or Supplements; Issuer Free Writing Prospectus. Prior to the termination of the offering of the Notes, neither the Issuer nor any Guarantor will file any amendment of the Registration Statement or supplement to the Final Prospectus or any Preliminary Prospectus unless the Issuer or such Guarantor has furnished to the Representatives a copy for their review prior to filing and will not file any such proposed amendment or supplement to which the Representatives reasonably object. The Issuer and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Issuer and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Notes, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Issuer or any Guarantor of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Issuer and the Guarantors will use their reasonable best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable. |
| 12 |
| (c) | Final Term Sheet. The Issuer and the Guarantors will prepare a final term sheet, containing solely a description of final terms of the Notes and the offering thereof, in the form approved by the Representatives and file such term sheet pursuant to Rule 433(d) within the time required by such Rule. |
| (d) | Permitted Free Writing Prospectus. Unless it has or shall have obtained the prior written consent of the Representatives, neither the Issuer nor any Guarantor has made nor will make any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Issuer or any Guarantor with the Commission or retained by the Issuer or any Guarantor under Rule 433, other than the free writing prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 7(c) hereto; provided that the prior written consent of the Representatives shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule 2 hereto and any electronic road show. Any such free writing prospectus consented to by the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Issuer and Guarantors agrees that (x) they have treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) they have complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. |
| (e) | Time of Sale Information. If at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which the Time of Sale Information as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with law, the Issuer will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or supplements to the Time of Sale Information as may be necessary so that the statements in the Time of Sale Information as so amended or supplemented will not, in the light of the circumstances, be misleading or so that the Time of Sale Information will comply with law. |
| (f) | Ongoing Compliance. If during the Prospectus Delivery Period (i) any event shall occur or condition shall exist as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the Issuer will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or supplements to the Prospectus as may be necessary so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with blue sky laws. The Issuer and the Guarantors will use their best efforts to arrange, if necessary, for the qualification of the Securities for the offer and sale by the Underwriters under the securities or blue sky laws of such jurisdictions as the Representatives shall reasonably request and will continue such qualifications in effect so long as required for distribution of the Securities; provided that neither the Issuer nor the Guarantors shall be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. |
| 13 |
| (g) | Clearance and Settlement. The Issuer and the Guarantors will cooperate with the Representatives and use their best efforts to permit the Notes to be eligible for clearance and settlement through The Depository Trust Company. |
| (h) | Clear Market. The Issuer and the Guarantors will not for a period of 7 days following the date of this Agreement, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Issuer, any Guarantor or any of their Affiliates or any person in privity with the Issuer, any Guarantor or any of their Affiliates), directly or indirectly, or announce the offering of, any debt securities issued or guaranteed by the Issuer or any Guarantor other than: (i) the Securities hereunder, (ii) debt securities issued solely pursuant to Regulation S under the Securities Act and (iii) intercompany indebtedness between or among subsidiaries of the Issuer and the Guarantors. |
| (i) | No Stabilization. Neither the Issuer nor any Guarantor will take, directly or indirectly, any action designed to or which has constituted, or which might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of the Notes. |
| (j) | Earnings Statement. The Parent Guarantor will (i) as soon as practicable, make generally available to the Parent Guarantor’s security holders and to the Representatives an earnings statement or statements of the Parent Guarantor and its subsidiaries which will satisfy the provisions of Section 13(a) of the Securities Act and Rule 158 and (ii) for a period of twelve months following the date of this Agreement, furnish to the Representatives all reports or other communications (financial or other) generally made available to stockholders, and deliver such reports and communications to the Representatives as soon as they are available, unless such documents are furnished to or filed with the Commission or any securities exchange on which any class of securities of the Parent Guarantor is listed and generally made available to the public. |
| (k) | Sarbanes-Oxley Act Compliance. Each of the Issuer and the Guarantors will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes-Oxley Act, and use its best efforts to cause the directors and officers of the Issuer and the Guarantors, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes-Oxley Act. |
| (l) | Stabilization. Neither the Issuer nor any Guarantor will take any action or omit to take any action (such as issuing any press release relating to any Securities without an appropriate legend) which may restrict or otherwise affect the ability of any of the Underwriters (or anyone acting on their behalf) to undertake any of the Securities Activities permitted by the price stabilization rules of the Financial Conduct Authority in accordance with such rules. |
| 7. | Certain Agreements of the Underwriters. Each Underwriter hereby represents and agrees that: |
| (a) | Such Underwriter shall not include any “issuer information” (as defined in Rule 433) in any “free writing prospectus” (as defined in Rule 405) used or referred to by such Underwriter without the prior consent of the Issuer; provided that (i) no such consent shall be required with respect to any such issuer information contained in any document filed by the Issuer with the Commission prior to the use of such free writing prospectus and (ii) “issuer information,” as used in this Section 7(a), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from issuer information. |
| 14 |
| (b) | Such Underwriter has not and will not, without the prior written consent of the Issuer, used any Free Writing Prospectus that contains the final terms of the Securities, other than the Free Writing Prospectus, unless such terms have previously been included in a Free Writing Prospectus (i) filed with the Commission or (ii) that is a final pricing term sheet prepared by such Underwriter and approved in writing by the Issuer in advance (which approval the Issuer agrees to provide as soon as practically possible). |
| (c) | Such Underwriter is not subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering (and will promptly notify the Issuer if any such proceeding against it is initiated during the Prospectus Delivery Period). |
| 8. | Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes shall be subject to the accuracy of the representations and warranties of the Issuer and the Guarantors contained herein at the date hereof and the Closing Date, to the accuracy of the statements of the Issuer and the Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Issuer and the Guarantors of their obligations hereunder and to the following additional conditions: |
| (a) | The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 6(c) hereto and any other material required to be filed by the Issuer and the Guarantors pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. |
| (b) | The Issuer and the Guarantors shall have requested and caused Allen Overy Shearman Sterling LLP, U.S. counsel for the Issuer and the Guarantors, to furnish to the Representatives its opinion and negative assurance statement, dated the Closing Date and addressed to the Underwriters, to the effect set forth in Annex A hereto. |
| (c) | The Issuer and the Guarantors shall have requested and caused Mourant Ozannes (Jersey) LLP, Jersey counsel for the Parent Guarantor, to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Underwriters, substantially in the form attached as Annex B hereto. |
| (d) | The Issuer and the Guarantors shall have requested and caused Allen Overy Shearman Sterling LLP, English counsel for the Issuer and the Guarantors, to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Underwriters, substantially in the form attached as Annex C hereto. |
| (e) | The Representatives shall have received from Linklaters LLP, U.S. counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to such matters as the Representatives may reasonably require, and the Issuer and the Guarantors shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. The Representatives shall have received from Linklaters LLP, U.S. counsel for the Underwriters, its negative assurance statement, dated the Closing Date and addressed to the Underwriters. |
| 15 |
| (f) | The Representatives shall have received from Linklaters LLP , English counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to such matters as the Representatives may reasonably require, and the Issuer and the Guarantors shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. |
| (g) | At the Closing Date, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Time of Sale Information or the Final Prospectus, any material adverse change, and no development reasonably likely to cause a prospective material adverse change, in the financial condition or in the earnings or business of the Issuer, the Guarantors and their subsidiaries, taken as a whole, whether or not arising in the ordinary course of business, and the Representatives shall have received a certificate executed by each of the chief financial officer or principal officer and the secretary or other director of the Issuer and the Guarantors, dated as of the Closing Date, to the effect that (i) there has been no such material adverse change, (ii) the representations and warranties in Section 3 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Date, and (iii) the Issuer and the Guarantors have each complied with all agreements and satisfied all conditions on their respective parts to be performed or satisfied at or prior to the Closing Date. |
| (h) | On the date of this Agreement and on the Closing Date, the Issuer and the Guarantors shall have requested and caused PricewaterhouseCoopers LLP and Deloitte LLP to furnish to the Representatives and to the entities listed on Schedule 3, affiliates of the Underwriters and non-U.S. selling agents, letters dated as of the respective delivery dates, in each case in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Time of Sale Information and the Final Prospectus. |
| (i) | [the Issuer shall have furnished to the Representatives a certificate, dated the Closing Date and addressed to the Representatives, of its chief financial officer with respect to certain financial data contained in the Registration Statement, the Time of Sale Information and the Prospectus, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representatives to the extent such information was not included in the accountants’ “comfort letters.”] |
| (j) | The Notes shall be eligible for clearance and settlement through The Depository Trust Company. |
| (k) | [The [EXCHANGE] shall have approved the Notes for listing, subject only to notice of issuance.] |
| (l) | The Issuer will apply the net proceeds from the sale of the Notes as described in the Registration Statement, the Time of Sale Information and the Prospectus under the heading “Use of Proceeds”. |
| (m) | Subsequent to the earlier of (A) the Time of Sale and (B) the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Securities or any other debt securities or preferred stock issued or guaranteed by the Parent Guarantor or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined under Section 3(a)(62) under the Exchange Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Securities or of any other debt securities or preferred stock issued or guaranteed by the Parent Guarantor or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading). |
| 16 |
| (n) | Prior to the Closing Date, the Issuer and the Guarantors shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. |
| (o) | If any of the conditions specified in this Section 8 shall not have been satisfied when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Issuer or the Guarantors in writing or by telephone or facsimile confirmed in writing. |
| (p) | The documents required to be delivered by this Section 8 will be delivered at the office of counsel for the Underwriters, Linklaters LLP, at 20 Ropemaker Street, London EC2Y 9AR, United Kingdom, on the Closing Date. |
| 9. | Reimbursement of Expenses. If the sale of the Notes provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 8 hereof is not satisfied, because of any termination pursuant to Section 12 hereof or because of any refusal, inability or failure on the part of the Issuer or any Guarantor to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the Issuer, or failing the Issuer, the Guarantors will reimburse the Underwriters severally through the Representatives on demand for all expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the Notes. |
| 10. | Indemnification and Contribution. (a) The Issuer and the Guarantors, jointly and severally, agree to indemnify and hold harmless each Underwriter, the directors, officers, employees, Affiliates and agents of each Underwriter and each person who controls any Underwriter within the meaning of either the Securities Act or the Exchange Act (each a “Purchaser Indemnified Person”) against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or other U.S. federal or state or foreign statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement for the registration of the Securities as originally filed or in any amendment thereof, or in the Base Prospectus, any Preliminary Prospectus or any other preliminary prospectus supplement relating to the Securities, the Final Prospectus, any Issuer Free Writing Prospectus or the information contained in the final term sheet required to be prepared and filed pursuant to Section 6(c) hereto, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agree to reimburse each such Purchaser Indemnified Person, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Issuer and the Guarantors will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Issuer or the Guarantors by or on behalf of any Underwriter through the Representatives specifically for inclusion therein (it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 10(b) hereof). This indemnity agreement will be in addition to any liability that the Issuer or the Guarantors may otherwise have. |
| 17 |
| (b) | Each Underwriter severally, and not jointly, agrees to indemnify and hold harmless the Issuer, the Guarantors, each of the directors, officers, employees, Affiliates and agents of the Issuer and the Guarantors and each person who controls the Issuer or the Guarantors within the meaning of either the Securities Act or the Exchange Act, to the same extent as the foregoing indemnity from the Issuer and the Guarantors to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Issuer or the Guarantors by or on behalf of such Underwriter through the Representatives specifically for inclusion in the documents referred to in the foregoing indemnity. The Issuer and the Guarantors acknowledge and agree that the statements set forth in (1) [ ], (2) [ ], (3) [ ], (4) [ ] and (5) [ ], in each case, in the Preliminary Prospectus and the Final Prospectus, constitute the only information furnished in writing by or on behalf of the Underwriters for inclusion in the Preliminary Prospectus, the Final Prospectus or in any Issuer Free Writing Prospectus. |
| (c) | Promptly after receipt by an indemnified party under this Section 10 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 10, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under Section 10(a) or 10(b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in Section 10(a) or 10(b) above. The indemnifying party shall be entitled to appoint counsel (including local counsel) of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel, other than local counsel if not appointed by the indemnifying party, retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel (including local counsel) to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and (ii) does not include a statement as to, or an admission of fault, culpability or a failure to act by or on behalf of an indemnifying party. |
| 18 |
| (d) | In the event that the indemnity provided in Section 10(a) or 10(b) of this Section 10 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Issuer, the Guarantors and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending any loss, claim, damage, liability or action) (collectively “Losses”) to which the Issuer, the Guarantors and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Issuer and the Guarantors on the one hand and by the Underwriters on the other from the offering of the Notes; provided, however, that in no case shall any Underwriter be responsible for any amount in excess of the underwriting discount or commission applicable to the Notes purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Issuer, the Guarantors and the Underwriters severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Issuer and the Guarantors on the one hand and the Underwriters on the other in connection with the statements or omissions that resulted in such Losses, as well as any other relevant equitable considerations. Benefits received by the Issuer and the Guarantors shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Final Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Issuer or the Guarantors on the one hand or the Underwriters on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Issuer, the Guarantors and the Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation that does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this Section 10(d), no person guilty of fraudulent misrepresentation (within the meaning of Section 13(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 10, each person who controls an Underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee, Affiliate and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls the Issuer or the Guarantors within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee, Affiliate and agent of the Issuer or the Guarantors shall have the same rights to contribution as the Issuer and the Guarantors, subject in each case to the applicable terms and conditions of this Section 10(d). |
| 11. | Default by an Underwriter. If any one or more Underwriters shall fail to purchase and pay for any of the Notes agreed to be purchased by such Underwriter hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the principal amount of Notes set forth opposite their names in Schedule 1 hereto bears to the aggregate principal amount of Notes set forth opposite the names of all the remaining Underwriters) the Notes which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event that the aggregate principal amount of Notes which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate principal amount of Notes set forth in Schedule 1 hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Notes, and if such non-defaulting Underwriters do not purchase all the Notes, this Agreement will terminate without liability to any non-defaulting Underwriter or the Issuer or the Guarantors. In the event of a default by any Underwriter as set forth in this Section 11, the Closing Date shall be postponed for such period, not exceeding five Business Days, as the Representatives shall determine in order that the required changes in the Registration Statement, Time of Sale Information and the Final Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Issuer, or the Guarantors or any non-defaulting Underwriter for damages occasioned by its default hereunder. |
| 19 |
| 12. | Termination. This Agreement shall be subject to termination in the absolute discretion of the Representatives, by notice given to the Issuer or the Guarantors prior to delivery of and payment for the Notes, if at any time prior to such time (i) trading generally shall have been suspended or materially limited on the New York Stock Exchange or the over-the-counter market; (ii) trading of any securities issued or guaranteed by the Issuer or any of the Guarantors shall have been suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking activities shall have been declared by federal or New York State authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis, either within or outside the United States, that, in the judgment of the Representatives, is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Notes on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus. |
| 13. | Representations, Warranties, Agreements and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the Issuer, the Guarantors or their officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of the Underwriters or the Issuer, the Guarantors or any of the indemnified persons referred to in Section 10 hereof, and will survive delivery of and payment for the Notes. The provisions of Sections 9 and 10 hereof shall survive the termination or cancellation of this Agreement. |
| 14. | Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of telecommunication : |
if to the Representatives:
[Representatives]
[Contact Details]
if to the Issuer or the Guarantors:
Sea Containers
18 Upper Ground
London SE1 9GL
United Kingdom
Attention: Group Chief Counsel
Email: groupchiefcounsel@wpp.com
Telephone: +44 (0)20 7282 4600
With a copy to:
Allen Overy Shearman Sterling LLP
One Bishops Square
London E1 6AD
United Kingdom
Attention: Sachin Davé
Email: Sachin.dave@aoshearman.com
Telephone: +44 (0)20 3088 3187
| 20 |
| 15. | Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the indemnified persons referred to in Section 10 hereof and their respective successors and no other person will have any right or obligation hereunder. Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Notes from any Underwriter shall be deemed to be a successor merely by reason of such purchase. |
| 16. | Jurisdiction. The Issuer and the Guarantors each agrees that any suit, action or proceeding against the Issuer or any Guarantor brought by any Underwriter, the directors, officers, employees, Affiliates and agents of any Underwriter, or by any person who controls any Underwriter, arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in any U.S. federal or New York state court in the Borough of Manhattan, The City of New York, and waives any objection which it may now or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding. The Issuer and the Guarantors each hereby appoints Corporate Creations Network Inc., 600 Mamaroneck Avenue #400, Harrison, New York 100528, United States as its authorized agent (the “Authorized Agent”) upon whom process may be served in any suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated herein that may be instituted in any U.S. federal or New York state court in the Borough of Manhattan, The City of New York, by any Underwriter, the directors, officers, employees, Affiliates and agents of any Underwriter, or by any person who controls any Underwriter, and expressly accepts the non-exclusive jurisdiction of any such court in respect of any such suit, action or proceeding. The Issuer and the Guarantors each hereby represents and warrants that the Authorized Agent has accepted such appointment and has agreed to act as said agent for service of process, and the Issuer and the Guarantors each agrees to take any and all action, including the filing of any and all documents that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon the Issuer or the Guarantors, as the case may be. Notwithstanding the foregoing, any action arising out of or based upon this Agreement may be instituted by any Underwriter, the directors, officers, employees, Affiliates and agents of any Underwriter, or by any person who controls any Underwriter, in any court of competent jurisdiction in England. The parties hereto each hereby waive any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement. |
| 17. | Integration. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Issuer, the Guarantors and the Underwriters, or any of them, with respect to the subject matter hereof. |
| 18. | Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York. |
| 19. | Currency. Each reference in this Agreement to U.S. dollars (the “relevant currency”), including by use of the symbol “$”, is of the essence. To the fullest extent permitted by law, the obligations of the Issuer and/or the Guarantors in respect of any amount due under this Agreement will, notwithstanding any payment in any other currency (whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in the relevant currency that the party entitled to receive such payment may, in accordance with its normal procedures, purchase with the sum paid in such other currency (after any premium and costs of exchange) on the Business Day immediately following the day on which such party receives such payment. If the amount in the relevant currency that may be so purchased for any reason falls short of the amount originally due, the Issuer or the Guarantors, as the case may be, will pay such additional amounts, in the relevant currency, as may be necessary to compensate for the shortfall. Any obligation of the Issuer or the Guarantors not discharged by such payment will, to the fullest extent permitted by applicable law, be due as a separate and independent obligation and, until discharged as provided herein, will continue in full force and effect. |
| 21 |
| 20. | Counterparts. This Agreement may be signed in one or more counterparts (which may include counterparts delivered by any standard form of telecommunication), each of which shall constitute an original and all of which together shall constitute one and the same agreement. |
| 21. | Headings. The section headings used herein are for convenience only and shall not affect the construction hereof. |
| 22. | Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities Act; (b) the term “business day” means any day other than a day on which banks are permitted or required to be closed in London or New York City; (c) the term “subsidiary” has the meaning set forth in Rule 405 under the Securities Act; and (d) “Group” means the Parent Guarantor and its subsidiaries, taken together on a consolidated basis. |
| 23. | 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 Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this 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 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 Agreement were governed by the laws of the United States or a state of the United States. |
As used in this Section 23:
“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). |
| 22 |
“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.
| 24. | Waiver of Jersey customary law rights. Each of the Issuer and each Guarantor irrevocably and unconditionally waives such right as it may have or claim under Jersey law: |
| (a) | whether by virtue of the droit de discussion or otherwise to require that recourse be had to the assets of any other person before any claim is enforced against it under this Agreement in respect of the obligations assumed by it under this Agreement; and |
| (b) | whether by virtue of the droit de division or otherwise to require that any liability under this Agreement be divided or apportioned with any other person or reduced in any manner whatsoever. |
| 23 |
If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between the Issuer, the Guarantors and the several Underwriters.
| Very truly yours, | |||
| [ISSUER] | |||
| By: | |||
| Name: | |||
| Title: | |||
| [GUARANTOR] | |||
| By: | |||
| Name: | |||
| Title: | |||
| [GUARANTOR[S]] | |||
| By: | |||
| Name: | |||
| Title: | |||
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
| [Representatives] | |||
|
As for themselves and as Representatives of the other several Underwriters listed on Schedule 1 hereto |
|||
| [REPRESENTATIVE] | |||
| By: | |||
| Name: | |||
| Title: | |||
| [REPRESENTATIVE] | |||
| By: | |||
| Name: | |||
| Title: | |||
| 24 |
Schedule 1
|
Underwriters |
Principal Amount of Notes to be Purchased |
|||
| [Representative] | U.S.$ | |||
| [Representative] | ||||
| [Underwriter] | ||||
| [Underwriter] | ||||
| Total | U.S.$ | |||
|
|
|
|||
| 25 |
Schedule 2
Schedule of Free Writing Prospectuses included in the Time of Sale Information
| 1. | Final Term Sheet filed pursuant to Rule 433 |
| 26 |
ANNEX A
Form of Opinion of Allen Overy Shearman & Sterling LLP, US Counsel to the Issuer and the Guarantors
| 27 |
ANNEX B
Form of Opinion of Mourant Ozannes (Jersey LLP), Jersey Counsel to the Parent Guarantor
| 28 |
ANNEX C
Form of Opinion of Allen Overy Shearman and Sterling LLP, English Counsel to the Issuer and Guarantors
| 29 |
Schedule 3
[Non- U.S. Selling Agents]
30
Exhibit 4.1
FORM OF BASE INDENTURE
WPP 2025 LLC,
as ISSUER
AND
WPP FINANCE 2010,
as ISSUER
WPP PLC,
as PARENT GUARANTOR
AND
WPP JUBILEE LIMITED,
WPP 2005 LIMITED,
as SUBSIDIARY GUARANTORS
AND
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as TRUSTEE
AND
CITIBANK, N.A.,
as REGISTRAR and PAYING AGENT
_____________________________
Indenture
Dated as of [ ], 20[ ]
_____________________________
Debt Securities and Guarantees
CROSS-REFERENCE TABLE
| TIA Sections |
Indenture Sections
| |
| 310 | (a)(1) | 6.9 |
| (a)(2) | 6.9 | |
| (a)(3) | N/A | |
| (a)(4) | N/A | |
| (a)(5) | 6.9 | |
| (a) | 6.9 | |
| (b) | 6.8 | |
| 311 | (a) | 6.13 |
| (b) | 6.13 | |
| 312 | (a) | 7.1 |
| (b) | 7.2 | |
| (c) | 7.2 | |
| 313 | (a) | 7.3 |
| (b) | 7.3 | |
| (c) | 1.5; 7.3 | |
| (d) | 7.3 | |
| 314 | (a)(1) | 10.13 |
| (a)(2) | 10.13 | |
| (a)(3) | 10.13 | |
| (a)(4) | 10.4 | |
| (b) | N/A | |
| (c)(1) | 1.2(a) | |
| (c)(2) | 1.2(a) | |
| (c)(3) | N/A | |
| (d) | N/A | |
| (e) | 1.2(b) | |
| (f) | N/A | |
| 315 | (a) | 6.1 |
| (b) | 6.2 | |
| (c) | 6.1 | |
| (d) | 6.3 | |
| (e) | 5.14 | |
| 316 | (a) (last sentence) | 1.1 |
| (a)(1)(A) | 5.12 | |
| (a)(1)(B) | 5.13 | |
| (a)(2) | N/A | |
| (b) | 5.8 | |
| (c) | 1.4(d) | |
| 317 | (a)(1) | 5.3 |
| (a)(2) | 5.4 | |
| (b) | 10.3 | |
| 318 | (a) | 1.6 |
| (c) | 1.6 |
_________________________________
N/A means not applicable.
Note: The Cross-Reference Table shall not for any purpose be deemed to be a part of this Indenture.
Table of Contents
| ARTICLE One Definitions and Other Provisions of General Application | 7 |
| 1.1 Definitions | 7 |
| 1.2 Compliance Certificates and Opinions | 17 |
| 1.3 Form of Documents Delivered to the Trustee and the Agents | 18 |
| 1.4 Acts of Holders; Record Dates | 18 |
| 1.5 Notices, Etc., to Trustee, Agents, Issuers and Guarantors | 20 |
| 1.6 Notices to Holders; Waiver | 22 |
| 1.7 Conflicts with Trust Indenture Act | 22 |
| 1.8 Effects of Headings and Table of Contents | 22 |
| 1.9 Successors and Assigns | 22 |
| 1.10 Separability Clause | 23 |
| 1.11 Counterparts | 23 |
| 1.12 Electronic Signatures | 23 |
| 1.13 Benefits of Indenture | 24 |
| 1.14 Governing Law | 24 |
| 1.15 Submission to Jurisdiction; Appointment of Agent for Service of Process; Waiver of Jury Trial | 24 |
| 1.16 Legal Holidays | 25 |
| 1.17 Force Majeure | 25 |
| 1.18 Waiver of Jersey Customary Law Rights | 25 |
| 1.19 U.S.A. Patriot Act | 25 |
| ARTICLE Two Security Forms | 26 |
| 2.1 Forms Generally | 26 |
| 2.2 Form of Face of Security | 26 |
| 2.3 Form of Reverse of Security | 29 |
| 2.4 Form of Trustee’s Certificate of Authentication | 39 |
| ARTICLE Three The Securities | 40 |
| 3.1 Amount Unlimited; Issuable in Series | 40 |
| 3.2 Denominations | 42 |
| 3.3 Execution, Authentication, Delivery and Dating | 42 |
| 3.4 Temporary Securities | 44 |
| 3.5 Registration, Registration of Transfer and Exchange | 44 |
| 3.6 Mutilated, Destroyed, Lost and Stolen Securities | 47 |
| 3.7 Payment of Interest; Interest Rights Preserved | 47 |
| 3.8 Persons Deemed Owners | 48 |
| 3.9 Cancellation | 49 |
| 3.10 Computation of Interest | 49 |
| 3.11 Further Issues | 49 |
| 3.12 CUSIP and ISIN Numbers | 49 |
| 3.13 Agents | 49 |
| 3.14 Withholding | 50 |
| ARTICLE Four Satisfaction and Discharge | 50 |
| 4.1 Satisfaction and Discharge of Indenture | 50 |
| 4.2 Application of Trust Money | 51 |
| 4 |
| ARTICLE Five Remedies | 51 |
| 5.1 Events of Default. | 51 |
| 5.2 Acceleration of Maturity; Rescission and Annulment. | 53 |
| 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee. | 54 |
| 5.4 Trustee May File Proofs of Claim. | 55 |
| 5.5 Trustee May Enforce Claims Without Possession of Securities. | 55 |
| 5.6 Application of Money Collected. | 55 |
| 5.7 Limitation on Suits. | 55 |
| 5.8 Unconditional Right of Holders to Receive Principal, Premium and Interest. | 56 |
| 5.9 Restoration of Rights and Remedies. | 56 |
| 5.10 Rights and Remedies Cumulative. | 57 |
| 5.11 Delay or Omission Not Waiver. | 57 |
| 5.12 Control by Holders. | 57 |
| 5.13 Waiver of Past Defaults. | 57 |
| 5.14 Undertaking for Costs. | 58 |
| 5.15 Waiver of Usury, Stay or Extension Laws. | 58 |
| ARTICLE Six The Trustee | 58 |
| 6.1 Certain Duties and Responsibilities. | 58 |
| 6.2 Notice of Defaults. | 59 |
| 6.3 Certain Rights of Trustee. | 59 |
| 6.4 Not Responsible for Recitals or Issuance of Securities. | 61 |
| 6.5 May Hold Securities. | 61 |
| 6.6 Money Held in Trust. | 61 |
| 6.7 Compensation and Reimbursement. | 61 |
| 6.8 Conflicting Interests. | 62 |
| 6.9 Corporate Trustee Required; Eligibility. | 62 |
| 6.10 Resignation and Removal; Appointment of Successor. | 63 |
| 6.11 Acceptance of Appointment by Successor. | 64 |
| 6.12 Merger, Conversion, Consolidation or Succession to Business. | 65 |
| 6.13 Preferential Collection of Claims Against Issuer or Guarantors. | 65 |
| 6.14 Appointment of Authenticating Agent. | 65 |
| 6.15 Trustee’s Duties Regarding Reductions of Capital. | 67 |
| ARTICLE Seven Holders’ Lists and Reports by Trustee and Issuer and Guarantor | 67 |
| 7.1 Issuer to Furnish Trustee Names and Addresses of Holders. | 67 |
| 7.2 Preservation of Information; Communications to Holders. | 68 |
| 7.3 Reports by Trustee. | 68 |
| 7.4 Reports by Issuer and Guarantors. | 68 |
| ARTICLE Eight Consolidation, Merger, Conveyance, Transfer or Lease | 69 |
| 8.1 Issuer or Guarantors May Consolidate, Etc. Only on Certain Terms. | 69 |
| 8.2 Successor Substituted. | 70 |
| ARTICLE Nine Supplemental Indentures | 70 |
| 9.1 Supplemental Indentures without Consent of Holders. | 70 |
| 9.2 Supplemental Indentures with Consent of Holders. | 71 |
| 9.3 Execution of Supplemental Indentures. | 72 |
| 9.4 Effect of Supplemental Indentures. | 73 |
| 5 |
| 9.5 Conformity with Trust Indenture Act. | 73 |
| 9.6 Reference in Securities to Supplemental Indentures. | 73 |
| ARTICLE Ten Covenants | 73 |
| 10.1 Payment of Principal, Premium and Interest. | 73 |
| 10.2 Maintenance of Office or Agency. | 73 |
| 10.3 Money for Security Payments to be Held in Trust. | 75 |
| 10.4 Statement by Officers as to Default. | 76 |
| 10.5 Existence. | 76 |
| 10.6 Payment of Taxes and Other Claims. | 76 |
| 10.7 Additional Amounts. | 77 |
| 10.8 Additional Guarantees. | 79 |
| 10.9 Limitations on Security Interests. | 80 |
| 10.10 Limitation on Sale and Leaseback. | 80 |
| 10.11 Waiver of Certain Covenants. | 81 |
| 10.12 Indemnification of Judgment Currency. | 81 |
| 10.13 Provision of Exchange Act Reports and Other Information. | 82 |
| ARTICLE Eleven Redemption of Securities | 82 |
| 11.1 Applicability of Section. | 82 |
| 11.2 Election to Redeem; Notice to Trustee and Relevant Agents. | 83 |
| 11.3 Selection by the Relevant Agents of Securities to Be Redeemed. | 83 |
| 11.4 Notice of Redemption. | 83 |
| 11.5 Deposit of Redemption Price. | 84 |
| 11.6 Securities Payable on Redemption Date. | 84 |
| 11.7 Securities Redeemed in Part. | 85 |
| 11.8 Optional Redemption. | 85 |
| 11.9 Optional Redemption Due to Changes in Tax Treatment. | 87 |
| 11.10 Repurchase Upon Change of Control Repurchase Event. | 89 |
| ARTICLE Twelve Legal Defeasance and Covenant Defeasance | 91 |
| 12.1 Option to Effect Defeasance or Covenant Defeasance. | 91 |
| 12.2 Defeasance and Discharge. | 92 |
| 12.3 Covenant Defeasance. | 92 |
| 12.4 Conditions to Defeasance or Covenant Defeasance. | 92 |
| 12.5 Deposited Money and US. Government Obligations to be Held in Trust; Miscellaneous Provisions. | 94 |
| 12.6 Reinstatement. | 94 |
| ARTICLE Thirteen Guarantee of Securities | 95 |
| 13.1 Guarantee. | 95 |
| 13.2 Execution and Delivery of Indenture. | 96 |
| 6 |
| (1) | INDENTURE, dated as of [ ], 20[ ], among WPP FINANCE 2010, a private unlimited liability company incorporated under the laws of England and Wales (the “English Issuer”), WPP 2025 LLC, a limited liability company incorporated under the laws of Delaware (the “US Issuer” and together with the English Issuer, each herein called an “Issuer” as further defined below, and together, the “Issuers”), WPP PLC, a public company limited by shares incorporated under the laws of Jersey (herein called the “Parent Guarantor”), WPP JUBILEE LIMITED, a private limited company incorporated under the laws of England and Wales and WPP 2005 LIMITED, a private limited company incorporated under the laws of England and Wales (collectively, the “Subsidiary Guarantors” and, together with the Parent Guarantor, the “Guarantors”), WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, as Trustee (herein called the “Trustee”), CITIBANK, N.A., a national banking association, as the initial Registrar and Paying Agent (herein called the “Registrar” or “Paying Agent” as applicable). |
RECITALS
| (A) | The Issuers have duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of debt securities issued by the relevant Issuer (herein called collectively the “Securities”), to be issued in one or more series as provided in this Indenture. |
| (B) | The Guarantors have duly authorized the execution and delivery of this Indenture to provide for the Guarantees (as defined below) of the Securities provided for herein. |
| (C) | All things necessary to make this Indenture a valid agreement of the Issuers and the Guarantors, in accordance with its terms, have been done. |
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
| 1. | For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows: |
ARTICLE
One
Definitions and Other Provisions of General Application
| 1.1 | Definitions. |
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
| (a) | the terms defined in this Section 1.1 have the meanings assigned to them in this Section 1.1 and include the plural as well as the singular; |
| (b) | all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; |
| (c) | all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with International Financial Reporting Standards, and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted at the date of such computation; |
| 7 |
| (d) | unless the context otherwise requires, any reference to an “Article” or a “Section” refers to an Article or Section, as the case may be, of this Indenture; |
| (e) | unless the context otherwise requires, any reference to a statute, rule or regulation refers to the same (including any successor statute, rule or regulation thereto) as it may be amended from time to time; and |
| (f) | the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. |
“Act”, when used with respect to any Holder, has the meaning specified in Section 1.4.
“Additional Amounts” has the meaning specified in Section 10.7. Any reference in this Indenture to principal, premium or interest in respect of the Securities shall be deemed also to refer to any Additional Amounts that may be payable as set forth herein and under the Securities or the Guarantees.
“Additional Taxing Jurisdiction” has the meaning specified in Section 10.7.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Agent” means any of the Authenticating Agent, the Registrar or the Paying Agent and “Agents” shall mean, collectively, the Authenticating Agent, the Registrar, the Paying Agent, and any other agents appointed under this Indenture, but does not include the Trustee unless the Trustee is separately appointed to act in such capacity.
“Agent Members” has the meaning specified in Section 3.5(b)(v).
“Applicable Procedures of the Depositary” means, with respect to any matter at any time, the policies and procedures of the Depositary, if any, that are applicable to such matter at such time.
“Applicable Taxing Jurisdiction” has the meaning specified in Section 10.7.
“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Securities of one or more series, and initially, the Authenticating Agent shall be Citibank, N.A..
“Authorized Agent” has the meaning specified in Section 1.15.
“Authorized Officer” means any person (whether designated by name or the persons for the time being holding a designated office) appointed by or pursuant to a Board Resolution for the purpose, or a particular purpose, of this Indenture, provided that written notice of such appointment shall have been given to the Trustee, Authenticating Agent and the Paying Agent.
| 8 |
“Beneficial owner” has the meaning determined in accordance with Rule 13d-3 under the Exchange Act and the terms “beneficial ownership” and “beneficially owned” have meanings correlative to the definition of beneficial owner.
“Board of Directors”, when used with reference to an Issuer or a Guarantor, means the board of directors (or equivalent supervisory body) of such Issuer or such Guarantor, as the case may be, or any committee of that board duly authorized to act for it in respect hereof.
“Board Resolution”, when used with reference to an Issuer or a Guarantor, means a copy of a resolution certified by the Secretary or an Assistant Secretary of such Issuer or such Guarantor, as the case may be, to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee and the Paying Agent.
“Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in New York City or London generally are authorized or obligated by law, regulation or executive order to close.
“Change of Control” has the meaning specified in Section 11.10.
“Change of Control Repurchase Event” has the meaning specified in Section 11.10.
“Change of Control Repurchase Event Notice” has the meaning specified in Section 11.10.
“Clearstream” has the meaning specified in Section 3.5.
“Code” means the U.S. Internal Revenue Code of 1986 (including any successor code thereto), as amended.
“Commission” means the U.S. Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under applicable law, then the body performing such duties at such time.
“Corporate Trust Office” means, (A) in the case of the Trustee, the designated office of the Trustee in which at any particular time its corporate trust business shall be administered, which office as of the date hereof is located at 277 Park Avenue, Floor 25, New York, New York, 10172, Attention: WPP Notes Administrator, and (B) in the case of any of the Agents, the designated office of such Agent in which at any particular time its corporate trust business shall be administered, which office as of the date hereof is located at 388 Greenwich Street, New York, NY 10013, Attention: Agency and Trust.
“corporation” means a corporation, association, company, joint-stock company or business trust.
“Covenant Defeasance” has the meaning specified in Section 12.3.
“Defaulted Interest” has the meaning specified in Section 3.7.
“Defeasance” has the meaning specified in Section 12.2.
“Defeasible Series” has the meaning specified in Section 12.1.
| 9 |
“Depositary” means, with respect to Securities of any series issuable in whole or in part in the form of one or more Global Securities, a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities as contemplated by Section 3.1. Unless otherwise provided pursuant to Section 3.1, the Depositary shall be The Depository Trust Company until a successor Depositary shall have become Depositary pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean such successor Depositary.
“Director” means any member of a Board of Directors.
“Dollar” and “U.S.$” mean a U.S. dollar or other equivalent unit in such coin or currency of the United States of America as at the time shall be legal tender for the payment of public and private debts.
“Euroclear” has the meaning specified in Section 3.5(b)(v).
“Event of Default” has the meaning specified in Section 5.1.
“Exchange Act” means the U.S. Securities Exchange Act of 1934 (including any successor act thereto), as amended from time to time, and (unless the context otherwise requires) includes the rules and regulations of the Commission promulgated thereunder.
“Expiration Date” has the meaning specified in Section 1.4.
“Financial Indebtedness” means any indebtedness for or in respect of (a) moneys borrowed; (b) any amount raised by acceptance under any acceptance credit facility or dematerialized equivalent; (c) any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; (d) the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with IFRS, be treated as a finance or capital lease;(e) receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis); (f) any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing; or (g) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value shall be taken into account), provided that no amount described in or due under arrangements described in this definition shall constitute Financial Indebtedness unless the relevant amount of Financial Indebtedness, either alone or when aggregated (without duplication)with other relevant amounts of Financial Indebtedness, exceeds £100,000,000 or its equivalent in other currencies.
“Fitch” means Fitch Ratings Ltd, or any successor thereto.
“Global Security” means a Security held by or on behalf of a Depositary and in which beneficial interests are evidenced on the records of such Depositary or its Agent Members.
“Guarantee” means the guarantee by a Guarantor of any Security of any series authenticated and delivered pursuant to this Indenture (i) if provided for in a supplemental indenture to this Indenture, (ii) if specified in a Board Resolution of a Guarantor as contemplated by Section 3.1 or (iii) as otherwise applicable to Article Thirteen.
“Guarantor” means each of the Persons named as a “Subsidiary Guarantor” in this instrument and any “Parent Guarantor” and any other entity guaranteeing any Security, in each case until a Successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Guarantor” shall mean such Successor Person.
| 10 |
“Holder” means, with respect to a Security, the Person in whose name such Security is registered in the Security Register.
“Indebtedness” means any indebtedness of any Person for money borrowed, whether incurred, assumed or guaranteed, and including obligations under capitalized leases.
“Indenture” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more supplemental indentures hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. The term “Indenture” shall also include the terms of particular series of Securities established as contemplated by Section 3.1.
“Interest Payment Date” means, when used with respect to any Security, the Stated Maturity of an installment of interest on such Security.
“Investment Company Act” means the U.S. Investment Company Act of 1940 (including any successor act thereto), as amended from time to time, and (unless the content otherwise requires) includes the rules and regulations of the Commission promulgated thereunder.
“Investment Grade” means rating of Baa3/BBB-, or equivalent, or better from any Rating Agency.
“Issuer” means each Person named as an “Issuer” in the first paragraph of this instrument (until a Successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Issuer” shall mean such relevant Successor Person), and with respect to any series of Securities, the “relevant Issuer” means the Person identified in any series of Securities issued hereunder as the Issuer pursuant to Section 3.1.
“Issuer Request” or “Issuer Order” means, with respect to Securities of a series, a written request or order signed in the name of the relevant Issuer of such Securities by any of the relevant Issuer’s Directors and/or Authorized Officers, and delivered to the Trustee.
“Judgment Currency” has the meaning specified in Section 10.12.
“Maturity”, when used with respect to any Security, means the date on which the principal of such Security becomes due and payable as therein provided or established as contemplated by Section 3.1, whether at the Stated Maturity or by declaration of acceleration, call for redemption, call for repurchase or otherwise.
“Moody’s” means Moody’s Investors Services, Inc., or any successor thereto.
“Make-Whole Redemption Price” has the meaning as set forth in Section 11.8.
“Notice of Default” means a written notice of the kind specified in Section 5.1(c) or (d).
“Officers’ Certificate”, with respect to the relevant Issuer or a Guarantor, means a certificate signed (A) by (i) any two executive directors, (ii) any two Authorized Officers, or (iii) an executive director and an Authorized Officer, or (B) by (i) any executive director or Authorized Officer, and (ii) the secretary or a deputy or assistant secretary, of such Issuer or such Guarantor, as the case may be, and delivered to the Trustee, Authenticating Agent and/or the Paying Agent.
| 11 |
“Opinion of Counsel” means a written opinion of counsel, who may be counsel for an Issuer or a Guarantor, and delivered to the Trustee, Authenticating Agent and/or the Paying Agent.
“Outstanding”, when used with respect to Securities, means as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
| (a) | Securities cancelled by the Registrar or delivered to the Registrar for cancellation prior to such determination; |
| (b) | Securities for whose payment or redemption money in the necessary amount has prior to such determination been deposited with the Paying Agent (other than the relevant Issuer or a Guarantor) in trust or set aside and segregated in trust by the relevant Issuer (if the relevant Issuer or a Guarantor shall act as its own or their own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee and the Paying Agent has been made; |
| (c) | Securities as to which Defeasance has been effected pursuant to Section 12.2; and |
| (d) | Securities which have been paid pursuant to Section 3.6 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Registrar proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the relevant Issuer; |
provided, however, that in determining whether the Holders of the requisite aggregate principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) if the principal amount of a Security payable at Maturity is to be determined by reference to an index or indices, the principal amount of such Security that shall be deemed to be Outstanding shall be the face amount thereof, (B) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as established as contemplated by Section 3.1, (C) the principal amount of a Security denominated in one or more foreign currencies or currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner established as contemplated by Section 3.1, of the principal amount of such Security (or, in the case of a Security described in Clause (A) above, of the amount determined as provided in such Clause), and Securities owned by the relevant Issuer, a Guarantor or any other obligor upon the Securities or any Affiliate of the relevant Issuer, a Guarantor or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee or the Registrar, as applicable, shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities which a Responsible Officer of the Trustee or a Responsible Officer of the Registrar, as applicable, actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee or the Registrar, as applicable, the pledgee’s right so to act with respect to such Securities and that the pledgee is not the relevant Issuer or a Guarantor or any other obligor upon the Securities or any Affiliate of the relevant Issuer or a Guarantor or of such other obligor. For the avoidance of doubt, the Trustee shall be able to conclusively rely on information provided by the Registrar.
| 12 |
“Par Call Date” has the meaning as set forth in Section 11.8.
“Parent Guarantor” means WPP plc or any Person who owns, directly or indirectly, more than 50% of the common equity of the Issuers and all of the other Subsidiary Guarantors and which is a guarantor of the Securities, until a Successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Parent Guarantor” shall mean such Successor Person.
“Paying Agent” means the Paying Agent or any other Person authorized by the relevant Issuer to pay the principal of, premium, if any, or interest on any Securities on behalf of the relevant Issuer, but shall not include the Trustee unless the Trustee is separately appointed as a Paying Agent.
“Permitted Sale and Leaseback Transaction” has the meaning specified in Section 10.10.
“Permitted Security Interests” means:
| (a) | Security Interests arising by operation of law in the ordinary course of business including, without limitation, statutory liens and encumbrances; |
| (b) | any Security Interest over the assets and/or revenues of a company which became or becomes a Subsidiary of the relevant Issuer or a Guarantor after the date of this Indenture and which Security Interest is in existence or contracted to be given as at the date it becomes a Subsidiary (and which was not created in contemplation of it becoming a Subsidiary); |
| (c) | those Security Interests existing at the date of this Indenture; |
| (d) | Security Interests securing the performance of bids, tenders, bonds, leases, contracts (other than in respect of Indebtedness), statutory obligations, surety, customs and appeal bonds and other obligations of like nature (but not including obligations in respect of Indebtedness) incurred in the ordinary course of business; |
| (e) | Security Interests arising out of judgments or awards which are being contested in good faith and with respect to which an appeal or proceeding for review has been instituted or the time for doing so has not yet expired; |
| (f) | Security Interests upon any property which are created or incurred contemporaneously with the acquisition of such property to secure or provide for the payment of any part of the purchase price of such property (but no other amounts); provided that any such Security Interest shall not apply to any other property of the purchaser thereof; |
| (g) | any Security Interest arising out of title retention provisions in a supplier’s conditions of supply of goods or services acquired by the Parent Guarantor or any of its Subsidiaries in the ordinary course of business; |
| (h) | any right of any bank or financial institution of combination or consolidation of accounts or right to set-off or transfer any sum or sums standing to the credit of any account (or appropriate any securities held by such bank or financial institution) in or towards satisfaction of any present or future liabilities to that bank or financial institution; |
| (i) | any Security Interest securing Indebtedness re-financing Indebtedness secured by Security Interests permitted by clauses (b), (c) or (f) above or this clause (i); provided that the maximum principal amount of the Indebtedness secured by such Security Interests at the time of such refinancing is not increased and such Security Interests do not extend to any assets which were not subject to the Security Interests securing the refinanced Indebtedness; |
| 13 |
| (j) | Security Interests in favor of WPP plc or any of its Restricted Subsidiaries or, after the time that the Securities are guaranteed by a Parent Guarantor other than WPP plc, Security Interests in favor of the Parent Guarantor or any of its Restricted Subsidiaries; |
| (k) | (i) any Security Interests created or outstanding on or over any of the assets of WPP plc or any of its Subsidiaries issued in connection with an accounts receivable purchase facility, receivables financing or similar arrangement, provided that the aggregate outstanding amount secured by such Security Interests permitted by this clause (k)(i) created or outstanding shall not exceed 15% of the total assets (meaning fixed assets plus current assets as shown on the consolidated financial statements) of WPP plc as reported at the most recent year-end or (ii) after the time that the Securities are guaranteed by a Parent Guarantor other than WPP plc (following which time clause (k)(i) shall cease to have effect), any Security Interests created or outstanding on or over any of the Parent Guarantor’s assets or the assets of any of its Subsidiaries issued in connection with an accounts receivable purchase facility, receivables financing or similar arrangement, provided that the aggregate outstanding amount secured by such Security Interests permitted by this clause (k)(ii) created or outstanding shall not at any time exceed 15% of the total assets (meaning fixed assets plus current assets as shown on the consolidated financial statements) of the Parent Guarantor as reported at the most recent year-end (or if the Parent Guarantor did not file reports as of the most recent year-end, 15% of the total assets (meaning fixed assets plus current assets as shown on the consolidated financial statements) of WPP plc as reported at the most recent year-end by WPP plc); and |
| (l) | (i) any other Security Interest created or outstanding on or over any of the assets of WPP plc or any of its Restricted Subsidiaries; provided that the aggregate outstanding amount secured by all such Security Interests permitted by this clause (l)(i) created or outstanding shall not at any time exceed U.S.$40,000,000 or (ii) after the time that the Securities are guaranteed by a Parent Guarantor other than WPP plc (following which time clause (l)(i) shall cease to have effect), any other Security Interest created or outstanding on or over any of the Parent Guarantor’s assets or the assets of any of its Restricted Subsidiaries; provided, further, that the aggregate outstanding amount secured by all such Security Interests permitted by this clause (l)(ii) created or outstanding shall not at any time exceed U.S.$40,000,000. |
“Person” means any individual, corporation, partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof.
“Place of Payment”, when used with respect to the Securities of any series, means the place or places where the principal of and any premium and interest on the Securities of that series are payable established as contemplated by Section 3.1.
“Predecessor Security” of any particular Security, means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.6 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
| 14 |
“Property” of any Person means all types of real, personal, tangible, intangible or mixed property (including any related contractual rights) owned by such Person whether or not included in the most recent consolidated balance sheet of such Person under United States generally accepted accounting principles.
“Rating Agencies” means Moody’s, S&P and Fitch, and, if any of Moody’s, S&P or Fitch ceases to rate the Securities or fails to make a rating of the Securities publicly available for reasons outside of the control of the relevant Issuer, a Substitute Rating Agency, and “Rating Agency” means any one of them.
“Redemption Date” when used with respect to any Security to be redeemed, means the date fixed for such redemption established as contemplated by Section 3.1.
“Redemption Price” when used with respect to any Security to be redeemed, means the price at which it is to be redeemed established as contemplated by Section 3.1.
“Regular Record Date” for the interest payable on any Interest Payment Date on any Security of any series means the date established for that purpose as contemplated by Section 3.1 irrespective whether such date is a Business Day.
“Repurchase Date” when used with respect to any Security to be repurchased, means the date fixed for such repurchase established as contemplated by Section 3.1.
“Repurchase Period” has the meaning specified in Section 11.10.
“Responsible Officer” when used (i) with respect to the Trustee, shall mean an officer assigned to the Corporate Trust Office, including any vice president, assistant vice president, senior trust officer or any other officer of the Trustee customarily performing functions similar to those performed by any of the above-designated officers and having direct responsibility for the administration of this Indenture and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject and (ii) with respect to any Agent shall mean any officer of such Agent assigned to the corporate trust department (or any successor group or department performing similar functions) who has direct responsibility for the administration of this Indenture, and also, with respect to a particular corporate trust matter, any other officer of the Agent to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject.
“Restricted Subsidiary” means any Subsidiary whose consolidated revenue shall have exceeded 5% of the consolidated revenues of WPP plc and its Subsidiaries taken as a whole for the preceding financial year or any other Subsidiary designated by WPP plc from time to time as a Restricted Subsidiary in WPP plc’s sole discretion; provided, that after the time that the Securities are guaranteed by a Parent Guarantor other than WPP plc, “Restricted Subsidiary” shall be any Subsidiary whose consolidated revenue shall have exceeded 5% of consolidated revenues of the Parent Guarantor and its Subsidiaries taken as a whole for the preceding financial year (or if the Parent Guarantor has existed for less than one year, 5% of the consolidated revenues of WPP plc and its Subsidiaries taken as a whole for the preceding financial year), or any other Subsidiary designated by the Parent Guarantor from time to time as a Restricted Subsidiary in the Parent Guarantor’s sole discretion.
“S&P” means S&P Global Ratings, a division of S&P Global Inc., or any successor thereto.
“Sale and Leaseback Transaction” has the meaning specified in Section 10.10(a).
| 15 |
“Securities” has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
“Securities Act” means the U.S. Securities Act of 1933 (including any successor act thereto), as amended from time to time, and (unless the context otherwise requires) includes the rules and regulations of the Commission promulgated thereunder.
“Security Interests” means, with respect to any Property, any mortgage, charge, pledge, lien or other security interest in respect of such Property. For purposes of this Indenture, the Parent Guarantor and its Subsidiaries shall be deemed to own, subject to a Security Interest, any Property which it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to such Property.
“Security Register” and “Registrar” have the respective meanings specified in Section 3.5.
“Significant Subsidiary” has the meaning set forth in Regulation S-X under the Securities Act.
“Special Record Date” means, for the payment of any Defaulted Interest, a date fixed by the relevant Issuer pursuant to Section 3.7.
“Stated Maturity”, when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable established as contemplated by Section 3.1.
“Subsidiary” of a specified person means that specified person holds a majority of the voting rights in it, or is a member of it and has the right to appoint or remove a majority of its board of directors or is a member of it and controls alone, pursuant to an agreement with other shareholders or members, a majority of the voting rights in it, or if it is a subsidiary of a company which is itself a subsidiary of that specified person.
“Subsidiary Guarantor” means each of WPP Jubilee Limited, WPP 2005 Limited, and any other Subsidiaries of the Issuer or any Parent Guarantor that becomes a Subsidiary Guarantor, each until a Successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Subsidiary Guarantor” shall mean such Successor Person in lieu of such original Subsidiary Guarantor.
“Substitute Rating Agency” means a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act selected by the relevant Issuer (pursuant to a Board Resolution) as a replacement agency for Moody’s, S&P or Fitch, or one or more of them, as the case may be.
“Succession Date” has the meaning specified in Section 11.9.
“Successor Person” has the meaning specified in Section 8.2.
“Taxes” has the meaning specified in Section 10.7.
“transfer” means, with respect to any Security, any sale, pledge, transfer, hypothecation or other disposition of such Security or any interest therein.
“Treasury Rate” has the meaning specified in Section 11.8.
| 16 |
“Trust Indenture Act” means the U.S. Trust Indenture Act of 1939 (including any successor act thereto), as it may be amended from time to time, and (unless the context otherwise requires) includes the rules and regulations of the Commission thereunder.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used herein shall be deemed to mean the person acting as Trustee with respect to the Securities of any series and shall mean the Trustee with respect to Securities of that series.
“United States” means the United States of America (including the States thereof and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.
“U.S. Government Obligation” has the meaning specified in Section 12.4.
| 1.2 | Compliance Certificates and Opinions. |
| (a) | Upon any application or request by an Issuer or a Guarantor to the Trustee and/or any Agent to take any action under any provision of this Indenture, such Issuer or such Guarantor, as applicable, shall furnish to the Trustee and/or the relevant Agents such certificates and opinions as may be reasonably required hereunder or under the Trust Indenture Act. Each such certificate or opinion shall be given in the form of an Officers’ Certificate, if to be given by an officer of an Issuer or a Guarantor, or an Opinion of Counsel if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture. |
| (b) | Each certificate or opinion by or on behalf of an Issuer or a Guarantor with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates provided for in Section 10.4) shall include, |
| (i) | a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; |
| (ii) | a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; |
| (iii) | a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and |
| (iv) | a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. |
| 1.3 | Form of Documents Delivered to the Trustee and the Agents. |
| (a) | In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. |
| 17 |
| (b) | Any certificate or opinion of an officer of the relevant Issuer or of a Guarantor may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the relevant Issuer or a Guarantor, as the case may be, stating that the information with respect to such factual matters is in the possession of the relevant Issuer or such Guarantor, as the case may be, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous. |
| (c) | Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument. |
| 1.4 | Acts of Holders; Record Dates. |
| (a) | Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the relevant Issuer and the Guarantors. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Sections 6.1 and 6.3) conclusive in favor of the Trustee and the Agents and the relevant Issuer or the Guarantors, if made in the manner provided in this Section 1.4. |
| (b) | The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee and the Agents, as applicable, deem sufficient. |
| (c) | The ownership of Securities shall be proved by the Security Register and the Trustee and the Agents may conclusively rely on such information and shall not be affected by notice to the contrary. |
| (d) | Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, the Agents, the relevant Issuer or the Guarantors in reliance thereon, whether or not notation of such action is made upon such Security. |
| 18 |
The relevant Issuer may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series; provided that the relevant Issuer may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite aggregate principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the relevant Issuer from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be canceled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite aggregate principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the relevant Issuer, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.5.
| (e) | The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 5.2, (iii) any request to institute proceedings referred to in Section 5.7(b) or (d) any direction referred to in Section 5.12, in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite aggregate principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and without any action by any Person be canceled and of no effect), nor shall anything in this paragraph be construed to render ineffective any action taken by Holders of the requisite aggregate principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the expense of the relevant Issuer or the Guarantors, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the relevant Issuer and the Guarantors in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.5. |
| (f) | With respect to any record date set pursuant to this Section 1.4, the party hereto that sets such record dates may designate any day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other parties hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 1.5, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section 1.4, the party hereto that set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date. |
| 19 |
| (g) | Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount. |
| 1.5 | Notices, Etc., to Trustee, Agents, Issuers and Guarantors. |
| (i) | Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with, |
| (A) | the Trustee by any Holder or by the relevant Issuer or the Guarantors shall be sufficient for every purpose hereunder if in writing and mailed first class postage paid to or otherwise made, given, furnished or filed in writing (which may be by facsimile) to or with the Trustee at its Corporate Trust Office, Attention: WPP Notes Administrator, or |
| (B) | the relevant Issuer or the Guarantors by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class prepaid postage, to the relevant Issuer or the Guarantors addressed to such parties at the respective addresses of their principal offices specified in Section 1.4(h)(ii) below or at any other address previously furnished in writing to the Trustee. |
| (ii) | Any notice or communication to any party under this Indenture shall be in writing and delivered in person, sent by first-class mail, prepaid postage, or sent by overnight courier or electronic transmission, addressed as follows: |
If to the Issuers:
WPP 2025 LLC
Sea Containers House
18 Upper Ground
London
United Kingdom
SE1 9GL
WPP Finance 2010
Sea Containers House
18 Upper Ground
London
United Kingdom
SE1 9GL
| 20 |
If to the Guarantors:
WPP plc
Sea Containers House
18 Upper Ground
London
United Kingdom
SE1 9GL
WPP Jubilee Limited
Sea Containers House
18 Upper Ground
London
United Kingdom
SE1 9GL
WPP 2005 Limited
Sea Containers House
18 Upper Ground
London
United Kingdom
SE1 9GL
If to the Trustee:
Wilmington Trust, National Association
277 Park Avenue, 25th Floor,
New York, New York 10172
United States
If to the Registrar or Paying Agent:
Citibank, N.A.
388 Greenwich Street
New York, NY 10013
Attn: Agency and Trust
Email: eva.waite@citi.com; citi.cspag.debt@citi.com
| 1.6 | Notices to Holders; Waiver. |
| (a) | Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class prepaid postage at the expense of the relevant Issuer, to each Holder affected by such event, at his address as it appears in the Security Register, (with a copy to the Registrar) not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee and Registrar, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. |
| 21 |
| (b) | While any Securities are represented by one or more Global Securities, all notices with respect to such Global Securities shall be delivered to the Depositary for such Global Securities, as applicable for communication to entitled account holders. |
| (c) | For so long as any Securities are listed on any securities exchange, the relevant Issuer shall publish such notices as may be required by the rules and regulations of such securities exchange. |
| (d) | In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee or the Registrar shall constitute a sufficient notification for every purpose hereunder. |
| 1.7 | Conflicts with Trust Indenture Act. |
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act to be a part of and govern this Indenture once this Indenture is qualified under the Trust Indenture Act, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
| 1.8 | Effects of Headings and Table of Contents. |
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
| 1.9 | Successors and Assigns. |
All covenants and agreements in this Indenture by the Issuers or the Guarantors shall bind their successors and assigns, whether so expressed or not. All agreements of the Trustee and the Agents, as applicable, in this Indenture shall bind their successors and assigns, whether so expressed or not.
| 1.10 | Separability Clause. |
In case any one or more of the provisions contained in this Indenture, the Securities or the Guarantees shall be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions contained in this Indenture, and to the extent and only to the extent that any such provision is invalid, illegal or unenforceable, this Indenture, the Securities and the Guarantees shall be construed as if such provision had never been contained herein or therein.
| 1.11 | Counterparts. |
This Indenture may be simultaneously executed and delivered in any number of counterparts, each of which so executed and delivered shall be deemed to be an original, and such counterparts shall together constitute but one and the same instrument. To the greatest extent permitted by applicable law, the exchange of copies of this Indenture and of signature pages by electronic transmission (including in .pdf or other generally accepted electronic format) or by use of electronic signatures (including DocuSign or other electronic signature technology) shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted electronically shall be deemed to be their original signatures for all purposes.
| 22 |
| 1.12 | Electronic Signatures. |
All notices, approvals, consents, requests and any communications hereunder must be in writing (provided that any communication sent to the Trustee or Agents hereunder must be in the form of a document that is signed manually or by way of a digital signature provided by DocuSign, AdobeSign (or such other digital signature provider as specified in writing to the Trustee or the Agents, as applicable, by the Issuers or Guarantors), in English. The Issuers and the Guarantors agree to assume all risks arising out of the use of digital signatures and electronic methods to submit communications to the Trustee or the Agents, as applicable, including without limitation the risk of the Trustee or the Agents acting on unauthorized instructions, and the risk of interception and misuse by third parties.
Unless otherwise provided in this Indenture or in any Security, the words “execute”, “execution”, “signed”, and “signature” and words of similar import used in or related to any document to be signed in connection with this Indenture, any Security or any of the transactions contemplated hereby (including amendments, waivers, consents and other modifications) will be deemed to include electronic signatures and the keeping of records in electronic form, each of which will be, except with respect to authentication of the Securities by the Trustee and/or the Authenticating Agent, of the same legal effect, validity or enforceability as a manually executed signature in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other similar state laws based on the Uniform Electronic Transactions Act, provided that, notwithstanding anything herein to the contrary, the Trustee and the Agents, as applicable, are not under any obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Trustee or the Agents, as applicable, pursuant to reasonable procedures approved by the Trustee or the Agents, as applicable.
| 1.13 | Benefits of Indenture. |
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders of Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.
| 1.14 | Governing Law. |
This Indenture, the Guarantees, and any Securities issued hereunder shall be governed by, and construed in accordance with, the laws of the State of New York, United States.
| 1.15 | Submission to Jurisdiction; Appointment of Agent for Service of Process; Waiver of Jury Trial. |
| (a) | The Issuers, the Guarantors, the Trustee and the Agents agree that any legal suit, action or proceeding arising out of or relating to this Indenture, and each of the Issuers and the Guarantors agrees that any legal suit, action or proceeding arising out of or relating to the Securities and the Guarantees, may be instituted in any U.S. federal or New York state court in the Borough of Manhattan, The City of New York, and each waives any objection which it may now or hereafter have to the laying of the venue of any such legal suit, action or proceeding, waives any immunity from jurisdiction or to service of process in respect of any such suit, action or proceeding, waives any right to which it may be entitled on account of place of residence or domicile and irrevocably submits to the non-exclusive jurisdiction of any such court in any such suit, action or proceeding. |
| 23 |
Each Issuer and each Guarantor hereby appoints Corporate Creations Network Inc., 600 Mamaroneck Avenue #400, Harrison, New York 10528, United States, as its authorized agent (the “Authorized Agent”) upon which process may be served in any legal action or proceeding against it with respect to its obligations under this Indenture, the Securities of any series or the Guarantees, as the case may be, instituted in any federal or state court in the Borough of Manhattan, The City of New York by the Trustee, the Agents, or by the Holder of any Security. Each Issuer and each Guarantor reserves the right to appoint another person located or with an office in the Borough of Manhattan, The City of New York, selected in their discretion, as a successor Authorized Agent, and upon acceptance of such appointment by such a successor and notice to the Trustee, the Agents, and the Holders of the successor Authorized Agent, the appointment of the prior Authorized Agent shall terminate. If for any reason the designee, appointee and agent hereunder ceases to be able to act as the Authorized Agent or to have an address in the Borough of Manhattan, The City of New York, the Issuers and the Guarantors shall appoint a successor Authorized Agent in accordance with the preceding sentence. Each Issuer and each Guarantor further agrees to take any and all action, including the filing of any and all documents and instruments, as may be necessary to continue such designation and appointment of such agent in full force and effect until this Indenture has been satisfied and discharged in accordance with Article Four or Article Twelve hereof.
| (b) | Service of process upon the Authorized Agent addressed to it at the address set forth above, as such address may be changed within the Borough of Manhattan, The City of New York by notice given by the Authorized Agent to the Trustee or the Agents, as applicable, together with written notice of such service mailed or delivered to the relevant Issuer or the Guarantors shall be deemed, in every respect, effective service of process on the relevant Issuer or the Guarantors, as the case may be. Each of the Issuers, the Guarantors, the Trustee and the Agents hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Indenture, the Securities, the Guarantees and the transactions contemplated hereby. |
| 1.16 | Legal Holidays. |
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security established as contemplated by Section 3.1 which specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, as the case may be; provided that no interest with respect to such payment shall accrue for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
| 1.17 | Force Majeure. |
In no event shall the Trustee or the Agents be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages or other labor disputes, accidents; acts of war, armed conflict or terrorism; civil or military disturbances or governmental actions, riots or sabotage; nuclear, natural or other catastrophes, including earthquakes, fires, floods or other acts of God; interruptions, loss or malfunctions of utilities or power, computer (hardware or software), communications or other utility services, and hacking, cyber-attacks, or other use or infiltration of the Trustee’s or the Agents’ technological infrastructure exceeding authorized access; acts of civil or military authority, governmental actions, orders or regulations; epidemics, pandemics or other recognized public emergencies, including quarantine or travel restrictions; or the unavailability or malfunction of the Federal Reserve Bank wire, telex or any other wire or communication facility, it being understood that the Trustee and the Agents, as applicable, shall use commercially reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
| 24 |
| 1.18 | Waiver of Jersey Customary Law Rights. |
Each Issuer and each Guarantor irrevocably and unconditionally waives such right as it may have or claim under Jersey law:
| (a) | whether by virtue of the droit de discussion or otherwise to require that recourse be had to the assets of any other person before any claim is enforced against it under this Indenture or any Guarantee in respect of the obligations assumed by it under this Indenture or any Guarantee; and |
| (b) | whether by virtue of the droit de division or otherwise to require that any liability under this Indenture or any Guarantee be divided or apportioned with any other person or reduced in any manner whatsoever. |
| 1.19 | U.S.A. Patriot Act. |
The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee and the Agents, like all financial institutions and in order to help fight the funding of terrorism and money laundering, are required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee or the Agents, as applicable. The parties to this Indenture agree that they will provide the Trustee and the Agents, as applicable, with such information as they may reasonably request in order for the Trustee or the Agents, as applicable, to satisfy the requirements of the U.S.A. Patriot Act.
ARTICLE
Two
Security Forms
| 2.1 | Forms Generally. |
The Securities of each series and the Trustee’s and/or Authenticating Agent’s, as relevant, certificates of authentication shall be in substantially the forms set forth in this Article Two or in such other form as shall be established by or pursuant to Board Resolutions or in one or more supplemental indentures hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution of the Securities. If the form of Securities of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the relevant Issuer and each Guarantor and delivered to the Trustee and the Agents at or prior to the delivery of the Issuer Order contemplated by Section 3.3 for the authentication and delivery of such Securities.
| 25 |
The Guarantees of the Guarantors expressed in Article Thirteen shall establish such Guarantees with respect to the Securities of each series without any further notation or endorsement of or attachment to the form of any Security. Likewise, the Guarantees of any other Guarantor created by the acceptance of the terms of Article Thirteen expressed in an applicable Board Resolution of such Guarantor in accordance with Section 3.1 or indenture supplemental hereto shall establish its Guarantee with respect to the Securities of the relevant series without any further notation or endorsement of or attachment to the form of any Security.
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.
| 2.2 | Form of Face of Security. |
The following legend shall appear on the face of each Global Security:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE ISSUER, ANY GUARANTOR, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.
The following legend shall appear on the face of each Global Security for which The Depository Trust Company is to be the Depositary:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE OR ANY PORTION HEREOF 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 OTHER THAN DTC OR A NOMINEE THEREOF IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR REGISTERED SECURITIES IN DEFINITIVE REGISTERED FORM IN THE LIMITED CIRCUMSTANCES REFERRED TO IN THE INDENTURE, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
[Insert any legend required by the Internal Revenue Code and the regulations thereunder]
[WPP FINANCE 2010 / WPP 2025 LLC]
__________________________
| 26 |
No.
CUSIP No.
| ISIN No. | U.S.$ |
[WPP 2025 LLC / WPP Finance 2010] (herein called the “Issuer”, which term includes any Successor Person under the Indenture hereinafter referred to), [a private unlimited liability company incorporated under the laws of England and Wales / a limited liability company incorporated under the laws of Delaware], for value received, hereby promises to pay to , or registered assigns, [include if this Security is a Global Security — the initial principal amount specified on Schedule A hereto (such initial principal amount, as it may from time to time be adjusted by endorsement on Schedule A hereto, is hereinafter referred to as the “principal”)] [include if this Security is not a Global Security — the principal sum of Dollars] on or any other Maturity Date. [if the Security is to bear interest prior to Maturity, insert — This Security shall bear interest at the rate of [ ]% per annum, from [ ], [ ] or from the most recent Interest Payment Date to which interest has been paid or duly provided for, as the case may be, until the principal hereof is paid or made available for payment. Interest shall be payable semi-annually on [ ] and [ ] (each an “Interest Payment Date”), beginning on [ ], [ ], to the Holders in whose names this Security is registered at the close of business on the Regular Record Date immediately preceding the related Interest Payment Date. Interest shall be calculated on the basis of a 360-day year consisting of twelve 30-day months. If any Interest Payment Date falls on a day that is not a Business Day, interest will be paid the following day that is a Business Day with the full force and effect as if paid on the Interest Payment Date.]
[if applicable, insert — ; Any principal [and premium], and any such installment of interest, which is overdue shall bear interest at the rate of % per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand.
Any interest payable, but not so punctually paid or duly provided for on any Interest Payment Date shall forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Issuer, notice whereof shall be given by (i) the Issuer to the Trustee and the Paying Agent, and (ii) by the Paying Agent to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert — The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal [and any overdue premium] shall bear interest at the rate of % per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment. Interest on any overdue principal [or premium] shall be payable on demand. Any such interest on overdue principal or premium which is not paid on demand shall bear interest at the rate of % per annum (to the extent that the payment of such interest on interest shall be legally enforceable), from the date of such demand until the amount so demanded is paid or made available for payment. Interest on any overdue interest shall be payable on demand.]
| 27 |
Payment of the principal of, [premium, if any,] and [if applicable, insert — interest] on this Security shall be made pursuant to the Applicable Procedures of the Depositary as permitted in the Indenture; provided, however, that if this Security is not a Global Security, payment may be made at the office or agency of the Issuer maintained for that purpose in New York, New York, 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, against surrender of this Security in the case of any payment due at the Maturity of the principal thereof (other than any payment of interest that first becomes payable on a day other than an Interest Payment Date); and provided, further, that at the option of the Issuer, payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register [if applicable, insert — ; and provided, further, that at the option of the Issuer payments of any interest on the Securities (other than at Maturity) may be made, in the case of a registered Holder of at least U.S.$5,000,000 principal amount of Securities, by electronic funds transfer of immediately available funds to a United States dollar account maintained by the payee; provided such registered Holder so elects by giving written notice to the Trustee and the Paying Agent designating such account, no later than 15 days immediately preceding the relevant date for payment (or such other date as the Trustee and the Paying Agent may each accept in their discretion). Unless such designation is revoked, any such designation made by such Holder with respect to such Securities shall remain in effect with respect to any future payments with respect to such Securities payable to such Holder. The Issuer shall pay any administrative costs imposed by banks in connection with making payments by wire transfer.]
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.
Unless the certificate of authentication hereon has been executed by the Trustee and/or Authenticating Agent, as relevant, referred to on the reverse hereof, including in the case of the Authenticating Agent, by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed by a Director or Authorized Officer.
Executed as a Deed by [WPP FINANCE 2010 / WPP 2025 LLC]
____________________________________________
| 2.3 | Form of Reverse of Security. |
This Security is one of a duly authorized issue of securities of the Issuer (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of [ ], 20[ ] (herein called the “Base Indenture”), as supplemented by a [ ] Supplemental Indenture dated as of [ ] (herein called the “[ ] Supplemental Indenture”; the Base Indenture, as supplemented by the [ ] Supplemental Indenture, the “Indenture”), each among the Issuer, WPP PLC, a public company limited by shares incorporated under the laws of Jersey (the “Parent Guarantor”), WPP JUBILEE LIMITED, a private limited company organized and existing under the laws of England and Wales and WPP 2005 LIMITED, a private limited company organized and existing under the laws of England and Wales (collectively, the “Subsidiary Guarantors” and, together with the Parent Guarantor, the “Guarantors” which term includes any successor Guarantor under the Indenture), Wilmington Trust, National Association, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), Citibank, N.A., as the initial Registrar and Paying Agent, and reference is hereby made to the Indenture[, as supplemented by the [ ] Supplemental Indenture,] for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Issuer, the Parent Guarantor, the Subsidiary Guarantors, the Trustee and Agents and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [if applicable, insert — , limited in initial aggregate principal amount to U.S.$ [ ]].
| 28 |
Capitalized terms used herein but not defined shall have the respective meanings assigned to them in the Indenture.
The Subsidiary Guarantors and the Parent Guarantor have fully and unconditionally guaranteed, on a joint and several basis, the full and punctual payment of the principal, premium, if any, interest, Additional Amounts and any other amounts payable in respect of the Securities, when and as the same shall become due and payable by the Issuer in respect of the Securities, whether at the stated maturity thereof, by declaration of acceleration, call for redemption, call for repurchase or otherwise, in accordance with the terms of the Securities and of the Indenture. To the extent set forth in the applicable Board Resolutions or a supplemental indenture, the full and punctual payment of the principal, premium, if any, interest, Additional Amounts and any other amounts payable in respect of the Securities, when and as the same shall become due and payable by the Issuer in respect of the Securities, whether at the stated maturity thereof, by declaration of acceleration, call for redemption, call for repurchase or otherwise, in accordance with the terms of the Securities and of the Indenture may also be guaranteed by any other Guarantor that may guarantee the Securities.
[If applicable, insert – Prior to [ ] ([ ] month[s] prior to their Maturity date) (the “Par Call Date”), the Issuer may redeem the Securities in whole or in part, at its option, at any time and from time to time at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
(a) (i) the sum of the present values determined by the Issuer of the remaining scheduled payments of principal and interest thereon (assuming the Securities matured on the Par Call Date) discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus [ ] basis points, less (ii) interest accrued to the date of redemption, and
(b) 100% of the principal amount of the Securities to be redeemed,
plus, in either case, accrued and unpaid interest thereon to the redemption date.
On or after the Par Call Date, the Issuer may redeem the Securities at its option, in whole or in part, at any one time and from time to time, at a redemption price equal to 100% of the principal amount of the Securities to be redeemed plus accrued and unpaid interest thereon to the redemption date.
In connection with such optional redemption the following defined terms apply:
“Treasury Rate” means, with respect to any redemption date, the yield determined by the Issuer in accordance with the following two paragraphs.
| 29 |
The Treasury Rate shall be determined by the Issuer after 4:15 p.m. New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) – H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities—Treasury Constant Maturities—Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Issuer shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.
If on the third Business Day preceding the redemption date H.15 TCM is no longer published, the Issuer shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Issuer shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Issuer shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
The Issuer’s actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error. Neither the Trustee nor the Paying Agent shall be responsible for calculating the redemption price or for verifying any calculations of such redemption price. Notice of any redemption will be mailed or electronically delivered (or otherwise transmitted in accordance with the depositary’s procedures) at least 10 days but not more than 60 days before the redemption date to each Holder of the Securities to be redeemed.
If the Issuer decides to redeem fewer than all of the outstanding Securities (a partial redemption) and the Securities to be redeemed are Global Securities then held by DTC (or another depositary), the Securities to be redeemed shall be selected in accordance with the procedures of DTC (or such other depositary) or by lot. No Securities of a principal amount of less than $1,000 will be redeemed in part. If any Security is to be redeemed in part only, the notice of redemption that relates to the Security will state the portion of the principal amount of the Security to be redeemed.
| 30 |
Unless the Issuer defaults in payment of the redemption price, on and after the redemption date interest will cease to accrue on the Securities or portions thereof called for redemption.]
[If applicable, insert – In addition to its ability to redeem this Security pursuant to the foregoing, this] [This] Security may be redeemed by the Issuer on the terms set forth and as more fully described in the Indenture, in certain circumstances where the Issuer or a Guarantor would be required to pay Additional Amounts in respect hereof as a result of certain events relating to taxation and such obligation cannot be avoided by the Issuer or such Guarantor by taking reasonable measures available to the Issuer or the Guarantor, as provided in the Indenture.]
[If the Security is subject to redemption of any kind, insert — In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert – [As provided in the [ ] Supplemental Indenture,] the Issuer shall have the right to redeem the Securities upon the occurrence of certain events relating to taxation, as a result of which the Issuer or a Guarantor becomes obligated to pay Additional Amounts on the Securities, in which case the Issuer may redeem the Securities in whole but not in part at a redemption price equal to 100% of the principal amount of the Securities plus accrued and unpaid interest (including additional interest and Additional Amounts, if any) to, but excluding, the Redemption Date.
On and after the Redemption Date, interest will cease to accrue on the Securities or any portion of the Securities called for redemption (unless the Issuer defaults in the payment of the redemption price and accrued and unpaid interest). On or before the Redemption Date, the Issuer shall deposit with the Paying Agent money sufficient to pay the redemption price of and (unless the Redemption Date shall be an Interest Payment Date) accrued and unpaid interest to, but excluding, the Redemption Date on the Securities to be redeemed on such date. If less than all of the Securities are to be redeemed, the Securities to be redeemed shall be selected by the Registrar or Paying Agent, as applicable, in accordance with the procedures of DTC (or such other depositary) or by lot.
Upon the occurrence of a Change of Control Repurchase Event (as defined below), unless the Issuer has exercised its right to redeem the Securities [pursuant to the [ ] Supplemental Indenture], each holder shall have the option to require the Issuer to repurchase all or any portion of its Securities (in principal amounts of U.S.$1,000 and integral multiples of U.S.$1,000 in excess thereof) on the Repurchase Date (as defined below) at a price equal to 101% of the principal amount thereof, together with accrued and unpaid interest thereon to, but excluding, the date of repurchase (subject to the right of holders of the Securities on the relevant record date to receive interest due on the relevant Interest Payment Date).
Within 30 days following the date upon the Issuer becoming aware that a Change of Control Repurchase Event has occurred or, at the Issuer’s option, prior to any Change of Control Repurchase Event, but after the public announcement of an impending Change of Control Repurchase Event, the Issuer shall deliver or cause to be delivered a notice of such Change of Control Repurchase Event electronically in accordance with the applicable DTC procedures, with a copy to the Trustee and the Agents, and the Issuer shall, and at any time upon the Registrar having actual knowledge, the Registrar may, and if so requested by the holders of at least 25% of the aggregate principal amount of the Securities then outstanding, shall (subject in each case to the Registrar being indemnified and/or secured to its satisfaction), give notice (a “Change of Control Repurchase Event Notice”) to the holders specifying the nature of the Change of Control Repurchase Event and the procedure for exercising the holders’ repurchase option.
| 31 |
To exercise the option to require the repurchase of a Security following the occurrence of a Change of Control Repurchase Event the holder of the Security must deliver such Security, on any Business Day during the period beginning no earlier than 10 days from the date on which the Change of Control Repurchase Event Notice is given and ending 60 days from the date such notice is given (the “Repurchase Period”), at the specified office of the Paying Agent, accompanied by a duly signed and completed notice of exercise in the form (for the time being current) which shall be provided with the Change of Control Repurchase Event Notice (a “Change of Control Repurchase Notice”). A Change of Control Repurchase Notice, once given, shall be irrevocable unless the Issuer elects to permit revocations. All Securities submitted for repurchase shall be purchased by the Issuer on the date that is 3 Business Days after the expiration of the Repurchase Period (the “Repurchase Date”).
On the Repurchase Date, the Issuer will:
| (a) | accept for payment all Securities or portions of Securities (in principal amounts of U.S.$1,000 and integral multiples of U.S.$1,000 in excess thereof) properly tendered pursuant to the repurchase option; |
| (b) | deposit with the Paying Agent an amount equal to the aggregate repurchase price in respect of all Securities or portions of Securities properly tendered; |
| (c) | deliver or cause to be delivered to the Paying Agent (with a copy to the Trustee) the Securities properly accepted, together with an Officers’ Certificate (upon which the Trustee and Paying Agent may conclusively rely) stating the aggregate principal amount of Securities being purchased; and |
| (d) | instruct the Registrar in writing (with a copy to the Trustee) to cancel all Securities or portions of the Securities so repurchased and delivered, and the Registrar shall promptly cancel such Securities in accordance with its customary procedures. |
The Paying Agent will promptly mail to each holder of Securities properly tendered the repurchase price for the Securities, and the Authenticating Agent will promptly authenticate and mail (or cause to be transferred by book- entry) to each holder a new Security equal in principal amount to any unpurchased portion of any Securities surrendered; provided, that each new Security will be in a principal amount of U.S.$1,000 and integral multiples of U.S.$1,000 in excess thereof.
The Issuer will comply with the requirements of Rule l 4e-l under the Exchange Act and any other securities laws and regulations thereunder, to the extent those laws and regulations are applicable in connection with the repurchase of Securities as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the Securities, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control Repurchase Event provisions of the Securities by virtue of such conflict.
The Issuer will not be required to make an offer to repurchase the Securities upon a Change of Control Repurchase Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Issuer, and such third party purchases all Securities properly tendered and not withdrawn under its offer.
| 32 |
The Trustee and Paying Agent are each under no obligation to ascertain whether a Change of Control Repurchase Event or Change of Control or any event which could lead to the occurrence of or could constitute a Change of Control Repurchase Event or Change of Control has occurred and, until the Trustee or the Paying Agent, as applicable, shall have actual knowledge or written notice pursuant to the Indenture to the contrary, the Trustee or the Paying Agent, as applicable, may assume that no Change of Control Repurchase Event or Change of Control (as defined below) or other such event has occurred.
A “Change of Control” means the occurrence of any of the following:
| (a) | (i) the consummation of any transaction, including any merger or consolidation, as a result of which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than a holding company whose shareholders are or are to be substantially similar to WPP plc’s shareholders immediately prior to such company becoming WPP plc’s parent company, is or becomes the “beneficial owner” (as such term is used in Rule 13d-3 under the Exchange Act), directly or indirectly, as a result of a purchase, merger or otherwise, of (x) more than 50 percent of the issued ordinary share capital of WPP plc, or, in lieu thereof after the creation of a New Parent (as defined below), more than 50 percent of the issued ordinary share capital of the New Parent or (y) shares in the capital of WPP plc carrying more than 50 percent of the voting rights (“Voting Stock”) normally exercisable at a general meeting of WPP plc, or, in lieu thereof after the creation of a New Parent, more than 50 percent of the Voting Stock of the New Parent normally exercisable at a general meeting of the New Parent; or (ii) any Guarantor ceases to be a direct or indirect Subsidiary of WPP plc or any Parent Guarantor; |
| (b) | the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of WPP plc and its Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than to WPP plc or one of its Subsidiaries or, in lieu thereof after the creation of a New Parent, the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the New Parent and its Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than to the New Parent or one of its Subsidiaries; or |
| (c) | the adoption of a plan relating to the liquidation or dissolution of WPP plc or, in lieu thereof after the creation of a New Parent, the adoption of a plan relating to the liquidation or dissolution of the New Parent |
(each of the events set forth in clauses (a), (b) and (c), a “Change of Control”).
A “below investment grade rating event” means at the time of the occurrence of a Change of Control, (i) the Securities carry an Investment Grade credit rating from at least three Rating Agencies and such ratings from at least two Rating Agencies are, within a period ending 120 days after announcement of the Change of Control having occurred (or such longer period as the Securities are under consideration, announced publicly within such 120-day period, for rating review), each downgraded to a non-investment grade credit rating (Ba1/BB+, or equivalent, or worse), or (ii) the Securities carry an Investment Grade credit rating from one or two Rating Agencies and any such rating is, within a period ending 120 days after announcement of the Change of Control having occurred (or such longer period as the Securities are under consideration, announced publicly within such 120 day period, for rating review), downgraded to a non-investment grade credit rating (Bal/BB+, or equivalent, or worse), or (iii) if the Securities are rated by three Rating Agencies, the ratings of the Securities from at least two Rating Agencies are withdrawn or, if the Securities are rated by either one or two Rating Agencies at such time, any rating is withdrawn.
“Change of Control Repurchase Event” means the occurrence of both a Change of Control and a below investment grade rating event with respect to the Securities.
| 33 |
“Investment Grade” means a rating of Baa3/BBB-, or equivalent, or better from any Rating Agency (as defined below).
Notwithstanding the foregoing, if at the time of the occurrence of the Change of Control the Securities carry either a non-investment grade credit rating from each Rating Agency then assigning a credit rating to the Securities or no credit rating from any Rating Agency, a Change of Control Repurchase Event will be deemed to occur upon the occurrence of a Change of Control alone.
For the purposes of the foregoing provisions, “New Parent” means any Parent Guarantor whose equity ownership is substantially the same as WPP plc or any prior Parent Guarantor immediately prior to such New Parent becoming a Parent Guarantor.
For the purposes of the foregoing provisions, “Rating Agencies” means Moody’s, S&P and Fitch, and, if any of Moody’s, S&P or Fitch ceases to rate the Securities or fails to make a rating of the Securities publicly available for reasons outside of the control of the Issuer, a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act selected by the Issuer (pursuant to a Board Resolution) as a replacement agency for Moody’s, S&P or Fitch or one or more of them, as the case may be, and “Rating Agency” means any of one of them; (ii) “Moody’s” means Moody’s Investors Services, Inc., or any successor thereto; (iii) “S&P” means S&P Global Ratings, a division of S&P Global Inc., or any successor thereto; and (iv) “Fitch” means Fitch Ratings Ltd, or any successor thereto.
If an Event of Default with respect to Securities shall occur and be continuing, the aggregate principal amount of the Securities may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the entire indebtedness of the series of which this Security is a part or certain restrictive covenants and Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the Indenture.
In any case where the due date for the payment of the principal amount of, or any premium or interest with respect to, any Security or the date fixed for redemption of any Security shall not be a Business Day at a Place of Payment, then payment of the principal amount, premium, if any, or interest, need not be made on such date at such Place of Payment, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the date for such payment or the date fixed for redemption, and no interest shall accrue for the period after such date.
All payments in respect of the Securities and the Guarantees shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, levies, assessments or governmental charges of whatever nature (“Taxes”) imposed or levied by or on behalf of (a) the United States and any other jurisdiction (or any political subdivision or taxing authority thereof or therein) in which the Issuer or any of the Guarantors is incorporated or organized or resident (or deemed for tax purposes to be resident) (including, for the avoidance of doubt, any jurisdiction in which a successor to the relevant Issuer or any Guarantor is incorporated, organized or resident (or deemed for tax purposes to be resident), or (b) the jurisdiction (or any political subdivision or taxing authority thereof or therein) from or through which a payment on the Securities or the Guarantees is made by or on behalf of the relevant Issuer or a Guarantor (each, an “Applicable Taxing Jurisdiction”), unless such Taxes are required by the Applicable Taxing Jurisdiction to be withheld or deducted. In that event, the Issuer or the Guarantors will pay by way of additional interest on the Securities such additional amounts of, or in respect of, principal, premium, if any, and interest (“Additional Amounts”) as will result (after deduction of such taxes and any additional taxes payable in respect of such Additional Amounts) in the payment to each Holder of the Securities of the amounts that would have been payable in respect of such Security or Guarantee had no such withholding or deduction been required, except that no Additional Amounts shall be so payable for or on account of:
| 34 |
| (a) | any Taxes that would not have been imposed but for the fact that such Holder: |
| (i) | is or was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, the Applicable Taxing Jurisdiction or otherwise had some connection with the Applicable Taxing Jurisdiction other than the mere ownership of, or receipt of payment under, such Security or Guarantee; |
| (ii) | presented (if presentation is required) such Security or Guarantee, as the case may be, more than thirty (30) days after the date on which the payment in respect of such Security first became due and payable or provided for, whichever is later, except to the extent that the Holder would have been entitled to such Additional Amounts if it had presented such Security or Guarantee for payment on any day within such period of thirty (30) days; or |
| (iii) | is or was a personal holding company, a passive foreign investment company or a controlled foreign corporation for U.S. federal income tax purposes or a corporation that has accumulated earnings to avoid U.S. federal income tax; |
| (b) | any estate, inheritance, gift, sale, transfer, personal property or similar taxes; |
| (c) | any Taxes that are payable otherwise than by withholding or deduction from payments of, or in respect of, principal, premium, if any, or interest on such Securities or Guarantee, as the case may be; |
| (d) | any Taxes that are imposed or withheld by reason of (i) the holder or beneficial owner not delivering a valid, properly completed, U.S. Internal Revenue Service Form W-8 or W-9 or any successor or substitute form to any withholding agent or any other person, or (ii) the failure to comply by the Holder or the beneficial owner of the Security with a request from the relevant Issuer or any Guarantor addressed to the Holder and received by such Holder at least thirty (30) days prior to the first payment date with respect to which such information is required (a) to provide any other information concerning the nationality, residence or identity of the Holder or such beneficial owner or (b) to make any other declaration or other similar claim or satisfy any other information or reporting requirement, which, in the case of (ii)(a) or (ii)(b), is required or imposed by a statute, treaty, regulation or administrative practice of the Applicable Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge; |
| (e) | any taxes payable pursuant to an agreement described in Section 1471(b) of the Code or otherwise imposed pursuant to Sections 1471 through 1474 of the Code, any regulations or agreements thereunder, official interpretations thereof, or any law implementing an intergovernmental approach thereto; |
| (f) | any U.S. federal withholding Taxes imposed as a result of the Holder or beneficial owner of the Security: (i) being a controlled foreign corporation for U.S. federal income tax purposes related to the relevant Issuer or Guarantor; (ii) being or having been a “10-percent shareholder” of the Guarantor or the relevant Issuer as defined in Section 871(h)(3) of the Code; or (iii) being or being treated as a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business; or |
| 35 |
| (g) | any combination of items (a), (b), (c), (d), (e) and (f); |
nor shall Additional Amounts be paid with respect to any payment of the principal of, premium, if any, or interest on any such Security or Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of the Applicable Taxing Jurisdiction to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such Additional Amounts had it been the Holder of the Security.
All references herein, in the Indenture, and in one or more supplemental indentures thereto, the Securities and the Guarantees to principal, premium, if any, interest or any other amount payable in respect of any Security shall be deemed to include all Additional Amounts, if any, payable in respect of such principal, premium, interest or other amount payable, unless the context otherwise requires, and express mention of the payment of Additional Amounts in any provision hereof shall not be construed as excluding reference to Additional Amounts in those provisions hereof where such express mention is not made.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the Guarantors, on the one hand, and the rights of the Holders of the Securities of each series on the other hand to be affected under the Indenture at any time by the Issuer, the Guarantors and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive, on behalf of the Holders of all Securities of such series, compliance by the Issuer or the Guarantors, or all or any of them, with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
[If applicable, insert — Each Holder hereby consents to the Issuer or any Guarantor (or any additional or successor Guarantor) applying to a court of competent jurisdiction for an order sanctioning a reduction in any of its share capital accounts including, without limitation, by re-characterizing any sum standing to the credit of a share premium account as a distributable reserve (a “Reduction of Capital”). Each Holder hereby authorizes and requests the Trustee and the Paying Agent, as applicable, on behalf of the Holder, to sign any necessary form of consent that the Issuer or any Guarantor (or any additional or successor Guarantor) may reasonably request in connection with a Reduction of Capital.]
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture, or for the appointment of a receiver or trustee, or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of at least 25% in aggregate principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee indemnity satisfactory to it, and the Trustee shall not have received from the Holders of a majority in aggregate principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request, and the Trustee shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest (including Additional Amounts) hereon on or after the respective due dates expressed herein.
| 36 |
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Issuer in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer, the Guarantors and the Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, shall be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations of U.S.$ [ ] and any integral multiple of U.S.$ [ ] in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Issuer or the Agents may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer to the Registrar (and written notification from the Registrar thereof), the Issuer, the Guarantors, the Trustee, the Agents and any agent of the Issuer, the Guarantors or the Trustee or Agents 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 Issuer, the Guarantors, the Trustee, the Agents nor any such agent shall be affected by notice to the contrary.
[This Security is a Global Security and is subject to the provisions of the Indenture relating to Global Securities, including the limitations in Section 3.5 thereof on transfers and exchanges of Global Securities.]
[Insert other terms applicable to the Securities, as appropriate.]
This Security, the Guarantees and the Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
All terms used in this Security and the Guarantees set forth below which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of this Security, shall be construed as though they were written out in full according to applicable laws or regulations:
| 37 |
| TEN COM - as tenants in common | UNIF GIFT MIN ACT—________________ |
| TEN ENT - as tenants by the entireties |
(Cust) Custodian ________________ under Uniform |
| JT TEN - as joint tenants with right of survivorship and not as tenants in common |
(Minor) Gifts to Minors Act ______________ (State) |
Additional abbreviations may also be used though not in the above list.
| 38 |
[IF SECURITY IS A GLOBAL SECURITY, INSERT AS A SEPARATE PAGE—
Schedule A
SCHEDULE OF ADJUSTMENTS
Initial Principal Amount: U.S.$
| Date adjustment made | Principal amount increase | Principal amount | Principal amount following adjustment | Notation made on behalf of the Registrar |
| 2.4 | Form of Trustee’s Certificate of Authentication. |
The Trustee’s and the Authenticating Agent’s, as applicable, certificate of authentication shall be in substantially the following form: Certificate of Authentication:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
|
Dated:
WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee
By: CITIBANK, N.A. as Authenticating Agent ________________________________ Authorized Signatory
|
| 39 |
ARTICLE
Three
The Securities
| 3.1 | Amount Unlimited; Issuable in Series. |
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant to Board Resolutions of the relevant Issuer and each Guarantor, as appropriate, and, subject to Section 3.3, set forth, or determined in the manner provided, in an Officers’ Certificate, or established in one or more supplemental indentures hereto, prior to the issuance of Securities of any series,
| (a) | the identity of the relevant Issuer; |
| (b) | the title of the Securities, including “CUSIP” and “ISIN” numbers, of the series (which shall distinguish the Securities of the series from Securities of any other series); |
| (c) | any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, or upon partial redemption of, other Securities of the series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.7 and except for any Securities which, pursuant to Section 3.3, are deemed never to have been authenticated and delivered hereunder); |
| (d) | the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest; |
| (e) | the date or dates on which the principal of, and any premium on, the Securities of the series is payable; |
| (f) | the rate or rates at which the Securities of the series shall bear interest, if any, the date or dates from which any such interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any interest payable on any Interest Payment Date; |
| (g) | the place or places where the principal of and any premium and interest on Securities of the series shall be payable and the manner in which any payment may be made; |
| (h) | if applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series may be redeemed, in whole or in part, at the option of the relevant Issuer of such Securities and, if other than by a Board Resolution, the manner in which any election by the relevant Issuer of such Securities to redeem the Securities shall be evidenced and any provisions in addition to or in lieu of the provisions of Article Eleven applicable to Securities of the series; |
| (i) | the obligation, if any, of the relevant Issuer to redeem or purchase any Securities of the series at the option of the Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation; |
| 40 |
| (j) | if other than denominations of U.S.$1,000 and any integral multiple of U.S.$1,000 in excess thereof, the denominations in which any Securities of the series shall be issuable; |
| (k) | if the amount of principal of, premium, if any, or interest on any Securities of the series may be determined with reference to an index or pursuant to a formula, the manner in which such amounts shall be determined; |
| (l) | if other than the currency of the United States of America, the currency, currencies or currency units (including composite currencies) in which payment of the principal of and any premium and interest on any Securities of the series shall be payable and the manner of determining the equivalent thereof in the currency of the United States of America for any purpose, including for purposes of the definition of “Outstanding” in Section 1.1; |
| (m) | if the principal of, premium, if any, or interest on any Securities of the series is to be payable, at the election of the relevant Issuer or the Holder thereof, in one or more currencies or currency units (including composite currencies) other than that or those in which such Securities are stated to be payable, the currency, currencies or currency units (including composite currencies) in which the principal of, premium, if any, or interest on such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and the amount so payable (or the manner in which such amount shall be determined); |
| (n) | if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.2; |
| (o) | if other than as provided in Section 2.1, the form or forms of the Securities; |
| (p) | if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined); |
| (q) | where appropriate, that the Securities of the series, in whole or any specified part, shall not be defeasible pursuant to Section 12.2 or Section 12.3 or both such Sections and, if other than by a Board Resolution, the manner in which any election by the relevant Issuer to defease such Securities shall be evidenced; |
| (r) | if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by any such Global Security in addition to or in lieu of that set forth in Section 2.2 and any circumstances in addition to or in lieu of those set forth in Section 3.5 in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof, and any circumstances in addition or in lieu of those set forth in Section 3.5 in which transfers of interests in Global Securities may be made; |
| 41 |
| (s) | any addition to or change in the covenants set forth in Article Ten which applies to the Securities of the series; |
| (t) | the guarantees to apply with respect to the Securities of the series; and |
| (u) | if there is more than one Trustee, the identity of the Trustee and, if not Citibank, N.A., the identity of each Agent, as applicable, with respect to such Securities; |
| (v) | any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 9.1(e)). |
All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be established in or pursuant to Board Resolutions or supplemental indentures referred to above.
To the extent any terms of the Securities of the series are established pursuant to Board Resolutions or supplemental indentures, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the relevant Issuer and each Guarantor, as the case may be, and delivered to the Trustee and the Paying Agent at or prior to the delivery of the Officers’ Certificate setting forth the terms of the series.
| 3.2 | Denominations. |
The Securities of each series shall be issuable only in registered form without coupons and only in such denominations as shall be specified as contemplated by Section 3.1. In the absence of any such specified denomination with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of U.S.$1,000 and any integral multiples of U.S.$1,000 in excess thereof.
| 3.3 | Execution, Authentication, Delivery and Dating. |
The Securities shall be executed on behalf of the relevant Issuer by any one Director or Authorized Officer of the relevant Issuer. The signature of any such Director or Authorized Officer of the relevant Issuer on the Securities may be manual, electronic or facsimile.
Securities bearing the manual, electronic or facsimile signatures of individuals who were at any time the proper Director or Authorized Officer of the relevant Issuer shall bind the relevant Issuer notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the relevant Issuer may deliver Securities of any series executed by the relevant Issuer to the Trustee and the Authenticating Agent for authentication, together with an Issuer Order for the authentication and delivery of such Securities, and the Trustee (if the Securities are to be authenticated by both the Trustee and the Authenticating Agent) and the Authenticating Agent in accordance with such Issuer Order shall authenticate and deliver such Securities. In authenticating such Securities, and/or accepting the additional responsibilities under this Indenture in relation to such Securities, as applicable, the Trustee and the Authenticating Agent shall be entitled to receive, and (subject to Sections 6.1 and 6.3) shall be fully protected in relying upon, without investigation, an Opinion of Counsel (which may be an opinion pertaining to New York law only and which may be subject to any conditions and assumptions specified in such Opinion of Counsel) stating,
| 42 |
| (a) | if any form of such Securities has been established pursuant to Board Resolutions or indentures supplemental hereto as permitted by Section 2.1, that such form has been established in conformity with the provisions of this Indenture; |
| (b) | if any terms of such Securities have been established pursuant to Board Resolution or indentures supplemental hereto as permitted by Section 3.1, that such terms have been established in conformity with the provisions of this Indenture; and |
| (c) | that all conditions precedent to the authentication and delivery of such securities have been complied with and that, when such Securities have been authenticated and delivered by the Authenticating Agent and issued by the relevant Issuer in the manner and subject to any conditions and assumptions specified in such Opinion of Counsel, such Securities (in the case of the Issuer) and the Guarantees thereof (in the case of Guarantors) will constitute valid and legally binding obligations of the relevant Issuer and the Guarantors, respectively, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles and to such other matters as counsel shall specify therein. |
The Trustee or any Agent (including, without limitation, the Authenticating Agent) shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s or such Agent’s, as applicable, own rights, duties or immunities under the Securities, the Guarantees and this Indenture or otherwise in a manner which is not acceptable to the Trustee or such Agent, as applicable, or if the Trustee or such Agent, as applicable, being advised by counsel, determines that such action may not be lawfully taken.
Notwithstanding the provisions of Section 3.1 and of the second preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers’ Certificate otherwise required pursuant to Section 3.1 or the Issuer Order and Opinion of Counsel otherwise required pursuant to such second preceding paragraph at or prior to the authentication of such Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued and reasonably contemplate the original issuance of such Security of such series.
Each Security shall be dated the date of its authentication.
No Security or related Guarantee shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Authenticating Agent by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security or Guarantee has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the relevant Issuer, and the relevant Issuer shall deliver such Security to the Registrar for cancellation as provided in Section 3.9, for all purposes of this Indenture such Security and any Guarantee shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture including, if applicable, the Guarantee.
| 43 |
Each Guarantor by its execution of this Indenture or an indenture supplemental hereto authorizes the relevant Issuer, in the name and on behalf of such Guarantor, to confirm the Guarantee of such Guarantor to the Holder of each Security authenticated and delivered hereunder by its execution and delivery of each such Security, with such Guarantee noted thereon, authenticated and delivered by the Authenticating Agent. The Guarantee of a Guarantor with respect to any Security, whether established by this Indenture, by Board Resolutions of such Guarantor in accordance with Section 3.1 or by an indenture supplemental hereto, shall bind such Guarantor notwithstanding the fact that no Guarantee may be endorsed on such Security.
| 3.4 | Temporary Securities. |
Pending the preparation of definitive Securities of any series, the relevant Issuer may execute temporary Securities, and upon compliance with Section 3.3 the Authenticating Agent shall authenticate and deliver, such temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the Directors or Authorized Officers executing such Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the relevant Issuer shall cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of such Issuer in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the relevant Issuer shall execute, and the Authenticating Agent shall authenticate and deliver in exchange therefor, one or more definitive Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series and tenor.
| 3.5 | Registration, Registration of Transfer and Exchange. |
| (a) | General |
The relevant Issuer shall cause to be kept at the Corporate Trust Office of the Trustee or with the Registrar, as applicable, a register (the register maintained in such office and in any other office or agency of the relevant Issuer in a Place of Payment being herein sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the relevant Issuer shall provide for the registration of Securities and of transfers of Securities. Citibank, N.A. is hereby appointed by the relevant Issuer as the initial “Registrar” for the purpose of registering Securities and transfers of Securities as herein provided. For the avoidance of doubt, the Trustee shall be able to conclusively rely on information provided by the Registrar.
Upon surrender for registration of transfer of any Security of a series at the office or agency of the relevant Issuer in a Place of Payment for that series, the relevant Issuer shall execute, and the Authenticating Agent shall authenticate and deliver in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of like terms and aggregate principal amount.
| 44 |
Subject to this Section 3.5, at the option of the Holder, Securities of any series may be exchanged for other Securities of the same series, of any authorized denominations and of like terms and aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the relevant Issuer shall execute, and the Authenticating Agent shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the relevant Issuer (and the related Guarantees shall be the valid obligations of the Guarantors), evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange thereof.
Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the relevant Issuer or the Registrar) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the relevant Issuer and the Registrar and duly executed, by the Holder thereof or his attorney duly authorized in writing. Such transfer or exchange will be effected upon the Registrar being satisfied with the documents of title and identity of the people making the request.
No service charge shall be made for any registration of transfer or exchange of Securities, but the relevant Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Sections 3.4, 9.6 or 11.7 not involving any transfer.
If the Securities of any series are to be redeemed in part, the relevant Issuer shall not be required (A) to issue, register the transfer of or exchange any Securities of that series (or of that series and specified terms, as the case may be) during a period beginning at the opening of business 15 days before the day of the giving of a notice of redemption of any such Securities selected for redemption under Section 11.3 and ending at the close of business on the day of such mailing, or (B) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
| (b) | Global Securities |
Except as otherwise provided pursuant to Section 3.1, this Section 3.5(b) shall apply only to Global Securities.
| (i) | Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture. |
| (ii) | Notwithstanding any other provision in this Indenture or the Securities, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary or a nominee thereof unless (A) the Depositary (i) has notified the relevant Issuer at any time that it is unwilling or unable to continue as Depositary for such Global Security and a successor Depositary is not appointed within 90 days or (ii) has ceased to be registered as a clearing agency under the Exchange Act and a successor Depositary is not appointed within 90 days, (B) there shall have occurred and be continuing an Event of Default with respect to the Securities of such series or (C) a request for certificates has been made by the relevant Issuer upon 60 days’ prior written notice given to the Registrar (with a copy to the Trustee) in accordance with the Depositary’s customary procedures and a copy of such notice has been received by the relevant Issuer from Registrar (with a copy provided by the Registrar to the Trustee). |
| 45 |
Any Global Security exchanged pursuant to Clause (A) above shall be so exchanged in whole and not in part and any Global Security exchanged pursuant to Clause (B) or (C) above may be exchanged in whole or from time to time in part as directed by the Depositary. Any Security issued in exchange for a Global Security or any portion thereof shall be a Global Security; provided that any such Security so issued that is registered in the name of a Person other than the Depositary or a nominee thereof shall not be a Global Security.
| (iii) | Securities issued in exchange for a Global Security or any portion thereof pursuant to Clause (ii) above shall be issued in definitive, fully registered form, without interest coupons, shall have an aggregate principal amount equal to that of such Global Security or portion thereof to be so exchanged, shall be registered in such names and be in such authorized denominations as the Depositary shall designate and shall bear any legends required hereunder. Any Global Security to be exchanged in whole shall be surrendered by the Depositary to the Paying Agent or the Registrar, as applicable. With regard to any Global Security to be exchanged in part, either such Global Security shall be so surrendered for exchange or, if the Paying Agent or the Registrar, as applicable, is acting as custodian for the Depositary or its nominee with respect to such Global Security, the principal amount thereof shall be reduced, by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records of the Trustee or Registrar, as applicable. Upon any such surrender or adjustment, the Authenticating Agent shall authenticate and deliver the Security issuable on such exchange to or upon the order of the Depositary or an authorized representative thereof. |
| (iv) | In the event of the occurrence of any of the events specified in Clause (2) above, the relevant Issuer shall promptly make available to the Authenticating Agent a reasonable supply of certificated Securities in definitive, fully registered form, without interest coupons. |
| (v) | Neither any members of, or participants in, the Depositary (“Agent Members”) nor any other Persons on whose behalf Agent Members may act (including Euroclear Bank, S.A./N.V. (“Euroclear”) and Clearstream Banking, S.A. (“Clearstream”) and account holders and participants therein) shall have any rights under this Indenture with respect to any Global Security, or under any Global Security, and the Depositary or such nominee, as the case may be, may be treated by the relevant Issuer, the Trustee, the Agents and any agent of the relevant Issuer, the Trustee and the Agents, as applicable, as the absolute owner and holder of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the relevant Issuer, the Trustee and the Agents or any agent of the relevant Issuer, the Trustee and the Agents, as applicable, from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any other person on whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of a Holder of any Security. |
| (vi) | None of the Trustee, the Agents or any Agent Member shall have any responsibility for any actions taken or not taken by the Depositary. |
| 46 |
| 3.6 | Mutilated, Destroyed, Lost and Stolen Securities. |
If any mutilated Security is surrendered to the Registrar, the relevant Issuer shall execute and the Authenticating Agent shall authenticate and deliver in exchange therefor, a new Security of the same series and of like tenor and principal amount, having and bearing a number not contemporaneously outstanding.
If there shall be delivered to the relevant Issuer, the Trustee, the Registrar and the Authenticating Agent (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to hold each of them and any of their agents harmless, then, in the absence of notice to the relevant Issuer, the Trustee, the Registrar or the Authenticating Agent that such Security has been acquired by a bona fide purchaser, the relevant Issuer shall execute, and, the Authenticating Agent shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount, and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the relevant Issuer or any Guarantor, each in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the relevant Issuer or the Guarantors may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses (including attorney’s fees and expenses) of the Trustee and the Registrar) connected therewith.
Every new Security of any series issued pursuant to this Section in exchange for any mutilated Security or in lieu of any destroyed, lost or stolen Security, and any Guarantee thereof, shall constitute an original contractual obligation of the relevant Issuer and the Guarantors, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities and Guarantees of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
| 3.7 | Payment of Interest; Interest Rights Preserved. |
Interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the relevant Issuer, at its election in each case, as provided in Clause (a) or (b) below:
| (a) | The relevant Issuer or a Guarantor may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The relevant Issuer or a Guarantor shall notify the Trustee and Paying Agent in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the relevant Issuer shall deposit with the Trustee or the Paying Agent, as applicable, an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee or the Paying Agent, as applicable, for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. |
| 47 |
Thereupon the relevant Issuer or such Guarantor shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee and the Paying Agent of the notice of the proposed payment. The relevant Issuer or such Guarantor shall promptly notify the Trustee and the Paying Agent of such Special Record Date and, in the name and at the expense of the relevant Issuer or such Guarantor, the Paying Agent shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class prepaid postage, to each Holder of Securities of such series in the manner set forth in Section 1.5, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (b).
| (b) | The relevant Issuer or a Guarantor may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after written notice given by the relevant Issuer or such Guarantor to the Trustee and the Paying Agent of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee and the Paying Agent. |
Subject to the foregoing provisions of this Section 3.7, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
| 3.8 | Persons Deemed Owners. |
Prior to due presentment of a Security for registration of transfer to the Registrar, the relevant Issuer, the Guarantors, the Trustee, the Registrar, the Paying Agent and any agent of the relevant Issuer, the Guarantors, the Trustee, the Registrar and the Paying Agent, as applicable, may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Section 3.7) interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and none of the relevant Issuer, the Guarantors, the Trustee, the Registrar, the Paying Agent nor any agent of the relevant Issuer, any Guarantor, the Trustee, the Registrar or the Paying Agent, as applicable, shall be affected by notice to the contrary. For the avoidance of doubt, in connection with the foregoing, the Trustee shall be able to conclusively rely on information provided by the Registrar.
| 3.9 | Cancellation. |
All Securities surrendered for payment, redemption, registration of transfer or exchange shall, if surrendered to any Person other than the Trustee or the Registrar, as applicable, be delivered to the Registrar, as applicable, and shall be promptly cancelled by it.
| 48 |
The relevant Issuer or any Guarantor may at any time deliver to the Trustee or the Registrar, as applicable, for cancellation any Securities previously authenticated and delivered hereunder which the relevant Issuer or any Guarantor may have acquired in any manner whatsoever, and may deliver to the Trustee or Registrar, as applicable (or to any other Person for delivery to the Trustee or Registrar, as applicable) for cancellation any Securities previously authenticated hereunder which the relevant Issuer has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee or Registrar, as applicable. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee or Registrar, as applicable, shall be disposed of in accordance with the Trustee’s or Registrar’s customary practice.
| 3.10 | Computation of Interest. |
Except as otherwise established as contemplated by Section 3.1 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
| 3.11 | Further Issues |
The relevant Issuer of a series of Securities may, without the consent of the holders, issue additional Securities on terms and conditions identical to those of the Securities of such series other than with respect to the date of issuance, the issue price and the date from which interest will accrue. Such additional Securities will increase the aggregate principal amount of, and will be consolidated and form a single series with, such Securities; provided, however, that if such additional Securities are not fungible with such Securities for U.S. federal income tax purposes, such additional Securities will have a separate CUSIP or other identifying number from those of the Securities.
| 3.12 | CUSIP and ISIN Numbers. |
The relevant Issuer in issuing the Securities may use “CUSIP” and “ISIN” numbers (if then generally in use), and, if so, the Trustee or Agents shall use “CUSIP” and “ISIN” numbers in notices as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice and that reliance may be placed only on the other identification numbers printed on the Securities, and any such notice shall not be affected by any defect in or omission of such numbers. The relevant Issuer shall promptly notify the Trustee and Agents in writing of any change in the “CUSIP” and “ISIN” numbers.
| 3.13 | Agents. |
The rights, powers, duties, obligations and actions of the Trustee and of each Agent under this Indenture are several and not joint or joint and several. Except as otherwise provided herein, neither the Trustee nor any Agent shall be under any fiduciary duty whatsoever to any Person hereunder, nor shall any of them have any other obligation towards, or have any relationship or other agency or trust, for or with any Person other than the Issuers and the Guarantors. The Trustee shall not be deemed to be an Agent except to the extent it is separately appointed and agrees in writing to act as such.
| 3.14 | Withholding. |
Payments of principal and interest in respect to the Securities are subject in all cases to any withholding or deduction required pursuant to an agreement described in Section 1471(b) of the Code or otherwise imposed pursuant to Sections 1471 through 1474 of the Code, any regulations or agreements thereunder, official interpretations thereof, or any law implementing an intergovernmental approach thereto.
| 49 |
ARTICLE
Four
Satisfaction and Discharge
| 4.1 | Satisfaction and Discharge of Indenture. |
This Indenture shall upon request of the relevant Issuer, made in an Issuer Request, cease to be of further effect (except as provided in the last paragraph to this Section 4.1) with respect to the relevant Issuer’s and the Guarantors’ obligations in respect of all Securities of the relevant Issuer, and the Trustee, at the expense of the relevant Issuer, shall execute instruments in form and substance satisfactory to the Trustee, the relevant Issuer and the Guarantors acknowledging satisfaction and discharge of this Indenture with respect to the relevant Issuer and its Securities, when
| (a) | either: |
| (i) | all Securities of the relevant Issuer theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.6 and (ii) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the relevant Issuer or a Guarantor and thereafter repaid to the relevant Issuer or such Guarantor, as the case may be, or discharged from such trust, as provided in Section 10.3) have been delivered to the Trustee or any Agent for cancellation; or |
| (ii) | all such Securities not theretofore delivered to the Trustee or any Agent for cancellation |
| (A) | have become due and payable, or |
| (B) | will become due and payable at their Stated Maturity within one year, or |
| (C) | are to be called for redemption within one year under arrangements satisfactory to the Trustee or any Agent for the giving of notice of redemption by the Trustee or any Agent in the name, and at the expense, of the relevant Issuer, |
and the relevant Issuer or a Guarantor, in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be deposited with the Paying Agent as trust funds for the purpose money in an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee or any Agent for cancellation, for principal, premium, if any, and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
| (b) | the relevant Issuer or a Guarantor has paid or caused to be paid or made provision satisfactory to the Trustee and the Agents, as applicable, for the payment of all other sums payable hereunder by the relevant Issuer; and |
| (c) | the relevant Issuer has delivered to the Trustee and the Agents an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with. |
| 50 |
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Issuers and the Guarantors to the Trustee and the Agents and the lien of the Trustee under Section 6.7, the obligations of the relevant Issuer to any Authenticating Agent under Section 6.4, any obligations of the Trustee and the Agents under Section 4.2, the rights and obligations set forth in the last paragraph of Section 10.3 and any rights of registration of transfer, exchange or replacement of Securities provided in Sections 3.4, 3.5, 3.6, 9.6, 10.2 or 11.7 and any rights to Additional Amounts pursuant to Section 10.7 shall survive.
| 4.2 | Application of Trust Money. |
Subject to the provisions of the last paragraph of Section 10.3, all money deposited with [an Agent] pursuant to Section 4.1 shall be held in trust and applied by [such Agent], in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through the Paying Agent (including the relevant Issuer or any Guarantor acting as its own Paying Agent) as the Registrar may determine, to the Persons entitled thereto, of the principal (and premium, if any) and any interest for whose payment such money has been deposited with the Paying Agent.
ARTICLE
Five
Remedies
| 5.1 | Events of Default. |
“Event of Default”, wherever used herein with respect to Securities of any series of the relevant Issuer or the Guarantees thereof, means any one of the following events with respect to the relevant Issuer of such series or any Guarantor (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
| (a) | default in the payment of the principal of or any premium on any Security of that series at its Maturity; or |
| (b) | default in the payment of any interest (including Additional Amounts, if any) upon any Security of that series when it becomes due and payable, and continuance of such default for a period of 30 days; or |
| (c) | default in the performance, or breach, of any other covenant or warranty of the relevant Issuer of the Securities of that series or any Guarantor in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section 5.1 specifically dealt with or which has expressly been established as contemplated by Section 3.1 solely for the benefit of a series of Securities other than that series) and continuance of such default or breach for a period of 45 days after there has been given, by registered or certified mail, to the relevant Issuer and the Guarantors by the Trustee or to the relevant Issuer, the Guarantors and the Trustee by the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of that series a written notice specifying such default or breach, requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or |
| (d) | a default or defaults under any bond, debenture, note or other evidence of indebtedness for money borrowed by the relevant Issuer or any Guarantor (including a default with respect to Securities of any series other than that series) having an aggregate principal amount outstanding of at least GBP30,000,000 (or the equivalent thereof in other currencies or currency units), or under any mortgage, |
| 51 |
indenture, agreement or instrument (including this Indenture) under which there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed by the relevant Issuer or any Guarantor having an aggregate principal amount outstanding of at least GBP30,000,000 (or the equivalent thereof in other currencies or currency units), whether such indebtedness now exists or shall hereafter be created, which default shall have resulted in such indebtedness (in each such case being, such indebtedness of at least GBP30,000,000 (or the equivalent thereof in other currencies or currency units) aggregate principal amount outstanding) becoming or being validly declared due and payable prior to the date on which it would otherwise have become due and payable, without such indebtedness having been discharged or such acceleration having been rescinded or annulled within a period of 10 days after there shall have been given, by registered or certified mail, to the relevant Issuer and the Guarantors by the Trustee a written notice specifying such default and requiring the relevant Issuer or any Guarantor, as the case may be, to cause such indebtedness to be discharged or cause such acceleration to be rescinded or annulled, as the case may be, and stating that such notice is a “Notice of Default” hereunder; provided, however, that, subject to the provisions of Sections 6.1 and 6.2, the Trustee shall not be deemed to have knowledge or notice of such default unless either (A) a Responsible Officer of the Trustee shall have actual knowledge of such default or (B) the Trustee shall have received at the Corporate Trust Office of the Trustee written notice of such default from the relevant Issuer or from any Guarantor; or
| (e) | the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the relevant Issuer or any Guarantor or any Significant Subsidiary of the Parent Guarantor in an involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization, examinership or other similar law or (B) a decree or order adjudging the relevant Issuer or any Guarantor or any Significant Subsidiary of the Parent Guarantor a bankrupt or insolvent or their property en désastre, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the relevant Issuer or any Guarantor or any Significant Subsidiary of the Parent Guarantor, as the case may be, under any applicable law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator, examiner or other similar official (including the Viscount in the case of a désastre) of the relevant Issuer, any Guarantor or any Significant Subsidiary of the Parent Guarantor or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days in any such case other than such decree or order made or a resolution passed for the purposes of a reconstruction, amalgamation or reorganization where the relevant Issuer or any Guarantor or the relevant Significant Subsidiary is solvent; or |
| (f) | the commencement by the relevant Issuer or any Guarantor or any Significant Subsidiary of the Parent Guarantor of a voluntary case or proceeding (including a winding up or désastre proceedings) under any applicable bankruptcy, insolvency, reorganization, examinership or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the relevant Issuer or any Guarantor or any Significant Subsidiary of the Parent Guarantor, as the case may be, in an involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization, examinership or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, examiner or other similar official (including the Viscount in the case of a désastre) of the relevant Issuer or any Guarantor or any Significant Subsidiary of the Parent Guarantor or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the relevant Issuer or any Guarantor or any Significant Subsidiary of the Parent Guarantor in furtherance of any such action in any such case other than such case or proceeding undertaken, consent given or filing made for the purposes of a reconstruction, amalgamation or reorganization where the relevant Issuer or any Guarantor or the relevant Significant Subsidiary is insolvent; |
| 52 |
| (g) | any Guarantee of Securities of that series is held by a final, non-appealable order resulting from any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect or any Guarantor or any Person acting on behalf of any Guarantor, denies or disaffirms its obligations under the Guarantees of Securities of that series; or |
| (h) | any other Event of Default established as contemplated by Section 3.1 with respect to Securities of that series. |
An Event of Default for one series of Securities shall not necessarily constitute an Event of Default for any other series of Securities issued hereunder.
| 5.2 | Acceleration of Maturity; Rescission and Annulment. |
If an Event of Default with respect to Securities of any series of the relevant Issuer at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of that series of the relevant Issuer may declare the aggregate principal amount of all the Securities of that series of the relevant Issuer to be due and payable immediately, by a notice in writing to the relevant Issuer and the Guarantors (and to the Trustee if given by Holders), and upon any such declaration such aggregate principal amount (or specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series at the time Outstanding has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article Five provided, the Holders of a majority in aggregate principal amount of the Outstanding Securities of that series, by written notice to the relevant Issuer and the Trustee, may rescind and annul such declaration and its consequences if:
| (a) | the relevant Issuer or the Guarantors have paid or deposited with the Trustee or the Paying Agent a sum sufficient to pay: |
| (i) | all overdue interest and any Additional Amounts thereon on all of the Securities of that series; |
| (ii) | the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of acceleration and any interest thereon at the rate or rates prescribed therefor in such Securities; |
| (iii) | to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates established pursuant to Section 3.1 therefor; and |
| (iv) | all sums paid or advanced by the Trustee and the Agents, as applicable, hereunder and the documented compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, the Agents, their counsel, and all amounts due to the Trustee under Section 6.7; and |
| 53 |
| (b) | all Events of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series which has become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13. |
No such rescission shall affect any subsequent default or impair any right consequent thereon.
| 5.3 | Collection of Indebtedness and Suits for Enforcement by Trustee. |
The relevant Issuer and each Guarantor covenant that if:
| (a) | default is made in the payment of any interest (including any Additional Amounts) on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or |
| (b) | default is made in the payment of the principal (including any Redemption Price) of, or premium, if any, on any Security at the Maturity thereof, |
the relevant Issuer and the Guarantors will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal, premium, if any, and interest, and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates established pursuant to Section 3.1 therefor, together with any Additional Amounts thereon, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the documented compensation, expenses, fees, disbursements and advances of the Trustee, its agents and counsel, the Agents, their counsel, and any other amounts due the Trustee under Section 6.7.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of that series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
| 5.4 | Trustee May File Proofs of Claim. |
In case of any judicial proceeding relative to the relevant Issuer and any Guarantor (or any other obligor upon the Securities of a series), their property or their creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator, examiner or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the documented compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, the Agents, their counsel, and any other amounts due the Trustee under Section 6.7.
| 54 |
| 5.5 | Trustee May Enforce Claims Without Possession of Securities. |
All rights of action and claims under this Indenture or the Securities or the Guarantees may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the documented compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and other amounts due to it under Section 6.7, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
| 5.6 | Application of Money Collected. |
Any money and other property collected by the Trustee pursuant to this Article Five shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or any premium or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and the Agents, as applicable, and any predecessor thereof under Section 6.7;
SECOND: To the payment of the amounts then due and unpaid for principal of and any premium and interest on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal, premium, if any, and interest, respectively; and
THIRD: The balance, if any, to the relevant Issuer, to the Guarantors or any other Person or Persons entitled thereto.
| 5.7 | Limitation on Suits. |
No Holder of any Securities of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
| (a) | such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series; |
| (b) | the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute action or proceedings in respect of such Event of Default in its own name as Trustee hereunder; |
| (c) | such Holder or Holders have offered to the Trustee indemnity satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request; |
| (d) | the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such action or proceeding; and |
| (e) | no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in aggregate principal amount of the Outstanding Securities of that series; |
| 55 |
| (f) | it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders). For the protection and enforcement of the provisions of this Section 5.7, each and every Holder of the Outstanding Securities of any series and the Trustee shall be entitled, subject to Section 5.13, to such relief as can be given at law or in equity. |
| 5.8 | Unconditional Right of Holders to Receive Principal, Premium and Interest. |
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Section 3.7) interest on such Security pursuant to the terms thereof or the Guarantees thereof (and any Additional Amounts) on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
| 5.9 | Restoration of Rights and Remedies. |
If the Trustee, Agents, or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee, Agents, or to such Holder, then and in every such case, subject to any determination in such proceeding, the relevant Issuer, the Guarantors, the Trustee, Agents, and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee, the Agents, and the Holders shall continue as though no such proceeding had been instituted.
| 5.10 | Rights and Remedies Cumulative. |
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 3.6, no right or remedy herein conferred upon or reserved to the Trustee, the Agents, or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
| 5.11 | Delay or Omission Not Waiver. |
No delay or omission of the Trustee, the Agents, or of any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article Five or by law to the Trustee, the Agents, or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee, the Agents, or by the Holders, as the case may be.
| 56 |
| 5.12 | Control by Holders. |
Subject to Section 6.3(e), the Holders of a majority in aggregate principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series; provided that:
| (a) | such direction shall not be in conflict with any rule of law or with this Indenture; |
| (b) | the Trustee shall not determine that the action so directed would be unjustly prejudicial to the Holders not taking part in such direction or result in individual liability for the Trustee; or |
| (c) | the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; |
provided, further that the Trustee shall be under no obligation to determine whether any such direction shall be in such conflict or so unjustly prejudicial.
Nothing in this Indenture shall impair the right of the Trustee in its discretion to take any action deemed proper by the Trustee and which is not inconsistent with such direction by Holders of Securities.
The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to this Article Five. Prior to taking any such action hereunder, the Trustee shall be entitled to indemnification satisfactory to it against all fees, losses, liabilities and expenses (including attorney’s fees and expenses) that may be caused by taking or not taking such action.
| 5.13 | Waiver of Past Defaults. |
The Holders of a majority in aggregate principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default
| (a) | in the payment of the principal of, premium, if any, or interest (including Additional Amounts, if any) on any Security of such series, or |
| (b) | in respect of a covenant or provision hereof which under Section 9 cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected. |
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
| 5.14 | Undertaking for Costs. |
In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs, including attorneys’ fees and expenses, against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act; provided that neither this Section 5.14 nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the relevant Issuer or any Guarantor, the Trustee, the Agents, or any Holder or group of Holders holding in aggregate more than 10% in aggregate principal amount of the Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of, premium, if any, or interest on any Outstanding Security of any series on or after the due date expressed in such Security in accordance with its terms.
| 57 |
| 5.15 | Waiver of Usury, Stay or Extension Laws. |
Each Issuer and each Guarantor covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and each Issuer and each Guarantor (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE
Six
The Trustee
| 6.1 | Certain Duties and Responsibilities. |
The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.1.
Except during the continuance of an Event of Default, (1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture.
In case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs.
The obligations and liabilities (including, without limitations, obligations and liabilities in connection with Article 10 of this Indenture) of (a) the Trustee, on the one hand, and (b) each Agent and/or Paying Agent, on the other hand, under this Indenture are separate and distinct, and neither shall be responsible for the acts or omissions of the other.
| 58 |
| 6.2 | Notice of Defaults. |
If a default occurs hereunder with respect to Securities of any series of which the Trustee has knowledge, the Trustee shall give the Holders of Securities of such series notice of such default as and to the extent provided by the Trust Indenture Act; provided, however, that in the case of any default of the character specified in Section 5.1(c) with respect to Securities of such series, no such notice to Holders shall be given until at least 45 days after the occurrence thereof. For the purpose of this Section 6.2, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.
| 6.3 | Certain Rights of Trustee. |
Subject to the provisions of Section 6.1:
| (a) | the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, security, bond, debenture, note, other evidence of indebtedness or other paper or document (whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or parties; |
| (b) | any request or direction of the relevant Issuer mentioned herein shall be sufficiently evidenced by an Issuer Request or Issuer Order and any resolution of the Board of Directors of the relevant Issuer or any Guarantor may be sufficiently evidenced by a Board Resolution; |
| (c) | whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely conclusively upon an Officers’ Certificate; |
| (d) | the Trustee may consult with counsel or other professional advisors of its own choice and the advice of such counsel or other professional advisors or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; |
| (e) | the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; |
| (f) | the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, security, bond, debenture, note, other evidence of indebtedness or other paper or document in connection with this Indenture, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the relevant Issuer, personally or by agent or attorney and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation; |
| (g) | the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; provided that the Trustee shall be required to terminate any such agent if it has actual knowledge of any failure by such agent to perform its delegated duties; |
| 59 |
| (h) | the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Trustee, unless it shall be proved that the Trustee was grossly negligent in ascertaining the pertinent facts; |
| (i) | the Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture; |
| (j) | the permissive rights of the Trustee enumerated herein shall not be construed as duties; |
| (k) | in no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action; |
| (l) | the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each Agent and to each other agent, custodian and other Person employed to act hereunder; |
| (m) | the Trustee may request that the relevant Issuer deliver an Officers’ Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded; |
| (n) | the Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder; |
| (o) | The Trustee shall not be liable for any acts or omissions, except for such losses, damages or expenses which have been finally adjudicated by a court of competent jurisdiction to have directly resulted from the Trustee’s gross negligence or willful misconduct; |
| (p) | The Trustee may, at the expense of the relevant Issuer, request, rely on and act in accordance with Officers’ Certificates and/or opinions of counsel, and shall incur no liability and shall be fully protected in acting or refraining from acting in accordance with such Officers’ Certificates and opinions of counsel; and |
| (q) | if the Trustee receives any conflicting, unclear or equivocal instructions, it may refrain from taking action until such conflict is resolved or such instructions are clarified and shall suffer no liability for so doing. |
| 60 |
| 6.4 | Not Responsible for Recitals or Issuance of Securities. |
The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Issuers or the Guarantors, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities or the Guarantees. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Issuers or the Guarantors of the Securities or the proceeds thereof.
| 6.5 | May Hold Securities. |
The Trustee, any Authenticating Agent, any Agent or any other agent of any Issuer, any Guarantor or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 6.8 and 6.13, may otherwise deal with the Issuers and the Guarantors with the same rights it would have if it were not Trustee, Authenticating Agent, any Agent or such other agent.
| 6.6 | Money Held in Trust. |
Money held by the Trustee or the Paying Agent hereunder need not be segregated from other funds except to the extent required by law. Neither the Trustee nor the Paying Agent shall be under any liability for interest on or investment of any money received by it hereunder except as otherwise agreed in writing with the relevant Issuer or the Guarantors, as the case may be.
| 6.7 | Compensation and Reimbursement. |
The Issuers and the Guarantors jointly and severally agree:
| (a) | to pay to the Trustee from time to time such compensation as shall be agreed in writing with the Issuers for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust and any payments 60 days past due shall be made with interest at the Trustee’s prime lending rate): |
| (b) | except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all expenses, fees, disbursements and advances incurred in good faith or made by the Trustee in accordance with any provision of this Indenture (including the compensation and the expenses, fees and disbursements of its agents and counsel), except to the extent any such expense, disbursement or advance may be attributable to its gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction; and |
| (c) | to indemnify each of the Trustee and its agents for, and to defend and hold it harmless against, any and all loss, liability, damage, claim or expense (including the compensation and the expenses and disbursements of its agents and counsel and including taxes payable by it, other than taxes based upon, measured by or determined by the income of the Trustee or such agent), arising out of or in connection with the acceptance or administration of the trust or trusts hereunder or the performance of its duties hereunder, including the costs and expenses of defending itself against any claim (whether asserted by the Issuers, the Guarantors or any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense may be attributable to its gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction. |
| 61 |
“Trustee” for purposes of this Section 6.7 shall include any predecessor Trustee, but the negligence or willful misconduct of any Trustee shall not affect the rights or obligations of any other Trustee hereunder. As used in this Section 6.7, “Trustee” shall also include each Agent, as applicable.
To secure the obligations under this Section 6.7, the Issuers, the Guarantors and the Holders acknowledge that pursuant to the trust arrangements hereunder, the Trustee has a first-priority lien against all money or other property held by the Trustee.
When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 5.1(e) or Section 5.1(f), the expenses (including charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable federal or state bankruptcy, insolvency or other similar law.
The provisions of this Section 6.7 shall survive the resignation or removal of the Trustee and the termination or expiration of this Indenture.
| 6.8 | Conflicting Interests. |
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series.
| 6.9 | Corporate Trustee Required; Eligibility. |
There shall at all times be one (and only one) Trustee hereunder with respect to the Securities of each series, which may be the Trustee hereunder for Securities of one or more other series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such, has a combined capital and surplus of at least U.S.$50,000,000. If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section 6.9 and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee with respect to the Securities of any series shall cease to be eligible in accordance with the provisions of this Section 6.9, it shall resign promptly in the manner and with the effect hereinafter specified in this Article.
| 6.10 | Resignation and Removal; Appointment of Successor. |
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article Six shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.
The Trustee and each Agent may resign at any time, without liability for doing so, with respect to the Securities of one or more series by giving written notice thereof to the relevant Issuer and the Guarantors. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction, at the expense of the relevant Issuer and the Guarantors, for the appointment of a successor Trustee with respect to the Securities of such series.
| 62 |
The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the relevant Issuer and the Guarantors. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of removal, the Trustee being removed may petition, at the expense of the relevant Issuer and the Guarantors, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
If at any time:
| (a) | the Trustee shall fail to comply with Section 6.8 after written request therefor by the relevant Issuer or any Guarantor or by any Holder who has been a bona fide Holder of a Security for at least six months; |
| (b) | the Trustee shall cease to be eligible under Section 6.9 and shall fail to resign after written request therefor by the relevant Issuer or any Guarantor or by any such Holder; or |
| (c) | the Trustee shall become incapable of acting or shall be adjudged bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation; |
then, in any such case, (A) the relevant Issuer or any Guarantor by a Board Resolution may remove the Trustee with respect to all Securities, or (B) subject to Section 5.4, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the relevant Issuer and the Guarantors, by Board Resolutions, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 6.1. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series delivered to the relevant Issuer, the Guarantors and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.1, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the relevant Issuer and the Guarantors. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the relevant Issuer and the Guarantors or the Holders and accepted appointment in the manner required by Section 6.1, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The relevant Issuer shall give notice or, having provided the Registrar with the form of such notice, shall cause the Registrar to give notice, of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 1.7. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
| 63 |
| 6.11 | Acceptance of Appointment by Successor. |
In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Issuers, the Guarantors and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of any Issuer, the Guarantors or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the relevant Issuer, the Guarantors, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver a supplemental indenture hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the relevant Issuer or any successor Trustee, such retiring Trustee shall, upon payment of its charges, duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the relevant Issuer and the Guarantors shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in the preceding paragraphs, as the case may be.
No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
| 64 |
| 6.12 | Merger, Conversion, Consolidation or Succession to Business. |
Any Person into which the Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or other entity succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder; provided such Person shall be otherwise qualified and eligible under this Article, without execution or filing of any paper or any further act on the part of any of the parties hereto. As soon as practicable, the successor Trustee shall mail a notice of its succession to the relevant Issuer, the Guarantors and the Holders of the Securities then Outstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee and itself authenticated such Securities.
| 6.13 | Preferential Collection of Claims Against Issuer or Guarantors. |
If and when the Trustee shall be or become a creditor of an Issuer or a Guarantor (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against an Issuer or a Guarantor (or any such other obligor).
| 6.14 | Appointment of Authenticating Agent. |
The Trustee with the consent of the relevant Issuer and the Guarantors, and at the cost and expense of the relevant Issuer and the Guarantors, may appoint an Authenticating Agent or Agents with respect to one or more series of Securities of the relevant Issuer which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon exchange, registration of transfer or partial redemption thereof and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Pursuant to this authority, and with the consent of the Issuers and the Guarantors, the Trustee hereby appoints Citibank, N.A. as Authenticating Agent for the Securities. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, except upon original issue or pursuant to Section 3.6, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the relevant Issuer and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than U.S.$50,000,000 and subject to supervision or examination by federal or State authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be the combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign promptly in the manner and with the effect specified in this Section 6.14.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to all or substantially all the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent; provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
| 65 |
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and the Paying Agent, to the relevant Issuer and to the Guarantors. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent, to the Paying Agent, to the relevant Issuer and to each of the Guarantors. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 6.14, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the relevant Issuer and (i) the Trustee shall give notice of such appointment to the Paying Agent, and (ii) the Paying Agent shall give notice of such appointment in the manner provided in Section 1.5 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 6.14.
The Issuers agree to pay to such Authenticating Agent from time to time such compensation as shall be agreed in writing for its services under this Section 6.14.
If an appointment with respect to one or more series is made pursuant to this Section 6.14, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:
[This is one of the Securities referred to in the within-mentioned Indenture.
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Trustee
By: CITIBANK, N.A.
as Authenticating Agent
By:
Authorized Signatory]
If all of the Securities of a series may not be originally issued at one time, and if the then current Authenticating Agent does not have an office capable of authenticating Securities upon original issuance located in a Place of Payment where the relevant Issuer wishes to have Securities of such series authenticated upon original issuance, the Trustee, if so requested by the relevant Issuer in writing or by facsimile (which writing need not comply with Section 1.2 and need not be accompanied by an Opinion of Counsel), shall, at the cost and expense of the relevant Issuer and the Guarantors, appoint in accordance with this Section an Authenticating Agent having an office in a Place of Payment designated by the relevant Issuer with respect of such series of Securities.
| 66 |
| 6.15 | Trustee’s Duties Regarding Reductions of Capital. |
Each Holder hereby consents to any Issuer or any Guarantor applying to a court of competent jurisdiction for an order sanctioning a reduction in any of its share capital accounts including, without limitation, by re-characterizing any sum standing to the credit of a share premium account as a distributable reserve (a “Reduction of Capital”). Each Holder hereby agrees that the Trustee, on behalf of the Holder, is authorized and directed to give its consent to any such Reduction of Capital.
ARTICLE
Seven
Holders’ Lists and
Reports by Trustee and
Issuer and Guarantor
| 7.1 | Issuer to Furnish Trustee Names and Addresses of Holders. |
The relevant Issuer and the Guarantors shall furnish to the Registrar, the Trustee, and the Agents and/or cause the Registrar to furnish to the Trustee and the Agents:
| (a) | semi-annually, not later than ten days after each Regular Record Date with respect to each series of Securities, a list, in such form as the Trustee, the Registrar and the Agents may reasonably require, of the names and addresses of the Holders of Outstanding Securities of such series as of such Regular Record Date, and |
| (b) | at such other times as the Trustee, the Registrar and/or the Agents may reasonably request in writing, within 30 days after the receipt by the relevant Issuer or the Guarantors, as the case may be, of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished, |
excluding from any such list names and addresses each of the Trustee, the Registrar and the Agents have all received.
| 7.2 | Preservation of Information; Communications to Holders. |
The Registrar, the Trustee and the Agents shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Registrar, the Trustee and the Agents, as applicable, as provided in Section 7.1, and in the case of the Registrar, the names and addresses of Holders received by the Registrar (which may include the Trustee in its capacity as Registrar, but only if, and to the extent the Trustee is then acting as Registrar). The Registrar, the Trustee and the Agents, as relevant, may destroy any list furnished to it as provided in Section 7.1 upon receipt of a new list so furnished.
The rights of Holders of the Securities of any series to communicate with other Holders of Securities of such series with respect to their rights under this Indenture or under the Securities or the Guarantees, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with the relevant Issuer, the Guarantors and the Registrar, the Trustee and the Agents that none of the relevant Issuer, the Guarantors or the Registrar, the Trustee, the Agents nor any agent of any of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act or other applicable law.
| 67 |
| 7.3 | Reports by Trustee. |
Within 60 days of each June 30, beginning with June 30, 2026, the Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.
A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the relevant Issuer. The relevant Issuer shall promptly notify the Trustee in writing when any Securities are listed on any stock exchange and of any delisting thereof.
| 7.4 | Reports by Issuer and Guarantors. |
| (a) | The relevant Issuer and the Guarantors shall file with the Trustee (and the relevant Agent) and the Commission, and transmit to Holders of Securities, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to such Act; provided that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is so required to be filed with the Commission pursuant to Section 10.13. |
| (b) | With respect to the Securities of any series and for so long as the Securities of such series are Outstanding, the relevant Issuer and the Guarantors shall furnish to the Trustee (and the relevant Agent) as soon as practicable, and the relevant Issuer and the Guarantors shall promptly distribute to the Holders of Securities of such series, any other information as is specified in a supplemental indenture or Board Resolution as contemplated by Section 3.1 for Securities of such series. |
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the relevant Issuer’s and/or the Guarantors’ compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
ARTICLE
Eight
Consolidation, Merger, Conveyance, Transfer or Lease
| 8.1 | Issuer or Guarantors May Consolidate, Etc. Only on Certain Terms. |
For so long as any of the Securities are outstanding, none of the Issuers or any Guarantor may consolidate with or merge with or into any other Person or convey, transfer or lease all or substantially all of its properties and assets to any Person, unless:
| (a) | any Person formed by such consolidation or into which such Issuer or such Guarantor is merged or to whom such Issuer or such Guarantor has conveyed, transferred or leased all or substantially all of its properties and assets is a corporation, partnership, trust, company or other entity organized and validly existing under the laws of the United Kingdom or any jurisdiction thereof, Jersey, any jurisdiction included from time to time in the European Union (or its successors), the United States, any state thereof or the District of Columbia, and such Person expressly assumes, by a supplemental indenture, executed and delivered to the Trustee and the Agents, the relevant Issuer’s or such Guarantor’s obligations on the Securities or the Guarantees, as the case may be, and under this Indenture (including any obligation to pay any Additional Amounts and, in the case of a Guarantor, the performance or observance of its Guarantee); |
| 68 |
| (b) | in the case of such consolidation, merger, conveyance, transfer or lease by any Issuer or any Guarantor, immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing; |
| (c) | any such Person, or any parent of such Person, shall expressly agree, by a supplemental indenture hereto, executed and delivered to the Trustee and the Paying Agent, in form satisfactory to the Trustee and the Paying Agent, to indemnify the Holder of each Security of the relevant Issuer against (i) any tax, duty, levy, assessment or governmental charge imposed on such Holder or required to be withheld or deducted from any payment to such Holder as a consequence of such consolidation, merger, conveyance, transfer or lease, and (ii) any costs or expenses of the act of such consolidation, merger, conveyance, transfer or lease; and |
| (d) | such Issuer or such Guarantor has delivered to the Trustee and the Paying Agent an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with. |
Notwithstanding the foregoing, this Section 8.1 shall not apply to any conveyance, transfer or lease of all or substantially all of the properties and assets of any Issuer or any Guarantor to the extent that the Person to which such properties or assets are conveyed, transferred or leased is a Guarantor of the Securities or becomes a Guarantor of the Securities concurrent with any such conveyance, transfer or lease of all or substantially all of such Issuer’s or such Guarantor’s properties and assets, or is a wholly-owned Subsidiary of any such Guarantor or person who so becomes a Guarantor.
| 8.2 | Successor Substituted. |
Upon any consolidation of an Issuer or a Guarantor with, or merger of an Issuer or a Guarantor with or into, any other Person or any conveyance, transfer or lease of all or substantially all of the properties and assets of an Issuer or a Guarantor, as the case may be, in accordance with Section 8.1, the successor Person (the “Successor Person”) formed by such consolidation or with or into which such Issuer or such Guarantor is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, such Issuer or such Guarantor, as the case may be, under this Indenture with the same effect as if such Successor Person had been named as such Issuer or such Guarantor, as the case may be, herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities or the Guarantees, as the case may be.
| 69 |
ARTICLE
Nine
Supplemental Indentures
| 9.1 | Supplemental Indentures without Consent of Holders. |
Without the consent of any Holders, the Issuers and the Guarantors when authorized by a Board Resolution of the Issuers and each Guarantor, as the case may be, and the Trustee and the Agents, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee and the Agents, for any of the following purposes:
| (a) | to evidence the succession of another Person to an Issuer or a Guarantor and the assumption by any such successor of the covenants of such Issuer or such Guarantor herein and in the Securities or Guarantees; or |
| (b) | to add to the covenants of an Issuer or a Guarantor or to surrender any right or power herein conferred upon an Issuer or a Guarantor for the benefit of the Holders of all or any series of Securities (and if such covenants or surrenders are to be for the benefit of less than all series of Securities, stating that such covenants or surrenders are expressly being included solely for the benefit of such series); or |
| (c) | to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); or |
| (d) | to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of Securities in uncertificated form; or |
| (e) | to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities; provided that any such addition, change or elimination (A) shall neither (i) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights of the Holder of any such Security with respect to such provision or (B) shall become effective only when there is no such Security Outstanding; or |
| (f) | to modify the restrictions on the transferability of any Securities, and the procedures for resales and other transfers of the Securities to reflect any change in applicable law or regulation (or the interpretation thereof) or to provide alternative procedures in compliance with applicable law and practices relating to the resale or other transfer of restricted securities generally; or |
| (g) | to secure the Securities pursuant to the requirements of Article Ten or otherwise; or |
| (h) | to establish the form or terms of Securities of any series as permitted by Sections 2.1 or 3.1; or |
| (i) | to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11; or |
| 70 |
| (j) | to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture; provided that such action pursuant to this clause (j) shall not adversely affect the interests of the Holders of Securities of any series in any material respect; or |
| (k) | to amend this Indenture to conform the terms of any series of Securities with the description thereof set forth in the related prospectus supplement, prospectus and any term sheet related thereto or set forth in the related offering memorandum and any term sheet related thereto; or |
| (l) | to add one or more additional guarantors of the obligations under the Securities and this Indenture for the benefit of all or any series of Securities; or |
| (m) | to amend this Indenture to conform to the provisions of the Trust Indenture Act as in effect at the time of the execution of such supplemental indenture; or |
| (n) | to make any other change that does not adversely affect the interests of the Holders of the Securities in any material respect. |
| 9.2 | Supplemental Indentures with Consent of Holders. |
With the consent of the Holders of a majority in aggregate principal amount of the Outstanding Securities of each series affected by such supplemental indenture (including, without limitation, consents obtained in connection with tender offers or exchange offers), by Act of said Holders delivered to the relevant Issuer, the Guarantors and the Trustee, the relevant Issuer and the Guarantors, when authorized by Board Resolutions of, respectively, the relevant Issuer and each Guarantor, and the Trustee and the Agents may enter into one or more supplemental indentures hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,
| (a) | change the Stated Maturity of the principal of, or any installment of principal of or premium or interest (including Additional Amounts, if any) on, any Security, or reduce the principal amount thereof or the rate of interest (or Additional Amounts, if any) thereon or any premium payable upon the redemption or repurchase thereof, or change any obligation of the relevant Issuer or the Guarantors to pay any Additional Amounts or reduce the amount of the principal of any other Security which would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.2, or modify in any way the relevant Issuer’s obligation to pay Additional Amounts pursuant to Section 10.7 or change any Place of Payment where, currency in which, any Security or any premium or interest (including Additional Amounts, if any) thereon is payable, or impair the right to institute a suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption or repurchase, on or after the Redemption Date or the Repurchase Date), or |
| (b) | reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or |
| 71 |
| (c) | modify any of the provisions of this Section 9.2, Section 5.13 or Section 10.11, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section 9.2 and Section 10.11, or the deletion of this proviso, in accordance with the requirements of Sections 6.12 and 9.1(h), or |
| (d) | change in any manner adverse to the interests of the Holders of Securities of any series the terms and conditions of the obligations of the Guarantors under their Guarantees in respect of the full and punctual payment of the principal thereof and any premium and interest thereon (and any Additional Amounts in respect thereof). |
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section 9.2 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
| 9.3 | Execution of Supplemental Indentures. |
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Section 9 or the modifications thereby of the trusts created by this Indenture, the Trustee and the Paying Agent shall receive, in addition to the documents required under Section 1.2, and (subject to Sections 6.1 and 6.3) shall be fully protected in conclusively relying upon (without further investigation), an Opinion of Counsel (which may be an opinion pertaining to New York law only and which may be subject to any conditions and assumptions specified in such Opinion of Counsel) stating that the execution of such supplemental indenture is authorized or permitted by this Indenture, that such supplemental indenture is the legal, valid and binding obligation of the relevant Issuer and the Guarantors, and that all conditions precedent have been complied with. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
| 9.4 | Effect of Supplemental Indentures. |
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby, except to the extent, if any, therein expressly provided otherwise.
| 9.5 | Conformity with Trust Indenture Act. |
Subsequent to the qualification of this Indenture under the Trust Indenture Act, every supplemental indenture executed pursuant to this Article Nine shall conform to the requirements of the Trust Indenture Act.
| 72 |
| 9.6 | Reference in Securities to Supplemental Indentures. |
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article Nine may, and shall if required by the Trustee (or relevant Agent), bear a notation in form approved by the Trustee (or relevant Agent) as to any matter provided for in such supplemental indenture. If the relevant Issuer and the Guarantors shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the relevant Issuer and the Guarantors, to any such supplemental indenture may be prepared and executed by the relevant Issuer and such Securities may be authenticated and delivered by the Trustee (or relevant Agent) in exchange for Outstanding Securities of such series.
ARTICLE
Ten
Covenants
| 10.1 | Payment of Principal, Premium and Interest. |
Each Issuer covenants and agrees for the benefit of each series of Securities of such Issuer that it shall duly and punctually pay the principal of, premium, if any, and interest on the Securities of that series in accordance with the terms of the Securities and this Indenture.
| 10.2 | Maintenance of Office or Agency. |
With respect to any Global Security, and except as otherwise may be specified for such Global Security as contemplated by Section 3.1, the Corporate Trust Office of the Paying Agent shall be the Place of Payment where such Global Security may be presented or surrendered for payment or for registration of transfer or exchange, or where successor Securities may be delivered in exchange therefor; provided, however, that any such payment, presentation, surrender or delivery effected pursuant to the Applicable Procedures of the Depositary for such Global Security shall be deemed to have been effected at the Place of Payment for such Global Security in accordance with the provisions of this Indenture.
With respect to any securities that are not in the form of a Global Security, the relevant Issuer shall maintain in each Place of Payment, including, without limitation, in the Borough of Manhattan, The City of New York, an office or agency where Securities may be presented or surrendered for payment, where Securities may be surrendered for registration of transfer or exchange and where notices and demands to or upon the relevant Issuer in respect of the Securities and this Indenture may be served. The relevant Issuer shall give prompt written notice to the Trustee and the Agents of the location, and any change in the location, of such office or agency. If at any time the relevant Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee and the Agents with the address thereof, (A) such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Registrar , and the relevant Issuer hereby appoints the Registrar as its agent to receive all such presentations, surrenders, notices and demands, and (B) in the case of notices and demands, shall also be made or served at the Corporate Trust Office of the Trustee, and the relevant Issuer hereby appoints the Trustee as its agent to receive all such notices and demands.
The relevant Issuer may also from time to time designate one or more offices or agencies where the Securities of one or more series of the relevant Issuer may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the relevant Issuer of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The relevant Issuer hereby appoints Citibank, N.A. as such agent. The relevant Issuer shall give prompt written notice to the Trustee and the Agents of any such designation or rescission and of any change in the location of any such other office or agency.
| 73 |
The Guarantors shall maintain in each Place of Payment for any series of Securities to which their Guarantees apply an office or agency where Securities of such series may be presented or surrendered for payment pursuant to any Guarantee and where notices and demands to or upon the Guarantors in respect of any Guarantee and this Indenture may be served. The Guarantors shall give prompt written notice to the Trustee and the Agents of the location, and any change in the location, of such office or agency. If at any time the Guarantors shall fail to maintain any such required office or agency or shall fail to furnish the Trustee and the Agents with the address thereof, (A) such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Registrar, and the Guarantors hereby appoint the Registrar as their agent to receive all such presentations, surrenders, notices and demands and (B) in the case of such notices and demands, shall also be made or served at the Corporate Trust Office of the Trustee, and the Guarantors hereby appoint the Trustee as their agent to receive all such notices and demands.
The Guarantors may also from time to time designate one or more other offices or agencies where the Securities of one or more series to which their Guarantees apply may be presented or surrendered for such purpose or where such notices or demands may be served and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve any Guarantor of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Guarantors hereby appoint Citibank, N.A. as such agent. The Guarantors shall give prompt written notice to the Trustee and the Agents of any such designation or rescission and of any change in the location of any such other office or agency.
| 10.3 | Money for Security Payments to be Held in Trust. |
If any Issuer or any Guarantor shall at any time act as its own Paying Agent with respect to any series of Securities, it shall, on or before each due date of the principal of, premium, if any, or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal, premium, if any, and interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and shall promptly notify the Trustee and the Paying Agent in writing of its action or failure so to act.
Whenever an Issuer shall have one or more Paying Agents for any series of Securities, it shall, no later than 10:00 a.m. New York City time on each due date of the principal of, premium, if any, or interest or Additional Amounts on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided in the Trust Indenture Act for the benefit of the Persons entitled to such principal or any premium or interest, and (unless such Paying Agent is the Trustee) the relevant Issuer shall promptly notify the Trustee in writing of its action or failure so to act (for the avoidance of doubt such deposit(s) may be with the Trustee if, and only if, the Trustee has agreed in writing to act as the Paying Agent for such series of Securities). The relevant Issuer shall confirm to the Paying Agent by 10:00 a.m. (local time in the city of the Paying Agent’s specified office) on the second Business Day in the city of the Paying Agent’s specified office before the due date for any such payment that irrevocable instructions have been issued. If the Paying Agent determines in its absolute discretion that payment in accordance with this Section 10.3 is required to be made earlier, it shall provide the relevant Issuer with no less than 21 days’ prior notice in writing of such requirement. If the Paying Agent pays out any amount due under the terms of the Securities on or after the due date therefor on the assumption that the corresponding payment for such amount has been or will be made by the relevant Issuer and such payment has in fact not been so made by the relevant Issuer prior to the time that the Paying Agent pays such amount, then the relevant Issuer, on demand, shall reimburse the Paying Agent for such amount and pay interest to the Paying Agent on such amount from the date on which it is paid out to the date of reimbursement at a rate per annum equal to the cost to the Paying Agent of funding the amount paid out as certified by the Paying Agent and expressed as a rate per annum. Nothing in this Section 10.3 shall require the Paying Agent to pay out any amount due under the terms of the Securities prior to receiving payment thereof in immediately available funds from the relevant Issuer or any Guarantor.
| 74 |
The Paying Agent shall be entitled to make payments net of any taxes or other sums required by any applicable law to be withheld or deducted. Notwithstanding the foregoing, any such withholding or deduction is without prejudice to the obligations of each of the relevant Issuer and the Guarantors to make payments in full of all amounts due and payable under the terms of this Indenture, any supplemental indenture and the Securities of any series.
Each Issuer and the Guarantors hereby appoint Citibank, N.A. as initial Paying Agent for the Securities.
The relevant Issuer shall cause each Paying Agent for any series of Securities that is not a party to this Indenture to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent shall (1) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2) during the continuance of any default by the relevant Issuer or any Guarantor (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series or any Guarantee, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series or the Guarantees.
The relevant Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Issuer Order direct the Paying Agent to pay, to the Trustee all sums held in trust by the relevant Issuer or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the relevant Issuer or such Paying Agent; and, upon such payment by the Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or the Paying Agent, or then held by the relevant Issuer or any Guarantor, in trust for the payment of the principal of, premium, if any, or interest or Additional Amounts on any Security of any series and remaining unclaimed for two years after such principal, premium, interest or Additional Amounts has become due and payable shall be paid to the relevant Issuer or to such Guarantor by the Trustee or such Paying Agent, as applicable, or (if then held by such Issuer or such Guarantor) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the relevant Issuer or the Guarantors for payment thereof, and all liability of the Trustee and such Paying Agent, as applicable with respect to such trust money, and all liability of the relevant Issuer or such Guarantor as trustee thereof, shall thereupon cease.
| 10.4 | Statement by Officers as to Default. |
Each Issuer and the Guarantors while any such Securities of any series issued hereunder are outstanding shall deliver to the Trustee, within 120 days after the end of each fiscal year ending after the date hereof, an Officers’ Certificate (one of which officers signing such certificate shall be, for the purposes of this Section 10.4, the principal executive officer, the principal financial officer or the principal accounting officer of the Issuer and the Guarantors), stating whether or not to the knowledge of the signers thereof the relevant Issuer(s) and the Guarantors are in compliance with all conditions and covenants under this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and if any Issuer or any Guarantor, as the case may be, shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
| 75 |
The relevant Issuer and the Guarantors shall deliver to the Trustee, as soon as possible and in any event within 10 days after the relevant Issuer or any Guarantor becomes aware that a default or an Event of Default with respect to any series of Securities of such Issuer that are outstanding, or an event that, with notice or the lapse of time or both, would constitute an Event of Default thereof, as the case may be, has occurred and is continuing, an Officers’ Certificate setting forth the details of such Event of Default or default and the action which the relevant Issuer proposes to take with respect thereto.
| 10.5 | Existence. |
Subject to Article 8, the Issuers and the Guarantors each shall do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises; provided, however, that the Issuers and each Guarantor shall not be required to preserve any such right or franchise if its respective Board of Directors shall determine in a Board Resolution that the preservation thereof is no longer desirable in the conduct of the business of such Issuer or such Guarantor and that the loss thereof is not disadvantageous in any material respect to the Holders.
| 10.6 | Payment of Taxes and Other Claims. |
The Issuers and the Guarantors shall pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (1) all taxes, assessments and governmental charges levied or imposed upon the Issuers or the Guarantors or upon the income, profits or property of the Issuers or the Guarantors, and (2) all lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon the property of the Issuers or the Guarantors; provided, however, that the Issuers and the Guarantors shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings and for which adequate reserves have been established.
| 10.7 | Additional Amounts. |
All payments in respect of the Securities and the Guarantees shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, levies, assessments or governmental charges of whatever nature (“Taxes”) imposed or levied by or on behalf of (i) the United States and any other jurisdiction (or any political subdivision or taxing authority thereof or therein) in which the relevant Issuer or any of the Guarantors is incorporated or organized or resident (or deemed for tax purposes to be resident) (including, for the avoidance of doubt, any jurisdiction in which a successor to the relevant Issuer or any Guarantor is incorporated, organized or resident (or deemed for tax purposes to be resident), or (ii) the jurisdiction (or any political subdivision or taxing authority thereof or therein) from or through which a payment on the Securities or the Guarantees is made by or on behalf of the relevant Issuer or a Guarantor (each, an “Applicable Taxing Jurisdiction”), unless such Taxes are required by the Applicable Taxing Jurisdiction to be withheld or deducted. In that event, the relevant Issuer or the Guarantors will pay by way of additional interest on the Securities such additional amounts of, or in respect of, principal, premium, if any, and interest (“Additional Amounts”) as will result (after deduction of such Taxes and any additional Taxes payable in respect of such Additional Amounts) in the payment to each Holder of the Securities of the amounts that would have been payable in respect of such Security or Guarantee had no such withholding or deduction been required, except that no Additional Amounts shall be so payable for or on account of:
| 76 |
| (a) | any Taxes that would not have been imposed but for the fact that such Holder: |
| (i) | is or was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, the Applicable Taxing Jurisdiction or otherwise had some connection with the Applicable Taxing Jurisdiction other than the mere ownership of, or receipt of payment under, such Security or Guarantee; |
| (ii) | presented (if presentation is required) such Security or Guarantee, as the case may be, more than thirty (30) days after the date on which the payment in respect of such Security first became due and payable or provided for, whichever is later, except to the extent that the Holder would have been entitled to such Additional Amounts if it had presented such Security or Guarantee for payment on any day within such period of thirty (30) days; or |
| (iii) | is or was a personal holding company, a passive foreign investment company or a controlled foreign corporation for U.S. federal income tax purposes or a corporation that has accumulated earnings to avoid U.S. federal income tax; |
| (b) | any estate, inheritance, gift, sale, transfer, personal property or similar taxes; |
| (c) | any Taxes that are payable otherwise than by withholding or deduction from payments of, or in respect of, principal, premium, if any, or interest on such Securities or Guarantee, as the case may be; |
| (d) | any Taxes that are imposed or withheld by reason of (i) the holder or beneficial owner not delivering a valid, properly completed, U.S. Internal Revenue Service Form W-8 or W-9 or any successor or substitute form to any withholding agent or any other person, or (ii) the failure to comply by the Holder or the beneficial owner of the Security with a request from the relevant Issuer or any Guarantor addressed to the Holder and received by such Holder at least thirty (30) days prior to the first payment date with respect to which such information is required (a) to provide any other information concerning the nationality, residence or identity of the Holder or such beneficial owner or (b) to make any other declaration or other similar claim or satisfy any other information or reporting requirement, which, in the case of (ii)(a) or (ii)(b), is required or imposed by a statute, treaty, regulation or administrative practice of the Applicable Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge; |
| (e) | any Taxes payable pursuant to an agreement described in Section 1471(b) of the Code or otherwise imposed pursuant to Sections 1471 through 1474 of the Code, any regulations or agreements thereunder, official interpretations thereof, or any law implementing an intergovernmental approach thereto; |
| (f) | any U.S. federal withholding Taxes imposed as a result of the Holder or beneficial owner of the Security: (i) being a controlled foreign corporation for U.S. federal income tax purposes related to the relevant Issuer or Guarantor; (ii) being or having been a “10-percent shareholder” of the Guarantor or the relevant Issuer as defined in Section 871(h)(3) of the Code; or (iii) being or being treated as a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business; or |
| 77 |
| (g) | any combination of items (a), (b), (c), (d), (e) and (f); |
nor shall Additional Amounts be paid with respect to any payment of the principal of, premium, if any, or interest on any such Security or Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of the Applicable Taxing Jurisdiction to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such Additional Amounts had it been the Holder of the Security.
Whenever in this Indenture there is mentioned, in any context, the payment in respect of the Securities or the Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Section 10.7 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section and express mention of the payment of Additional Amounts in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.
The relevant Issuer or the Guarantors shall (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the Applicable Taxing Jurisdiction in accordance with applicable law. The relevant Issuer or the Guarantors shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any taxes so deducted or withheld from each Applicable Taxing Jurisdiction imposing such taxes and will provide such certified copies to each Holder. The relevant Issuer or the Guarantors shall attach to each certified copy a certificate stating (x) that the amount of withholding taxes evidenced by the certified copy was paid in connection with payments in respect of the principal amount of Securities then outstanding and (y) the amount of such withholding taxes paid per U.S.$1,000 principal amount of the Securities. Copies of such documentation will be available for inspection during ordinary business hours at the office of the Paying Agent by the Holders of the Securities upon request.
At least 30 days prior to each date on which any payment under or with respect to the Securities of a series or the related Guarantee is due and payable (unless such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the relevant Issuer or the Guarantors shall be obligated to pay Additional Amounts with respect to such payment, the relevant Issuer or the Guarantors shall deliver to the Trustee and the Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information necessary to enable the Paying Agent to pay such Additional Amounts to Holders on the payment date. Each such Officers’ Certificate shall be relied upon until receipt of a further Officers’ Certificate addressing such matters.
If the relevant Issuer or any Guarantor conducts business in any jurisdiction (an “Additional Taxing Jurisdiction”) other than an Applicable Taxing Jurisdiction and, as a result, is required by the law of such Additional Taxing Jurisdiction to deduct or withhold any amount on account of taxes imposed by such Additional Taxing Jurisdiction from payments under the Securities or the Guarantees, as the case may be, which would not have been required to be so deducted or withheld but for such conduct of business in such Additional Taxing Jurisdiction, the Additional Amounts provision described above shall be considered to apply to such Holders as if references in such provision to “taxes” included taxes imposed by way of deduction or withholding by any such Additional Taxing Jurisdiction (or any political subdivision thereof or taxing authority therein).
The relevant Issuer or the Guarantors shall pay any present or future stamp, court or documentary taxes, or any other excise or property taxes, charges or similar levies which arise in any jurisdiction from the execution, delivery or registration of any Security or any other document or instrument referred to therein (other than a transfer of the Securities), or the receipt of any payments with respect to the Securities or the Guarantees, excluding any such taxes, charges or similar levies imposed by any jurisdiction outside Luxembourg, the United States, the United Kingdom, Jersey, Ireland or any jurisdiction in which a Paying Agent is located, other than those resulting from, or required to be paid in connection with, the enforcement of the Securities, the Guarantees or any other such document or instrument following the occurrence of any Event of Default with respect to the Securities.
| 78 |
The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to any Issuer or any Guarantor is organized or any political subdivision or taxing authority or agency thereof or therein.
| 10.8 | Additional Guarantees. |
If any direct or indirect parent of WPP plc, or any of the subsidiaries of WPP plc that is not a Guarantor, or any other subsidiary of any Parent Guarantor, becomes a guarantor of any Financial Indebtedness, then such guaranteeing entity shall:
| (a) | execute and deliver to the Trustee and the Paying Agent a supplemental indenture in form reasonably satisfactory to the Trustee and the Paying Agent pursuant to which such entity shall become a Guarantor of the debt securities; and |
| (b) | deliver to the Trustee and the Paying Agent, in addition to the documents required under Section 1.2, and (subject to Sections 6.1 and 6.3), an opinion of counsel (which may contain customary exceptions) that such supplemental indenture and guarantee have been duly authorized, executed and delivered by such guaranteeing entity and constitute legal, valid, binding and enforceable obligations of such guaranteeing entity. The Trustee and the Paying Agent shall be fully protected in relying upon the items delivered pursuant to this Section 10.8(b). |
| 10.9 | Limitations on Security Interests. |
| (a) | For so long as any Securities remain Outstanding under this Indenture, WPP plc shall not, and shall not permit its Restricted Subsidiaries to create, suffer or permit to subsist any Security Interest (except for Permitted Security Interests) on the whole or any part of their respective Property (whether owned as of the date of this Indenture or thereafter acquired) without making effective provision whereby all the Securities shall be directly secured equally and ratably with the obligation secured by such Security Interest. |
| (b) | If, as provided in Section 10.8, a direct or indirect parent of WPP plc becomes a Guarantor of the Securities, then Section 10.9(a) shall cease to have effect and the covenant set forth in this Section 10.9(b) shall become operative and thereafter, for so long as any Securities remain Outstanding under this Indenture, the Parent Guarantor shall not, and shall not permit its Restricted Subsidiaries to create, suffer or permit to subsist any Security Interest (except for Permitted Security Interests) on the whole or any part of their respective Property (whether owned as of the date of this Indenture or thereafter acquired) without making effective provision whereby all the Securities shall be directly secured equally and ratably with the obligation secured by such Security Interest. |
| 79 |
| 10.10 | Limitation on Sale and Leaseback. |
| (a) | For so long as any Securities remain Outstanding under this Indenture, WPP plc will not, and will not permit its Restricted Subsidiaries to, enter into any arrangement with any bank, insurance company or other lender or investor (not including WPP plc or any of its Subsidiaries), or to which any such lender or investor is a party, providing for the leasing by WPP plc or such Subsidiary for a period, including renewals, in excess of three years of any assets that have been owned by WPP plc or any Restricted Subsidiary for more than 270 days and which have been or are to be sold or transferred by WPP plc or any Restricted Subsidiary to such lender or investor or, as a part of such arrangement, to any Person to whom funds have been or are to be advanced by such lender or investor on the security of such assets (a “Sale and Leaseback Transaction”) unless WPP plc or such Restricted Subsidiary, applies within one year after the sale or transfer will have been made by WPP plc or such Restricted Subsidiary, an amount equal to the net proceeds of the sale of the assets sold and leased back pursuant to such arrangement (i) to the retirement of Indebtedness incurred, assumed or guaranteed by WPP plc or any of its Subsidiaries which by its terms matures at, or is extendible or renewable at the option of the obligor to, a date more than 12 months after the date of incurring, assuming or guaranteeing such Indebtedness or (ii) to investment in any of WPP plc’s assets or the assets of any of its Restricted Subsidiaries (a “Permitted Sale and Leaseback Transaction”). |
Notwithstanding the foregoing, WPP plc or any of its Restricted Subsidiaries may enter into sale and leaseback transactions with respect to their respective assets in addition to those permitted above; provided, however, that at the time of entering into such sale and leaseback transactions and after giving effect thereto, WPP plc or the Restricted Subsidiary would be entitled pursuant to any Permitted Security Interests to create, suffer or permit to subsist a Security Interest on such assets without making effective provision whereby all the Securities shall be directly secured equally and ratably with such Indebtedness.
| (b) | If, as provided in Section 10.8, a direct or indirect parent of WPP plc becomes a Guarantor of the Securities, then Section 10.10(a) shall cease to have effect and it shall be replaced by the covenant set forth in this Section 10.10(b) providing that, for so long as any Securities remain Outstanding under this Indenture, the Parent Guarantor will not, and it will not permit any of its Restricted Subsidiaries to, enter into any arrangement with any bank, insurance company or other lender or investor (not including the Parent Guarantor or any of its Subsidiaries), or to which any such lender or investor is a party, providing for the leasing by the Parent Guarantor or any such Restricted Subsidiary for a period, including renewals, in excess of three years of any assets which have been owned by the Parent Guarantor or any of its Restricted Subsidiaries for more than 270 days and which have been or are to be sold or transferred by the Parent Guarantor or any of its Restricted Subsidiaries to such lender or investor or, as a part of such arrangement, to any Person to whom funds have been or are to be advanced by such lender or investor on the security of such assets (a “sale and leaseback transaction”) unless the Parent Guarantor applies or such Restricted Subsidiary, within one year after the sale or transfer will have been made by the Parent Guarantor or such Restricted Subsidiary, applies an amount equal to the net proceeds of the sale of the assets sold and leased back pursuant to such arrangement (i) to the retirement of Indebtedness incurred, assumed or guaranteed by the Parent Guarantor or any of its Subsidiaries which by its terms matures at, or is extendible or renewable at the option of the obligor to, a date more than 12 months after the date of incurring, assuming or guaranteeing such Indebtedness or (ii) to investment in any assets of the Parent Guarantor or any of its Subsidiaries (a “Permitted Sale and Leaseback Transaction”). |
| 80 |
Notwithstanding the foregoing, the Parent Guarantor or any of its Restricted Subsidiaries may enter into sale and leaseback transactions with respect to its or their respective assets in addition to those permitted above; provided, however, that at the time of entering into such sale and leaseback transactions and after giving effect thereto, the Parent Guarantor or the Restricted Subsidiary would be entitled pursuant to any Permitted Security Interests to create, suffer or permit to subsist a Security Interest on such assets without making effective provision whereby all the Securities shall be directly secured equally and ratably with such Indebtedness.
| 10.11 | Waiver of Certain Covenants. |
Except as otherwise established as contemplated by Section 3.1 for the Securities of any series, any relevant Issuer and any Guarantor may, with respect to the Securities of such series of the relevant Issuer, omit in any particular instance to comply with any term, provision or condition set forth in any covenant adopted by a supplemental indenture under Sections 3.1(s), 9.1(b) or 9.1(g) for the benefit of the Holders of such series, or in any of Sections 10.5, 10.6, 10.9 or 10.10, if before the time for such compliance the Holders of at least a majority in aggregate principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the relevant Issuer and the Guarantors and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
| 10.12 | Indemnification of Judgment Currency. |
The Issuers and the Guarantors shall, jointly and severally, indemnify the Trustee, the Agents, and any Holder of a Security against any loss incurred by the Trustee, the Agents, or such Holder, as the case may be, as a result of any judgment or order being given or made for any amount due under this Indenture or such Security and being expressed and paid in a currency (the “Judgment Currency”) other than Dollars, and as a result of any variation between (i) the rate of exchange at which the Dollar amount is converted into the Judgment Currency for the purpose of such judgment or order and (ii) the spot rate of exchange in The City of New York at which the Trustee, the Agents, or such Holder, as the case may be, on the date of payment of such judgment or order is able to purchase Dollars with the amount of the Judgment Currency actually received by the Trustee, the Agents, or such Holder. Notwithstanding the preceding sentence of this Section 10.12, in the event that the amount of Dollars purchased by any Holder as a result of such indemnification exceeds the amount originally to be paid to such Holder, such Holder shall reimburse such excess to the relevant Issuer or the Guarantors, as the case may be. The foregoing indemnity shall constitute a separate and independent obligation of each Issuer and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “spot rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of, or conversion into, Dollars.
| 10.13 | Provision of Exchange Act Reports and Other Information. |
For so long as any of the Securities are outstanding and WPP plc or any successor Parent Guarantor is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, WPP plc shall be deemed to have satisfied its reporting obligations under this Section 10.13 by filing or furnishing annual, quarterly and other reports that it is required to file with or furnish to the Commission, including its annual reports on Form 20-F and its reports on Form 6-K or copies of the information included in such reports on Form 6-K (or its annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K, if the reporting person is not a foreign private issuer, as defined in Rule 3b-4 under the Exchange Act). WPP plc or any successor Parent Guarantor shall not be required to furnish such reports separately to the Trustee, the Agents or holders, provided that such reports are publicly available on the Commission’s EDGAR System (or any successor system).
| 81 |
For so long as the Securities of a series are listed on a securities exchange, the relevant Issuer or the Parent Guarantor, if any, will make any reports or other information supplied to the Trustee pursuant to this Section available at the office of the relevant Issuer’s paying agent or transfer agent in the jurisdiction where such exchange is located and will notify such exchange of the occurrence of any Event of Default and, prior to publication of notice of such Event of Default in the jurisdiction where such exchange is located, submit a draft of the notice to the exchange.
In any case, with regard to the Trustee and the Agents, such reports, information and documents are for informational purposes only and the Trustee’s and the Agents’ access to, or receipt of, such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including any Issuer’s and/or any Guarantor’s compliance with any of its respective covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
ARTICLE
Eleven
Redemption of Securities
| 11.1 | Applicability of Section. |
Securities of any series that are redeemable before their Stated Maturity shall be redeemable in accordance with their terms established as contemplated by Section 3.1 and (except as otherwise established as contemplated by Section 3.1 for the Securities of such series) in accordance with this Article.
| 11.2 | Election to Redeem; Notice to Trustee and Relevant Agents. |
The election of the relevant Issuer to redeem any Securities of any series of the relevant Issuer shall be evidenced by a Board Resolution of the relevant Issuer. In case of any redemption at the election of the relevant Issuer of any of the Securities of any series of the relevant Issuer (including any such redemption affecting only a single Security), the relevant Issuer shall, at least 60 days prior to the Redemption Date fixed by the relevant Issuer (unless a shorter notice shall be satisfactory to the Trustee and the relevant Agents), notify the Trustee and the relevant Agents of such Redemption Date, of the Redemption Price, of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities established as contemplated by Section 3.1, the relevant Issuer shall furnish the Trustee and the relevant Agents with an Officers’ Certificate evidencing compliance with such restriction.
| 11.3 | Selection by the Relevant Agents of Securities to Be Redeemed. |
If less than all the Securities of any series are to be redeemed (unless all the Securities of such series and of a specified tenor are to be redeemed or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Registrar or Paying Agent, as applicable, from the Outstanding Securities of such series not previously called for redemption in accordance with the procedures of DTC (or such other depositary) or by lot and which may provide for the selection for redemption of a portion of the principal amount of any Security of such series; provided that the unredeemed portion of the principal of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. If less than all the Securities of such series and of a specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Registrar or Paying Agent, as applicable, from the Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence (i.e., in accordance with the procedures of DTC (or such other depositary) or by lot).
| 82 |
The Registrar or Paying Agent, as applicable, shall promptly notify the relevant Issuer in writing of the Securities selected for redemption as aforesaid and, in case of any Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
| 11.4 | Notice of Redemption. |
Notice of redemption shall be given by first-class mail, prepaid postage, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
| (a) | the Redemption Date, |
| (b) | the Redemption Price and accrued and unpaid interest, if any, |
| (c) | if less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less than all the Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal amount of the particular Security to be redeemed, |
| (d) | that on the Redemption Date, the Redemption Price (together with any accrued and unpaid interest payable to, but excluding the Redemption Date) will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date, |
| (e) | the place or places where such Securities are to be surrendered for payment of the Redemption Price, and accrued and unpaid interest, if any, and |
| (f) | the “CUSIP” or “ISIN” numbers, if any. |
Notice of redemption of Securities to be redeemed at the election of the relevant Issuer shall be given by the relevant Issuer or, at the relevant Issuer’s written request given to the Paying Agent (with a copy to the Trustee) at least 15 days before the date such notice is to be given to the Holders (unless a shorter period is agreed to by the Trustee and/or Paying Agent), by the Paying Agent in the name and at the expense of the relevant Issuer, and shall be irrevocable.
| 83 |
| 11.5 | Deposit of Redemption Price. |
On or before 10:00 a.m., New York City time, on any Redemption Date, the relevant Issuer or the Guarantors shall deposit with the Paying Agent (or, if the relevant Issuer is acting as its own Paying Agent, it shall segregate and hold in trust as provided in Section 10.3) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued and unpaid interest on, all the Securities which are to be redeemed on that date to, but excluding, the Redemption Date. The relevant Issuer shall confirm to the Paying Agent by 10:00 a.m. (local time in the city of the Paying Agent’s specified office) on the second Business Day in the city of the Paying Agent’s specified office before the due date for any such payment that irrevocable instructions have been issued. If the Paying Agent determines in its absolute discretion that payment in accordance with this Section 11.5 is required to be made earlier, it shall provide the relevant Issuer with no less than 21 days’ prior notice in writing of such requirement.
| 11.6 | Securities Payable on Redemption Date. |
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price applicable thereto, and from and after such date (unless the relevant Issuer shall default in the payment of the Redemption Price and accrued and unpaid interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the relevant Issuer or the Guarantors at the Redemption Price, together with accrued and unpaid interest to, but excluding, the Redemption Date; provided, however, that installments of interest whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Date according to their terms and the provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any Redemption Price shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the terms of the Security established as contemplated by Section 3.1.
| 11.7 | Securities Redeemed in Part. |
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the relevant Issuer or the Paying Agent, as applicable, so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the relevant Issuer and the Paying Agent, as applicable, duly executed by the Holder thereof or his attorney duly authorized in writing), and the relevant Issuer shall execute, and the Authenticating Agent shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
| 11.8 | Optional Redemption. |
If so specified in the applicable prospectus supplement, the relevant Issuer may, at its option and from time to time, redeem all or any portion of the Outstanding Securities of any series prior to their Stated Maturity on the terms set forth in this Section 11.8 and in such prospectus supplement.
| 84 |
Redemption may occur (i) at any time prior to the Par Call Date (as defined below) at the Make-Whole Redemption Price (as defined below) or (ii) on or after the Par Call Date at a redemption price equal to 100% of the principal amount of the Securities to be redeemed (the “Par Redemption Price”). In each case, the relevant Issuer shall also pay accrued and unpaid interest on the principal amount so redeemed, calculated to but excluding the applicable Redemption Date.
The Securities, or any portion thereof, shall cease to bear interest from and after the applicable Redemption Date unless the relevant Issuer defaults in the payment of the Redemption Price.
| (a) | Make-Whole Redemption before the Par Call Date. |
Prior to the Par Call Date, the Redemption Price (the “Make-Whole Redemption Price”) for any Security redeemed pursuant to this Section 11.8 shall be the greater of:
| (i) | (a) the sum of the present values, determined by the relevant Issuer as of the Redemption Date, of all
remaining scheduled payments of principal and interest on such Security (assuming, solely for this purpose, that such Security matured
on the Par Call Date) discounted to the date of redemption on a semi-annual basis (on the basis of a 360-day year consisting of twelve
30-day months) at the Treasury Rate (as defined below) plus the relevant basis points as set forth in the prospectus supplement for the
series, minus (b) accrued and unpaid interest on such Security to, but excluding, the Redemption Date; and |
| (ii) | 100% of the principal amount of the Security to be redeemed, |
plus, in either case, accrued and unpaid interest thereon to, but excluding, the Redemption Date.
| (b) | Par Redemption on or after the Par Call Date. |
On or after the Par Call Date, the relevant Issuer may redeem the Securities at its option, in whole or in part, at the Par Redemption Price plus accrued and unpaid interest thereon to, but excluding, the Redemption Date.
| (c) | For the purposes of this Section 11.8: |
“Par Call Date” means the date as stated in the relevant prospectus supplement of the relevant series of Securities.
“Treasury Rate” means, with respect to any redemption date, the yield determined by the relevant Issuer in accordance with the following two paragraphs.
The Treasury Rate shall be determined by the relevant Issuer after 4:15 p.m. New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) – H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities—Treasury Constant Maturities—Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the relevant Issuer shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the Par Call Date (the “Remaining Life”);
| 85 |
or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.
If on the third Business Day preceding the redemption date H.15 TCM is no longer published, the relevant Issuer shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the relevant Issuer shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the relevant Issuer shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
The relevant Issuer’s actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error. Neither the Trustee nor the Paying Agent shall be responsible for calculating the redemption price or for verifying any calculations of such redemption price. Notice of any redemption will be mailed or electronically delivered (or otherwise transmitted in accordance with the depositary’s procedures) at least 10 days but not more than 60 days before the redemption date to each Holder of the Securities to be redeemed.
| (d) | Redemption Procedures. |
Notice of Redemption shall be given in accordance with Section 11.4; provided that in lieu of the period specified in Section 11.2, notice may be mailed or electronically delivered (or otherwise transmitted in accordance with the Applicable Procedures of the Depositary) not less than ten (10) nor more than sixty (60) days prior to the Redemption Date.
If fewer than all Outstanding Securities are to be redeemed and the Securities are Global Securities held by DTC (or another Depositary), the selection of the Securities (or portions thereof) to be redeemed shall be made by DTC (or such other Depositary) in accordance with its Applicable Procedures; otherwise, selection shall be in accordance with Section 11.3. No Security of a principal amount less than U.S.$1,000 shall be redeemed in part.
| 86 |
Unless the relevant Issuer defaults in the payment of the applicable Redemption Price, interest shall cease to accrue on any Security (or portion thereof) called for redemption on and after the applicable Redemption Date.
| 11.9 | Optional Redemption Due to Changes in Tax Treatment. |
If as the result of any change in or any amendment to the laws, regulations or published tax rulings of the Applicable Taxing Jurisdiction affecting taxation, or any change in the official administration, application or interpretation of such laws, regulations or published tax rulings either generally or in relation to any particular Securities or Guarantee thereof, which change or amendment becomes effective on or after the original issue date of such Securities, it is determined by the relevant Issuer and the Guarantors that the relevant Issuer or a Guarantor (x) would be required to pay any Additional Amounts pursuant to Section 10.7 of this Indenture or the terms of any Security or Guarantee thereof in respect of interest on the next succeeding Interest Payment Date (assuming, in the case of a Guarantor, a payment in respect of such interest was required to be made by such Guarantor under its Guarantee thereof on such Interest Payment Date), and (y) such obligation cannot be avoided by the relevant Issuer or such Guarantor taking reasonable measures available to it or such Guarantor (including by having payments with respect to Securities or Guarantees made by the relevant Issuer or a Guarantor which would not be required to pay any Additional Amounts), the relevant Issuer may, at its option, redeem all (but not less than all) the Securities of any series in respect of which such Additional Amounts would be so payable at any time following such an event, upon not less than 30 nor more than 60 days’ written notice as provided in Sections 11.2 and 11.4, at a Redemption Price equal to 100% of the principal amount thereof plus accrued and unpaid interest (including additional interest and Additional Amounts, if any) to, but excluding, the date fixed for redemption; provided, however, that (a) no such notice of redemption may be given earlier than 60 days prior to the earliest date on which the relevant Issuer or such Guarantor would be obligated to pay such Additional Amounts were a payment in respect of the Securities or the Guarantee thereof, as the case may be, then due and (b) at the time any such redemption notice is given, such obligation to pay such Additional Amounts must remain in effect.
Prior to the mailing or electronic delivery (or other transmission in accordance with the depositary’s procedure) of any notice of redemption at least 10 days but not more than 60 days before the redemption date to each Holder of the Securities to be redeemed pursuant to this Section, the relevant Issuer shall deliver to the Trustee and the Paying Agent and the relevant Agent giving the notice (i) an Opinion of an independent legal adviser of recognized standing in the relevant jurisdiction to the effect that the relevant Issuer or a Guarantor would be required to pay Additional Amounts on the next payment in respect of such Securities, and (ii) an Officers’ Certificate to the effect that such obligation cannot be avoided by the relevant Issuer or such Guarantor, taking reasonable measures available to it, and the Trustee and Paying Agent and the relevant Agent giving the notice shall be entitled to accept such opinion and Officers’ Certificate as sufficient evidence of the satisfaction of the condition precedent set out above in which event it shall be conclusive and binding on the Holders of such Securities.
If (1) the relevant Issuer or any Guarantor shall have on any date (the “Succession Date”) consolidated with or merged into, or conveyed or transferred or leased all or substantially all of its properties and assets to, any Successor Person that is incorporated, organized or resident (or deemed resident for tax purposes) under the laws of any jurisdiction other than the jurisdiction in which the relevant Issuer or any Guarantor is incorporated, organized or resident (or deemed resident for tax purposes), (2) as the result of any change in or any amendment to the laws, regulations or published tax rulings of such jurisdiction, or of any political subdivision or taxing authority thereof or therein, affecting taxation, or any change in the official administration, application or interpretation of such laws, regulations or published tax rulings either generally or in relation to any particular Securities or the Guarantees thereof, which change or amendment becomes effective on or after the Succession Date,
| 87 |
such Successor Person would be required to pay any Additional Amounts pursuant to Section 8.1(c) hereof or the terms of any Security or the Guarantees thereof in respect of interest on any Securities on the next succeeding Interest Payment Date, and (3) such obligation cannot be avoided by the Successor Person taking reasonable measures available to it, the relevant Issuer or such Successor Person may, at the relevant Issuer’s or such Successor Person’s option, redeem all (but not less than all) of the Securities of any series, upon not less than 30 nor more than 60 days’ written notice as provided in Section 11.2 and 11.4, at a Redemption Price equal to 100% of the principal amount thereof plus accrued and unpaid interest (including additional interest) to, but excluding, the date fixed for redemption and Additional Amounts, if any; provided, however, that (1) no such notice of redemption may be given earlier than 60 days prior to the earliest date on which a Successor Person would be obligated to pay such Additional Amounts were a payment in respect of the Securities or Guarantee thereof, as the case may be, then due, and (2) at the time any such redemption notice is given, such obligation to pay such Additional Amounts must remain in effect.
Prior to the mailing or electronic delivery (or other transmission in accordance with the Depositary’s procedure) of any notice of redemption at least 10 days but not more than 60 days before the redemption date to all Holders of Securities pursuant to this Section, the Successor Person shall deliver to the Trustee and the Paying Agent (i) an Opinion of an independent legal adviser of recognized standing in the relevant jurisdiction to the effect that such Successor Person would be required to pay Additional Amounts on the next payment in respect of such Securities, and (ii) an Officers’ Certificate to the effect that such obligation cannot be avoided by the Successor Person taking reasonable measures available to it, and the Trustee and the Paying Agent shall be entitled to accept such opinion and Officers’ Certificate as sufficient evidence of the satisfaction of the condition precedent set out above in which event it shall be conclusive and binding on the Holders of such Securities.
| 11.10 | Repurchase Upon Change of Control Repurchase Event. |
Upon the occurrence of a Change of Control Repurchase Event (as defined below), unless the relevant Issuer has exercised its right to redeem the Securities pursuant to the relevant supplemental indenture, each holder shall have the option to require the relevant Issuer to repurchase all or any portion of its Securities (in principal amounts of U.S.$1,000 and integral multiples of U.S.$1,000 in excess thereof) on the Repurchase Date (as defined below) at a price equal to 101% of the principal amount thereof, together with accrued and unpaid interest thereon to, but excluding, the date of repurchase (subject to the right of holders of the Securities on the relevant record date to receive interest due on the relevant Interest Payment Date).
Within 30 days following the date upon the relevant Issuer becoming aware that a Change of Control Repurchase Event has occurred or, at the relevant Issuer’s option, prior to any Change of Control Repurchase Event (as defined below), but after the public announcement of an impending Change of Control Repurchase Event, the relevant Issuer shall deliver or cause to be delivered a notice of such Change of Control Repurchase Event electronically in accordance with the applicable DTC procedures, with a copy to the Trustee and the Agents, and the Issuer shall, and at any time upon the Registrar having actual knowledge, the Registrar may, and if so requested by the holders of at least 25% of the aggregate principal amount of the Securities then outstanding, shall (subject in each case to the Registrar being indemnified and/or secured to its satisfaction), give notice (a “Change of Control Repurchase Event Notice”) to the holders specifying the nature of the Change of Control Repurchase Event and the procedure for exercising the holders’ repurchase option.
To exercise the option to require the repurchase of a Security following the occurrence of a Change of Control Repurchase Event the holder of the Security must deliver such Security, on any Business Day during the period beginning no earlier than 10 days from the date on which the Change of Control Repurchase Event Notice is given and ending 60 days from the date such notice is given (the “Repurchase Period”), at the specified office of the Paying Agent, accompanied by a duly signed and completed notice of exercise in the form (for the time being current) which shall be provided with the Change of Control Repurchase Event Notice (a “Change of Control Repurchase Notice”). A Change of Control Repurchase Notice, once given, shall be irrevocable unless the relevant Issuer elects to permit revocations. All Securities submitted for repurchase shall be purchased by the relevant Issuer on the date that is 3 Business Days after the expiration of the Repurchase Period (the “Repurchase Date”).
| 88 |
On the Repurchase Date, the relevant Issuer will:
| (a) | accept for payment all Securities or portions of Securities (in principal amounts of U.S.$1,000 and integral multiples of U.S.$1,000 in excess thereof) properly tendered pursuant to the repurchase option; |
| (b) | deposit with the Paying Agent an amount equal to the aggregate repurchase price in respect of all Securities or portions of Securities properly tendered; |
| (c) | deliver or cause to be delivered to the Paying Agent (with a copy to the Trustee) the Securities properly accepted, together with an Officers’ Certificate (upon which the Trustee and Paying Agent may conclusively rely) stating the aggregate principal amount of Securities being purchased; and |
| (d) | instruct the Registrar in writing (with a copy to the Trustee) to cancel all Securities or portions of the Securities so repurchased and delivered, and the Registrar shall promptly cancel such Securities in accordance with its customary procedures. |
The Paying Agent will promptly mail to each holder of Securities properly tendered the repurchase price for the Securities, and the Authenticating Agent will promptly authenticate and mail (or cause to be transferred by book- entry) to each holder a new Security equal in principal amount to any unpurchased portion of any Securities surrendered; provided, that each new Security will be in a principal amount of U.S.$1,000 and integral multiples of U.S.$1,000 in excess thereof.
The relevant Issuer will comply with the requirements of Rule l 4e-l under the Exchange Act and any other securities laws and regulations thereunder, to the extent those laws and regulations are applicable in connection with the repurchase of Securities as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the Securities, the relevant Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control Repurchase Event provisions of the Securities by virtue of such conflict.
The relevant Issuer will not be required to make an offer to repurchase the Securities upon a Change of Control Repurchase Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by such Issuer, and such third party purchases all notes properly tendered and not withdrawn under its offer.
The Trustee and Paying Agent are each under no obligation to ascertain whether a Change of Control Repurchase Event or Change of Control or any event which could lead to the occurrence of or could constitute a Change of Control Repurchase Event or Change of Control has occurred and, until the Trustee or the Paying Agent, as applicable, shall have actual knowledge or written notice pursuant to this Indenture to the contrary, the Trustee or the Paying Agent, as applicable, may assume that no Change of Control Repurchase Event or Change of Control (as defined below) or other such event has occurred.
| 89 |
A “Change of Control” means the occurrence of any of the following:
| (a) | (i) the consummation of any transaction, including any merger or consolidation, as a result of which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than a holding company whose shareholders are or are to be substantially similar to WPP plc’s shareholders immediately prior to such company becoming WPP plc’s parent company, is or becomes the “beneficial owner” (as such term is used in Rule 13d-3 under the Exchange Act), directly or indirectly, as a result of a purchase, merger or otherwise, of (x) more than 50 percent of the issued ordinary share capital of WPP plc, or, in lieu thereof after the creation of a New Parent (as defined below), more than 50 percent of the issued ordinary share capital of the New Parent or (y) shares in the capital of WPP plc carrying more than 50 percent of the voting rights (“Voting Stock”) normally exercisable at a general meeting of WPP plc, or, in lieu thereof after the creation of a New Parent, more than 50 percent of the Voting Stock of the New Parent normally exercisable at a general meeting of the New Parent; or (ii) any Guarantor ceases to be a direct or indirect Subsidiary of WPP plc or any Parent Guarantor; |
| (b) | the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of WPP plc and its Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than to WPP plc or one of its Subsidiaries or, in lieu thereof after the creation of a New Parent, the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the New Parent and its Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than to the New Parent or one of its Subsidiaries; or |
| (c) | the adoption of a plan relating to the liquidation or dissolution of WPP plc or, in lieu thereof after the creation of a New Parent, the adoption of a plan relating to the liquidation or dissolution of the New Parent |
(each of the events set forth in clauses (a), (b) and (c), a “Change of Control”).
A “below investment grade rating event” means at the time of the occurrence of a Change of Control, (i) the Securities carry an Investment Grade credit rating from at least three Rating Agencies and such ratings from at least two Rating Agencies are, within a period ending 120 days after announcement of the Change of Control having occurred (or such longer period as the Securities are under consideration, announced publicly within such 120-day period, for rating review), each downgraded to a non-investment grade credit rating (Ba1/BB+, or equivalent, or worse), or (ii) the Securities carry an Investment Grade credit rating from one or two Rating Agencies and any such rating is, within a period ending 120 days after announcement of the Change of Control having occurred (or such longer period as the Securities are under consideration, announced publicly within such 120 day period, for rating review), downgraded to a non-investment grade credit rating (Bal/BB+, or equivalent, or worse), or (iii) if the Securities are rated by three Rating Agencies, the ratings of the Securities from at least two Rating Agencies are withdrawn or, if the Securities are rated by either one or two Rating Agencies at such time, any rating is withdrawn.
“Change of Control Repurchase Event” means the occurrence of both a Change of Control and a below investment grade rating event with respect to the Securities.
Notwithstanding the foregoing, if at the time of the occurrence of the Change of Control the Securities carry either a non-investment grade credit rating from each Rating Agency then assigning a credit rating to the Securities or no credit rating from any Rating Agency, a Change of Control Repurchase Event will be deemed to occur upon the occurrence of a Change of Control alone.
| 90 |
For the purposes of the foregoing provisions, “New Parent” means any Parent Guarantor whose equity ownership is substantially the same as WPP plc or any prior Parent Guarantor immediately prior to such New Parent becoming a Parent Guarantor.
ARTICLE
Twelve
Legal Defeasance and Covenant Defeasance
| 12.1 | Option to Effect Defeasance or Covenant Defeasance. |
Section 12.2 and Section 12.3 shall apply to the Outstanding Securities of any series (a “Defeasible Series”) to the extent that the terms of such Securities established as contemplated by Section 3.1 provide for such applicability.
| 12.2 | Defeasance and Discharge. |
The relevant Issuer and the Guarantors shall be deemed to have been discharged from their respective obligations with respect to the Outstanding Securities of any Defeasible Series, as provided in this Section 12.2 on and after the date the applicable conditions set forth in Section 12.4 are satisfied (hereinafter called “Defeasance”) with respect to such Securities. For this purpose, such Defeasance means that the relevant Issuer and the Guarantors shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Securities of such series and to have satisfied all their other respective obligations under the Securities of such series and this Indenture insofar as the Securities of such series are concerned (and the Trustee and the other relevant parties and Agents, at the written request and expense of the relevant Issuer, shall execute proper instruments acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (1) the rights of Holders of Securities of such series to receive, solely from the trust fund described in Section 12.4 and as more fully set forth in such Section, payments in respect of the principal of, any premium and interest and Additional Amounts on, such Securities of such series when payments are due, (2) the relevant Issuer’s and the Guarantors’ obligations with respect to the Securities of such series under Sections 3.4, 3.5, 3.6, 10.2, 10.3, 10.7 (to the extent then unknown) and 10.12, (3) the rights (including without limitation, the rights set forth in Section 6.7), powers, trusts, duties and immunities of the Trustee hereunder and (4) this Article. Subject to compliance with this Article, the relevant Issuer or the Guarantors may defease any Securities pursuant to this Section notwithstanding the prior Covenant Defeasance of such Securities pursuant to Section 12.3.
| 12.3 | Covenant Defeasance. |
On and after the date the applicable conditions set forth in Section 12.4 are satisfied (hereinafter called “Covenant Defeasance”) with respect to the Outstanding Securities of any Defeasible Series of the relevant Issuer, pursuant to this Section 12.3, (a) the relevant Issuer and the Guarantors shall be released from their respective obligations under Sections 8.1, 10.5, 10.6, 10.9, 10.10, 10.11 and 10.13, and any covenants established as contemplated by Section 3.1 or adopted by supplemental indenture hereto under Section 9.1(b) for the benefit of the Holders of such Securities and (b) the occurrence of any event specified in Sections 5.1(c) and 5.1(d) or pursuant to Section 5.1(g) with respect to any obligations referred to in Clause (a) of this Section 12.3 shall be deemed not to be or result in an Event of Default, in each case with respect to the Outstanding Securities of such series as provided in this Section.
| 91 |
For this purpose, such Covenant Defeasance means that the relevant Issuer and the Guarantors may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section (to the extent so specified in the case of Section 5.1(d)), whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and the Securities of such series shall be unaffected thereby.
| 12.4 | Conditions to Defeasance or Covenant Defeasance. |
The following shall be the conditions to the Defeasance pursuant to Section 12.2 or the Covenant Defeasance pursuant to Section 12.3 of the Outstanding Securities of any Defeasible Series of the relevant Issuer:
| (a) | The relevant Issuer or any Guarantor shall irrevocably have deposited or caused to be deposited with the Paying Agent (or another paying agent which satisfies the requirements applicable to Trustees contemplated by Section 6.9 and agrees to comply with the provisions of this Article applicable to it), as applicable, as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Outstanding Securities of such series, (A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and the Paying Agent, to pay and discharge, and which shall be applied by the Paying Agent (or any such other qualifying paying agent), to pay and discharge, the principal of and any premium and interest on the Securities of such series on the respective Stated Maturities, in accordance with the terms of this Indenture and the Securities of such series. |
As used herein, “U.S. Government Obligation” means (x) any security which is (i) a direct obligation of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case (i) or (ii), is not callable or redeemable at the option of the relevant Issuer thereof, and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation which is specified in Clause (x) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any U.S. Government Obligation which is so specified and held; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.
| (b) | The relevant Issuer or any Guarantor shall have delivered to the Trustee Opinions of Counsel to the effect that (a) the beneficial owners of the Outstanding Securities of such series will not recognize gain or loss for U.S. federal income tax purposes or be subject to any taxes or recognize gain or loss for income tax purposes in the jurisdictions in which the relevant Issuer is organized, resident or carries on business as a result of the deposit and Defeasance or Covenant Defeasance to be effected with respect to the Outstanding Securities of such series and will be subject to U.S. federal income tax and income taxes, capital gains and other taxes, including withholding taxes in such jurisdictions in the same amount, in the same manner and at the same times as would be the case if such deposit and Defeasance or Covenant Defeasance were not to occur, which in the case of Defeasance pursuant to Section 12.2 must (in the case of U.S. federal income tax matters) be based on a change in law or published ruling by the U.S. Internal Revenue Service and (b) the deposit shall not result in the relevant Issuer being deemed an “investment company” required to register under the Investment Company Act. |
| 92 |
| (c) | The relevant Issuer or any Guarantor shall have delivered to the Trustee an Officers’ Certificate to the effect that the Securities of such series, if then listed on any securities exchange, will not be delisted as a result of such deposit. |
| (d) | No event which is, or after notice or lapse of time or both would become, an Event of Default with respect to the Outstanding Securities of such series shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Sections 5.1(e) and (f), at any time on or prior to the 90th day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day). |
| (e) | Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of such Act). |
| (f) | Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the relevant Issuer or any Guarantor is a party or by which it or they are bound. |
| (g) | The relevant Issuer or any Guarantor shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with. |
| 12.5 | Deposited Money and US. Government Obligations to be Held in Trust; Miscellaneous Provisions. |
Subject to the provisions of the last paragraph of Section 10.3, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Paying Agent or other qualifying trustee (solely for purposes of this Section and Section 12.6, the Trustee and any such other trustee are referred to collectively as the “Trustee”) pursuant to Section 12.4 in respect of any Securities of the relevant Issuer shall be held in trust and applied by the Paying Agent, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through the Paying Agent (or the relevant Issuer or any Guarantor if the relevant Issuer or a Guarantor shall then be acting as its own or their own Paying Agent) as the Trustee may determine (in making any such determination, the Trustee shall, among other things, be entitled to conclusively rely on information provided by the Registrar and/or on information in the Security Register), to the Holders of such Securities, of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but money so held in trust need not be segregated from other funds except to the extent required by law.
The relevant Issuer or the Guarantors, as the case may be, shall pay and indemnify the Trustee and the Paying Agent against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 12.4 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities.
| 93 |
Notwithstanding anything in this Article to the contrary, the Paying Agent shall deliver or pay to the relevant Issuer or the Guarantors, as the case may be, from time to time upon an Issuer Request any money or U.S. Government Obligations held by it as provided in Section 12.4 with respect to any Securities which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and Paying Agent, are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities.
| 12.6 | Reinstatement. |
If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any Securities of the relevant Issuer by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the relevant Issuer and the Guarantors have been discharged or released pursuant to Section 12.2 or 12.3 shall be revived and reinstated, as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the Trustee or such Paying Agent is permitted to apply all money held in trust pursuant to Section 12.5 with respect to such Securities in accordance with this Article; provided, however, that if the relevant Issuer or any Guarantor makes any payment of principal of, premium, if any, or interest on any such Security following such reinstatement of its obligations, the relevant Issuer or such Guarantor shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust.
ARTICLE
Thirteen
Guarantee of Securities
| 13.1 | Guarantee. |
Each Guarantor hereby, jointly and severally, fully and unconditionally guarantees to each Holder of a Security of each series issued by the relevant Issuer that has been authenticated and delivered by the Authenticating Agent and/or Trustee, as applicable, and to the Trustee and the Agents, the full and punctual payment of the principal of and any premium and interest on such Security (and any Additional Amounts payable in respect thereof), when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption, call for repurchase or otherwise, and any other amounts due under this Indenture, all in accordance with the terms of such Security and of this Indenture. Each Guarantee is a direct, unsubordinated and unsecured obligation of such Guarantor and ranks pari passu with all other unsubordinated and unsecured obligations of such Guarantor. Each Guarantor hereby agrees that its obligations hereunder shall be as if it were a principal debtor and not merely a surety, and shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of any Security of any series or this Indenture, any failure to enforce the provisions of any Security of any series or this Indenture, any waiver, modification or indulgence granted to the relevant Issuer with respect thereto, by the Holder of any Security of any series or the Trustee, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or guarantee; provided, however, that, notwithstanding the foregoing, no such waiver, modification or indulgence shall, without the consent of the Guarantor increase the principal amount of a Security or the interest rate thereon or increase any premium payable upon redemption thereof.
| 94 |
Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger or bankruptcy of the relevant Issuer, any right to require a proceeding first against the relevant Issuer, the benefit of discussion, protest or notice with respect to any Security or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Guarantee will not be discharged with respect to any Security except by payment in full of the principal thereof and any premium and interest thereon or as provided in Article Four, Section 8.2 or Article Twelve. Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, the Maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby.
Each Guarantor shall be subrogated to all rights of each Holder of Securities against the relevant Issuer in respect of any amounts paid to such Holder by such Guarantor pursuant to the provisions of this Guarantee; provided, however, that such Guarantor shall not be entitled to enforce, or to receive any payments arising out of, or based upon, such right of subrogation until the principal of and any premium and interest on all the Securities of the same series and of like tenor shall have been paid in full.
No past, present or future stockholder, officer, director, employee or incorporator of any Guarantor shall have any personal liability under the Guarantee set forth in this Section 13.1 by reason of his or its status as such stockholder, officer, director, employee or incorporator.
| 13.2 | Execution and Delivery of Indenture. |
To further evidence a Guarantee set forth in Section 13.1, each Guarantor hereby agrees that this Indenture, or a supplemental indenture hereto, shall be executed by either manual or facsimile signature of an Officer of such Guarantor. The validity and enforceability of any Guarantee shall not be affected by the fact that it is not affixed to any particular Security.
Each of the Guarantors hereby agrees that its Guarantee set forth in Section 13.1 shall remain in full force and effect notwithstanding any failure to endorse on each Security a notation of such Guarantee.
If an Officer of a Guarantor whose signature is on this Indenture, or an indenture supplemental hereto, no longer holds that office at the time the Trustee (and/or Authenticating Agent) authenticates the Securities or at any time thereafter, such Guarantor’s Guarantee (pursuant to this Indenture) of such Security shall be valid nevertheless.
The delivery of the Securities of any series by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantees set forth in this Indenture on behalf of such Guarantor.
| 95 |
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, as of the day and year first above written.
|
ISSUER:
Executed as a Deed by WPP 2025 LLC
________________________________________
In the presence of:
________________________________________ Name: Occupation: Address: [WPP Finance 2010 and WPP 2025 LLC Indenture]
|
| 96 |
|
ISSUER:
Executed as a Deed by WPP FINANCE 2010
________________________________________
In the presence of:
________________________________________ Name: Occupation: Address: [WPP Finance 2010 and WPP 2025 LLC Indenture] |
| 97 |
|
PARENT GUARANTOR: WPP PLC
By: _____________________________________ Name: Title: [WPP Finance 2010 and WPP 2025 LLC Indenture]
|
| 98 |
|
GUARANTOR: Executed as a Deed by WPP JUBILEE LIMITED
________________________________________ In the presence of: ________________________________________ Name: Occupation: Address: [WPP Finance 2010 and WPP 2025 LLC Indenture]
|
| 99 |
|
GUARANTOR: Executed as a Deed by WPP 2005 LIMITED
________________________________________ In the presence of: ________________________________________ Name: Occupation: Address: [WPP Finance 2010 and WPP 2025 LLC Indenture]
|
| 100 |
|
TRUSTEE: WILMINGTON TRUST, NATIONAL ASSOCIATION,
By: _____________________________________ Name: Title: [WPP Finance 2010 and WPP 2025 LLC Indenture]
|
| 101 |
|
REGISTRAR AND PAYING AGENT: CITIBANK, N.A.,
By: _____________________________________ Name: Title: [WPP Finance 2010 and WPP 2025 LLC Indenture]
|
102
|
WPP plc Sea Containers 18 Upper Ground London SE1 9GL United Kingdom
WPP Finance 2010 Sea Containers 18 Upper Ground London SE1 9GL United Kingdom
WPP 2025 LLC 3 World Trade Center 175 Greenwich Street New York NY 10007 United States
|
Allen Overy Shearman Sterling LLP One Bishops Square London E1 6AD United Kingdom
Tel +44 (0)20 3088 0000 Fax +44 (0)20 3088 0088
|
| Our ref SD0016432-0000755 UKO2: 2010901418.4 | |
| March 19, 2026 |
WPP Finance 2010
WPP 2025 LLC
Registration Statement on Form F-3
Ladies and Gentlemen,
We have acted as special United States counsel to WPP Finance 2010, a private unlimited liability company incorporated under the laws of England and Wales, WPP 2025 LLC, a limited liability company organized under the laws of Delaware (together, the “Issuers”), WPP plc, a public company limited by shares incorporated under the laws of Jersey (the “Parent Guarantor”), WPP Jubilee Limited, a private limited company in England and Wales and WPP 2005 Limited, a private limited company incorporated under the laws of England and Wales (together with the Parent Guarantor and WPP Jubilee Limited, the “Guarantors”) in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”), of (i) an indeterminate amount of debt securities of the Issuer (the Debt Securities) to be issued pursuant to a base indenture among the Issuer, the Guarantors, Wilmington Trust, National Association, as trustee and Citibank N.A., as registrar and paying agent (the “Indenture”); and (ii) the guarantees (the “Guarantees”) of each of the Guarantors of the Debt Securities. The Debt Securities and the Guarantees will be offered from time to time on a delayed or continuous basis pursuant to the provisions of Rule 415 under the Securities Act.
In that connection, we have reviewed originals or copies of the following documents:
| (a) | the registration statement on Form F-3 relating to the Debt Securities and Guarantees; |
Allen Overy Shearman Sterling LLP is a limited liability partnership registered in England and Wales with registered number OC306763. It is authorised and regulated by the Solicitors Regulation Authority of England and Wales (SRA number 401323). The term partner is used to refer to a member of Allen Overy Shearman Sterling LLP or an employee or consultant with equivalent standing and qualifications. A list of the members of Allen Overy Shearman Sterling LLP and of the non-members who are designated as partners is open to inspection at its registered office, One Bishops Square, London E1 6AD.
Allen Overy Shearman Sterling LLP or an affiliated undertaking has an office in each of: Abu Dhabi, Amsterdam, Antwerp, Austin, Bangkok, Beijing, Belfast, Boston, Bratislava, Brussels, Budapest, Casablanca, Dallas, Dubai, Dublin, Düsseldorf, Frankfurt, Hamburg, Hanoi, Ho Chi Minh City, Hong Kong, Houston, Istanbul, Jakarta (associated office), Johannesburg, London, Los Angeles, Luxembourg, Madrid, Menlo Park, Milan, Munich, New York, Paris, Perth, Prague, Riyadh, Rome, San Francisco, São Paulo, Seoul, Shanghai, Silicon Valley, Singapore, Sydney, Tokyo, Toronto, Warsaw, Washington, D.C.
| (b) | the form of Indenture; and |
| (c) | the forms of the Debt Securities as set forth in the Indenture. |
The documents described in the foregoing clauses (a) through (c) are collectively referred to as the “Opinion Documents”.
In our review of the Opinion Documents and other documents, we have assumed:
| (a) | The genuineness of all signatures. |
| (b) | The authenticity of the originals of the documents submitted to us. |
| (c) | The conformity to authentic originals of any documents submitted to us as copies. |
| (d) | That each of the Opinion Documents is the legal, valid and binding obligation of each party thereto, (other than the Issuers and the Guarantors to the extent that Generally Applicable Law (as defined below) is applicable), enforceable against each such party in accordance with its terms. |
| (e) | That under English and Jersey law, as the case may be, each of the Opinion Documents is the legal, valid and binding obligation of the Issuers and the Guarantors enforceable against each such party in accordance with its terms. |
| (f) | That: |
| (i) | Each of the parties to the Opinion Documents (other than WPP 2025 LLC) is an entity duly organized and validly existing under the laws of its jurisdiction of organization. |
| (ii) | Each of WPP Finance 2010 and the Guarantors have power and authority (corporate or otherwise) to execute, deliver and perform, and has duly authorized, executed and delivered (except to the extent Generally Applicable Law (as defined below) is applicable to such execution and delivery), the Opinion Documents to which it is a party. |
| (iii) | The execution, delivery and performance by each of WPP Finance 2010 and the Guarantors of the Opinion Documents to which it is a party does not and will not: |
| (A) | contravene its certificate or articles of incorporation, by-laws or other organizational documents; or |
| (B) | except with respect to Generally Applicable Law, violate any law, rule or regulation applicable to it. |
| (g) | That the execution, delivery and performance by each of the Issuers and the Guarantors of the Opinion Documents to which it is a party do not and will not result in any conflict with or breach of any agreement or document binding on it. |
| (h) | We have assumed that at the time of the issuance, sale and delivery of any Debt Securities or Guarantees there will not have occurred any change in law affecting the validity, legally binding character or enforceability of such Debt Securities or Guarantees. |
| (i) | We have assumed that each issuance of Debt Securities will be in an aggregate principal amount of not less than U.S.$2,500,000 or the equivalent thereof. |
| 2 |
We have not independently established the validity of the foregoing assumptions.
For purposes of this opinion, “Generally Applicable Laws” means the federal law of the United States of America, the law of the State of New York and the Limited Liability Company Act of the State of Delaware.
Based upon the foregoing and upon such other investigation as we have deemed necessary and subject to the qualifications set forth below, we are of the opinion that:
| 1. | When the Registration Statement has become effective under the Securities Act and the Debt Securities have been duly executed by the relevant Issuer, authenticated by the Trustee in accordance with the Indenture and delivered and paid for as provided in the Registration Statement, the Debt Securities will constitute valid and binding obligations of the relevant Issuer, enforceable against such Issuer in accordance with their terms, and the Debt Securities will be entitled to the benefits of the Indenture. |
| 2. | When the Registration Statement has become effective under the Securities Act and the Debt Securities have been duly executed by the relevant Issuer, authenticated by the Trustee in accordance with the Indenture and delivered and paid for as provided in the Registration Statement, the Guarantees will be the legal, valid and binding obligations of the Guarantors, enforceable against each respective Guarantor in accordance with their terms, and the Guarantees will be entitled to the benefits of the Indenture. |
Our opinions expressed above are subject to the following qualifications:
| (a) | Our opinions above are subject to (i) the effect of any applicable bankruptcy, insolvency, reorganization, resolution, moratorium or similar laws affecting creditors’ rights generally (including without limitation all laws relating to fraudulent transfers) and (ii) possible judicial action giving effect to governmental actions or foreign laws affecting creditors’ rights. |
| (b) | Our opinions above are also subject to the effect of general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law). |
| (c) | We express no opinion as to the enforceability of (i) any waiver of any applicable defenses, rights of set-off or counterclaims that are not capable of waiver, (ii) any provision relating to the severability of provisions in the Opinion Documents, or (iii) any provision of any of the Opinion Documents to the effect that terms may not be waived or modified except in writing. |
| (d) | Although the Opinion Documents provide for obligations of the Company denominated in a currency other than United States dollars, we express no opinion as to whether a court would award a judgment in a currency other than United States dollars. |
| (e) | We express no opinion with respect to Section 1.13 of the Indenture to the extent that such section (i) contains a waiver of any objection based on inappropriate venue or forum non conveniens in any federal court of the United States or (ii) implies that a federal court of the United States has subject matter jurisdiction. |
This opinion letter speaks only as of the date hereof. We expressly disclaim any responsibility to advise you of any development or circumstance of any kind, including any change of law or fact, that may occur after the date of this opinion letter and which might affect the opinions expressed herein.
| 3 |
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us under the heading “Validity of Securities” in the prospectus that is a part of the Registration Statement. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations of the U.S. Securities and Exchange Commission thereunder.
Sincerely yours,
/s/ Allen Overy Shearman Sterling LLP
ALLEN OVERY SHEARMAN STERLING LLP
| 4 |
|
WPP Finance 2010 Sea Containers 18 Upper Ground London SE1 9GL United Kingdom
WPP 2025 LLC Corporate Creations Network Inc. 1521 Concord Pike, Suite 201 Wilmington DE 19803 United States
|
Allen Overy Shearman Sterling LLP One Bishops Square London E1 6AD United Kingdom
Tel +44 (0)20 3088 0000 Fax +44 (0)20 3088 0088
|
| Our ref PPPC/MIEH/0016432-0000755 UKO2: 2010913991.7 | |
| 19 March 2026 |
WPP Finance 2010
WPP 2025 LLC
Registration Statement on Form F-3
Ladies and Gentlemen,
We have acted as English counsel to WPP Finance 2010, a private unlimited liability company organized under the laws of England and Wales (the English Issuer), WPP 2025 LLC, a limited liability company incorporated under the laws of Delaware (the US Issuer and, together with the English Issuer, the Issuers), WPP plc, a public company limited by shares in Jersey (WPP), WPP 2005 Limited, a private limited liability company organized under the laws of England and Wales (WPP 2005) and WPP Jubilee Limited, a private limited liability company organised under the laws of England and Wales (WPP Jubilee, and together with WPP and WPP 2005, the Guarantors) in connection with the registration under the U.S. Securities Act of 1933, as amended (the Securities Act) of (i) an indeterminate amount of debt securities of the Issuers (the Notes, which term shall also include the Global Notes (as defined below) except where the context otherwise requires) to be issued pursuant to a base indenture (the Indenture) among the Issuers, the Guarantors, Wilmington Trust, National Association (as trustee) and Citibank, N.A., (as security registrar and principal paying agent) and (ii) the guarantees (the Guarantees) of each of the Guarantors of the Notes. The Notes and the Guarantees will be offered from time to time on a delayed or continuous basis pursuant to the provisions of Rule 415 under the Securities Act.
Allen Overy Shearman Sterling LLP is a limited liability partnership registered in England and Wales with registered number OC306763. It is authorised and regulated by the Solicitors Regulation Authority of England and Wales (SRA number 401323). The term partner is used to refer to a member of Allen Overy Shearman Sterling LLP or an employee or consultant with equivalent standing and qualifications. A list of the members of Allen Overy Shearman Sterling LLP and of the non-members who are designated as partners is open to inspection at its registered office, One Bishops Square, London E1 6AD.
Allen Overy Shearman Sterling LLP or an affiliated undertaking has an office in each of: Abu Dhabi, Amsterdam, Antwerp, Austin, Bangkok, Beijing, Belfast, Boston, Bratislava, Brussels, Budapest, Casablanca, Chicago, Dallas, Dubai, Dublin, Düsseldorf, Frankfurt, Hamburg, Hanoi, Ho Chi Minh City, Hong Kong, Houston, Istanbul, Jakarta (associated office), London, Los Angeles, Luxembourg, Madrid, Milan, Munich, New York, Paris, Perth, Prague, Riyadh, Rome, San Francisco, São Paulo, Seoul, Shanghai, Silicon Valley, Singapore, Sydney, Tokyo, Toronto, Warsaw, Washington, D.C.
| 1. | SCOPE OF REVIEW AND RELIANCE |
For the purposes of this opinion letter, we have reviewed such documents, and made such other investigation, as we have deemed appropriate including without limitation:
| (a) | the Memorandum and Articles of Association of the English Issuer, certified as being those now in force; |
| (b) | the Memorandum and Articles of Association of each of WPP 2005 and WPP Jubilee, certified as being those now in force; |
| (c) | a certified copy of the minutes of a meeting of the Board of Directors of the English Issuer held on 17 March 2026; |
| (d) | a certified copy of the minutes of a meeting of the Board of Directors of WPP 2005 held on 17 March 2026; |
| (e) | a certified copy of the minutes of a meeting of the Board of Directors of WPP Jubilee held on 17 March 2026; |
| (f) | a certificate from an authorised signatory of the English Issuer as to, inter alia, the resolutions passed at meetings referred to in (c) above and to the effect that there will be no contravention of any borrowing limit to which the English Issuer is subject as a result of the issue of any Notes by the English Issuer; |
| (g) | a certificate from an authorised signatory of WPP 2005 as to, inter alia, the resolutions passed at meetings referred to in (d) above and to the effect that there will be no contravention of any borrowing limit to which WPP 2005 is subject as a result of the issue of any Notes and the giving of the Guarantees in respect of any Notes by WPP 2005; |
| (h) | a certificate from an authorised signatory of WPP Jubilee as to, inter alia, the resolutions passed at meetings referred to in (e) above and to the effect that there will be no contravention of any borrowing limit to which WPP Jubilee is subject as a result of the issue of any Notes and the giving of the Guarantees in respect of any Notes by WPP Jubilee; |
| (i) | the Registration Statement on Form F-3 relating to the Notes and the Guarantees dated 19 March 2026 (the Registration Statement); |
| (j) | The form of Indenture; and |
| (k) | the forms of the Notes and the Guarantees as set out in the Indenture. |
The Indenture, the Notes and the Guarantees are each referred to in this opinion as a Transaction Document and, together, the Transaction Documents.
| 2. | ASSUMPTIONS |
We have assumed that, so far as the laws of every jurisdiction other than England are concerned, all restrictions, laws, guidelines, regulations or reporting requirements that apply to the Indenture and any issue of Notes and Guarantees thereunder have been complied with and that such laws do not qualify or affect our opinion as set out below.
| 2 |
We have also made the following assumptions, which we have not independently verified or established and on which we express no opinion:
| (a) | insofar as any obligation falls to be performed in any jurisdiction outside England, its performance will not be illegal or ineffective by virtue of the laws of that jurisdiction; |
| (b) | all signatures or other indicators of execution on the executed documents which, or copies (whether photocopies, certified copies, facsimile copies or electronic copies) of which, we have examined are genuine and that such copies confirm to the original documents executed and that all applicable procedures for execution of such documents or that are required for the affixing of any indicator of execution have been complied with by the parties thereto; |
| (c) | each of the parties to the Transaction Documents, other than the English Issuer, WPP 2005 and WPP Jubilee, is able lawfully to enter into such Transaction Document; |
| (d) | each person who acts or acted as a director of the English Issuer, WPP 2005 or WPP Jubilee in relation to the (a) authorisation, execution, entry into or delivery of the Transaction Documents and/or (b) authorisation, execution, delivery or issue of any Notes or any Guarantee is or was a director at all relevant times; |
| (e) | all Notes will only be issued in compliance with the restrictions contained the Indenture and any relevant underwriting agreement; |
| (f) | the execution and delivery of the Transaction Documents have been or will be duly authorised by each of the parties thereto, other than the English Issuer, WPP 2005 and WPP Jubilee, and that such documents have been or will be duly executed and delivered by such parties (other than, subject to paragraph (b) above, the English Issuer, WPP 2005 and WPP Jubilee); |
| (g) | the issue of Notes has been duly authorised by the English Issuer and that each Note (when issued) will have been duly issued; |
| (h) | each of the parties to the Transaction Documents who is carrying on, or purporting to carry on, any regulated activity in the United Kingdom is an authorised person permitted to carry on that relevant regulated activity or an exempt person in respect of that regulated activity under the Financial Services and Markets Act 2000 (the FSMA) and no such agreement was or will be entered into in consequence of a communication made in breach of section 21(1) of the FSMA; |
| (i) | the Notes of each tranche will be duly prepared and completed in accordance with the provisions and arrangements contained or described in the Indenture and will be in the form of the Global Notes as provided for and set out in the Indenture; |
| (j) | the Memorandum and Articles of Association of the English Issuer, WPP 2005 and WPP Jubilee which we have examined are those in force and the resolutions of the Board of Directors of the English Issuer and the resolutions of the Boards of Directors of WPP 2005 and WPP Jubilee which we have examined were passed at meetings duly convened and held, have not been amended, rescinded, modified or revoked and are in full force and effect and the certifications referred to in 1(a) to (h) above are true and accurate; |
| 3 |
| (k) | neither the issue of Notes nor the giving of the Guarantees will cause any limit on borrowings to which any of the English Issuer, WPP 2005 or WPP Jubilee is subject to be exceeded; |
| (l) | each issue of Notes in respect of which particular restrictions, laws, guidelines, regulations or reporting requirements apply in England will only be issued in circumstances which comply with such restrictions, laws, guidelines, regulations or reporting requirements as apply from time to time; |
| (m) | the absence of any other arrangements between any of the parties to the Transaction Documents which modify or supersede any of their terms; |
| (n) | the English Issuer is neither an authorised person nor an exempt person in relation to the regulated activity of accepting deposits under the FSMA; |
| (o) | no request has been or will be made to admit any Notes to trading on a UK regulated market (as defined in the Markets in Financial Instruments Regulation ((EU) No 600/2014) as it forms part of English law); |
| (p) | having had regard to all matters they considered relevant (including in relation to (i) below, those set out in section 172 of the Companies Act 2006 and, in relation to (ii) below, the financial position of the Issuers), the Directors of each of WPP 2005 and WPP Jubilee concluded in good faith and on reasonable grounds that (i) the giving of the relevant Guarantees would promote the success of WPP 2005 or, as the case may be, WPP Jubilee for the benefit of its members as a whole and (ii) a claim was unlikely to be made on the relevant Guarantees; and |
| (q) | all documents presented to us as originals are true and accurate and all documents submitted to us as copies (including faxed copies) conform with the originals and that any documents in draft form which we have examined for the purposes hereof will not change when in final form in such a way as could affect our opinion herein. |
| 3. | LIMITATIONS |
Our opinion is confined solely to English law.
The Transaction Documents are expressed to be governed by the laws of the State of New York. We have made no investigation of such laws and do not express or imply any opinion on such laws. In addition, we have assumed that, so far as the laws of the State of New York and US securities laws are concerned, the Transaction Documents constitute or will, on issue in accordance with the Indenture, constitute legal, valid and binding obligations of the English Issuer, WPP 2005 and WPP Jubilee and that such laws do not qualify or affect our opinion as set out below.
| 4. | OPINIONS |
On the basis of the foregoing, and having regard to such legal considerations as we deem relevant and subject as set out below, we are of the opinion that:
| 4.1 | So far as English law is concerned, when (a) the Registration Statement has become effective under the Securities Act and (b) the Notes of each Tranche have been duly authorised and executed by the English Issuer and authenticated in accordance with the terms of the Indenture and delivered in the manner provided in the Indenture, there is no reason why the obligations assumed by the English Issuer under the Notes of each Tranche should not constitute legal, valid, binding and enforceable obligations of the English Issuer. |
| 4 |
| 4.2 | The giving of the Guarantees has been duly authorised by WPP 2005 and WPP Jubilee and, so far as English law is concerned, when (a) the Registration Statement has become effective under the Securities Act, (b) the Notes of each Tranche have been duly executed by the relevant Issuer and authenticated in accordance with the terms of the Indenture and (c) the Guarantees have been duly executed in accordance with the terms of the Indenture, there is no reason why the obligations assumed by WPP 2005 and WPP Jubilee under the Guarantees should not constitute legal, valid, binding and enforceable obligations of WPP 2005 and WPP Jubilee, respectively. |
| 5. | QUALIFICATIONS |
Nothing in this opinion shall be taken as implying that an English court would exercise jurisdiction in any proceedings relating to the Transaction Documents or accordingly that any remedy would be available in England for the enforcement of obligations arising under the Transaction Documents or that an English court would respect the submission by the English Issuer, WPP 2025 and WPP Jubilee to the jurisdiction of the State of New York courts in the Transaction Documents.
This opinion is subject to the following:
| (a) | There could be circumstances in which an English court would not treat as conclusive those certificates and determinations which the Transaction Documents state are to be so treated. |
| (b) | Any provision in the Transaction Documents which involves an indemnity for the costs of litigation is subject to the discretion of the court to decide whether and to what extent a party to litigation should be awarded the costs incurred by it in connection with the litigation. |
| (c) | Any provision in any agreement or deed which amounts to an undertaking to assume the liability on account of the absence of payment of stamp duty or an indemnity to pay stamp duty may be void. |
| (d) | The term enforceable means that each obligation or document is of a type and form enforced by the English courts. It is not certain, however, that each obligation or document will be enforced in accordance with its terms in every circumstance, enforcement being subject to, inter alia, the nature of the remedies available in the English courts, the acceptance by such courts of jurisdiction, the power of such courts to stay proceedings, the fact that claims may be time-barred or subject to defences of set-off or counterclaim, and other principles of law and equity of general application. |
| (e) | The opinions set out above are subject to (i) all applicable limitations arising from bankruptcy, insolvency, liquidation, administration, reorganisation, moratorium, reconstruction or similar laws and (ii) all applicable laws (including principles of law) of general application affecting the rights of contractual parties and/or creditors. |
| (f) | If the performance by the English Issuer, WPP 2005 or WPP Jubilee of an obligation under any agreement or deed or the Notes or the Guarantees is contrary to the exchange control regulations of a member of the International Monetary Fund, that obligation may be unenforceable in England by virtue of Article VIII(2)(b) of the International Monetary Fund Agreement (as incorporated into law by the International Monetary Fund Act 1979 and the Bretton Woods Agreements Order in Council SI 1946/36). |
| (g) | The Registration Statement has been prepared by the Issuers and the Guarantors, which have accepted responsibility for the information contained therein. We have not investigated or verified the truth or accuracy of the information contained in the Registration Statement, nor have we been responsible for ensuring that no material information has been omitted from it. |
| 5 |
| (h) | The effectiveness of terms exculpating a party from a liability or duty otherwise owed is limited by law. |
| (i) | Any guarantee given by a company incorporated under the laws of England may be unenforceable if giving that guarantee amounts to an unlawful distribution to its shareholders or an unlawful reduction in its capital. There are no decided cases on the point but, in our opinion, the giving of the Guarantees should not amount to a distribution or reduction in capital if, at the time the relevant Guarantee is given, the directors of the company conclude in good faith and on reasonable grounds that a claim is unlikely to be made on the relevant Guarantee. |
| (j) | Provisions restricting the way in which a document may be amended (for example, by requiring amendments to be in writing) are generally effective, but a party to a document may be prevented by its conduct from relying on such provisions. |
| (k) | This opinion does not address the direct or indirect effects of any sanctions or similar measures in relation to any party to any of the documents we have examined or the transactions contemplated thereby, and accordingly such matters are beyond the scope of this opinion. |
| (l) | There is doubt as to the enforceability in England and Wales of US judgments in respect of civil judgments predicated purely on US securities law. |
| (m) | No account has been taken in this opinion of the future exercise of powers by the UK Government pursuant to section 5(4) of the Protection of Trading Interests Act 1980. |
| (n) | Insofar as any obligation under the Transaction Documents is to be performed in any jurisdiction other than England, an English court may have to have regard to the law of that jurisdiction in relation to the manner of performance and the steps to be taken in the event of defective performance. |
| (o) | We express no opinion as to whether specific performance, injunctive relief or any other form of equitable remedy would be available in respect of any obligation of the English Issuer, WPP 2005 or WPP Jubilee under or in respect of the Transaction Documents. |
| (p) | Any trust established pursuant to the Indenture may be set aside by an English court if at the time of the relevant deposit the English Issuer or either WPP 2005 or WPP Jubilee is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or becomes unable to pay its debts within the meaning of that section as a consequence of the relevant deposit. |
This opinion, which shall be construed in accordance with English law, is given to the Issuers in connection with the registration under the Securities Act of the Notes. This opinion is not addressed to the holders of Notes or Guarantees and may not be passed on to, or relied upon by, any holder or any other person for any purpose. You may not give copies of this opinion to others without our prior written permission.
We consent to the filing of this opinion as Exhibit 5.2 to the Registration Statement and to the reference to us under the heading ‘Validity of Securities’ in the prospectus that is a part of the Registration Statement. In giving such consent, we do not admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the U.S. Securities and Exchange Commission thereunder.
This opinion is given on the basis of English law in force and applied by English courts at the date of this opinion and on the basis that there has been no amendment to, or termination or replacement of, any of the documents examined by us and no change in any of the facts assumed by us for the purposes of giving this opinion. It is also given on the basis that we have no obligation to notify any addressee of this opinion of any change in English law or its application after the date of this opinion.
Yours faithfully,
/s/ Allen Overy Shearman Sterling LLP
ALLEN OVERY SHEARMAN STERLING LLP
| 6 |
 |
Mourant Ozannes (Jersey) LLP 22 Grenville Street
T +44 1534 676 000 |
To each Addressee listed in the Schedule to this opinion
(each an Addressee)
19 March 2026
Our ref: 8074133/254616748/6
Dear Sirs
WPP plc (the Parent Guarantor) - guarantee of debt securities to be issued by each of WPP Finance 2020 and WPP 2025 LLC (each an Issuer)
We act as the Jersey legal counsel to the Parent Guarantor.
We understand that pursuant to the Base Indenture (as defined below), each Issuer may, from time to time, issue debt securities (Securities) under the US Securities Act of 1933, as amended (the Securities Act), in one or more series (each, a Series) by executing a supplemental indenture (each, a Supplemental Indenture) which constitutes, and sets out the specific terms of, the Securities of the relevant Series.
We also understand that the Securities of each Series will be:
| (a) | guaranteed by the Parent Guarantor, WPP Jubilee Limited and WPP 2005 Limited (together, the Guarantors), pursuant to a guarantee (the Guarantee) for the Securities of that Series contained in Article 13 (Guarantee of Securities) of the Base Indenture; |
| (b) | registered under the Securities Act and will be offered to US investors pursuant to the Base Prospectus (as defined below) and a prospectus supplement (each, a Prospectus Supplement) for the Securities of that Series; and |
| (c) | represented by a global security in registered form (each, a Global Security) for the Securities of that Series to be issued by the relevant Issuer in the form set out in Article 2 (Security Forms) of the Base Indenture. |
We have been asked by the Parent Guarantor to give this opinion in connection with the registration of Securities under the Securities Act.
Mourant Ozannes (Jersey) LLP is registered as a limited liability partnership in Jersey with registered number LLP112
| BVI | CAYMAN ISLANDS | GUERNSEY | HONG KONG | JERSEY | LONDON | mourant.com |
Page 2
| 1. | Documents examined |
| 1.1 | For the purposes of this opinion, we have examined a copy of each of the following documents: |
| (a) | an indenture (the Base Indenture) to be entered into between each Issuer, the Guarantors, Wilmington Trust, National Association as trustee (in such capacity, the Trustee) and Citibank, N.A., as registrar and paying agent; |
| (b) | a registration statement on Form F-3 (the Registration Statement) relating to the Securities, which includes a base prospectus dated 19 March 2026 (the Base Prospectus); |
| (c) | the following resolutions of the board of directors of the Parent Guarantor (together, the Director Resolutions): (i) resolutions passed on 11 May 2020 pursuant to which the directors resolved (among other things) to establish a board executive committee (the Board Executive Committee) of the board of directors; and (ii) resolutions passed on 5 August 2025 pursuant to which the board of directors resolved (amongst other things, to approve, in principle, the Parent Guarantor's guarantee of each Series of Securities and delegate to the Board Executive Committee full power to (among other things) approve the Parent Guarantor's entry into the Base Indenture and each Supplemental Indenture and its guarantee of each Series of Securities; |
| (d) | resolutions of the Board Executive Committee of the Parent Guarantor passed in writing on 17 March 2026 (the Board Executive Committee Resolutions) pursuant to which the Board Executive Committee resolved (among other things) that the Parent Guarantor should enter into the Base Indenture; and |
| (e) | the Parent Guarantor's memorandum and articles of association. |
| 1.2 | We have relied on a certificate of the company secretary of the Parent Guarantor dated 19 March 2026 (the Opinion Certificate) a copy of which is attached to this opinion. We have not verified, and express no opinion on, the accuracy of the matters contained in the Opinion Certificate. |
| 1.3 | We have not examined for these purposes any other agreements or other documents (the Other Documents) to be entered into by the Parent Guarantor (including, without limitation, any Supplemental Indenture or any documents incorporated by reference in or otherwise referred to in the Base Indenture or the Registration Statement) and we offer no opinion on any such Other Document. |
| 2. | Assumptions |
We have assumed that:
| 2.1 | each document examined by us (and any signature, initial, stamp or seal on it) is genuine and, where it is a copy, it conforms to the original document and that, in the case of the Base Indenture, it will be executed by all parties thereto in substantially the same form as the last draft examined by us; |
| 2.2 | the Opinion Certificate remains accurate; |
| 2.3 | each director of the Parent Guarantor (and any alternate) has disclosed to the Parent Guarantor any interests that, directly or indirectly, conflict or may conflict to a material extent with the interests of the Parent Guarantor and any of its subsidiaries with regard to the transactions and other matters recorded in the Director Resolutions and the Board Executive Committee Resolutions and such disclosures are recorded in the Board Executive Committee Resolutions, or previous board minutes, of the Parent Guarantor; |
Page 3
| 2.4 | the Director Resolutions and the Board Executive Committee Resolutions, in each case, were duly passed, are in full force and effect and have not been amended, revoked or superseded and any meeting at which such resolutions were passed was duly convened and quorate throughout; |
| 2.5 | each party to the Base Indenture and each Supplemental Indenture (other than the Parent Guarantor as a matter of Jersey law) will have: |
| (a) | the capacity and power; |
| (b) | taken all the necessary action; and |
| (c) | obtained all the necessary agreements, approvals, authorisations, consents, licences, registrations or qualifications (whether as a matter of any law or regulation applicable to it or as a matter of any contract binding upon it), |
to execute and perform its obligations under the Base Indenture and each Supplemental Indenture and that the Base Indenture and each Supplemental Indenture will have been duly executed by each such party;
| 2.6 | the Base Indenture and each Supplemental Indenture will be, legal, valid, binding and enforceable in accordance with their respective terms as a matter of all applicable laws other than Jersey law; |
| 2.7 | that the opinion expressed below will not be affected by the laws (including public policy) of any jurisdiction outside Jersey and in particular but without limiting the generality of the foregoing: |
| (a) | that there are no provisions of the laws of any jurisdiction outside Jersey which would be contravened by the execution, delivery or performance of the Base Indenture or any Supplemental Indenture; and |
| (b) | that there has been, and there will be, due compliance with all matters of every applicable law (other than Jersey law); |
| 2.8 | in causing the Parent Guarantor to enter into the Base Indenture and each Supplemental Indenture, each of the directors of the Parent Guarantor will be acting in good faith with a view to the best interests of the Parent Guarantor and will be exercising the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances; |
| 2.9 | the Parent Guarantor is able to pay its debts as they fall due and will not become unable to do so by virtue of the execution of the Base Indenture or any Supplemental Indenture or the performance of the transactions contemplated thereby and no steps have been taken or resolutions passed to wind up the Parent Guarantor; |
| 2.10 | the Parent Guarantor, in entering into the Base Indenture and each Supplemental Indenture will be, acting as principal on its own behalf and not as an agent or trustee or in any other capacity; |
| 2.11 | that, for each Series of Securities, prior to the issue of that Series of Securities: |
| (a) | the relevant Issuer and the Guarantors will prepare and file with the US Securities and Exchange Commission a Prospectus Supplement; and |
Page 4
| (b) | the relevant Issuer, the Guarantors and the Trustee will execute and deliver a Supplemental Indenture governed by New York law, |
which set outs the terms and conditions for the Securities of that Series;
| 2.12 | that the powers conferred on the Board Executive Committee, as set out in the extract of the Director Resolutions referred to in paragraph 1.1(c) above, will remain in full force and effect and will not be amended or revoked; |
| 2.13 | that, in relation to each Series of Securities, the Board Executive Committee will duly approve and authorise, in accordance with the Parent Guarantor's articles of association, the Parent Guarantor's entry into, and execution of, the Supplemental Indenture for that Series of Securities; |
| 2.14 | that, for each Series of Securities, the Global Security for that Series of Securities will: |
| (a) | be fully and properly completed to reflect the terms and conditions of the Securities of that Series; and |
| (b) | be duly executed by the relevant Issuer and duly dated, authenticated, issued and delivered in accordance with the Base Indenture, |
and all necessary entries will be made in the Securities Register (as defined in the Base Indenture) in respect of the issue of the Global Security;
| 2.15 | that, for each Series of Securities, all necessary acts or formalities required under the Base Indenture to ensure that the Guarantee will be valid and effective in relation to that Series of Securities will be taken or observed; |
| 2.16 | that the Parent Guarantor's entry into, and the performance of its obligations (including its obligations under the Guarantee) under, the Base Indenture and each Supplemental Indenture will not cause the Parent Guarantor to breach the limitation on borrowing contained in Article 84 (Power to borrow money) of its articles of association; |
| 2.17 | that, in relation to each Series of Securities, none of the terms of the Supplemental Indenture for that Series of Securities would affect this opinion in any way; |
| 2.18 | that no money or other property of the Parent Guarantor over which the Trustee has, or purports to have, a lien under Article 6.7 (Compensation and Reimbursement) of the Base Indenture is, or will be, situated in Jersey; |
| 2.19 | there are no: |
| (a) | arrangements, agreements or deeds to which the Parent Guarantor is party (other than its memorandum and articles of association); or |
| (b) | resolutions passed by the Parent Guarantor, |
the terms of which could affect, conflict with, or be breached by, the terms of the Base Indenture or any Supplemental Indenture; and
| 2.20 | that no event occurs after the date of this opinion that would affect this opinion. |
Page 5
| 3. | Opinion |
Subject as provided above and to the observations and qualifications hereinafter appearing and to matters not disclosed to us, we are of the opinion that, once the Base Indenture has been duly dated, executed and delivered by the parties to it, the obligations to be assumed by the Parent Guarantor under the Guarantee will constitute valid, legal, binding and enforceable obligations of the Parent Guarantor.
| 4. | Qualifications and observations |
Our opinion is subject to the following qualifications and observations:
| 4.1 | This opinion is subject to all laws relating to bankruptcy, dissolution, insolvency, mandatory insolvency set-off, re-organisation, winding up, liquidation, moratorium, court schemes, civil and criminal asset confiscation, recovery and forfeiture and bank recovery and resolution and other laws and legal procedures of general application affecting the rights of creditors or secured creditors. |
| 4.2 | Notwithstanding that the obligations in the Base Indenture are of a type which the Jersey courts would generally enforce, they may not necessarily be capable of enforcement in all circumstances in accordance with their terms. In particular, but without limitation: |
| (a) | enforcement may be limited by general principles of equity (for example, equitable remedies such as specific performance and injunction are discretionary and may not be available where damages are an adequate remedy); |
| (b) | obligations may be void or voidable by reason of duress, fraud, misrepresentation, mistake or undue influence; |
| (c) | contractual obligations that are regarded as penalties (for example, default interest provisions) may not be enforceable or may be reduced if found to exceed the maximum damages which the claimant could have suffered as a result of a breach of contract; |
| (d) | the Jersey courts will not enforce the terms of an agreement if: |
| (i) | they are, or their performance would be, illegal in a jurisdiction other than Jersey or contrary to public policy in Jersey or in another jurisdiction; |
| (ii) | the parties have an illegal purpose that is not apparent from its express terms; or |
| (iii) | they would breach applicable exchange control regulations; |
| (e) | the Jersey courts may not enforce the terms of an agreement that: |
| (i) | provide for the payment or reimbursement of, or indemnity against, the costs of litigation or enforcement proceedings brought before Jersey or foreign courts or where such courts have themselves made an order for costs; |
| (ii) | constitute an agreement to negotiate or an agreement to agree; |
Page 6
| (iii) | would involve the enforcement of any foreign revenue, penal or other public laws or an indemnity given in respect of any of these laws; |
| (iv) | relate to confidentiality (which may be overridden by the requirements of legal process); |
| (v) | provide that failure or delay by a party in exercising a right or remedy does not operate as a waiver of that right or remedy; |
| (vi) | provide that any of the terms of that agreement can only be amended or waived in writing (and not orally or by course of conduct); or |
| (vii) | permit the severance of illegal, invalid or unenforceable terms; |
| (f) | the Jersey courts may hold that a judgment of a Jersey or foreign court given in respect of an agreement supersedes the agreement (so that, for example, any obligations relating to the payment of interest after the judgment or any currency indemnities would not be held to survive the judgment); |
| (g) | the Jersey courts may refuse to allow unjust enrichment or to give effect to any provisions of an agreement that they consider usurious; |
| (h) | provisions in an agreement or in articles of association that purport to restrict the exercise of a statutory power may not be enforceable; |
| (i) | claims may become time barred or may be subject to rights and defences of abatement, acquiescence, counterclaim, estoppel, frustration, laches, set-off, waiver and similar rights and defences; |
| (j) | the effectiveness of terms that seek to exclude or limit a liability or duty otherwise owed, or to indemnify a person in respect of a loss caused by the act or omission of that person, may be limited by law; |
| (k) | subject to limited exceptions, only a party to an agreement governed by Jersey law may enforce its terms; and |
| (l) | where any party to an agreement is party to it in more than one capacity that party may not be able to enforce obligations purportedly owed by it to itself. |
| 4.3 | We have made no enquiry or assessment as to whether the Parent Guarantor will be in a position to fulfil its obligations under the Base Indenture. |
| 4.4 | We offer no opinion as to whether the acceptance, execution or performance of the Parent Guarantor's obligations under the Base Indenture will result in the breach of or infringe any other agreement, deed or arrangement entered into by or binding on the Parent Guarantor other than the Parent Guarantor's articles of association. |
| 4.5 | Any provision of the Base Indenture providing for the payment of additional monies consequent on the breach of any provision thereof by any person expressed to be a party thereto or entitled to the benefit thereof, whether expressed by way of penalty, additional interest, liquidated damages or otherwise, may be unenforceable or liable to be reduced if such additional payment were held to be excessive in so far as it unreasonably exceeds the maximum damages which the claimant could have suffered as a result of such breach. |
Page 7
| 4.6 | Provisions as to severability contained in the Base Indenture may not be binding and the question of whether or not provisions may be severed would be determined by the Jersey courts at their discretion. |
| 4.7 | On application of a liquidator (in the course of the insolvent winding-up of a Jersey company) or of the Viscount (in the course of a désastre): |
| (a) | if a person has: |
| (i) | entered into a transaction with a person at an undervalue during the period of 5 years immediately preceding the commencement of the winding-up or the making of the declaration that the property of the person is en désastre; or |
| (ii) | given a preference to a person, during the period of 12 months immediately preceding the commencement of the winding-up or the making of the declaration that the property of the person is en désastre; and |
| (b) | if at the time of such transaction or preference: |
| (i) | the person was unable to pay its debts as they fell due or became unable to pay its debts as they fell due as a result of the transaction or preference; or |
| (ii) | (in certain cases where the person entered into the transaction with or gave the preference to another who was connected or associated with the person) it is not proved that the person was able to pay its debts as they fell due and did not become unable to pay its debts as they fell due as a result of the transaction or preference, |
the Jersey courts may make such an order as the court thinks fit for restoring the position to what it would have been if the preference had not been given or if the person had not entered into the transaction.
| 4.8 | On application of a liquidator (in the course of the insolvent winding-up of a Jersey company) or of the Viscount (in the course of a désastre), the Jersey courts may set aside, vary or make other orders in relation to an extortionate credit transaction entered into by a person in the period of three years ending with the commencement of the winding-up (if the person is a Jersey company) or the declaration that the property of the person is en désastre. For these purposes an extortionate credit transaction is a transaction in which, having regard to the risk accepted by the person providing the credit, the terms of it are such as to require grossly exorbitant payments to be made in respect of the provision of the credit or which otherwise grossly contravenes ordinary principles of fair dealing. |
| 4.9 | The liquidator (in the course of the insolvent winding-up of a Jersey company) or the Viscount (in the course of a désastre) may, within six months of the commencement of the winding-up or the making of the declaration that the property of a person is en désastre, disclaim any onerous property of such Jersey company or such person. For these purposes, onerous property is (a) any unprofitable contract; and (b) any of the following which is unsaleable or not readily saleable or is such that it may give rise to a liability to pay money or perform any other onerous act: (i) any movable property (ii) any contract lease and (iii) any other immovable property if it is situated outside Jersey. The counterparty to, or person entitled to the benefit of, any such disclaimed contract or any person sustaining loss or damage in consequence of the operation of a disclaimer would have the right to prove in the winding-up or désastre for the amount of its losses incurred as a result thereof. |
Page 8
| 4.10 | An act of the directors of a company might be set aside by the Jersey courts in an action brought by, for example, a creditor, shareholder or liquidator, if it were shown that the directors had exercised their powers for improper purposes (with the actual or constructive notice of the other party). |
| 4.11 | Where a director fails, in accordance with the Companies (Jersey) Law 1991, to disclose an interest in a transaction entered into by a Jersey company or its subsidiary which conflicts or may conflict to a material extent with the interests of the company, the transaction is voidable. |
| 4.12 | The Jersey courts will not apply New York law (the proper law) if: |
| (a) | it is not pleaded and proved; |
| (b) | the selection of New York law was not bona fide and legal; or |
| (c) | to do so would be contrary to public policy. |
Furthermore:
| (a) | the Jersey courts may apply a law other than the proper law (such as the law of the place an agreement was made) to determine the formal validity of an agreement; |
| (b) | matters of procedure upon enforcement of an agreement and assessment or quantification of damages will be determined by the Jersey courts in accordance with Jersey law; |
| (c) | the proprietary effects of an agreement may be determined by the Jersey courts in accordance with the domestic law of the place where the relevant property is situate; |
| (d) | the mode of performance of an agreement may be determined by the Jersey courts in accordance with the law of the place of performance; and |
| (e) | the Jersey courts may not apply a foreign law expressly selected in an agreement to govern non-contractual obligations arising out of, or in connection with, the agreement. |
| 4.13 | The Jersey courts may hold that despite any term of an agreement to the contrary: |
| (a) | any certificate, calculation, determination or designation of any party to the agreement is not conclusive, final or binding; |
| (b) | any person exercising any discretion, judgment or opinion under the agreement must act in good faith, for a proper purpose and in a reasonable manner; and |
| (c) | any power conferred by the agreement on one party to require another party to execute such documents or do any things the first party requires must be exercised reasonably. |
Page 9
| 4.14 | Pursuant to the Powers of Attorney (Jersey) Law 1995: |
| (a) | subject to paragraph (b) below, a power of attorney is revoked by the death, incapacity or bankruptcy of a donor that is an individual or the bankruptcy or dissolution of a donor that is a body corporate; |
| (b) | where a power of attorney is expressed to be irrevocable (for any period) and is given: |
| (i) | for the purpose of facilitating the exercise of powers of a secured party under the Security Interests (Jersey) Law 2012 (the Security Law) or of powers given pursuant to a security agreement (as defined in the Security Law); or |
| (ii) | pursuant to, or in connection with, or for the purpose of, or ancillary to, security governed by a law other than Jersey law, |
it is not revoked by the death, incapacity, bankruptcy or dissolution of the donor; and
| (c) | subject to paragraphs (a) and (b) above, a power of attorney may be expressed to be irrevocable for any period not exceeding one year from the date on which it is granted or the date on which it comes into effect, whichever is the later. |
| 4.15 | The Jersey courts may: |
| (a) | not exercise or decline jurisdiction or stay or set aside proceedings (as appropriate) where: |
| (i) | process cannot legally be served on a defendant outside Jersey; |
| (ii) | an agreement provides that all disputes are to be referred to the exclusive jurisdiction of a court outside Jersey; |
| (iii) | there is an agreement to submit the subject matter of a dispute to arbitration or other dispute resolution procedure; |
| (iv) | there is a more appropriate forum than Jersey where the action should be tried; |
| (v) | earlier or concurrent proceedings have been commenced outside Jersey; or |
| (vi) | there has already been a final and conclusive judgment given on the merits by a foreign court with jurisdiction according to Jersey conflict of laws rules; |
| (b) | decline to stay proceedings in Jersey or grant leave to serve Jersey proceedings outside Jersey even if an agreement provides that all disputes are to be referred to the exclusive jurisdiction of a court outside Jersey if it is satisfied that there are strong reasons for doing so; and |
| (c) | grant injunctions in support of proceedings outside Jersey or restraining the commencement or continuance of proceedings or arbitration outside Jersey. |
Page 10
| 4.16 | Where a foreign court (being a court of any country or territory outside the United Kingdom other than one for whose international relations the United Kingdom is responsible) has given a judgment for multiple damages against a qualifying defendant the amount which may be payable by such defendant may be limited by virtue of the Protection of Trading Interests Act 1980 (as extended to Jersey by the Protection of Trading Interests Act 1980 (Jersey) Order 1983) which provides that such qualifying defendant may be able to recover such amount paid by it as represents the excess in such multiple damages over the sum assessed as compensation by the court that gave the judgment. |
| 4.17 | Although there has been no decision in the Jersey courts regarding the enforceability of provisions that purport to fetter any statutory power of a Jersey company, such provisions may not be enforceable. |
| 4.18 | The enforceability of a person's obligations may be limited to the extent that such person successfully pleads either: |
| (a) | the droit de discussion (whereby a guarantor may require the beneficiary of the guarantee to exhaust the assets of the principal debtor before making a claim against the guarantor); or |
| (b) | the droit de division (whereby a co-obligor may require the person owed a joint obligation to make simultaneous claims in appropriate proportions upon all the co-obligors, thereby limiting its own liability), |
unless the person has expressly waived such rights.
| 4.19 | Under the rules of procedure applicable, the Jersey courts may order a plaintiff in an action to provide security for costs and will normally exercise this power in respect of a party who is not ordinarily resident in Jersey and/or who does not have assets within the jurisdiction. |
| 4.20 | We express no view on any provision in the Base Indenture requiring written amendments and waivers of any of the provisions of the Base Indenture in so far as it suggests that oral or other modifications, amendments or waivers could not be effectively agreed upon or granted by or between the parties or implied by the course of conduct of the parties. |
| 4.21 | The effectiveness of terms releasing or exculpating any party from, or limiting or excluding, a liability or duty otherwise owed may be limited by law. |
| 4.22 | Where any party to any of the Base Indenture is party to the Base Indenture in more than one capacity, that party may not be able to enforce obligations owed by it to itself. |
| 4.23 | There is no publicly available record of security interests in the tangible movable assets of Jersey companies other than Jersey-registered ships. |
| 5. | Limitations |
| 5.1 | This opinion is limited to the matters expressly stated in it. |
| 5.2 | We offer no opinion: |
| (a) | on the commercial terms of the Base Indenture or any Supplemental Indenture or whether those terms reflect the intentions of the parties; |
Page 11
| (b) | on any representation or warranty made or given in the Base Indenture or any Supplemental Indenture; |
| (c) | as to whether the parties will perform their obligations under the Base Indenture or any Supplemental Indenture; and |
| (d) | as to the title or interest of the Parent Guarantor to or in, or the existence of, any property or collateral the subject of the Base Indenture or any Supplemental Indenture. |
| 5.3 | We have made no investigation and express no opinion with respect to the laws of any jurisdiction other than Jersey. |
| 5.4 | We assume no obligation to update the Addressees in relation to changes of fact or law that may have a bearing on the continuing accuracy of this opinion. |
| 6. | Jersey law |
This opinion, and any non-contractual obligations arising out of it, are governed by Jersey law. This opinion is to be interpreted in accordance with Jersey law and extra-statutory guidance issued by any governmental, regulatory or tax authority in Jersey in force on the date of this opinion.
| 7. | Benefit of opinion |
| 7.1 | This opinion is only addressed to, and for the benefit of, the Addressees. It is given solely in connection with the registration of Securities under the Securities Act. This opinion may not, without our prior written consent, be transmitted or disclosed to, or used or relied upon by, any other person (including, without limitation, any holder of, or holder of beneficial interests in, any Securities) or be relied upon for any other purpose whatsoever. |
| 7.2 | We consent to the filing of a copy of this opinion as Exhibit 5.3 to the Registration Statement and to reference to us being made in the paragraph of the Base Prospectus headed "Legal Matters". In giving this consent, we do not admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations promulgated by the US Securities and Exchange Commission under the Securities Act. |
Yours faithfully
/s/ Mourant Ozannes (Jersey) LLP
Mourant Ozannes (Jersey) LLP
Page 12
Schedule
| 1. | WPP Finance 2010 |
Sea Containers House
18 Upper Ground
London
United Kingdom
SE1 9GL
| 2. | WPP 2025 LLC |
3 World Trade Center
175 Greenwich Street
New York NY 10007
United States
| 3. | WPP plc |
22 Grenville Street
St Helier
JE4 8PX
Jersey
| 4. | WPP Jubilee Limited |
Sea Containers House
18 Upper Ground
London
United Kingdom
SE1 9GL
| 5. | WPP 2005 Limited |
Sea Containers House
18 Upper Ground
London
United Kingdom
SE1 9GL
(each an Addressee and together, the Addressees)
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form F-3 of WPP plc of our report dated 19 March 2026 relating to the financial statements and the effectiveness of internal control over financial reporting, which appears in WPP plc's Annual Report on Form 20-F for the year ended December 31, 2025. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
London,
United Kingdom
19 March 2026
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form F-3 of our report dated 21 March 2024 (28 March 2025, as to Note 2) relating to the financial statements of WPP plc, appearing in the Annual Report on Form 20-F of WPP plc for the year ended December 31, 2025. We also consent to the reference to us under the heading "Experts" in such Registration Statement.
/s/ Deloitte LLP
London, United Kingdom
19 March 2026
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
o Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2)
WILMINGTON TRUST, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
16-1486454
(I.R.S. employer identification no.)
1100 North Market Street
Wilmington, DE 19890-0001
(Address of principal executive offices)
Kyle Barry
Senior Vice President
Wilmington Trust Company
285 Delaware Ave.
Buffalo, NY 14202
(716) 839-6909
(Name, address and telephone number of agent for service)
WPP plc
|
(Exact name of obligor as specified in its charter)
| |
| Jersey | Not Applicable |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
Sea Containers
18 Upper Ground
London SE1 9GL, United Kingdom
Telephone: (011 44) 20 7282 4600
(Address of principal executive offices, including zip code)
Debt Securities
(Title of the indenture securities)
TABLE OF CO-ISSUERS
|
Exact Name as Specified in Charter |
State or Other Jurisdiction of Incorporation or Organization |
I.R.S Employer Identification Number |
Address, Including Zip Code and Telephone Number, Including Area Code, of Principal Executive Offices |
| WPP Finance 2010 | England and Wales | Not Applicable |
Sea Containers 18 Upper Ground London SE1 9GL, United Kingdom Telephone: (011 44) 20 7282 4600 |
| WPP 2025 LLC | Delaware | 39-3674912 |
Corporate Creations Network Inc. 1521 Concord Pike, Suite 201, Wilmington DE 19803, United States Telephone: (011 44) 20 7282 4600 |
__________________________
| 2 |
TABLE OF CO-REGISTRANTS
|
Exact Name as Specified in Charter |
State or Other Jurisdiction of Incorporation or Organization |
I.R.S Employer Identification Number |
Address, Including Zip Code and Telephone Number, Including Area Code, of Principal Executive Offices |
| WPP Jubilee Limited | England and Wales | Not Applicable |
Sea Containers 18 Upper Ground London SE1 9GL, United Kingdom Telephone: (011 44) 20 7282 4600 |
| WPP 2005 Limited | England and Wales | Not Applicable |
Sea Containers 18 Upper Ground London SE1 9GL, United Kingdom Telephone: (011 44) 20 7282 4600 |
__________________________
| 3 |
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
| (a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of Currency, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
| (b) | Whether it is authorized to exercise corporate trust powers. |
The trustee is authorized to exercise corporate trust powers.
| ITEM 2. | AFFILIATIONS WITH THE OBLIGOR. |
If the obligor is an affiliate of the trustee, describe each affiliation:
Based upon an examination of the books and records of the trustee and information available to the trustee, the obligor is not an affiliate of the trustee.
ITEM 3 – 15. Not Applicable.
| ITEM 16. | LIST OF EXHIBITS. |
Listed below are all exhibits filed as part of this Statement of Eligibility and Qualification.
| 1. | A copy of the Charter for Wilmington Trust, National Association. |
| 2. | The authority of Wilmington Trust, National Association to commence business was granted under the Charter for Wilmington Trust, National Association, incorporated herein by reference to Exhibit 1 above. |
| 3. | The authorization to exercise corporate trust powers was granted under the Charter for Wilmington Trust, National Association, incorporated herein by reference to Exhibit 1 above. |
| 4. | A copy of the existing By-Laws of Trustee, as now in effect, incorporated herein by reference to Exhibit 4of this Form T-1. |
| 5. | Not applicable. |
| 6. | The consent of Wilmington Trust, National Association as required by Section 321(b) of the Trust Indenture Act of 1939, attached hereto as Exhibit 6 of this Form T-1. |
| 7. | Current Report of the Condition of Wilmington Trust, National Association, published pursuant to law or the requirements of its supervising or examining authority, attached hereto as Exhibit 7 of this Form T-1. |
| 8. | Not applicable. |
| 9. | Not applicable. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wilmington Trust, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of New York on the 19th day of March 2026.
| WILMINGTON TRUST, NATIONAL ASSOCIATION | |||
| By: | /s/ Arlene Thelwell | ||
| Name: | Arlene Thelwell | ||
| Title: | Vice President | ||
EXHIBIT 1
CHARTER OF WILMINGTON TRUST, NATIONAL ASSOCIATION
ARTICLES OF ASSOCIATION
OF
WILMINGTON TRUST, NATIONAL ASSOCIATION
For the purpose of organizing an association to perform any lawful activities of national banks, the undersigned do enter into the following articles of association:
FIRST. The title of this association shall be Wilmington Trust, National Association.
SECOND. The main office of the association shall be in the City of Wilmington, County of New Castle, State of Delaware. The general business of the association shall be conducted at its main office and its branches.
THIRD. The board of directors of this association shall consist of not less than five nor more than twenty-five persons, unless the OCC has exempted the bank from the 25-member limit. The exact number is to be fixed and determined from time to time by resolution of a majority of the full board of directors or by resolution of a majority of the shareholders at any annual or special meeting thereof. Each director shall own common or preferred stock of the association or of a holding company owning the association, with an aggregate par, fair market or equity value $1,000. Determination of these values may be based as of either (i) the date of purchase or (ii) the date the person became a director, whichever value is greater. Any combination of common or preferred stock of the association or holding company may be used.
Any vacancy in the board of directors may be filled by action of a majority of the remaining directors between meetings of shareholders. The board of directors may not increase the number of directors between meetings of shareholders to a number which:
| 1) | exceeds by more than two the number of directors last elected by shareholders where the number was 15 or less; or |
| 2) | exceeds by more than four the number of directors last elected by shareholders where the number was 16 or more, but in no event shall the number of directors exceed 25, unless the OCC has exempted the bank from the 25-member limit. |
Directors shall be elected for terms of one year and until their successors are elected and qualified. Terms of directors, including directors selected to fill vacancies, shall expire at the next regular meeting of shareholders at which directors are elected, unless the directors resign or are removed from office. Despite the expiration of a director's term, the director shall continue to serve until his or her successor is elected and qualifies or until there is a decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the board of directors, without voting power or power of final decision in matters concerning the business of the association, may be appointed by resolution of a majority of the full board of directors, or by resolution of shareholders at any annual or special meeting. Honorary or advisory directors shall not be counted to determine the number of directors of the association or the presence of a quorum in connection with any board action, and shall not be required to own qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors and transact whatever other business may be brought before the meeting. It shall be held at the main office or any other convenient place the board of directors may designate, on the day of each year specified therefor in the bylaws, or, if that day falls on a legal holiday in the state in which the association is located, on the next following banking day. If no election is held on the day fixed, or in the event of a legal holiday on the following banking day, an election may be held on any subsequent day within 60 days of the day fixed, to be designated by the board of directors, or, if the directors fail to fix the day, by shareholders representing two-thirds of the shares issued and outstanding. In all cases at least 10 days advance notice of the time, place and purpose of a shareholders’ meeting shall be given to the shareholders by first class mail, unless the OCC determines that an emergency circumstance exists. The sole shareholder of the bank is permitted to waive notice of the shareholders’ meeting.
In all elections of directors, the number of votes each common shareholder may cast will be determined by multiplying the number of shares such shareholder owns by the number of directors to be elected. Those votes may be cumulated and cast for a single candidate or may be distributed among two or more candidates in the manner selected by the shareholder. If, after the first ballot, subsequent ballots are necessary to elect directors, a shareholder may not vote shares that he or she has already fully cumulated and voted in favor of a successful candidate. On all other questions, each common shareholder shall be entitled to one vote for each share of stock held by him or her.
Nominations for election to the board of directors may be made by the board of directors or by any stockholder of any outstanding class of capital stock of the association entitled to vote for election of directors. Nominations other than those made by or on behalf of the existing management shall be made in writing and be delivered or mailed to the president of the association not less than 14 days nor more than 50 days prior to any meeting of shareholders called for the election of directors; provided, however, that if less than 21 days notice of the meeting is given to shareholders, such nominations shall be mailed or delivered to the president of the association not later than the close of business on the seventh day following the day on which the notice of meeting was mailed. Such notification shall contain the following information to the extent known to the notifying shareholder:
| 1) | The name and address of each proposed nominee. |
| 2) | The principal occupation of each proposed nominee. |
| 3) | The total number of shares of capital stock of the association that will be voted for each proposed nominee. |
| 4) | The name and residence address of the notifying shareholder. |
| 5) | The number of shares of capital stock of the association owned by the notifying shareholder. |
Nominations not made in accordance herewith may, in his/her discretion, be disregarded by the chairperson of the meeting, and the vote tellers may disregard all votes cast for each such nominee. No bylaw may unreasonably restrict the nomination of directors by shareholders.
A director may resign at any time by delivering written notice to the board of directors, its chairperson, or to the association, which resignation shall be effective when the notice is delivered unless the notice specifies a later effective date.
A director may be removed by shareholders at a meeting called to remove the director, when notice of the meeting stating that the purpose or one of the purposes is to remove the director is provided, if there is a failure to fulfill one of the affirmative requirements for qualification, or for cause; provided, however, that a director may not be removed if the number of votes sufficient to elect the director under cumulative voting is voted against the director's removal.
FIFTH. The authorized amount of capital stock of this association shall be ten thousand shares of common stock of the par value of one hundred dollars ($100) each; but said capital stock may be increased or decreased from time to time, according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the association shall have any preemptive or preferential right of subscription to any shares of any class of stock of the association, whether now or hereafter authorized, or to any obligations convertible into stock of the association, issued, or sold, nor any right of subscription to any thereof other than such, if any, as the board of directors, in its discretion, may from time to time determine and at such price as the board of directors may from time to time fix. Preemptive rights also must be approved by a vote of holders of two-thirds of the bank’s outstanding voting shares. Unless otherwise specified in these articles of association or required by law, (1) all matters requiring shareholder action, including amendments to the articles of association, must be approved by shareholders owning a majority voting interest in the outstanding voting stock, and (2) each shareholder shall be entitled to one vote per share.
Unless otherwise specified in these articles of association or required by law, all shares of voting stock shall be voted together as a class, on any matters requiring shareholder approval. If a proposed amendment would affect two or more classes or series in the same or a substantially similar way, all the classes or series so affected must vote together as a single voting group on the proposed amendment.
Shares of one class or series may be issued as a dividend for shares of the same class or series on a pro rata basis and without consideration. Shares of one class or series may be issued as share dividends for a different class or series of stock if approved by a majority of the votes entitled to be cast by the class or series to be issued, unless there are no outstanding shares of the class or series to be issued. Unless otherwise provided by the board of directors, the record date for determining shareholders entitled to a share dividend shall be the date authorized by the board of directors for the share dividend.
Unless otherwise provided in the bylaws, the record date for determining shareholders entitled to notice of and to vote at any meeting is the close of business on the day before the first notice is mailed or otherwise sent to the shareholders, provided that in no event may a record date be more than 70 days before the meeting.
If a shareholder is entitled to fractional shares pursuant to a stock dividend, consolidation or merger, reverse stock split or otherwise, the association may: (a) issue fractional shares; (b) in lieu of the issuance of fractional shares, issue script or warrants entitling the holder to receive a full share upon surrendering enough script or warrants to equal a full share; (c) if there is an established and active market in the association's stock, make reasonable arrangements to provide the shareholder with an opportunity to realize a fair price through sale of the fraction, or purchase of the additional fraction required for a full share; (d) remit the cash equivalent of the fraction to the shareholder; or (e) sell full shares representing all the fractions at public auction or to the highest bidder after having solicited and received sealed bids from at least three licensed stock brokers; and distribute the proceeds pro rata to shareholders who otherwise would be entitled to the fractional shares. The holder of a fractional share is entitled to exercise the rights for shareholder, including the right to vote, to receive dividends, and to participate in the assets of the association upon liquidation, in proportion to the fractional interest. The holder of script or warrants is not entitled to any of these rights unless the script or warrants explicitly provide for such rights. The script or warrants may be subject to such additional conditions as: (1) that the script or warrants will become void if not exchanged for full shares before a specified date; and (2) that the shares for which the script or warrants are exchangeable may be sold at the option of the association and the proceeds paid to scriptholders.
The association, at any time and from time to time, may authorize and issue debt obligations, whether or not subordinated, without the approval of the shareholders. Obligations classified as debt, whether or not subordinated, which may be issued by the association without the approval of shareholders, do not carry voting rights on any issue, including an increase or decrease in the aggregate number of the securities, or the exchange or reclassification of all or part of securities into securities of another class or series.
SIXTH. The board of directors shall appoint one of its members president of this association, and one of its members chairperson of the board and shall have the power to appoint one or more vice presidents, a secretary who shall keep minutes of the directors' and shareholders' meetings and be responsible for authenticating the records of the association, and such other officers and employees as may be required to transact the business of this association.
A duly appointed officer may appoint one or more officers or assistant officers if authorized by the board of directors in accordance with the bylaws.
The board of directors shall have the power to:
| 1) | Define the duties of the officers, employees, and agents of the association. |
| 2) | Delegate the performance of its duties, but not the responsibility for its duties, to the officers, employees, and agents of the association. |
| 3) | Fix the compensation and enter into employment contracts with its officers and employees upon reasonable terms and conditions consistent with applicable law. |
| 4) | Dismiss officers and employees. |
| 5) | Require bonds from officers and employees and to fix the penalty thereof. |
| 6) | Ratify written policies authorized by the association's management or committees of the board. |
| 7) | Regulate the manner in which any increase or decrease of the capital of the association shall be made, provided that nothing herein shall restrict the power of shareholders to increase or decrease the capital of the association in accordance with law, and nothing shall raise or lower from two-thirds the percentage required for shareholder approval to increase or reduce the capital. |
| 8) | Manage and administer the business and affairs of the association. |
| 9) | Adopt initial bylaws, not inconsistent with law or the articles of association, for managing the business and regulating the affairs of the association. |
| 10) | Amend or repeal bylaws, except to the extent that the articles of association reserve this power in whole or in part to shareholders. |
| 11) | Make contracts. |
| 12) | Generally perform all acts that are legal for a board of directors to perform. |
SEVENTH. The board of directors shall have the power to change the location of the main office to any other place within the limits of Wilmington, Delaware, without the approval of the shareholders, or with a vote of shareholders owning two-thirds of the stock of such association for a relocation outside such limits and upon receipt of a certificate of approval from the Comptroller of the Currency, to any other location within or outside the limits of Wilmington Delaware, but not more than 30 miles beyond such limits. The board of directors shall have the power to establish or change the location of any branch or branches of the association to any other location permitted under applicable law, without approval of shareholders, subject to approval by the Comptroller of the Currency.
EIGHTH. The corporate existence of this association shall continue until termination according to the laws of the United States.
NINTH. The board of directors of this association, or any one or more shareholders owning, in the aggregate, not less than 50 percent of the stock of this association, may call a special meeting of shareholders at any time. Unless otherwise provided by the bylaws or the laws of the United States, a notice of the time, place, and purpose of every annual and special meeting of the shareholders shall be given at least 10 days prior to the meeting by first-class mail, unless the OCC determines that an emergency circumstance exists. If the association is a wholly-owned subsidiary, the sole shareholder may waive notice of the shareholders’ meeting. Unless otherwise provided by the bylaws or these articles, any action requiring approval of shareholders must be effected at a duly called annual or special meeting.
TENTH. For purposes of this Article Tenth, the term “institution-affiliated party” shall mean any institution-affiliated party of the association as such term is defined in 12 U.S.C. 1813(u).
Any institution-affiliated party (or his or her heirs, executors or administrators) may be indemnified or reimbursed by the association for reasonable expenses actually incurred in connection with any threatened, pending or completed actions or proceedings and appeals therein, whether civil, criminal, governmental, administrative or investigative, in accordance with and to the fullest extent permitted by law, as such law now or hereafter exists; provided, however, that when an administrative proceeding or action instituted by a federal banking agency results in a final order or settlement pursuant to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in the conduct of the affairs of the association, or (iii) is required to cease and desist from or to take any affirmative action described in 12 U.S.C. 1818(b) with respect to the association, then the association shall require the repayment of all legal fees and expenses advanced pursuant to the next succeeding paragraph and may not indemnify such institution-affiliated parties (or their heirs, executors or administrators) for expenses, including expenses for legal fees, penalties or other payments incurred. The association shall provide indemnification in connection with an action or proceeding (or part thereof) initiated by an institution-affiliated party (or by his or her heirs, executors or administrators) only if such action or proceeding (or part thereof) was authorized by the board of directors.
Expenses incurred by an institution-affiliated party (or by his or her heirs, executors or administrators) in connection with any action or proceeding under 12 U.S.C. 164 or 1818 may be paid by the association in advance of the final disposition of such action or proceeding upon (a) a determination by the board of directors acting by a quorum consisting of directors who are not parties to such action or proceeding that the institution-affiliated party (or his or her heirs, executors or administrators) has a reasonable basis for prevailing on the merits, (b) a determination that the indemnified individual (or his or her heirs, executors or administrators) will have the financial capacity to reimburse the bank in the event he or she does not prevail, (c) a determination that the payment of expenses and fees by the association will not adversely affect the safety and soundness of the association, and (d) receipt of an undertaking by or on behalf of such institution-affiliated party (or by his or her heirs, executors or administrators) to repay such advancement in the event of a final order or settlement pursuant to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in the conduct of the affairs of the association, or (iii) is required to cease and desist from or to take any affirmative action described in 12 U.S.C. 1818(b) with respect to the association. In all other instances, expenses incurred by an institution-affiliated party (or by his or her heirs, executors or administrators) in connection with any action or proceeding as to which indemnification may be given under these articles of association may be paid by the association in advance of the final disposition of such action or proceeding upon (a) receipt of an undertaking by or on behalf of such institution-affiliated party (or by or on behalf of his or her heirs, executors or administrators) to repay such advancement in the event that such institution-affiliated party (or his or her heirs, executors or administrators) is ultimately found not to be entitled to indemnification as authorized by these articles of association and (b) approval by the board of directors acting by a quorum consisting of directors who are not parties to such action or proceeding or, if such a quorum is not obtainable, then approval by stockholders. To the extent permitted by law, the board of directors or, if applicable, the stockholders, shall not be required to find that the institution-affiliated party has met the applicable standard of conduct provided by law for indemnification in connection with such action or proceeding.
In the event that a majority of the members of the board of directors are named as respondents in an administrative proceeding or civil action and request indemnification, the remaining members of the board may authorize independent legal counsel to review the indemnification request and provide the remaining members of the board with a written opinion of counsel as to whether the conditions delineated in the first four paragraphs of this Article Tenth have been met. If independent legal counsel opines that said conditions have been met, the remaining members of the board of directors may rely on such opinion in authorizing the requested indemnification.
In the event that all of the members of the board of directors are named as respondents in an administrative proceeding or civil action and request indemnification, the board shall authorize independent legal counsel to review the indemnification request and provide the board with a written opinion of counsel as to whether the conditions delineated in the first four paragraphs of this Article Tenth have been met. If legal counsel opines that said conditions have been met, the board of directors may rely on such opinion in authorizing the requested indemnification.
To the extent permitted under applicable law, the rights of indemnification and to the advancement of expenses provided in these articles of association (a) shall be available with respect to events occurring prior to the adoption of these articles of association, (b) shall continue to exist after any restrictive amendment of these articles of association with respect to events occurring prior to such amendment, (c) may be interpreted on the basis of applicable law in effect at the time of the occurrence of the event or events giving rise to the action or proceeding, or on the basis of applicable law in effect at the time such rights are claimed, and (d) are in the nature of contract rights which may be enforced in any court of competent jurisdiction as if the association and the institution-affiliated party (or his or her heirs, executors or administrators) for whom such rights are sought were parties to a separate written agreement.
The rights of indemnification and to the advancement of expenses provided in these articles of association shall not, to the extent permitted under applicable law, be deemed exclusive of any other rights to which any such institution affiliated party (or his or her heirs, executors or administrators) may now or hereafter be otherwise entitled whether contained in these articles of association, the bylaws, a resolution of stockholders, a resolution of the board of directors, or an agreement providing such indemnification, the creation of such other rights being hereby expressly authorized. Without limiting the generality of the foregoing, the rights of indemnification and to the advancement of expenses provided in these articles of association shall not be deemed exclusive of any rights, pursuant to statute or otherwise, of any such institution-affiliated party (or of his or her heirs, executors or administrators) in any such action or proceeding to have assessed or allowed in his or her favor, against the association or otherwise, his or her costs and expenses incurred therein or in connection therewith or any part thereof.
If this Article Tenth or any part hereof shall be held unenforceable in any respect by a court of competent jurisdiction, it shall be deemed modified to the minimum extent necessary to make it enforceable, and the remainder of this Article Tenth shall remain fully enforceable.
The association may, upon affirmative vote of a majority of its board of directors, purchase insurance to indemnify its institution-affiliated parties to the extent that such indemnification is allowed in these articles of association; provided, however, that no such insurance shall include coverage to pay or reimburse any institution-affiliated party for the cost of any judgment or civil money penalty assessed against such person in an administrative proceeding or civil action commenced by any federal banking agency. Such insurance may, but need not, be for the benefit of all institution-affiliated parties.
ELEVENTH. These articles of association may be amended at any regular or special meeting of the shareholders by the affirmative vote of the holders of a majority of the stock of this association, unless the vote of the holders of a greater amount of stock is required by law, and in that case by the vote of the holders of such greater amount. The association's board of directors may propose one or more amendments to the articles of association for submission to the shareholders.
EXHIBIT 4
BY-LAWS OF WILMINGTON TRUST, NATIONAL ASSOCIATION
WILMINGTON TRUST, NATIONAL ASSOCIATION
AMENDED AND RESTATED BYLAWS
(Effective as of March 7, 2024)
AMENDED AND RESTATED BYLAWS OF
WILMINGTON TRUST, NATIONAL ASSOCIATION
ARTICLE I
Meetings of Shareholders
Section 1. Annual Meeting. The annual meeting of shareholders shall be held on such date and at such time as may be designated by the chair of the Board of Directors, the chief executive officer, the president, the chief operating officer, the secretary, or the Board of Directors for the purpose of the election of directors and for the transaction of such other business as may properly come before the meeting, except such date shall not be a legal holiday in Delaware. Notice of the meeting shall be mailed by first class mail, postage prepaid, at least 10 days and no more than 60 days prior to the date thereof, addressed to each shareholder at his or her address appearing on the books of the association. If, for any cause, an election of directors is not made on that date, an election may be held on any subsequent day within 60 days of the date fixed, to be designated by the Board of Directors, or, if the directors fail to fix the date, by shareholders representing two-thirds of the shares. In these circumstances, at least 10 days’ notice must be given by first class mail to shareholders.
Section 2. Special Meetings. The chair of the Board of Directors, the president, the chief executive officer, the secretary, or the Board of Directors may call a special meeting of the shareholders. A special meeting shall be called to act on any matter that may properly be considered at a meeting of shareholders upon the written request of shareholders entitled to cast not less than a majority of all the votes entitled to be cast on such matter at the meeting. Every such special meeting, unless otherwise provided by law, shall be called by mailing, postage prepaid, not less than 10 days nor more than 60 days prior to the date fixed for the meeting, to each shareholder at the address appearing on the books of the association a notice stating the purpose of the meeting.
The Board of Directors may fix a record date for determining shareholders entitled to notice and to vote at any meeting, in reasonable proximity to the date of giving notice to the shareholders of such meeting. The record date for determining shareholders entitled to demand a special meeting is the date the first shareholder signs a demand for the meeting describing the purpose or purposes for which it is to be held.
Section 3. Adjournment. If an annual or special shareholders' meeting is adjourned to a different date, time, or place, notice need not be given of the new date, time or place, if the new date, time or place is announced at the meeting before adjournment, unless any additional items of business are to be considered, or the association becomes aware of an intervening event materially affecting any matter to be voted on more than 10 days prior to the date to which the meeting is adjourned. If a new record date for the adjourned meeting is fixed, however, notice of the adjourned meeting must be given to persons who are shareholders as of the new record date. If, however, the meeting to elect the directors is adjourned before the election takes place, at least ten days’ notice of the new election must be given to the shareholders by first-class mail.
| - 1 - |
Section 4. Nominations of Directors. Nominations for election to the Board of Directors may be made by the Board of Directors or by any shareholder of any outstanding class of capital stock of the association entitled to vote for the election of directors. Nominations, other than those made by or on behalf of the existing management of the association, shall be made in writing and shall be delivered or mailed to the president of the association, not less than 14 days nor more than 50 days prior to any meeting of shareholders called for the election of directors; provided, however, that if less than 21 days' notice of the meeting is given to shareholders, such nomination shall be mailed or delivered to the president of the association not later than the close of business on the seventh day following the day on which the notice of meeting was mailed. Such notification shall contain the following information to the extent known to the notifying shareholder:
| (1) | The name and address of each proposed nominee; |
| (2) | The principal occupation of each proposed nominee; |
| (3) | The total number of shares of capital stock of the association that will be voted for each proposed nominee; |
| (4) | The name and residence of the notifying shareholder; and |
| (5) | The number of shares of capital stock of the association owned by the notifying shareholder |
Nominations not made in accordance herewith may, in his/her discretion, be disregarded by the chair of the meeting, and upon his/her instructions, all votes cast for each such nominee may be disregarded.
Section 5. Proxies. Shareholders may vote at any meeting of the shareholders by proxies duly authorized in writing, but no officer or employee of this association shall act as proxy. A director or an attorney of the association may act as proxy for shareholders voting if they are not also employed as an officer of the association. Proxies shall be valid only for one meeting, to be specified therein, and any adjournments of such meeting. Proxies shall be dated and filed with the records of the meeting. Proxies with facsimile signatures may be used and unexecuted proxies may be counted upon receipt of a written confirmation from the shareholder. Proxies meeting the above requirements submitted at any time during a meeting shall be accepted.
Section 6. Quorum. A majority of the outstanding capital stock, represented in person or by proxy, shall constitute a quorum at any meeting of shareholders, unless otherwise provided by law, but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held, as adjourned, without further notice. A majority of the votes cast shall decide every question or matter submitted to the shareholders at any meeting, unless otherwise provided by law or by the articles of association. If a meeting for the election of directors is not held on the fixed date, at least 10 days’ notice must be given by first-class mail to the shareholders.
| - 2 - |
ARTICLE II
Directors
Section 1. Board of Directors. The Board of Directors shall have the power to manage and administer the business and affairs of the association. Except as expressly limited by law, all corporate powers of the association shall be vested in and may be exercised by the Board of Directors.
Section 2. Number. The Board of Directors shall consist of not less than five nor more than twenty-five members, unless the OCC has exempted the association from the 25-member limit. The exact number within such minimum and maximum limits is to be fixed and determined from time to time by resolution of a majority of the full Board of Directors or by resolution of a majority of the shareholders at any meeting thereof. The Board of Directors may not increase the number of directors between meetings of shareholders to a number which: (a) exceeds by more than 2 the number of directors last elected by shareholders where the number was 15 or less; or (b) exceeds by more than 4 the number of directors last elected by shareholders where the number was 16 or more, but in no event shall the number of directors exceed 25, unless the OCC has exempted the association from the 25-member limit.
Section 3. Qualifications. Each director must be a citizen of the United States and must own in his or her own right either shares of the capital stock of the association or a company that controls the association that has not less than an aggregate par value of $1,000, an aggregate shareholders’ equity of $1,000, or an aggregate fair market value of $1,000. The value of the common or preferred stock held by a director is valued as of the date purchased or the date on which the individual became a director, whichever is greater.
Section 4. Organization Meeting. After each annual meeting of shareholders at which directors shall have been elected, the Board of Directors shall meet as soon as practicable for the purpose of organization and the transaction of other business. Such first regular meeting shall be held at any place as may be designated by the chair, the president or the Board of Directors for such first regular meeting or, in default of such designation, where the immediately preceding meeting of shareholders was held.
Section 5. Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such places as may be designated from time to time by the chair. No notice of regular meetings shall be necessary.
Section 6. Special Meetings. Special meetings of the Board of Directors may be called at any time by the chair, the chief executive officer, the president or by a majority of the then- acting directors by vote at a meeting or in writing, or by a majority of the members of the executive committee, if one is constituted, by vote at a meeting or in writing. A special meeting of the Board of Directors shall be held on such date and at any place as may be designated from time to time by the Board of Directors. In the absence of such designation, such meeting shall be held at such place as may be designated in the call. Each member of the Board of Directors shall be given notice stating the date, time and place, by letter, electronic delivery or in person, of each special meeting not less than one day before the meeting. Such notice need not specify the purpose for which the meeting is called, unless required by the Articles of Association or the bylaws.
| - 3 - |
Section 7. Quorum. A majority of the entire Board then in office shall constitute a quorum at any meeting, except when otherwise provided by law or these Bylaws, but a lesser number may adjourn any meeting, from time to time, and the meeting may be held, as adjourned, without further notice. If the number of directors present at the meeting is reduced below the number that would constitute a quorum, no business may be transacted, except selecting directors to fill vacancies in conformance with Article II, Section 11. If a quorum is present, the board of directors may take action through the vote of a majority of the directors who are in attendance. No director may vote by proxy.
Section 8. Attendance by Electronic, Telephonic or Similar Means. Any one or more members of the Board of Directors or any committee thereof may participate in a regular or special meeting of such board or committee by, or conduct the meeting through the use of, conference telephone or other communications equipment by which all directors or committee members participating may simultaneously hear each other during the meeting. Participation in a meeting by these means constitutes presence in person at a meeting.
Section 9. Procedures. The order of business and all other matters of procedure at every meeting of the Board of Directors may be determined by the person presiding at the meeting.
Section 10. Removal of Directors. Any director may be removed for cause at any meeting of shareholders, notice of which shall have referred to the proposed action, by vote of the shareholders. Any director may be removed without cause at any meeting of shareholders, notice of which shall have referred to the proposed action, by the vote of the holders of a majority of the shares of the association entitled to vote. Any director may be removed for cause at any meeting of the directors, notice of which shall have referred to the proposed action, by vote of a majority of the entire Board of Directors.
Section 11. Vacancies. When any vacancy occurs among the directors, a majority of the remaining members of the Board of Directors may appoint a director to fill such vacancy until the next election at any regular meeting of the Board of Directors, or at a special meeting called for that purpose at which a quorum is present, or if the directors remaining in office constitute fewer than a quorum of the Board of Directors, by the affirmative vote of a majority of all the directors remaining in office, or by shareholders at a special meeting called for that purpose in conformance with Section 2 of Article I. A vacancy that will occur at a specific later date (by reason of a resignation effective at a later date) may be filled before the vacancy occurs but the new director may not take office until the vacancy occurs.
Section 12. Consent of Directors without a Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if the action is taken by all members of the Board. The action may be evidenced by one or more written consents signed by each director before or after such action, describing the action taken, and included in the minutes or filed with the corporate records. A director’s consent to action taken without a meeting may be in electronic form and delivered by electronic means.
| - 4 - |
Section 13. Ratification. The board of directors may ratify and make binding on the association any action or inaction by the association or its officers to the extent that the Board of Directors or the shareholders could have originally authorized the matter and as permitted by law. Moreover, any action or inaction questioned in any shareholders’ derivative proceeding or any other proceeding on the ground of lack of authority, defective or irregular execution, adverse interest of a director, officer or shareholder, non-disclosure, miscomputation, the application of improper principles or practices of accounting or otherwise, may be ratified, before or after judgment, by the Board of Directors or by the shareholders, and if so ratified, shall have the same force and effect as if the questioned action or inaction had been originally duly authorized, and such ratification shall be binding upon the shareholders and shall constitute a bar to any claim or execution of any judgment in respect of such questioned action or inaction.
ARTICLE III
Committees
Section 1. Executive Committee. The Board of Directors may appoint an Executive Committee, which shall have and may exercise, during the intervals between meetings of the Board of Directors, all the powers of the Board of Directors in the management of the business, properties and affairs of the association except as prohibited by law, the Articles of Association or these Bylaws. All acts done and powers conferred by the Executive Committee shall be deemed to be and may be certified as being, done or conferred under authority of the Board of Directors.
Section 2. Trust Audit Committee. Unless delegated pursuant to Section 5 of this Article III, there shall be a Trust Audit Committee composed of not less than 2 directors, appointed by the Board of Directors, which shall, at least once during each calendar year make suitable audits of the association’s fiduciary activities or cause suitable audits to be made by auditors responsible only to the Board, and at such time shall ascertain whether fiduciary powers have been administered according to law, Part 9 of the Regulations of the Comptroller of the Currency, and sound fiduciary principles. Such committee: (1) must not include any officers of the association or an affiliate who participate significantly in the administration of the association’s fiduciary activities; and (2) must consist of a majority of members who are not also members of any committee to which the Board of Directors has delegated power to manage and control the fiduciary activities of the bank.
Section 3. Examining Committee. Unless delegated pursuant to Section 5 of this Article III, there shall be an examining committee composed of not less than 2 directors, exclusive of any active officers, appointed by the board of directors annually or more often. The duty of that committee shall be to examine at least once during each calendar year and within 15 months of the last examination the affairs of the association or cause suitable examinations to be made by auditors responsible only to the board of directors and to report the result of such examination in writing to the board of directors at the next regular meeting thereafter. Such report shall state whether the association is in a sound condition, and whether adequate internal controls and procedures are being maintained and shall recommend to the board of directors such changes in the manner of conducting the affairs of the association as shall be deemed advisable.
| - 5 - |
Section 4. Other Committees. The Board of Directors may from time to time by resolution adopted by affirmative vote of a majority of the Board of Directors, appoint other committees of the Board of Directors which shall have such powers and duties as the Board of Directors may properly determine. No such other committee of the Board of Directors shall be composed of fewer than three (3) directors. The Board of Directors may also appoint one or more directors as alternative members of a committee. All acts done and powers conferred by the Board of Directors on committees of the Board of Directors shall be deemed to be and may be certified as being, done or conferred under that authority of the Board of Directors.
Section 5. Delegation of Responsibility and Authority. The responsibility, authority and constitution of any committee under this Article III may, if authorized by law, be given over to a duly constituted committee of the association’s parent corporation by resolution adopted by the Board of Directors.
ARTICLE IV
Officers and Employees
Section 1 Officers. The Board of Directors shall annually, at the Annual Reorganization Meeting of the Board of Directors following the annual meeting of shareholders, appoint or elect a chair of the Board, a chief executive officer, a president, one (1) or more senior executive vice presidents, a corporate secretary, a treasurer, a chief auditor, and such other officers as it may determine, each to hold office until the next Annual Reorganization meeting.
The officers below the level of senior executive vice president may be elected as follows: the head of the Human Resources Department of M&T Bank, or his or her designee, may appoint officers up to and including (without limitation as to title or number) one (1) or more executive vice presidents, senior vice presidents, vice presidents, assistant vice presidents, assistant secretaries, assistant treasurers, and assistant auditors, and any other officer positions as they deem necessary and appropriate, except the chair of the board, chief executive officer, president, any “Executive Officer” of the association for the purposes of Regulation O (codified at 12 C.F.R. §215.2(e)(1)), and any “Senior Executive Officer” within the meaning of 12 C.F.R.
§5.51(c)(4) may only be appointed by the Board of Directors.
Section 2. Chair of the Board. The Board of Directors shall appoint one of its members to be the chair of the Board to serve at its pleasure. Such person shall preside at all meetings of the Board of Directors. The chair of the Board shall supervise the carrying out of the policies adopted or approved by the Board of Directors; shall have general executive powers, as well as the specific powers conferred by these Bylaws; and shall also have and may exercise such further powers and duties as from time to time may be conferred upon or assigned by the Board of Directors.
| - 6 - |
Section 3. President. The Board of Directors shall appoint one of its members to be the president of the association. The president shall be a member of the Board of Directors. In the absence of the chair, the president shall preside at any meeting of the Board of Directors. The president shall have general executive powers and shall have and may exercise any and all other powers and duties pertaining by law, regulation, or practice to the office of president, or imposed by these Bylaws. The president shall also have and may exercise such further powers and duties as from time to time may be conferred or assigned by the Board of Directors.
Section 4. Vice President. The Board of Directors may appoint one or more vice presidents. Each vice president shall have such powers and duties as may be assigned by the Board of Directors. One vice president shall be designated by the Board of Directors, in the absence of the president, to perform all the duties of the president.
Section 5. Secretary. The Board of Directors shall appoint a secretary or other designated officer who shall be secretary of the Board of Directors and of the association and who shall keep accurate minutes of all meetings. The secretary shall attend to the giving of all notices required by these Bylaws; shall be custodian of the corporate seal, records, documents and papers of the association; shall provide for the keeping of proper records of all transactions of the association; shall have and may exercise any and all other powers and duties pertaining by law, regulation or practice, or imposed by these bylaws; and shall also perform such other duties as may be assigned from time to time, by the Board of Directors.
Section 6. Other Officers. The Board of Directors may appoint one or more assistant vice presidents, one or more trust officers, one or more officers, one or more assistant secretaries, one or more assistant treasurers, one or more managers and assistant managers of branches and such other officers and attorneys in fact as from time to time may appear to the Board of Directors to be required or desirable to transact the business of the association. Such officers shall respectively exercise such powers and perform such duties as pertain to their several offices, or as may be conferred upon or assigned to them by the Board of Directors, the chair of the Board, or the president. The Board of Directors may authorize an officer to appoint one or more officers or assistant officers.
Section 7. Resignation. An officer may resign at any time by delivering notice to the association. A resignation is effective when the notice is given unless the notice specifies a later effective date.
ARTICLE V
Stock and Stock Certificates
Section 1. Transfers. Shares of stock shall be transferable on the books of the association, and a transfer book shall be kept in which all transfers of stock shall be recorded. Every person becoming a shareholder by such transfer shall in proportion to such shareholder's shares, succeed to all rights of the prior holder of such shares. The Board of Directors may impose conditions upon the transfer of the stock reasonably calculated to simplify the work of the association with respect to stock transfers, voting at shareholder meetings and related matters and to protect it against fraudulent transfers.
| - 7 - |
Section 2. Stock Certificates. Certificates of stock shall bear the signature of the president (which may be engraved, printed or impressed) and shall be signed manually, by facsimile process, or electronic means by the secretary, assistant secretary, treasurer, assistant treasurer, or any other officer appointed by the Board of Directors for that purpose, to be known as an authorized officer, and the seal of the association shall be engraved thereon. Each certificate shall recite on its face that the stock represented thereby is transferable only upon the books of the association properly endorsed and otherwise comply with the requirements of 12 U.S.C. 52 and 12 C.F.R. §7.2016(b).
Section 3. Lost, Stolen or Destroyed Certificates. In case any certificate representing shares shall be lost, stolen or destroyed, the Board of Directors, in its discretion, or any officer or officers thereunder duly authorized by the Board of Directors, may authorize the issue of a substitute certificate or substitute shares in uncertificated form in the place of the certificate so lost, stolen or destroyed.
Section 4. Fixing of Record Date. The Board of Directors may set, in advance, a record date for the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders or determining shareholders entitled to receive payment of any dividend or the allotment of any other rights, in order to make a determination of shareholders for any other proper purpose. Such date, in any case, shall be the close of business on the day before the first notice is mailed or otherwise sent to the shareholders, provided that in no event may a record date be more than 10 days before the meeting.
ARTICLE VII
Corporate Seal
Section 1. Seal. The seal of the association shall be in such form as may be determined from time to time by the Board of Directors. The president, the treasurer, the secretary or any assistant treasurer or assistant secretary, or other officer thereunto designated by the Board of Directors shall have authority to affix the corporate seal to any document requiring such seal and to attest the same. The seal on any corporate obligation for the payment of money may be facsimile.
ARTICLE VIII
Miscellaneous Provisions
Section 1. Fiscal Year. The fiscal year of the association shall be the calendar year.
Section 2. Execution of Instruments. All agreements, indentures, mortgages, deeds, conveyances, transfers, certificates, declarations, receipts, discharges, releases, satisfactions, settlements, petitions, schedules, accounts, affidavits, bonds, undertakings, proxies and other instruments or documents may be signed, executed, acknowledged, verified, delivered or accepted on behalf of the association by any officer elected or appointed pursuant to Article IV of these Bylaws. Any such instruments may also be executed, acknowledged, verified, delivered or accepted on behalf of the association in such other manner and by such other officers as the Board of Directors may from time to time direct. The provisions of this Section 2 are supplementary to any other provision of these Bylaws.
| - 8 - |
Section 3. Records. The Articles of Association, the Bylaws and the proceedings of all meetings of the shareholders, the Board of Directors, and standing committees of the Board of Directors shall be recorded in appropriate minute books provided for that purpose. The minutes of each meeting shall be signed by the secretary, treasurer or other officer appointed to act as secretary of the meeting.
Section 4. Corporate Governance Procedures. To the extent not inconsistent with federal banking statutes and regulations, or safe and sound banking practices, the association may follow the Delaware General Corporation Law, Del. Code Ann. tit. 8 (1991, as amended 1994, and as amended thereafter) with respect to matters of corporate governance procedures.
Section 5. Indemnification. For purposes of this Section 5 of Article VIII, the term “institution-affiliated party” shall mean any institution-affiliated party of the association as such term is defined in 12 U.S.C. 1813(u).
Any institution-affiliated party (or his or her heirs, executors or administrators) may be indemnified or reimbursed by the association for reasonable expenses actually incurred in connection with any threatened, pending or completed actions or proceedings and appeals therein, whether civil, criminal, governmental, administrative or investigative, in accordance with and to the fullest extent permitted by law, as such law now or hereafter exists; provided, however, that when an administrative proceeding or action instituted by a federal banking agency results in a final order or settlement pursuant to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in the conduct of the affairs of the association, or (iii) is required to cease and desist from or to take any affirmative action described in 12 U.S.C. 1818(b) with respect to the association, then the association shall require the repayment of all legal fees and expenses advanced pursuant to the next succeeding paragraph and may not indemnify such institution-affiliated parties (or their heirs, executors or administrators) for expenses, including expenses for legal fees, penalties or other payments incurred. The association shall provide indemnification in connection with an action or proceeding (or part thereof) initiated by an institution-affiliated party (or by his or her heirs, executors or administrators) only if such action or proceeding (or part thereof) was authorized by the Board of Directors.
| - 9 - |
Expenses incurred by an institution-affiliated party (or by his or her heirs, executors or administrators) in connection with any action or proceeding under 12 U.S.C. 164 or 1818 may be paid by the association in advance of the final disposition of such action or proceeding upon (a) a determination by the Board of Directors acting by a quorum consisting of directors who are not parties to such action or proceeding that the institution-affiliated party (or his or her heirs, executors or administrators) has a reasonable basis for prevailing on the merits, (b) a determination that the indemnified individual (or his or her heirs, executors or administrators) will have the financial capacity to reimburse the association in the event he or she does not prevail, (c) a determination that the payment of expenses and fees by the association will not adversely affect the safety and soundness of the association, and (d) receipt of an undertaking by or on behalf of such institution-affiliated party (or by his or her heirs, executors or administrators) to repay such advancement in the event of a final order or settlement pursuant to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in the conduct of the affairs of the association, or (iii) is required to cease and desist from or to take any affirmative action described in 12 U.S.C. 1818(b) with respect to the association. In all other instances, expenses incurred by an institution-affiliated party (or by his or her heirs, executors or administrators) in connection with any action or proceeding as to which indemnification may be given under the Articles of Association may be paid by the association in advance of the final disposition of such action or proceeding upon (a) receipt of an undertaking by or on behalf of such institution-affiliated party (or by or on behalf of his or her heirs, executors or administrators) to repay such advancement in the event that such institution- affiliated party (or his or her heirs, executors or administrators) is ultimately found not to be entitled to indemnification as authorized by these Bylaws and (b) approval by the Board of Directors acting by a quorum consisting of directors who are not parties to such action or proceeding or, if such a quorum is not obtainable, then approval by shareholders. To the extent permitted by law, the Board of Directors or, if applicable, the shareholders, shall not be required to find that the institution-affiliated party has met the applicable standard of conduct provided by law for indemnification in connection with such action or proceeding.
In the event that a majority of the members of the Board of Directors are named as respondents in an administrative proceeding or civil action and request indemnification, the remaining members of the Board may authorize independent legal counsel to review the indemnification request and provide the remaining members of the Board with a written opinion of counsel as to whether the conditions delineated in the first four paragraphs of this Section 5 of Article VIII have been met. If independent legal counsel opines that said conditions have been met, the remaining members of the Board of Directors may rely on such opinion in authorizing the requested indemnification.
In the event that all of the members of the Board of Directors are named as respondents in an administrative proceeding or civil action and request indemnification, the Board shall authorize independent legal counsel to review the indemnification request and provide the Board with a written opinion of counsel as to whether the conditions delineated in the first four paragraphs of this Section 5 of Article VIII have been met. If legal counsel opines that said conditions have been met, the Board of Directors may rely on such opinion in authorizing the requested indemnification.
To the extent permitted under applicable law, the rights of indemnification and to the advancement of expenses provided in the Articles of Association (a) shall be available with respect to events occurring prior to the adoption of these Bylaws, (b) shall continue to exist after any restrictive amendment of these Bylaws with respect to events occurring prior to such amendment, (c) may be interpreted on the basis of applicable law in effect at the time of the occurrence of the event or events giving rise to the action or proceeding, or on the basis of applicable law in effect at the time such rights are claimed, and (d) are in the nature of contract rights which may be enforced in any court of competent jurisdiction as if the association and the institution-affiliated party (or his or her heirs, executors or administrators) for whom such rights are sought were parties to a separate written agreement.
| - 10 - |
The rights of indemnification and to the advancement of expenses provided in these Bylaws shall not, to the extent permitted under applicable law, be deemed exclusive of any other rights to which any such institution-affiliated party (or his or her heirs, executors or administrators) may now or hereafter be otherwise entitled whether contained in the association’s Articles of Association, these Bylaws, a resolution of shareholders, a resolution of the Board of Directors, or an agreement providing such indemnification, the creation of such other rights being hereby expressly authorized. Without limiting the generality of the foregoing, the rights of indemnification and to the advancement of expenses provided in these Bylaws shall not be deemed exclusive of any rights, pursuant to statute or otherwise, of any such institution-affiliated party (or of his or her heirs, executors or administrators) in any such action or proceeding to have assessed or allowed in his or her favor, against the association or otherwise, his or her costs and expenses incurred therein or in connection therewith or any part thereof.
If this Section 5 of Article VIII or any part hereof shall be held unenforceable in any respect by a court of competent jurisdiction, it shall be deemed modified to the minimum extent necessary to make it enforceable, and the remainder of this Section 5 of Article VIII shall remain fully enforceable.
The association may, upon affirmative vote of a majority of its Board of Directors, purchase insurance to indemnify its institution-affiliated parties to the extent that such indemnification is allowed in these Bylaws; provided, however, that no such insurance shall include coverage for a final order assessing civil money penalties against such persons by a bank regulatory agency. Such insurance may, but need not, be for the benefit of all institution-affiliated parties.
ARTICLE IX
Inspection and Amendments
Section 1. Inspection. A copy of the bylaws of the association, with all amendments, shall at all times be kept in a convenient place at the main office of the association, and shall be open for inspection to all shareholders during banking hours.
Section 2. Amendments. The Board of Directors shall have the power, at any regular or special meeting thereof, to amend, alter or repeal the bylaws of the association, or to make and adopt new bylaws. These Bylaws may be amended, altered or repealed and new bylaws may be adopted by the shareholders of the association to the extent and as permitted in the Articles of Association or applicable law.
| - 11 - |
EXHIBIT 6
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended, Wilmington Trust, National Association hereby consents that reports of examinations by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon requests therefor.
| WILMINGTON TRUST, NATIONAL ASSOCIATION | |||
| Dated: March 19, 2026 | By: | /s/ Arlene Thelwell | |
| Name: | Arlene Thelwell | ||
| Title: | Vice President | ||
EXHIBIT 7
R E P O R T O F C O N D I T I O N
WILMINGTON TRUST, NATIONAL ASSOCIATION
As of the close of business on December 31, 2025
| ASSETS | Thousands of Dollars | |||
| Cash and balances due from depository institutions: | 649,326 | |||
| Securities: | 1,109 | |||
| Federal funds sold and securities purchased under agreement to resell: | 0 | |||
| Loans and leases held for sale: | 0 | |||
| Loans and leases net of unearned income, allowance: | 26,573 | |||
| Premises and fixed asset | 25,283 | |||
| Other real estate owned: | 0 | |||
| Investments in unconsolidated subsidiaries and associated companies: | 0 | |||
| Direct and indirect investments in real estate ventures: | 0 | |||
| Intangible assets: | 0 | |||
| Other assets: | 70,506 | |||
| Total Assets: | 772,799 | |||
| LIABILITIES | Thousands of Dollars | |||
| Deposits | 5,130 | |||
| Federal funds purchased and securities sold under agreements to repurchase | 0 | |||
| Other borrowed money: | 0 | |||
| Other Liabilities: | 98,259 | |||
| Total Liabilities | 103,389 | |||
| EQUITY CAPITAL | Thousands of Dollars | |||
| Common Stock | 1,000 | |||
| Surplus | 359,386 | |||
| Retained Earnings | 309,018 | |||
| Accumulated other comprehensive income | 6 | |||
| Total Equity Capital | 669,410 | |||
| Total Liabilities and Equity Capital | 772,799 | |||