Exhibit 4.3
CONFORMED COPY
DATED 27TH MAY, 2004
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CADBURY SCHWEPPES PUBLIC LIMITED COMPANY
as an Issuer and as Guarantor |
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CADBURY SCHWEPPES FINANCE p.l.c.
as an Issuer and as Guarantor |
- and -
CADBURY SCHWEPPES INVESTMENTS plc
as an Issuer and as Guarantor
- and -
THE LAW DEBENTURE TRUST CORPORATION
p.l.c.
further modifying the provisions of the
Trust Deed dated 26th May, 1999
relating to the
£5,000,000,000 (formerly £1,500,000,000)
Euro Medium Term Note Programme
▇▇▇▇▇
&
▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇ LLP
LONDON
THIS FOURTH SUPPLEMENTAL TRUST
DEED is made on 27th May, 2004 BETWEEN:
| (1) |
CADBURY SCHWEPPES PUBLIC LIMITED COMPANY, a company
incorporated under the laws of England and Wales, whose registered office is
at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ("Cadbury Schweppes"); |
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| (2) |
CADBURY SCHWEPPES FINANCE p.l.c., a
company incorporated under the laws of England and Wales, whose registered
office
is at ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ("CSF"); |
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| (3) |
CADBURY SCHWEPPES INVESTMENTS plc, a company
incorporated under the laws of England and Wales, whose registered office
is at ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ("CSI" and, together with Cadbury Schweppes
and CSF in their capacities as issuers, the "Issuers" and each an "Issuer");
and |
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THE LAW DEBENTURE TRUST CORPORATION p.l.c.,
a company incorporated with limited liability in England and Wales, whose
registered office is at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇ (the "Trustee", which expression shall, wherever the
context so admits, include such company and all other persons or companies
for the time being the trustee or trustees of these presents) as trustee
for the Noteholders, the Receiptholders and the Couponholders (each as
defined in the Principal Trust Deed (as defined below)). |
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| WHEREAS: |
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| (1) |
This Fourth Supplemental Trust Deed is supplemental
to: |
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(A) |
the Trust Deed dated 26th May, 1999 (the "Principal
Trust Deed") made between Cadbury Schweppes, CSF and the Trustee and relating to the £1,500,000,000 (now £5,000,000,000) Euro Medium Term Note Programme established by Cadbury Schweppes and CSF (the "Programme"); |
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(B) |
the First Supplemental Trust Deed dated 9th
June,
2000 (the "First Supplemental Trust Deed") made between Cadbury Schweppes,
CSF and the Trustee and modifying the provisions of the Principal Trust Deed; |
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(C) |
the Second Supplemental Trust Deed dated 8th
June, 2001 (the "Second Supplemental Trust Deed") made
between Cadbury Schweppes, CSF and the Trustee and modifying the provisions
of the Principal
Trust Deed and the First Supplemental Trust Deed; and |
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(D) |
the Third Supplemental Trust Deed dated 26th
April, 2002 (together with the Principal Trust Deed, the First Supplemental
Trust Deed
and the Second Supplemental Trust Deed, the "Subsisting Trust Deeds")
made between Cadbury Schweppes, CSF and the Trustee and modifying the provisions
of the Principal Trust Deed, the First Supplemental Trust Deed and the Second
Supplemental Trust Deed. |
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| (2) |
On 27th May, 2004 the Issuers published
modified and updated Listing Particulars relating to the Programme pursuant
to which, inter alia, the Programme Limit was increased from £2,500,000,000
to £5,000,000,000 (the "Listing Particulars"). |
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| (3) |
Clause 19(B) of the Principal Trust
Deed provides that the Trustee may without the consent or sanction of the
Noteholders, the Receiptholders or Couponholders at any time and from time
to time concur with Cadbury Schweppes and CSF in making any modification
(inter |
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alia) to these presents (other than
as therein provided) which in the opinion of the Trustee it may be proper
to make provided that the Trustee is of the opinion that such modification
will not be materially prejudicial to the interests
of the Noteholders. |
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| (4) |
Cadbury Schweppes and CSF have
requested the Trustee to concur in making the modifications to the Principal
Trust Deed (as previously modified) hereinafter contained in order to reflect
the relevant modifications
to the Listing Particulars. |
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| (5) |
The Trustee, being of the opinion
that it is proper to make the modifications referred to in Recital (4)
above and contained in Clause 2 hereof and that such modifications are
not materially prejudicial to the interests of the Noteholders, has agreed
to concur with Cadbury Schweppes and CSF in making such modifications and
has agreed that notice of such modifications need not
be given to the Noteholders. |
NOW THIS FOURTH SUPPLEMENTAL TRUST DEED WITNESSES AND IT IS AGREED AND DECLARED as follows:
| 1. |
DEFINITIONS AND INTERPRETATION |
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Subject as otherwise provided in this Fourth Supplemental Trust Deed and unless there is anything in the subject matter or context inconsistent therewith, all words and expressions defined in the Principal Trust Deed (as previously modified) shall have the same meanings in this Fourth Supplemental Trust Deed. |
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(A) |
SAVE: |
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(i) |
in relation to all Series of Notes issued during
the period up to and including the day last preceding the date of this
Fourth Supplemental Trust Deed and any Notes issued after the date hereof
and forming a single Series with Notes issued prior to the date hereof;
and |
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(ii) |
for the purpose (where necessary) of construing
the
provisions of this Fourth Supplemental Trust Deed; |
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with effect on and
from the date of this Fourth Supplemental Trust Deed: |
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(a) |
the Principal Trust Deed (as previously modified)
is further modified in such manner as would result in the Principal Trust
Deed
as so modified being in the form set out in the Schedule hereto; and |
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(b) |
the provisions of the Principal Trust Deed
(as previously modified) insofar as the same shall still have effect shall
cease to have effect and in lieu thereof the provisions of the Principal
Trust Deed as so modified (and being in the form set out in Schedule hereto)
shall have effect. |
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| 3. |
GENERAL |
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| (A) |
The Subsisting Trust Deeds shall
henceforth be read and construed in conjunction with this Fourth Supplemental
Trust Deed as one
document. |
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| (B) |
A Memorandum of this
Fourth Supplemental Trust Deed shall be endorsed by the Trustee on the Principal
Trust Deed and by Cadbury Schweppes
and CSF on their respective duplicates thereof. |
IN WITNESS whereof this Fourth Supplemental Trust Deed has been executed as a deed by Cadbury Schweppes, CSF, CSI and the Trustee and delivered on the date first stated above.
3
SCHEDULE
DATED 26TH MAY, 1999
MODIFIED AND RESTATED ON 27TH MAY, 2004
CADBURY SCHWEPPES PUBLIC LIMITED COMPANY
as an Issuer and as Guarantor
- and -
CADBURY SCHWEPPES FINANCE p.l.c.
as an Issuer and as Guarantor
- and -
CADBURY SCHWEPPES INVESTMENTS plc
as an Issuer and as Guarantor
- and -
THE LAW DEBENTURE TRUST CORPORATION
p.l.c.
relating to a
£5,000,000,000
Euro Medium Term Note Programme
For Cadbury Schweppes public limited company,
Cadbury Schweppes Finance p.l.c. and
Cadbury Schweppes Investments plc:
▇▇▇▇▇▇▇▇▇ AND MAY
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
For The Law Debenture Trust
Corporation p.l.c.:
▇▇▇▇▇ & OVERY
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
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TABLE OF CONTENTS
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THIS TRUST DEED is made on 26th May, 1999 BETWEEN:
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(1) |
CADBURY SCHWEPPES PUBLIC LIMITED COMPANY, a
company incorporated under the laws of England and Wales, whose registered office
is at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ("Cadbury
Schweppes"); |
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CADBURY SCHWEPPES FINANCE p.l.c., a
company incorporated under the laws of England and Wales, whose registered
office is at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ("CSF"); |
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CADBURY SCHWEPPES INVESTMENTS plc, a
company incorporated under the laws of England and Wales, whose registered
office is at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ("CSI" and,
together with Cadbury Schweppes and CSF in their capacities as issuers,
the "Issuers" and each an "Issuer"); and |
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THE LAW DEBENTURE TRUST CORPORATION p.l.c.,
a company incorporated with limited liability in England and Wales, whose
registered office is at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
(the "Trustee",
which expression shall, wherever the context so admits, include such company
and all other persons or companies for the time being the trustee or trustees
of these presents) as trustee for the Noteholders, the Receiptholders and
the Couponholders (each as defined below). |
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| WHEREAS: |
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| (1) |
By resolutions of the Board of Directors of
Cadbury Schweppes passed on 7th May, 1999, 19th April, 2002 and 20th May,
2004, by resolutions of the Board of Directors of CSF passed on 18th May,
1999, 19th April, 2002 and 25th May, 2004 and by resolutions of the Board
of Directors of CSI passed on 25th May, 2004, each of them has resolved
to establish a single Euro Medium Term Note Programme pursuant to which
each of them may from time to time issue Notes as set out therein and herein.
Notes up to a maximum nominal amount (calculated in accordance with Clause
3(5) of the Programme Agreement (as defined below)) from time to time outstanding
of £5,000,000,000 (subject to increase as provided in the Programme
Agreement) (the "Programme Limit") may be issued pursuant
to the said Programme. |
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| (2) |
By a resolution of the Board of Directors of
Cadbury Schweppes passed on 7th May, 1999 and 20th May, 2004 Cadbury Schweppes
has resolved to guarantee all Notes issued under the said Programme by
CSF or CSI and to enter into certain covenants as set out in this Trust
Deed. |
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By a resolution of the Board of Directors of
CSF passed on 25th May, 2004 CSF has resolved to guarantee all Notes issued
under the said Programme by CSI and to enter into certain covenants as
set out in this
Trust Deed. |
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By a resolution of the Board of Directors of
CSI passed on 25th May, 2004 CSI has resolved to guarantee all Notes issued
under the said Programme by CSF and to enter into certain covenants as
set out in this
Trust Deed. |
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| (5) |
The Trustee has agreed to act as trustee of
these presents for the benefit of the Noteholders, the Receiptholders and
the Couponholders upon and subject to the terms and conditions of these
presents. |
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| NOW THIS TRUST DEED WITNESSES
AND IT IS AGREED AND DECLARED as follows: |
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| 1. |
DEFINITIONS |
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| (A) |
IN these presents unless there
is anything in the subject or context inconsistent therewith the following
expressions shall have the following meanings: |
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"Agent" means,
in relation to all or any Series of the Notes, JPMorgan Chase Bank at its
office at Trinity Tower, 9 ▇▇▇▇▇▇ ▇▇▇▇ Street, London E1W 1YT, England,
or, if applicable, any Successor agent in relation thereto; |
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"Agency Agreement"means
the agreement dated 26th May, 1999, as amended and/or supplemented and/or
restated from time to time, pursuant to which Cadbury Schweppes, CSF and
CSI have appointed the Agent and the other Paying Agents in relation to all
or any Series of the Notes and any other agreement for the time being in
force appointing further or other Paying Agents or another Agent in relation
to all or any Series of the Notes, or in connection with their duties, the
terms of which have previously been approved in writing by the Trustee, together
with any agreement for the time being in force amending or modifying with
the prior written approval of the Trustee any of the aforesaid agreements; |
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"Appointee"means any attorney, manager, agent, delegate, nominee, custodian or other person appointed by the Trustee under these presents; |
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"Auditors"means
the auditors for the time being of the relevant Issuer or, as the case may
be, Cadbury Schweppes (where the relevant Issuer is CSF or CSI) or, in the
event of their being unable or unwilling promptly to carry out any action
requested of them pursuant to the provisions of these presents, such other
firm of
accountants or such other financial advisers as may be nominated or approved
by the Trustee for the purposes of these presents after consultation with
the relevant Issuer or, as the case may be, Cadbury Schweppes (where the
relevant Issuer is CSF or CSI); |
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"Calculation Agency Agreement"means in relation to all or any Series of the Notes an agreement in or substantially in the form of Schedule I to the Agency Agreement; |
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"Calculation Agent"means, in relation to all or any Series of the Notes, the person appointed as such from time to time pursuant to the provisions of the Calculation Agency Agreement or any Successor calculation agent in relation thereto; |
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"Clearstream, Luxembourg"means
Clearstream Banking, société anonyme; |
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"Conditions"means,
in relation to the Notes of any Series, the terms and conditions endorsed
on or incorporated by reference into the Note or Notes constituting such
Series, such terms and conditions being in or substantially in the form set
out in the First Schedule or in such other form, having regard to the terms
of issue of the Notes of the relevant Series, as may be agreed between the
relevant Issuer, the Agent, the Trustee and the relevant Dealer(s) as modified
and supplemented by the Pricing Supplement applicable to the Notes of the
relevant Series, in each case as from time to time modified in accordance
with the provisions of these presents; |
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"Coupon"means an interest coupon appertaining to a Definitive Note (other than a Zero Coupon Note), such coupon being: |
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(i) |
if appertaining to a Fixed Rate Note, in the form
or substantially in the form set out in Part V A of the Second Schedule or in
such other form, having regard to the terms of issue of the Notes of the relevant
Series, as may be agreed between the relevant Issuer, the Agent, the Trustee
and
the relevant Dealer(s); or |
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(ii) |
if appertaining to a Floating Rate Note or an Index
Linked Interest Note, in the form or substantially in the form set out in Part
V B of the Second Schedule or in such other form, having regard to the terms
of issue of the Notes of the relevant Series, as may be agreed between the relevant
Issuer, the Agent, the Trustee and the relevant Dealer(s); or |
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(iii) |
if appertaining to a Definitive Note which
is neither a Fixed Rate Note nor a Floating Rate Note nor an Index Linked
Interest Note, in such form as may be agreed between the relevant Issuer,
the Agent, the Trustee and the relevant Dealer(s), |
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and includes, where applicable,
the Talon(s) appertaining thereto and any replacements for Coupons and
Talons issued pursuant to Condition 11; |
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"Couponholders"means
the several persons who are for the time being holders of the Coupons and
includes, where applicable, the holders of the Talons; |
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"Dealers"means
ABN AMRO
Bank N.V., Banc of America Securities Limited, Banco Bilbao Vizcaya Argentaria,
S.A., BNP Paribas, Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A.,
Deutsche Bank AG London, Dresdner Bank AG London Branch, HSBC Bank plc,
▇.▇. ▇▇▇▇▇▇ Securities Ltd., National Australia Bank Limited and The Royal
Bank of Scotland plc and any other entity which the relevant Issuer may
appoint as a Dealer and notice of whose appointment has been given to the
Agent and the Trustee in accordance with the provisions of the Programme
Agreement but excluding any entity whose appointment has been terminated
in accordance with the provisions of the Programme Agreement and notice
of which termination has been given to the Agent and the Trustee by the
relevant Issuer in accordance with the provisions of the Programme Agreement
and references to a "relevant Dealer" or "relevant
Dealer(s)" mean,
in relation to any Tranche or Series of Notes, the Dealer or Dealers with
whom the relevant Issuer has agreed the issue of the Notes of such Tranche
or Series and "Dealer" means any one of them; |
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"Definitive Note"means
a Note in definitive form issued or, as the case may require, to be issued
by the relevant Issuer in accordance with the provisions of the Programme
Agreement or any other agreement between the relevant Issuer and the relevant
Dealer(s), the Agency Agreement and these presents in exchange for either
a Temporary Global Note or part thereof or a Permanent Global Note (all
as indicated in the applicable Pricing Supplement), such Note in definitive
form being in the form or substantially in the form set out in Part III of
the Second Schedule with such modifications (if any) as may be agreed between
the relevant Issuer, the Agent, the Trustee and the relevant Dealer(s)
and having the Conditions endorsed thereon or, if permitted by the relevant
Stock Exchange, incorporating the Conditions by reference (where applicable
to this Trust Deed) as indicated in the applicable Pricing Supplement and
having the relevant information supplementing, replacing or modifying the
Conditions appearing in the applicable Pricing Supplement endorsed thereon
or attached thereto and (except in the case of a Zero Coupon Note in bearer
form) having Coupons and, where appropriate, Receipts and/or Talons attached
thereto on issue; |
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"Dual Currency Note"means
a Note in respect of which payments of principal and/or interest are made
or to be made in such different currencies, and at rates of exchange calculated
upon such basis or bases, as the relevant Issuer and the relevant Dealer(s)
may agree (as indicated in the applicable Pricing Supplement); |
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"Early Redemption Amount"has
the meaning ascribed thereto in Condition 7(e); |
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"Euroclear"means
Euroclear Bank S.A./N.V. as operator of the Euroclear System; |
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"Event of Default"means
any of the conditions, events or acts provided in Condition 10 to be Events
of Default (being events upon the happening of which the Notes of any Series
would, subject only to notice by the Trustee as therein provided, become
immediately due and repayable); |
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"Extraordinary Resolution" has
the meaning ascribed thereto in paragraph 20 of the Third Schedule; |
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"Fixed Rate Note" means
a Note on which interest is calculated at a fixed rate payable in arrear
on a fixed date or fixed dates in each year and on redemption or on such
other dates as may be agreed between the relevant Issuer and the relevant
Dealer(s) (as indicated in the applicable Pricing Supplement); |
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"Floating Rate Note"means
a Note on which interest is calculated at a floating rate payable one-,
two-, three-, six- or twelve-monthly or in respect of such other period
or on such date(s) as may be agreed between the relevant Issuer and the
relevant Dealer(s) (as indicated in the applicable Pricing Supplement); |
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"Global Note" means
a Temporary Global Note and/or a Permanent Global Note, as the context
may require; |
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"Holding Company"means
any company which is for the time being a holding company (within the meaning
of Section 736 of the Companies ▇▇▇ ▇▇▇▇ of Great Britain); |
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"Index Linked Interest
Note" means a Note in respect of which the amount payable in
respect of interest is calculated by reference to such index and/or formula
or to changes in the prices of securities or commodities or to such other
factors as the relevant Issuer and the relevant Dealer(s) may agree (as
indicated in the applicable Pricing Supplement); |
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"Index Linked Note"means
an Index Linked Interest Note and/or an Index Linked Redemption Amount
Note, as applicable; |
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"Index Linked Redemption
Amount Note"means a Note in respect of which the amount payable
in respect of principal is calculated by reference to such index and/or
formula or to changes in the prices of securities or commodities or to
such other factors as the relevant Issuer and the relevant Dealer(s)
may agree (as indicated in the applicable Pricing Supplement); |
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"Interest Commencement
Date"means, in the case of interest-bearing Notes, the date
specified in the applicable Pricing Supplement from (and including) which
such Notes bear interest, which may or may not be the Issue Date; |
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"Interest Payment Date" means,
in relation to any Floating Rate Note or Indexed Interest Note, either: |
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(i) |
the date which falls the number of months or other
period specified as the "Specified Period"in the applicable
Pricing Supplement after the preceding Interest Payment Date or the Interest
Commencement Date (in the case of the first Interest Payment Date); or |
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(ii) |
such date or dates as are indicated in the applicable
Pricing Supplement; |
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"Issue Date" means,
in respect of any Note, the date of issue and purchase of such Note pursuant
to and in accordance with the Programme Agreement or any other agreement
between the relevant Issuer and the relevant Dealer(s), being in the case
of any Definitive Note represented initially by a Temporary Global Note
or a Permanent Global Note, the same date as the date of issue of the Temporary
Global Note or the Permanent Global Note which initially represented such
Note; |
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"Issue Price" means
the price, generally expressed as a percentage of the nominal amount of
the Notes, at which the Notes will be issued; |
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"Liability" means
any loss, damage, cost, charge, claim, demand, expense, judgment, action,
proceeding or other liability whatsoever (including, without limitation,
in respect of taxes, duties, levies, imposts and other charges) and including
any amount in respect of value added tax or similar tax charged or chargeable
in respect thereof and legal fees and expenses on a full indemnity basis; |
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"loan", "debt" and "indebtedness",
as at a particular date, shall be construed as a reference to any obligation
(other than a contingent obligation) for or in respect of moneys borrowed
or raised by whatever means (including by means of acceptances, the issue
of loan stock, notes or debentures, and finance leases) or for the deferred
purchase price of moveable or immovable assets but excluding any obligation
in respect of such deferred purchase price which: |
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(i) |
has a maximum remaining maturity, as at such date,
of one year (although its maturity may have originally exceeded one year); or |
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(ii) |
does not fall within paragraph (i) or (iii)
of this definition, but which, when aggregated with all other obligations
falling within
this paragraph (ii), does not exceed £20,000,000 (or its equivalent in
any other currency or currencies); or |
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(iii) |
is in respect of normal trade debts; or |
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(iv) |
the relevant Issuer or, as the case may be,
Cadbury Schweppes (where the relevant Issuer is CSF or CSI) or, as the
case may be, CSF (where the relevant Issuer is CSI) or, as the case may
be, CSI (where the relevant Issuer is CSF) demonstrates to the satisfaction
of the Trustee was incurred other than primarily as a means of raising
finance; |
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"London Business Day" has
the meaning set out in Condition 5(b)(v); |
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"London Stock Exchange" means
the London Stock Exchange plc or such other body to which its functions have
been transferred; |
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"Maturity Date" means
the date on which a Note is expressed to be redeemable; |
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"month" means calendar
month; |
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"Note" means a
note in bearer form issued pursuant to the Programme and denominated in such
currency or currencies as may be agreed between the relevant Issuer and the
relevant Dealer(s) which: |
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(i) |
has such maturity as may be agreed between the relevant
Issuer and the relevant Dealer(s), subject to such minimum or maximum maturity
as may be allowed or required from time to time by the relevant central bank
(or equivalent body) or any laws or regulations applicable to the relevant Issuer
or the relevant currency; and |
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(ii) |
has such denomination as may be
agreed between the relevant Issuer and the relevant Dealer(s), subject
to such minimum denomination as may be allowed or required from time to
time by the relevant central bank (or equivalent body) or any laws or regulations
applicable to the relevant currency, |
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issued or to be issued by the relevant
Issuer pursuant to the Programme Agreement or any other agreement between
the relevant Issuer and the relevant Dealer(s), the Agency Agreement and
these presents and which shall initially be represented by, and comprised
in, either (a) a Temporary Global Note which may (in accordance with the
terms of such Temporary Global Note) be exchanged for Definitive Notes
or a Permanent Global Note, which Permanent Global Note may (in accordance
with the terms of such Permanent Global Note) in turn be exchanged for
Definitive Notes or (b) a Permanent Global Note which may (in accordance
with the terms of such Permanent Global Note) be exchanged for Definitive
Notes (all as indicated in the applicable Pricing Supplement) and includes
any replacements for a Note issued pursuant to Condition 11; |
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"Noteholders" means
the several persons who are for the time being holders of outstanding Notes
save that, in respect of the Notes of any Series, for so long as such Notes
or any part thereof are represented by a Global Note deposited with a common
depositary for Euroclear and Clearstream, Luxembourg, each person who is
for the time being shown in the records of Euroclear or Clearstream, Luxembourg
(other than Clearstream, Luxembourg, if Clearstream, Luxembourg shall be
an accountholder of Euroclear and Euroclear, if Euroclear shall be an accountholder
of Clearstream, Luxembourg) as the holder of a particular nominal amount
of the Notes of such Series shall be deemed to be the holder of such nominal
amount of such Notes (and the holder of the relevant Global Note shall
be deemed not to be the holder) for all purposes of these presents other
than with respect to the payment of principal or interest on such nominal
amount of such Notes the rights to which shall be vested, as against the
relevant Obligors and the Trustee, solely in such common depositary and
for which purpose such common depositary shall be deemed to be the holder
of such nominal amount of such Notes in accordance with and subject to
its terms and the provisions of these presents and the expressions "Noteholder","holder"and "holder
of Notes" and related expressions shall be construed accordingly; |
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"notice" means,
in respect of a notice to be given to Noteholders, a notice validly given
pursuant to Condition 14; |
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"Official List" means
the official list maintained by the UK Listing Authority; |
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"outstanding" means,
in relation to the Notes of all or any Series, all the Notes of such Series
issued other than: |
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(a) |
those Notes which have been redeemed pursuant to
these presents; |
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(b) |
those Notes in respect of which the date for
redemption in accordance with the Conditions has occurred and the redemption
moneys (including all interest payable thereon) have been duly paid to
the Trustee or to the Agent in the manner provided in the Agency Agreement
(and where appropriate notice
to that effect has been given to |
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the relative Noteholders in accordance with Condition 14) and remain available for payment against presentation of the relevant Notes and/or Receipts and/or Coupons; |
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(c) |
those Notes which have been purchased
and cancelled
in accordance with Conditions 7(h) and 7(i); |
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(d) |
those Notes which have become
void under Condition
9; |
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(e) |
those mutilated or defaced Notes
which have been surrendered and cancelled and in respect of which replacements
have been issued pursuant to Condition 11; |
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(f) |
(for the purpose only
of ascertaining the nominal amount of the Notes outstanding and without
prejudice to the status for any other purpose of the relevant Notes) those
Notes which are alleged to have been lost, stolen or destroyed and in respect
of which replacement Notes have been issued pursuant to Condition 11; and |
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(g) |
any Temporary Global Note to the
extent that it shall have been exchanged for Definitive Notes or a Permanent
Global Note and any Permanent Global Note to the extent that it shall have
been exchanged for Definitive Notes in each case pursuant to its provisions,
the provisions of these presents and the Agency Agreement, |
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PROVIDED THAT for each of the following
purposes, namely: |
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(i) |
the right to attend and vote at
any meeting of the
holders of the Notes of any Series; |
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(ii) |
the determination of how many
and which Notes of any Series are for the time being outstanding for the
purposes of Clause 9(A), Conditions 10 and 15 and paragraphs 2, 5, 6
and 9 of the Third Schedule; |
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(iii) |
any discretion, power or authority
(whether contained in these presents or vested by operation of law) which
the Trustee is required, expressly or impliedly, to exercise in or by reference
to the interests of the holders of the Notes of any Series; and |
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(iv) |
the determination by the Trustee
whether any event, circumstance, matter or thing is, in its opinion, materially
prejudicial to the interests of the holders of the Notes of any Series, |
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those Notes of the relevant Series
(if any) which are for the time being held by or on behalf of any of the
relevant Obligors or any Subsidiary or Holding Company of any of the relevant
Obligors, in each case as beneficial owner, shall (unless and until ceasing
to be so held) be deemed not to remain outstanding; |
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"Paying Agents" means,
in relation to all or any Series of the Notes, the several institutions
(including, where the context permits, the Agent) at their respective specified
offices initially appointed as paying agents in relation to such Notes
by Cadbury Schweppes, CSF and CSI pursuant to the Agency Agreement and/or,
if applicable, any Successor paying agents in relation thereto; |
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"Permanent Global Note" means
a global note in the form or substantially in the form set out in Part
II of the Second Schedule with such modifications (if any) as may be agreed
between the relevant Issuer, the Agent, the Trustee and the relevant Dealer(s),
together with the copy of the applicable Pricing Supplement annexed thereto,
comprising some or all of the Notes of the same Series, issued by the relevant
Issuer pursuant to the Programme Agreement or any other agreement relating
to the Programme between the relevant Issuer and the |
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relevant Dealer(s), the Agency Agreement
and these presents either in exchange for the whole or part of any Temporary
Global Note issued in respect of such Notes or on issue; |
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"Potential Event of Default" means
any condition, event or act which, with the lapse of time and/or the
giving of notice and/or the issue of any certificate, would constitute
an Event of Default; |
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"Pricing Supplement" has
the meaning set out in the Programme Agreement; |
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"Programme" means the Euro
Medium Term Note Programme established by, or otherwise contemplated
in, the Programme Agreement; |
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"Programme Agreement" means
the agreement of even date herewith between Cadbury Schweppes, CSF and
the Dealers named therein concerning the purchase of Notes to be issued
pursuant to the Programme together with any agreement for the time being
in force amending, replacing, novating or modifying such agreement; |
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"Receipt" means a receipt
attached on issue to a Definitive Note redeemable in instalments for
the payment of an instalment of principal, such receipt being in the
form or substantially in the form set out in Part IV of the Second Schedule
or in such other form as may be agreed between the relevant Issuer, the
Agent, the Trustee and the relevant Dealer(s) and includes any replacements
for Receipts issued pursuant to Condition 11; |
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"Receiptholders" means the
several persons who are for the time being holders of the Receipts; |
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"Reference Banks" means,
in relation
to the Notes of any relevant Series, the several banks initially appointed
as reference banks and/or, if applicable, any Successor reference banks
in relation thereto; |
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"Relevant Date" has
the meaning set out in Condition 8; |
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"relevant Issuer" means,
with respect to any Note, the Issuer of such Note; |
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"relevant Obligors" means,
with respect to any Note, the relevant Issuer, Cadbury Schweppes (where
the relevant Issuer is CSF or CSI), CSF (where the relevant Issuer is CSI)
and CSI (where the relevant Issuer is CSF), and "relevant Obligor" shall
be construed accordingly; |
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"repay", "redeem" and "pay" shall
each include both the others and cognate expressions shall be construed accordingly; |
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"Securities Act" means
the United States Securities Act of 1933, as amended; |
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"Security" has
the meaning set out in Condition 4; |
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"Series" means
a Tranche of Notes together with any further Tranche or Tranches of Notes
which are (i) expressed to be consolidated and form a single series and (ii)
identical in all respects (including as to listing) except for their respective
Issue Dates, Interest Commencement Dates and/or Issue Prices and the expressions "Notes
of the relevant Series", "holders of Notes of the relevant
Series" and
related expressions shall be construed accordingly; |
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"Stock Exchange" means the
London Stock Exchange or any other or further stock exchange(s) on which
any Notes may from time to time be listed, and references in these presents
to the "relevant Stock Exchange" shall, in relation
to any Notes, be references to the Stock Exchange on which such Notes
are,
from time to time, or are intended to be, listed; |
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"Subsidiary" means any company
which is for the time being a subsidiary (within the meaning of Section
736 of the Companies ▇▇▇ ▇▇▇▇ of Great Britain) or a subsidiary undertaking
(within the meaning of Section 258 and Schedule 10A of the Companies
▇▇▇ ▇▇▇▇ of Great Britain); |
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"Successor" means, in relation
to the Agent, the other Paying Agents, the Reference Banks and the Calculation
Agent, any successor to any one or more of them in relation to the Notes
which shall become such pursuant to the provisions of these presents
and/or the Agency Agreement (as the case may be) and/or such other or
further agent, paying agents, reference banks and calculation agent (as
the case may be) in relation to the Notes as may (with the prior approval
of, and on terms previously approved by, the Trustee in writing) from
time to time be appointed as such, and/or, if applicable, such other
or further specified offices (in the former case being within the same
city as those for which they are substituted) as may from time to time
be nominated, in each case by Cadbury Schweppes, CSF and CSI and (except
in the case of the initial appointments and specified offices made under
and specified in the Conditions and/or the Agency Agreement, as the case
may be) notice of whose appointment or, as the case may be, nomination
has been given to the Noteholders; |
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"Successor in Business" means
in relation to Cadbury Schweppes any company which, as a result of any
amalgamation, merger or reconstruction the terms of which have previously
been approved in writing by the Trustee: |
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(i) |
owns beneficially the whole or substantially
the whole of the undertaking, property and assets owned by Cadbury Schweppes
immediately
prior thereto; and |
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(ii) |
carries on, as successor to Cadbury Schweppes, the
whole or substantially the whole of the business carried on by Cadbury Schweppes
immediately prior thereto; |
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"Talons" means
the talons (if any) appertaining to, and exchangeable in accordance with
the provisions therein contained for further Coupons appertaining to,
the Definitive Notes (other than the Zero Coupon Notes), such talons
being in the form or substantially in the form set out in Part VI of
the Second Schedule or in such other form as may be agreed between the
relevant Issuer, the Agent, the Trustee and the relevant Dealer(s) and
includes any replacements for Talons issued pursuant to Condition 11; |
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"Temporary Global Note" means
a temporary global note in the form or substantially in the form set
out in Part I of the Second Schedule with such modifications (if any)
as may be agreed between the relevant Issuer, the Agent, the Trustee
and the relevant Dealer(s), together with the copy of the applicable
Pricing Supplement annexed thereto, comprising some or all of the Notes
of the same Series, issued by the relevant Issuer pursuant to the Programme
Agreement or any other agreement relating to the Programme between the
relevant Issuer and the relevant Dealer(s), the Agency Agreement and
these presents; |
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"these presents" means
this Trust Deed and the Schedules and any trust deed supplemental hereto
and the Schedules (if any) thereto and the Notes, the Receipts, the Coupons,
the Talons, the Conditions and, unless the context otherwise requires, the
Pricing Supplements, all as from time to time modified in accordance with
the provisions herein or therein contained; |
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"Tranche" means
all Notes which are identical in all respects (including as to listing); |
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"Trust Corporation" means
a corporation entitled by rules made under the Public Trustee ▇▇▇ ▇▇▇▇ of
Great Britain or entitled pursuant to any other comparable legislation applicable
to a trustee in any other jurisdiction to carry out the functions of a custodian
trustee; |
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"Trustee Acts" means
the Trustee ▇▇▇ ▇▇▇▇ and the Trustee ▇▇▇ ▇▇▇▇; |
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"UK Listing Authority" means
the Financial Services Authority in its capacity as competent authority under
the Financial Services and Markets ▇▇▇ ▇▇▇▇; |
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"Zero Coupon Note" means
a Note on which no interest is payable; |
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words denoting the singular shall
include the plural and vice versa; |
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words denoting one gender only shall include the other genders; and |
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words denoting persons only
shall include firms and corporations and vice versa. |
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| (B) |
(i) |
All references in these presents to principal and/or
principal amount and/or interest in respect of the Notes or to any moneys payable
by the relevant Issuer or, as the case may be, Cadbury Schweppes (where the relevant
Issuer is CSF or CSI) or, as the case may be, CSF (where the relevant Issuer
is CSI) or, as the case may be, CSI (where the relevant Issuer is CSF) under
these presents shall, unless the context otherwise requires, be construed in
accordance with Condition 6(f). |
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(ii) |
All references in these presents to any statute or any provision of any statute shall be deemed also to refer to any statutory modification or re-enactment thereof or any statutory instrument, order or regulation made thereunder or under any such modification or re-enactment. |
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(iii) |
All references in these presents to guarantees or to an obligation being guaranteed shall be deemed to include respectively references to indemnities or to an indemnity being given in respect thereof. |
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(iv) |
All references in these presents
to any action, remedy or method of proceeding for the enforcement of the
rights of creditors shall be deemed to include, in respect of any jurisdiction
other than England, references to such action, remedy or method of proceeding
for the enforcement of the rights of creditors available or appropriate
in such jurisdiction as shall most nearly approximate to such action, remedy
or method of proceeding described or referred
to in these presents. |
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(v) |
All references in these presents
to Euroclear and/or Clearstream, Luxembourg shall, whenever the context
so permits, be deemed to include references to any successor operator and/or
successor clearing system and/or any additional or alternative clearing
system as is specified in the applicable Pricing Supplement and/or approved
by the relevant Issuer, the Agent and the Trustee. All references in these
presents to the common depositary shall, whenever the context so permits,
be deemed to include references to any successor common depositary or any
additional or alternative common depositary as is approved by the relevant
Issuer, the Agent and the Trustee. |
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(vi) |
Unless the context otherwise requires
words or expressions used in these presents shall bear the same meanings
as in the Companies ▇▇▇ ▇▇▇▇
of Great Britain. |
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(vii) |
In this Trust Deed references
to Schedules, Clauses, sub-clauses, paragraphs and sub-paragraphs shall
be construed as references to the Schedules to this Trust Deed and |
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to the Clauses, sub-clauses, paragraphs and sub-paragraphs of this Trust Deed respectively. |
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(viii) |
In these presents tables of contents
and Clause headings are included for ease of reference and shall not affect
the construction of these presents. |
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(ix) |
All references in these presents
to taking proceedings against the relevant Issuer or, as the case may be,
Cadbury Schweppes (where the relevant Issuer is CSF or CSI) or, as the
case may be, CSF (where the relevant Issuer is CSI) or, as the case may
be, CSI (where the relevant Issuer is CSF) shall be deemed to include references
to proving in the winding-up of the relevant Issuer, Cadbury Schweppes,
CSF or CSI, as the case may be. |
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(x) |
All references in these presents
to any approval or consent of the Trustee shall be deemed to include a
reference to the requirement that such approval or consent shall be not
unreasonably withheld or delayed. |
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(xi) |
All references in these presents
involving compliance by the Trustee with a test of reasonableness (other
than in Clause 14(iv) and the proviso to Clause 14) shall be deemed to
include a reference to a requirement that such reasonableness shall be
determined by reference solely to the interests of the Noteholders as a
class. |
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| (C) |
Words and expressions defined in
these presents or the Agency Agreement or used in the applicable Pricing
Supplement shall have the same meanings where used herein unless the context
otherwise requires or unless otherwise stated and provided that, in the
event of inconsistency between the Agency Agreement and these presents,
these presents shall prevail and, in the event of inconsistency between
the Agency Agreement or these presents and the applicable Pricing Supplement,
the applicable Pricing Supplement shall prevail. |
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| (D) |
All references in these presents
to the "relevant currency" shall be construed as references
to the currency in which payments in respect of the Notes and/or Receipts
and/or Coupons of the relevant Series are to be made as indicated in the
applicable Pricing Supplement. |
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| (E) |
As used in these presents, in relation
to any Notes
which have a "listing" or are "listed" on the London Stock
Exchange, "listing" and "listed" shall be construed to mean
that such Notes have been admitted to the Official List and admitted to trading
on the London Stock Exchange's market for listed securities. All references in
these presents to "listing" and "listed" shall
include references to "quotation" and "quoted" respectively. |
| 2. |
AMOUNT AND ISSUE OF THE NOTES |
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| (A) |
Amount of the Notes, Pricing Supplements and Legal Opinions: |
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THE Notes will be issued in Series
in an aggregate nominal amount from time to time outstanding not exceeding
the Programme Limit from time to time and for the purpose of determining
such aggregate nominal amount Clause 3(5) of the Programme Agreement shall
apply. |
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By not later than 3.00 p.m. (London time) on the third London Business Day preceding each proposed Issue Date, the relevant Issuer shall deliver or cause to be delivered to the Trustee a draft of the applicable Pricing Supplement and drafts of all legal opinions (if any) to be given in relation to the proposed issue and shall notify the Trustee in writing without delay of the |
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relevant Issue Date and the nominal amount of the Notes to be issued and upon the issue of the relevant Notes shall deliver or cause to be delivered to the Trustee a copy of the final form of the applicable Pricing Supplement and signed copies of all such legal opinions. Upon the issue of the relevant Notes, such Notes shall become constituted by these presents without further formality. |
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On such occasions as the Trustee
so requests (on the basis that (i) the Trustee considers it necessary in
view of a change (or proposed change) in applicable law affecting the relevant
Issuer or, as the case may be, Cadbury Schweppes (where the relevant Issuer
is CSF or CSI) or, as the case may be, CSF (where the relevant Issuer is
CSI) or, as the case may be, CSI (where the relevant Issuer is CSF), these
presents, the Programme Agreement or the Agency Agreement, or (ii) the Trustee
has other reasonable grounds for such request), the relevant Issuer or, as
the case may be, Cadbury Schweppes (where the relevant Issuer is CSF or CSI)
or, as the case may be, CSF (where the relevant Issuer is CSI) or, as the
case may be, CSI (where the relevant Issuer is CSF) will procure that a further
legal opinion or further legal opinions in such form and with such content
as the Trustee may require from the legal advisers specified in the Programme
Agreement or such other legal advisers as the Trustee may require is/are
delivered to the Trustee. Whenever such a request is made with respect to
any Notes to be issued, the receipt of such opinion(s) in a form satisfactory
to the Trustee shall be a further condition precedent to the issue of those
Notes. |
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| (B) |
Covenant to repay principal and to pay interest: |
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The relevant Issuer covenants with the Trustee that it will, as and when the Notes of any Series or any of them or any instalment of principal in respect thereof becomes due to be redeemed in accordance with the Conditions, unconditionally pay or procure to be paid to or to the order of the Trustee in the relevant currency in immediately available funds the principal amount in respect of the Notes of such Series or the amount of such instalment becoming due for redemption on that date and (except in the case of Zero Coupon Notes) shall (subject to the provisions of the Conditions) in the meantime and until redemption in full of the Notes of such Series (both before and after any judgment or other order of a court of competent jurisdiction)
unconditionally pay or procure to be paid to or to the order of the Trustee as aforesaid interest (which shall accrue from day to day) on the nominal amount of the Notes outstanding of such Series at rates and/or in amounts calculated from time to time in accordance with, or specified in, and on the dates provided for in, the Conditions (subject to Clause 2(D)) PROVIDED THAT: |
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(i) |
every payment of principal or interest or other sum
due in respect of the Notes made to or to the order of the Agent in the manner
provided in the Agency Agreement shall be in satisfaction pro tanto of the relative covenant by the relevant Issuer in this Clause contained in relation to the Notes of such Series except to the extent that there is a default in the subsequent payment thereof in accordance with the Conditions to the relevant Noteholders, Receiptholders or Couponholders (as the case may be); |
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(ii) |
in the case of any payment of principal made
to the Trustee or the Agent after the due date or on or after accelerated
maturity following an Event of Default interest shall continue to accrue
on the nominal amount of the relevant Notes (except in the case of Zero
Coupon Notes to which the provisions of Condition 7(j) shall apply) (both
before and after any judgment or other order of a court of competent jurisdiction)
at the rates aforesaid up to and including the date which the Trustee determines
to be the date on and after which payment is to be made in respect thereof
as stated in a notice given to the holders of such Notes (such date to
be not later than 30 days after |
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the day on which the whole of such
principal amount, together with an amount equal to the interest which has
accrued and is to accrue pursuant to this proviso up to and including that
date, has been received by the Trustee or the Agent); and |
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(iii) |
in any case where payment of the whole or any part of the principal amount of any Note is improperly withheld or refused upon due presentation thereof (other than in circumstances contemplated by (ii) above), interest shall accrue on the nominal amount of such Note (except in the case of Zero Coupon Notes to which the provisions of Condition 7(j) shall apply) payment of which has been so withheld or refused (both before and after any judgment or other order of a court of competent jurisdiction) at the rates aforesaid from the date of such withholding or refusal until the date on which, upon further presentation of the relevant Note, payment of the full amount (including interest as aforesaid) in the relevant currency payable in respect of such Note is made or
(if earlier) the seventh day after notice is given to the relevant Noteholder(s) (whether individually or in accordance with Condition 14) that the full amount (including interest as aforesaid) in the relevant currency in respect of such Note is available for payment, provided that, upon further presentation thereof being duly made, such payment is made. |
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The Trustee will hold the benefit of this covenant on trust for the Noteholders, the Receiptholders and the Couponholders and itself in accordance with these presents. |
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| (C) |
Trustee's requirements regarding Paying Agents etc: |
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At any time after an Event of Default
or a Potential Event of Default shall have occurred and be continuing or
the Trustee shall have received any money which it proposes to pay under
Clause 10 to the relevant Noteholders, Receiptholders and/or Couponholders,
the Trustee may: |
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(i) |
by notice in writing to the relevant Obligors, the Agent and the other Paying Agents require the Agent and the other Paying Agents pursuant to the Agency Agreement: |
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(a) |
to act thereafter as Agent and other Paying Agents
respectively of the Trustee in relation to payments to be made by or on behalf
of the Trustee under the terms of these presents mutatis mutandis on the
terms provided in the Agency Agreement (save that the Trustee's liability under
any provisions thereof for the indemnification, remuneration and payment of out-of-pocket
expenses of the Agent and the other Paying Agents shall be limited to the amounts
for the time being held by the Trustee on the terms of these presents relating
to the Notes of the relevant Series and the relative Receipts and Coupons and
available for such purpose) and thereafter to hold all Notes, Receipts and Coupons
and all sums, documents and records held by them in respect of Notes, Receipts
and Coupons on behalf of the Trustee; or |
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(b) |
to deliver up all Notes, Receipts and Coupons
and all sums, documents and records held by them in respect of Notes, Receipts
and Coupons, in each case held by them in their capacity as Agent or, as
the case may be, other Paying Agent, to the Trustee or as the Trustee shall
direct in such notice provided that such notice shall be deemed not to
apply to any documents or records which the Agent or other Paying Agent
is obliged not to release by
any law or regulation; and |
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(ii) |
by notice in writing to the relevant Obligors require
each of them to make all subsequent payments in respect of the Notes, Receipts
and Coupons to or to the order of the Trustee and not to the Agent and, with
effect from the issue of any such notice to the relevant Obligors and until such
notice is withdrawn, proviso (i) to sub-clause (B) of this Clause relating to
the Notes shall cease to have effect. |
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| (D) |
If the Floating Rate Notes or Index
Linked Interest Notes of any Series become immediately due and repayable
under Condition 10 the rate and/or amount of interest payable in respect
of them will be calculated by the Agent or, as the case may be, the Calculation
Agent at the same intervals as if such Notes had not become due and repayable,
the first of which will commence on the expiry of the Interest Period during
which the Notes of the relevant Series become so due and repayable mutatis
mutandis in accordance with the provisions of Condition 5 except that
the rates of interest need not be published. |
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| (E) |
Currency of payments: |
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All payments in respect of, under
and in connection with these presents and the Notes of any Series to the
relevant Noteholders, Receiptholders and Couponholders shall be made in the
relevant currency. |
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The relevant Issuer shall be at
liberty from time to time (but subject always to the provisions of these
presents) without the consent of the Noteholders, Receiptholders or Couponholders
to create and issue further Notes ranking pari passu in all respects (or
in all respects save for the date from which interest thereon accrues and
the
amount of the first payment of interest on such further Notes) and so that
the same shall be consolidated and form a single series with the outstanding
Notes of a particular Series. |
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The Notes of each Series shall form a separate Series of Notes and accordingly, unless for any purpose the Trustee in its absolute discretion shall otherwise determine, the provisions of this Clause and of Clauses 3 to 21 (both inclusive), 22(B) and 25 and the Third Schedule shall apply mutatis
mutandis separately and independently to the Notes of each Series and in such Clauses and Schedule the expressions "Notes", "Noteholders", "Receipts", "Receiptholders", "Coupons", "Couponholders" and "Talons" shall be construed accordingly. |
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(i) |
THE Notes of each Tranche will initially be represented by either: |
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(a) |
a single Temporary Global Note which shall be exchangeable for either Definitive Notes together with, where applicable, Receipts and (except in the case of Zero Coupon Notes) Coupons and, where applicable, Talons attached or a Permanent Global Note, in each case in accordance with the provisions of such Temporary Global Note. Each Permanent Global Note shall be exchangeable for Definitive Notes together with, where applicable, Receipts and (except in the case of Zero Coupon Notes) Coupons and, where |
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applicable, Talons attached,
in accordance with the provisions of such Permanent Global Note; or |
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(b) |
a single Permanent Global
Note which shall be exchangeable for Definitive Notes together with,
where applicable, Receipts and (except in the case of Zero Coupon Notes)
Coupons and, where applicable, Talons attached in accordance with provisions
of such Permanent Global Note. |
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All Global Notes shall be prepared,
completed and delivered to a common depositary for Euroclear and Clearstream,
Luxembourg in accordance with the provisions of the Programme Agreement
or to another appropriate depositary in accordance with any other agreement
between the relevant Issuer and the relevant Dealer(s) and, in each case,
the Agency Agreement. |
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(ii) |
Each Temporary Global Note
shall be printed or typed in the form or substantially in the form set
out in Part I of the Second Schedule and may be a facsimile. Each Temporary
Global Note shall have annexed thereto a copy of the applicable Pricing
Supplement and shall be signed manually or in facsimile by a person duly
authorised by the relevant Issuer on behalf of the relevant Issuer and
shall be authenticated by or on behalf of the Agent. Each Temporary Global
Note so executed and authenticated shall be a binding and valid obligation
of the relevant Issuer and title thereto shall pass by delivery. |
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(iii) |
Each Permanent Global Note
shall be printed or typed in the form or substantially in the form set
out in Part II of the Second Schedule and may be a facsimile. Each Permanent
Global Note shall have annexed thereto a copy of the applicable Pricing
Supplement and shall be signed manually or in facsimile by a person duly
authorised by the relevant Issuer on behalf of the relevant Issuer and
shall be authenticated by or on behalf of the Agent. Each Permanent Global
Note so executed and authenticated shall be a binding and valid obligation
of the relevant Issuer and title thereto shall pass by delivery. |
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(i) |
The Definitive Notes, the Receipts, the
Coupons and the Talons shall be to bearer in the respective forms or
substantially in the respective forms set out in Parts III, IV,
V and VI, respectively, of the Second Schedule. The Definitive Notes,
the Receipts, the Coupons and the Talons shall be serially numbered and,
if listed or quoted, shall be security printed in accordance with the
requirements (if any) from time to time of the relevant Stock Exchange
and the relevant Conditions shall be incorporated by reference (where
applicable to these presents) into such Definitive Notes if permitted
by the relevant Stock Exchange (if any), or, if not so permitted, the
Definitive Notes shall be endorsed with or have attached thereto the
relevant Conditions, and, in either such case, the Definitive Notes shall
have endorsed thereon or attached thereto a copy of the applicable Pricing
Supplement (or the relevant provisions thereof). Title to the Definitive
Notes, the Receipts, the Coupons and the Talons shall pass by delivery. |
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(ii) |
The Definitive Notes shall be signed manually
or in facsimile by a person duly authorised by the relevant Issuer on
behalf of the relevant Issuer and shall be authenticated by or on behalf
of the Agent. The Definitive Notes so executed and authenticated, and
the Receipts, the Coupons and Talons, upon execution and |
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authentication of the relevant
Definitive Notes, shall be binding and valid obligations of the relevant
Issuer. The Receipts, the Coupons and the Talons shall not be signed.
No Definitive Note and none of the Receipts, Coupons or Talons appertaining
to such Definitive Note shall be binding or valid until such Definitive
Note shall have been executed and authenticated as aforesaid. |
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| (C) |
Facsimile signatures: |
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The relevant Issuer may use
the facsimile signature of any person who at the date such signature
is affixed to a Global Note or a Definitive Note is duly authorised by
the relevant Issuer notwithstanding that at the time of issue of such
Note he may have ceased for any reason to be so authorised. |
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| (D) |
Persons to be treated as
Noteholders: |
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Except as ordered by a court
of competent jurisdiction or as required by law, the relevant Obligors,
the Trustee, the Agent and the other Paying Agents (notwithstanding any
notice to the contrary and whether or not it is overdue and notwithstanding
any notation of ownership or writing thereon or notice of any previous
loss or theft thereof) may (i) for the purpose of making payment thereon
or on account thereof deem and treat the bearer of any Global Note, Definitive
Note, Receipt, Coupon or Talon as the absolute owner thereof and of all
rights thereunder free from all encumbrances, and shall not be required
to obtain proof of such ownership or as to the identity of the bearer
and (ii) for all other purposes deem and treat: |
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(a) |
the bearer of any Definitive Note, Receipt,
Coupon or Talon; and |
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(b) |
each person for the time being shown in the
records of Euroclear or Clearstream, Luxembourg as having a particular
nominal amount of Notes credited to his securities account, |
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as the absolute owner thereof
free from all encumbrances and shall not be required to obtain proof
of such ownership (other than, in the case of any person for the time
being so shown in such records, a certificate or letter of confirmation
signed on behalf of Euroclear or Clearstream, Luxembourg or any other
form of record made by either of them) or as to the identity of the bearer
of any Global Note, Definitive Note, Receipt, Coupon or Talon. |
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| (E) |
Certificates of Euroclear
and Clearstream, Luxembourg: |
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The relevant Obligors and the
Trustee may call for and, except in the case of manifest error, shall
be at liberty to accept and place full reliance on as sufficient evidence
thereof a certificate or other document issued by Euroclear or Clearstream,
Luxembourg (including any form of statement or print out of electronic
records provided by the relevant clearing system in accordance with its
usual procedures and in which the holder of a particular nominal amount
of the Notes is clearly identified together with the amount of such holding)
or any other letter of confirmation, form of record, information and/or
certification made by either of them as the Trustee shall, in its absolute
discretion, think fit to the effect that at any particular time or throughout
any particular period any particular person is, was, or will be, shown
in its records as the holder of a particular nominal amount of Notes
represented by a Global Note and if it does so rely, such letter of confirmation,
form of record, evidence, information and/or certification shall be conclusive
and binding on all concerned. |
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| 4. |
FEES, DUTIES AND TAXES
THE relevant Issuer will pay any stamp, issue, registration, documentary
and other similar fees, duties or taxes (if any), including interest and
penalties thereon, payable (i) in the United Kingdom, Belgium or Luxembourg
on or in connection with (a) the execution and delivery of these presents
and (b) the constitution and original issue of the Notes, the Receipts
and the Coupons and (ii) in any jurisdiction on or in connection with any
action taken by or on behalf of the Trustee or (where permitted under these
presents so to do) any Noteholder, Receiptholder or Couponholder to enforce
these presents.
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| 5. |
COVENANT OF COMPLICANCE
EACH of the relevant Obligors covenants with the Trustee that it will comply
with and perform and observe all the provisions of these presents which
are expressed to be binding on it. The Notes, the Receipts and the Coupons
shall be held subject to the provisions contained in these presents and
the Conditions shall be binding on the relevant Obligors, the Trustee,
the Noteholders, the Receiptholders and the Couponholders and all persons
claiming through or under them. The Trustee shall be entitled to enforce
the obligations of the relevant Obligors under the Notes, the Receipts,
the Coupons and the Conditions in the manner therein provided as if the
same were set out and contained in this Trust Deed, which shall be read
and construed as one document with the Notes, the Receipts and the Coupons.
The Trustee shall hold the benefit of this covenant upon trust for itself
and the Noteholders, the Receiptholders and the Couponholders according
to its and their respective interests. |
6. CANCELLATION
OF NOTES AND RECORDS
| (A) |
THE relevant Issuer shall
procure that all Notes issued by it (i) redeemed or (ii) purchased by
or on behalf of any of the relevant Obligors or any Subsidiary of any
of the relevant Obligors and surrendered for cancellation or (iii) which,
being mutilated or defaced, have been surrendered and replaced pursuant
to Condition 11 or (iv) exchanged as provided in these presents (together
in each case, in the case of Definitive Notes, with all unmatured Receipts
and Coupons attached thereto or delivered therewith) and, in the case
of Definitive Notes, all relative Receipts and Coupons paid in accordance
with the relevant Conditions or which, being mutilated or defaced, have
been surrendered and replaced pursuant to Condition 11 shall forthwith
be cancelled by or on behalf of the relevant Issuer and a certificate
stating: |
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(a) |
the aggregate nominal amount
of Notes which have been redeemed and the amounts paid in respect thereof
and the aggregate amounts in respect of Receipts and Coupons which
have been paid;
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(b) |
the serial numbers of such Notes
in definitive form and Receipts; |
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(c) |
the total numbers (where applicable,
of each denomination) by maturity date of such Receipts and Coupons; |
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(d) |
the aggregate amount of interest
paid (and the due dates of such payments) on Global Notes; |
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(e) |
the aggregate nominal amount
of Notes (if any) which have been purchased by or on behalf of any of
the relevant Obligors or any Subsidiary of any of the relevant Obligors
and cancelled and the serial numbers of such Notes in definitive form
and, in the case of Definitive Notes, the total number (where applicable,
of each denomination) by maturity date of the Receipts, Coupons and Talons
attached thereto or surrendered therewith; |
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(f) |
the aggregate nominal amounts of Notes and
Receipts and the aggregate amounts in respect of Coupons which have been
so exchanged or surrendered and replaced and the serial numbers of such
Notes in definitive form and the total number (where applicable, of each
denomination) by maturity date of such Coupons and Talons; and |
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(g) |
the total number (where applicable, of each
denomination) by maturity date of Talons which have been exchanged for
further Coupons |
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shall be given to the Trustee
by or on behalf of the relevant Issuer as soon as possible and in any
event within four months after the date of such redemption, purchase,
payment, exchange or replacement (as the case may be). The Trustee may
accept such certificate as conclusive evidence of redemption, purchase,
exchange or replacement pro tanto of the Notes or payment
of interest thereon or exchange of the relative Talons respectively and
of cancellation of the relative Notes and Coupons. |
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| (B) |
The relevant Issuer shall
procure (i) that the Agent shall keep a full and complete record of all
Notes, Receipts, Coupons and Talons issued by it (other than serial numbers
of Receipts and Coupons) and of their redemption or purchase and cancellation
and of all replacement notes, receipts, coupons or talons issued in substitution
for lost, stolen, mutilated, defaced or destroyed Notes, Receipts, Coupons
or Talons (ii) that the Agent shall, in respect of the Coupons of each
maturity where the relevant Note is redeemed prior to its maturity date,
retain until the expiry of 10 years from the Relevant Date in respect
of such Coupons a list of the Coupons of that maturity still remaining
unpaid or unexchanged and (iii) that such records shall be made available
to the Trustee at all reasonable times during normal business hours. |
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| (A) |
Cadbury Schweppes and CSI hereby irrevocably
and unconditionally guarantee to the Trustee: |
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(i) |
the due and punctual payment in accordance
with these presents of the principal of and interest on all Notes issued
by CSF and of all other amounts payable by CSF (in its capacity as an
Issuer) under these presents in relation to such Notes and the relative
Receipts and the relative Coupons; and |
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(ii) |
the due and punctual performance and observance
by CSF (in its capacity as an Issuer) of each of the other provisions
of these presents on its part to be performed or observed in relation
to all Notes, Receipts and Coupons issued by it. |
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| (B) |
Cadbury Schweppes and CSF hereby
irrevocably and unconditionally guarantee to the Trustee: |
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(i) |
the due and punctual payment in accordance
with these presents of the principal of and interest on all Notes issued
by CSI and of all other amounts payable by CSI (in its capacity as an
Issuer) under these presents in relation to such Notes and the relative
Receipts and the relative Coupons; and |
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(ii) |
the due and punctual performance and observance
by CSI (in its capacity as an Issuer) of each of the other provisions
of these presents on its part to be performed or observed in relation
to all Notes, Receipts and Coupons issued by it. |
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| (C) |
If the Relevant Issuer fails
for any reason whatsoever punctually to pay any such principal, interest
or other amount, the Relevant Guarantors shall cause each and every such
payment to |
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be made as if the Relevant Guarantors instead
of the Relevant Issuer were expressed to be the primary obligor of the
relevant Note, Receipt or Coupon and not merely as surety (but without
affecting the obligations of the Relevant Issuer) to the intent that
the holder thereof shall receive the same amounts in respect of principal,
interest or such other amount as would have been receivable had such
payments been made by the Relevant Issuer. |
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| (D) |
If any payment received by the Trustee or
any Noteholder, Receiptholder or Couponholder pursuant to the provisions
of these presents in relation to the relative Notes, Receipts or Coupons
shall (whether on the subsequent bankruptcy, insolvency or corporate
reorganisation of the Relevant Issuer or, without limitation, on any
other event) be avoided or set aside for any reason, such payment shall
not be considered as discharging or diminishing the liability of the
Relevant Guarantors and this guarantee shall continue to apply as if
such payment had at all times remained owing by the Relevant Issuer and
the Relevant Guarantors shall indemnify the Trustee and the relative
Noteholders and/or Receiptholders and/or Couponholders (as the case may
be) in respect thereof PROVIDED THAT the obligations of the Relevant
Guarantors under this sub-clause shall, as regards each payment made
to the Trustee or any Noteholder, Receiptholder or Couponholder which
is avoided or set aside, be contingent upon such payment being reimbursed
to the Relevant Issuer or other persons entitled through the Relevant
Issuer. |
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| (E) |
Each of Cadbury Schweppes, CSF and CSI (in
their capacities as guarantors) hereby agrees that its obligations hereunder
shall be unconditional and that each of the Relevant Guarantors shall
be fully liable irrespective of the validity, regularity, legality or
enforceability against the Relevant Issuer of, or of any defence or counter-claim
whatsoever available to the Relevant Issuer in relation to, its obligations
under these presents, whether or not any action has been taken to enforce
the same or any judgment obtained against the Relevant Issuer, whether
or not any of the other provisions of these presents have been modified,
whether or not any time, indulgence, waiver, authorisation or consent
has been granted to the Relevant Issuer by or on behalf of the relative
Noteholders or the relative Receiptholders or Couponholders or the Trustee,
whether or not any determination has been made by the Trustee pursuant
to Clause 19(A), whether or not there have been any dealings or transactions
between the Relevant Issuer, any of the relative Noteholders, Receiptholders
or Couponholders or the Trustee, whether or not the Relevant Issuer has
been dissolved, liquidated, merged, consolidated, bankrupted or has changed
its status, functions, control or ownership, whether or not the Relevant
Issuer has been prevented from making payment by foreign exchange provisions
applicable at its place of registration or incorporation and whether
or not any other circumstances have occurred which might otherwise constitute
a legal or equitable discharge of or defence to a guarantor. Accordingly,
the validity of this guarantee shall not be affected by reason of any
invalidity, irregularity, illegality or unenforceability of all or any
of the obligations of the Relevant Issuer under these presents and this
guarantee shall not be discharged nor shall the liability of each of
the Relevant Guarantors under these presents be affected by any act,
thing or omission or means whatever whereby its liability would not have
been discharged if it had been the principal debtor. |
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| (F) |
Without prejudice to the provisions of Clause
9(A), the Trustee may determine from time to time whether or not it will
enforce this guarantee which it may do without making any demand of or
taking any proceedings against the Relevant Issuer and may from time
to time make any arrangement or compromise with the Relevant Guarantor
in relation to this guarantee which the Trustee may consider expedient
in the interests of the relative Noteholders, Receiptholders or Couponholders. |
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| (G) |
Each of the Relevant Guarantors
hereby waives diligence, presentment, demand of payment, filing of claims
with a court in the event of dissolution, liquidation, merger or bankruptcy
of the Relevant Issuer, any right to require a proceeding first against
the Relevant Issuer, protest or notice with respect to the relative Notes,
Receipts or Coupons or the indebtedness evidenced thereby and all demands
whatsoever and hereby covenants that this guarantee shall be a continuing
guarantee, shall extend to the ultimate balance of all sums payable and
obligations owed by the Relevant Issuer under these presents in relation
to the relative Notes, Receipts and Coupons, shall not be discharged
except by complete performance of the obligations contained in these
presents in relation to the relative Notes, Receipts and Coupons and
is additional to, and not instead of, any security or other guarantee
or indemnity at any time existing in favour of any person, whether from
the Relevant Guarantors or otherwise. |
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| (H) |
If any moneys shall become payable by the
Relevant Guarantors under this guarantee each of the Relevant Guarantors
shall not, so long as the same remain unpaid, without the prior written
consent of the Trustee: |
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(a) |
in respect of any amounts paid by it under
this guarantee, exercise any rights of subrogation or contribution or,
without limitation, any other right or remedy which may accrue to it
in respect of or as a result of any such payment; or |
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(b) |
in respect of any other moneys for
the time being due to the Relevant Guarantors by the Relevant Issuer,
claim payment thereof or exercise any other right or remedy; |
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(including in either case claiming
the benefit of any security or right of set-off or, on the liquidation
of the Relevant Issuer, proving in competition with the Trustee). If,
notwithstanding the foregoing, upon the bankruptcy, insolvency or liquidation
of the Relevant Issuer any payment or distribution of assets of the Relevant
Issuer of any kind or character, whether in cash, property or securities,
shall be received by the Relevant Guarantors before payment in full of
all principal of, and interest on, the relative Notes, Receipts and Coupons
shall have been made to the relative Noteholders, Receiptholders and
Couponholders, such payment or distribution shall be received by Relevant
Guarantors on trust to pay the same over immediately to the Trustee for
application in or towards the payment of all sums due and unpaid under
these presents in accordance with Clause 10 on the basis that Clause
10 does not apply separately and independently to each Series of the
Notes save that nothing in this sub-clause (H) shall operate so as to
create any charge by the Relevant Guarantors over such payment or distribution. |
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| (I) |
For the purposes of this Clause
7, |
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(a) |
"Relevant Issuer" means
CSF or, as the case may be, CSI, each in its capacity as an Issuer; and |
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(b) |
"Relevant Guarantors" means,
in relation to CSF (in its capacity as an Issuer), Cadbury Schweppes
and CSI (in their capacities as guarantors under this Clause 7) and,
in relation to CSI (in its capacity as an Issuer), Cadbury Schweppes
and CSF (in their capacities as guarantors under this Clause 7). |
| 8. |
ENFORCEMENT AND NON-PAYMENT |
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| (A) |
AT any time after the Notes
shall have become immediately due and repayable, the Trustee may at its
discretion and without further notice take such proceedings as it may
think fit |
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against the relevant Issuer
and/or (where the relevant Issuer is CSF or CSI) Cadbury Schweppes and/or
(where the relevant Issuer is CSI) CSF and/or (where the relevant Issuer
is CSF) CSI to enforce repayment thereof together with accrued interest
(if any) and any other moneys payable pursuant to these presents. |
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| (B) |
Proof that as regards any specified Note,
Receipt or Coupon the relevant Issuer or, as the case may be, Cadbury
Schweppes (where the relevant Issuer is CSF or CSI) or, as the case may
be, CSF (where the relevant Issuer is CSI) or, as the case may be, CSI
(where the relevant Issuer is CSF) has made default in paying any amount
due in respect of such Note, Receipt or Coupon shall (unless the contrary
be proved) be sufficient evidence that the same default has been made
as regards all other Notes, Receipts or Coupons (as the case may be)
in respect of which the relevant amount is due and payable. |
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| 9. |
PROCEEDINGS, ACTION AND INDEMNIFICATION |
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| (A) |
THE Trustee shall not be bound to take any
proceedings mentioned in Clause 8(A) or any other action in relation
to these presents unless respectively directed or requested to do so
(i) by an Extraordinary Resolution or (ii) in writing by the holders
of at least one-quarter in nominal amount of the Notes then outstanding
and in either case then only if it shall be indemnified to its satisfaction
against all Liabilities to which it may thereby render itself liable
or which it may incur by so doing. |
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| (B) |
Only the Trustee may enforce the provisions
of these presents. No Noteholder, Receiptholder or Couponholder shall
be entitled to proceed directly against any of the relevant Obligors
to enforce the performance of any of the provisions of these presents
unless the Trustee having become bound as aforesaid to take proceedings
fails to do so within a reasonable period and such failure is continuing. |
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| 10. |
APPLICATION OF MONEYS |
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ALL moneys received by the Trustee
under these presents from any of the relevant Obligors (including any
moneys which represent principal or interest in respect of Notes, Receipts
or Coupons which have become void under Condition 9) shall, unless and
to the extent attributable, in the opinion of the Trustee, to a particular
Series of the Notes issued by the relevant Issuer, be apportioned pari
passu and rateably between each Series of the Notes issued by the
relevant Issuer, and all moneys received by the Trustee under these presents
from any of the relevant Obligors to the extent attributable in the opinion
of the Trustee to a particular Series of the Notes issued by the relevant
Issuer or which are apportioned to such Series as aforesaid, be held
by the Trustee upon trust to apply them (subject to Clause 12): |
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FIRST in payment or satisfaction
of all amounts then due and unpaid under Clauses 15 and/or 16(J) to the
Trustee and/or any Appointee; |
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SECONDLY in or towards payment pari
passu and rateably of all principal and interest then due and unpaid
in respect of the Notes of that Series; |
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THIRDLY in or towards payment pari
passu and rateably of all principal and interest then due and unpaid
in respect of the Notes of each other Series issued by the relevant
Issuer; and |
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FOURTHLY in payment of the balance
(if any) to the relevant Issuer (without prejudice to, or liability in
respect of, any question as to how such payment to the relevant Issuer
shall be dealt with as between the relevant Issuer and any other person), |
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PROVIDED ALWAYS that any payment
required to be made by the Trustee pursuant to these presents shall only
be made subject to any applicable laws and regulations. |
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Without prejudice to this Clause
10, if the Trustee holds any moneys which represent principal or interest
in respect of Notes, Receipts or Coupons issued by the relevant Issuer
which have become void or in respect of which claims have been prescribed
under Condition 9, the Trustee will hold such moneys on the above trusts. |
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THE Trustee shall give notice
to the relevant Noteholders in accordance with Condition 14 of the day
fixed for any payment to them under Clause 10. Such payment may be made
in accordance with Condition 6 and any payment so made shall be a good
discharge to the Trustee. |
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| 12. |
INVESTMENT BY TRUSTEE |
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| (A) |
IF the amount of the moneys at any time
available for the payment of principal and interest in respect of the
Notes issued by the relevant Issuer under Clause 10 shall be less than
10 per cent. of the nominal amount of the Notes issued by such Issuer
then outstanding the Trustee may at its discretion invest such moneys
in some or one of the investments authorised below. The Trustee at its
discretion may vary such investments and may accumulate such investments
and the resulting income until the accumulations, together with any other
funds for the time being under the control of the Trustee and available
for such purpose, amount to at least 10 per cent. of the nominal amount
of the Notes issued by such Issuer then outstanding and then such accumulations
and funds shall be applied under Clause 10. |
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| (B) |
Any moneys which under the trusts of these
presents ought to or may be invested by the Trustee may be invested in
the name or under the control of the Trustee in any investments for the
time being authorised by English law for the investment by trustees of
trust moneys or in any other investments whether similar to the aforesaid
or not which may be selected by the Trustee or by placing the same on
deposit in the name or under the control of the Trustee at such bank
or other financial institution and in such currency as the Trustee may
think fit. If that bank or institution is the Trustee or a Subsidiary,
holding or associated company of the Trustee, it need only account for
an amount of interest equal to the amount of interest which would, at
then current rates, be payable by it on such a deposit to an independent
customer. The Trustee may at any time vary any such investments for or
into other investments or convert any moneys so deposited into any other
currency and shall not be responsible for any loss resulting from any
such investments or deposits, whether due to depreciation in value, fluctuations
in exchange rates or otherwise. |
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UPON any payment under Clause
10 (other than payment in full against surrender of a Note, Receipt or
Coupon) the Note, Receipt or Coupon in respect of which such payment
is made shall be produced to the Trustee or the Paying Agent by or through
whom such payment is made and the Trustee shall or shall cause such Paying
Agent to enface thereon a memorandum of the amount and the date of payment
but the Trustee may in any particular case dispense with such production
and enfacement upon such indemnity being given as it shall think sufficient. |
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| (A) |
EACH of the relevant Obligors
covenants with the Trustee that, so long as any of the Notes remains
outstanding it shall: |
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(i) |
at all times carry on and conduct its affairs
in a proper and efficient manner; |
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(ii) |
so far as permitted by applicable law, give
or procure to be given to the Trustee such opinions, certificates, information
and evidence as it shall reasonably require and in such form as it shall
reasonably require (including without limitation the procurement of all
such certificates called for by the Trustee pursuant to Clause 16(C))
for the purpose of the discharge or exercise of the duties, trusts, powers,
authorities and discretions vested in it under these presents or by operation
of law; |
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(iii) |
cause to be prepared in respect of each
financial accounting period audited accounts in such form as will comply
with the Companies ▇▇▇ ▇▇▇▇ of Great Britain; |
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(iv) |
at all times keep proper books of account
and allow the Trustee and any person appointed by the Trustee to whom
the relevant Issuer or, as the case may be, Cadbury Schweppes (where
the relevant Issuer is CSF or CSI) or, as the case may be, CSF (where
the relevant Issuer is CSI) or, as the case may be, CSI (where the relevant
Issuer is CSF) shall have no reasonable objection free access to such
books of account at all reasonable times during normal business hours
upon giving prior notice provided that an Event of Default has occurred
or the Trustee certifies in writing to the relevant Issuer that it has
reasonable grounds to believe that an Event of Default or a Potential
Event of Default has occurred, might have occurred or is about to occur
and such access is permitted by applicable law; |
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(v) |
send to the Trustee (in addition to any
copies to which it may be entitled as a holder of any securities of any
of the relevant Obligors) two copies in English of every balance sheet,
profit and loss account, report, circular and notice of general meeting
issued or sent to holders of its publicly held securities as soon as
practicable after the issue or publication thereof; |
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(vi) |
upon becoming aware thereof forthwith give
notice in writing to the Trustee of the happening of any Event of Default
or any Potential Event of Default or of the coming into existence of
any Security which would require any security to be given to the Notes
pursuant to Condition 4; |
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(vii) |
give to the Trustee (a) within 14 days after
demand by the Trustee therefor and (b) (without the necessity for any
such demand) promptly after the publication of its audited accounts in
respect of each financial year commencing with the financial year ending
1st January, 2000 and in any event not later than 180 days after the
end of each such financial year a certificate signed by two Directors
of the relevant Issuer and (where the relevant Issuer is CSF or CSI)
two Directors of Cadbury Schweppes and (where the relevant Issuer is
CSI) two Directors of CSF and (where the relevant Issuer is CSF) two
Directors of CSI to the effect that as at a date not more than seven
days before delivering such certificate (the "relevant certification
date") there did not exist and had not existed since the relevant
certification date of the previous certificate (or in the case of the
first such certificate the date hereof) any Event of Default or any Potential
Event of Default (or if such exists or existed specifying the same); |
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(viii) |
so far as permitted by law, at all times
execute all such further documents and do all such acts and things as
may in the reasonable opinion of the Trustee be necessary at any time
or times to give effect to the terms and conditions of these presents; |
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(ix) |
at all times maintain an Agent, other Paying
Agents, a Calculation Agent and Reference Banks in accordance with the
Conditions; |
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(x) |
if the applicable Pricing Supplement indicates
that the Notes are listed, use all reasonable endeavours to maintain
the quotation or listing on the relevant Stock |
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Exchange of those of the Notes
which are quoted or listed on the relevant Stock Exchange or, if it is
unable to do so having used all reasonable endeavours or if the maintenance
of such listing is agreed by the relevant Issuer and the Trustee to be
unduly onerous, use all reasonable endeavours to obtain and maintain
a quotation or listing of such Notes issued by it on such other stock
exchange or exchanges or securities market or markets as the relevant
Issuer may (with the prior written approval of the Trustee) decide and
shall also upon obtaining a quotation or listing of such Notes issued
by it on such other stock exchange or exchanges or securities market
or markets enter into a trust deed supplemental to this Trust Deed to
effect such consequential amendments to these presents as the Trustee
may require or as shall be requisite to comply with the requirements
of any such stock exchange or securities market; |
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(xi) |
procure that the Agent gives notice to the
Noteholders in accordance with Condition 14 of any appointment, resignation
or removal of any Agent, Calculation Agent, Reference Bank or other Paying
Agent (other than the appointment of the initial Agent, Calculation Agent,
Reference Banks and other Paying Agents) after having obtained the prior
written approval of the Trustee thereto or any change of any Paying Agent's
or Reference Bank's specified office; |
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(xii) |
obtain the prior written approval of the
Trustee to, and, as soon as reasonably practicable after the giving thereof,
give to the Trustee two copies of, the form of every notice given to
the holders of any Notes issued by it in accordance with Condition 14
(such approval, unless so expressed, not to constitute approval for the
purposes of Section 21 of the Financial Services and Markets Act 2000
(the "FSMA") of a communication within the meaning of
Section 21 of the FSMA); |
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(xiii) |
if payments of principal or interest in
respect of the Notes or the relative Receipts or Coupons by any of the
relevant Obligors shall become subject generally to the taxing jurisdiction
of any territory or any political sub-division or any authority thereof
or therein having power to tax other than or in addition to the United
Kingdom or any political sub-division or any authority thereof or therein
having power to tax, immediately upon becoming aware thereof notify the
Trustee in writing of such event and (unless the Trustee otherwise agrees)
enter forthwith into a trust deed supplemental to this Trust Deed, in
form and manner satisfactory to the Trustee, such supplemental trust
deed to modify both Condition 7(b) and Condition 8 so that, in substitution
for (or, as the case may be, addition to) the references in those Conditions
to the United Kingdom or any political sub-division or any authority
thereof or therein having power to tax, such Conditions make reference
to that other or additional territory or any political sub-division or
any authority thereof or therein having power to tax to whose taxing
jurisdiction such payments shall have become subject as aforesaid; |
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(xiv) |
comply with and perform all its obligations
under the Agency Agreement and use all reasonable endeavours to procure
that the Agent and the other Paying Agents comply with and perform all
their respective obligations thereunder and any notice given by the Trustee
pursuant to Clause 2(C)(i) and that the Calculation Agent complies with
and performs all its obligations under the Calculation Agency Agreement
and not make any amendment to the Agency Agreement or the Calculation
Agency Agreement without the prior written approval of the Trustee; |
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(xv) |
in order to enable the Trustee to ascertain
the nominal amount of the Notes of each Series for the time being outstanding
for any of the purposes referred to in the proviso to the definition
of "outstanding" in Clause 1, deliver to the Trustee
as soon as practicable upon being so requested in writing by the Trustee
a certificate in writing signed by two Directors of the relevant Issuer
or (where the relevant Issuer is |
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CSF or CSI) two Directors of
Cadbury Schweppes or (where the relevant Issuer is CSI) CSF or (where
the relevant Issuer is CSF) CSI (as appropriate), setting out the total
number and aggregate nominal amount of the Notes of each Series issued
by such Issuer which: (a) up to and including the date of such certificate
have been purchased by the relevant Issuer, Cadbury Schweppes (where
the relevant Issuer is CSF or CSI), CSF (where the relevant Issuer is
CSI), CSI (where the relevant Issuer is CSF) or any Subsidiary or Holding
Company of the relevant Issuer or (where the relevant Issuer is CSF or
CSI) Cadbury Schweppes or (where the relevant Issuer is CSI) CSF or (where
the relevant Issuer is CSF) CSI and cancelled; and (b) are at the date
of such certificate held by, for the benefit of, or on behalf of, the
relevant Issuer, Cadbury Schweppes (where the relevant Issuer is CSF
or CSI), CSF (where the relevant Issuer is CSI), CSI (where the relevant
Issuer is CSF) or any Subsidiary or Holding Company of the relevant Issuer
or (where the relevant Issuer is CSF or CSI) Cadbury Schweppes or (where
the relevant Issuer is CSI) CSF or (where the relevant Issuer is CSF)
CSI; |
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(xvi) |
if, in accordance with the provisions of
the Conditions, interest in respect of the Notes becomes payable at the
specified office of any Paying Agent in the United States of America
promptly give notice thereof to the relative Noteholders in accordance
with Condition 14; |
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(xvii) |
use all reasonable endeavours to procure
that Euroclear and/or Clearstream, Luxembourg (as the case may be) issue(s)
any certificate or other document requested by the Trustee under Clause
3(E) as soon as practicable after such request; and |
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(xviii) |
promptly provide the Trustee with copies
of all supplements and/or amendments and/or restatements of the Programme
Agreement; |
PROVIDED that neither the relevant
Issuer nor Cadbury Schweppes (where the relevant Issuer is CSF or CSI) nor
CSF (where the relevant Issuer is CSI) nor CSI (where the relevant Issuer
is CSF) shall be under any obligation to supply any information to the Trustee
the supply of which would, in the reasonable opinion of the relevant Issuer
or, as the case may be, Cadbury Schweppes (where the relevant Issuer is CSF
or CSI) or, as the case may be, CSF (where the relevant Issuer is CSI) or,
as the case may be, CSI (where the relevant Issuer is CSF), be contrary to
any confidentiality obligation or law or regulation binding on the relevant
Issuer or, as the case may be, Cadbury Schweppes (where the relevant Issuer
is CSF or CSI) or, as the case may be, CSF (where the relevant Issuer is
CSI) or, as the case may be, CSI (where the relevant Issuer is CSF) or any
affiliate of the relevant Issuer or, as the case may be, Cadbury Schweppes
(where the relevant Issuer is CSF or CSI) or, as the case may be, CSF (where
the relevant Issuer is CSI) or, as the case may be, CSI (where the relevant
Issuer is CSF) or inside information (within the meaning of the Part V of
the Criminal Justice Act 1993) unless the Trustee shall have certified in
writing to the relevant Issuer or, as the case may be, Cadbury Schweppes
(where the relevant Issuer is CSF or CSI) or, as the case may be, CSF (where
the relevant Issuer is CSI) or, as the case may be, CSI (where the relevant
Issuer is CSF) that:
| (i) |
it has reasonable grounds to believe that
an Event of Default or Potential Event of Default has occurred, might
have occurred or is about to occur; and |
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| (ii) |
the disclosure of any such information is,
in the reasonable opinion of the Trustee, necessary for the purpose of
protecting the interests of the Noteholders under these presents, |
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and provided that any such disclosure
to the Trustee would not breach any law or regulation binding on the
relevant Issuer or, as the case may be, Cadbury Schweppes (where the
relevant Issuer is CSF or CSI) or, as the case may be, CSF (where the
relevant Issuer is CSI) or, as the case may be, CSI (where the relevant
Issuer is CSF) or any affiliate of the relevant Issuer or, as the case
may be, Cadbury Schweppes (where the relevant Issuer is CSF or CSI) or,
as the case may be, CSF (where the relevant Issuer is CSI) or, as the
case may be, CSI (where the relevant Issuer is CSF). |
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| 15. |
REMUNERATION AND INDEMNIFICATION
OF TRUSTEE |
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| (A) |
THE relevant Issuer shall pay to the Trustee
remuneration for its services as trustee of these presents such amount
as shall be agreed from time to time between the relevant Issuer and
the Trustee. Such remuneration shall accrue from day to day and be payable
(in priority to payments to Noteholders, Receiptholders and Couponholders)
up to and including the date when, all the Notes having become due for
redemption, the redemption moneys and interest thereon to the date of
redemption have been paid to the Agent or the Trustee PROVIDED THAT if
upon due presentation of any Note, Receipt or Coupon or any cheque payment
of the moneys due in respect thereof is improperly withheld or refused,
remuneration will commence again to accrue until payment to such Noteholder,
Receiptholder or Couponholder is duly made. |
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| (B) |
In the event of the occurrence of an Event
of Default or a Potential Event of Default or the Trustee considering
it expedient or necessary or being requested by any of the relevant Obligors
to undertake duties which the Trustee and the relevant Issuer agree to
be of an exceptional nature or otherwise outside the scope of the normal
duties of the Trustee under these presents the relevant Issuer shall
pay to the Trustee such additional remuneration as shall be agreed between
them. |
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| (C) |
The relevant Issuer shall in addition pay
to the Trustee an amount equal to the amount of any value added tax or
similar tax properly chargeable in respect of its remuneration under
these presents. |
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| (D) |
In the event of the Trustee and the relevant
Issuer failing to agree: |
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(1) |
(in a case to which sub-clause (A) above
applies) upon the amount of the remuneration; or |
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(2) |
(in a case to which sub-clause (B) above
applies) upon whether such duties shall be of an exceptional nature or
otherwise outside the scope of the normal duties of the Trustee under
these presents, or upon such additional remuneration, |
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such matters shall be determined
by a merchant or investment bank (acting as an expert and not as an arbitrator)
selected by the Trustee and approved by the relevant Issuer or, failing
such approval, nominated (on the application of the Trustee) by the President
for the time being of The Law Society of England and Wales (the expenses
involved in such nomination and the fees of such merchant or investment
bank being payable by the relevant Issuer and the Trustee in equal shares)
and the determination of any such merchant or investment bank shall be
final and binding upon the Trustee and the relevant Issuer. |
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| (E) |
The relevant Issuer shall, on written request,
also pay or discharge all Liabilities properly and reasonably incurred
by the Trustee in relation to the preparation and execution of, the exercise
of its powers and the performance of its duties under, and in any other
manner in relation to, these presents, including but not limited to travelling
expenses and any stamp, issue, registration, documentary and other taxes
or duties paid or payable by the Trustee in |
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connection with any action properly
and reasonably taken or contemplated by or on behalf of the Trustee for
enforcing, or resolving any doubt concerning, or for any other purpose
in relation to, these presents. |
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| (F) |
All amounts payable pursuant to sub-clause
(E) above and/or Clause 16(J) shall be payable by the relevant Issuer
on the date specified in a demand by the Trustee and in the case of payments
actually made by the Trustee prior to such demand shall (if not paid
within three days after such demand and the Trustee so requires) carry
interest at the rate of one per cent. per annum above the Base Rate from
time to time of National Westminster Bank Plc from the date specified
in such demand, and in all other cases shall carry interest at such rate
from the date 30 days after the date of the same being demanded or (where
the demand specifies that payment be made on an earlier date) from such
earlier date specified in such demand. All unpaid remuneration due and
payable to the Trustee shall carry interest at such rate from the due
date therefor. |
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| (G) |
Unless otherwise specifically stated in
any discharge of these presents the provisions of this Clause and Clause
16(J) shall continue in full force and effect notwithstanding such discharge. |
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| (H) |
The Trustee shall be entitled in its absolute
discretion to determine in respect of which Series of Notes any Liabilities
incurred under these presents have been incurred or to allocate any such
Liabilities between the Notes of any Series. |
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| (I) |
The Trustee shall wherever practicable give
prior notice to the relevant Issuer of any Liabilities properly and reasonably
to be incurred and or payments to be made by the Trustee in the lawful
exercise of the powers conferred on it by these presents so as to afford
the relevant Issuer the reasonable opportunity of meeting such Liabilities
itself or of itself putting the Trustee in funds to make payment of such
Liabilities. Failure, however, by the Trustee to give any such prior
notice shall not prejudice its rights to reimbursement of such Liabilities
under this Clause 15. |
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| (J) |
In relation to any payment by the Trustee
of any Liabilities incurred under these presents, the Trustee will, if
so requested by the relevant Issuer, furnish the relevant Issuer with
evidence of the date of such payment in the form of a receipted invoice
or in such other form as shall be reasonably satisfactory to the Issuer. |
16. SUPPLEMENT
TO TRUSTEE ACTS
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SECTION 1 of the Trustee Act
2000 shall not apply to the duties of the Trustee in relation to the
trusts constituted by these presents. Where there are any inconsistencies
between the Trustee Acts and the provisions of these presents, the provisions
of these presents shall, to the extent allowed by law, prevail and, in
the case of any such inconsistency with the Trustee ▇▇▇ ▇▇▇▇, the provisions
of these presents shall constitute a restriction or exclusion for the
purposes of that Act. The Trustee shall have all the powers conferred
upon trustees by the Trustee Acts and by way of supplement thereto it
is expressly declared as follows: |
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| (A) |
The Trustee may in relation to these presents
act on the advice or opinion of or any information obtained from any
lawyer, valuer, accountant, surveyor, banker, broker, auctioneer or other
expert whether obtained by any of the relevant Obligors, the Trustee
or otherwise and shall not be responsible for any Liability occasioned
by so acting. The Trustee may rely, without liability to the Noteholders,
Receiptholders or Couponholders, on any certificate or report prepared
by the Auditors pursuant to these presents whether or not addressed to
the Trustee. |
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| (B) |
Any such advice, opinion or information
may be sent or obtained by letter, telex, telegram, facsimile transmission
or cable and the Trustee shall not be liable for acting in good faith
on any advice, opinion or information purporting to be conveyed by any
such letter, telex, telegram, facsimile transmission or cable although
the same shall contain some error or shall not be authentic provided
that such error or lack of authenticity shall not be manifest. |
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| (C) |
The Trustee may call for and shall be at
liberty to accept as sufficient evidence of any fact or matter or the
expediency of any transaction or thing a certificate signed by any two
Directors of the relevant Issuer or by any two Directors of Cadbury Schweppes
(where the relevant Issuer is CSF or CSI) or by any two Directors of
CSF (where the relevant Issuer is CSI) or by any two Directors of CSI
(where the relevant Issuer is CSF), and the Trustee shall not be bound
in any such case to call for further evidence or be responsible for any
Liability that may be occasioned by it or any other person acting on
such certificate. |
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| (D) |
The Trustee shall be at liberty to hold
or to place these presents and any other documents relating thereto or
to deposit them in any part of the world with any banker or banking company
or company whose business includes undertaking the safe custody of documents
or lawyer or firm of lawyers considered by the Trustee to be of good
repute and the Trustee shall not be responsible for or required to insure
against any Liability incurred in connection with any such holding or
deposit and may pay all sums required to be paid on account of or in
respect of any such deposit. |
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| (E) |
The Trustee shall not be responsible for
the receipt or application of the proceeds of the issue of any of the
Notes by the relevant Issuer, the exchange of any Global Note for another
Global Note or Definitive Notes or the delivery of any Global Note or
Definitive Notes to the person(s) entitled to it or them. |
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| (F) |
The Trustee shall not be bound to give notice
to any person of the execution of any documents comprised or referred
to in these presents or to take any steps to ascertain whether any Event
of Default or any Potential Event of Default has occurred and, until
it shall have actual knowledge or express notice pursuant to these presents
to the contrary, the Trustee shall be entitled to assume that no Event
of Default or Potential Event of Default has occurred and that each of
the relevant Obligors is observing and performing all its obligations
under these presents. |
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| (G) |
Save as expressly otherwise provided in
these presents, the Trustee shall have absolute and uncontrolled discretion
as to the exercise or non-exercise of its trusts, powers, authorities
and discretions under these presents (the exercise or non-exercise of
which as between the Trustee and the Noteholders, the Receiptholders
and Couponholders shall be conclusive and binding on the Noteholders,
the Receiptholders and Couponholders) and shall not be responsible for
any Liability which may result from their exercise or non-exercise. |
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| (H) |
The Trustee shall not be liable to any person
by reason of having acted upon any Extraordinary Resolution in writing
or any Extraordinary Resolution or other resolution purporting to have
been passed at any meeting of the holders of Notes of all or any Series
in respect whereof minutes have been made and signed even though subsequent
to its acting it may be found that there was some defect in the constitution
of the meeting or the passing of the resolution, (in the case of an Extraordinary
Resolution in writing) that not all such holders had signed the Extraordinary
Resolution or that for any reason the resolution was not valid or binding
upon such holders and the relative Receiptholders and Couponholders. |
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| (I) |
The Trustee shall not be liable to any person
by reason of having accepted as valid or not having rejected any Note,
Receipt or Coupon purporting to be such and subsequently found to be
forged or not authentic provided that such forgery or lack of authenticity
shall not be manifest. |
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| (J) |
Without prejudice to the right of indemnity
by law given to trustees, each of the relevant Obligors shall indemnify
the Trustee and every Appointee and keep it or him indemnified against
all Liabilities to which it or he may be or become subject or which may
be properly and reasonably incurred by it or him in the execution or
purported execution of any of its or his trusts, powers, authorities
and discretions under these presents or its or his functions under any
such appointment or in respect of any other matter or thing done or omitted
in any way relating to these presents or any such appointment. |
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| (K) |
Any consent or approval given by the Trustee
for the purposes of these presents may be given on such terms and subject
to such conditions (if any) as the Trustee thinks fit and notwithstanding
anything to the contrary in these presents may be given retrospectively. |
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| (L) |
The Trustee shall not (unless and to the
extent ordered so to do by a court of competent jurisdiction) disclose
to any Noteholder, Receiptholder or Couponholder any information (including,
without limitation, information of a confidential, financial or price
sensitive nature) made available to the Trustee by any of the relevant
Obligors or any other person in connection with the trusts of these presents
unless, after prior consultation with the relevant Issuer if the Trustee
considers this reasonably practicable, the Trustee shall certify that
failure so to disclose would be materially prejudicial to the interests
of the Noteholders and such disclosure is permitted by applicable law
and (in the absence of such certification and permission) no Noteholder,
Receiptholder or Couponholder shall be entitled to take any action to
obtain from the Trustee any such information. |
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| (M) |
Where it is necessary or desirable for any
purpose in connection with these presents to convert any sum from one
currency to another it shall (unless otherwise provided by these presents
or required by law) be converted at such rate or rates, in accordance
with such method and as at such date for the determination of such rate
of exchange, as may be agreed by the Trustee in consultation with the
relevant Issuer and any rate, method and date so agreed shall be binding
on the relevant Obligors, the Noteholders, the Receiptholders and the
Couponholders. |
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| (N) |
The Trustee as between itself and the Noteholders,
the Receiptholders and the Couponholders may determine all questions
and doubts arising in relation to any of the provisions of these presents.
Every such determination, whether or not relating in whole or in part
to the acts or proceedings of the Trustee, shall be conclusive and shall
bind the Trustee and the Noteholders, the Receiptholders and the Couponholders. |
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| (O) |
In connection with the exercise by it of
any of its trusts, powers, authorities or discretions under these presents
(including, without limitation, any modification, waiver, authorisation,
determination or substitution), the Trustee shall have regard to the
general interests of the Noteholders as a class but shall not have regard
to any interests arising from circumstances particular to individual
Noteholders, Receiptholders or Couponholders (whatever their number)
and, in particular but without limitation, shall not have regard to the
consequences of such exercise for individual Noteholders, Receiptholders
or Couponholders (whatever their number) resulting from their being for
any purpose domiciled or resident in, or otherwise connected with, or
subject to the jurisdiction of, any particular territory or any |
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political sub-division thereof
and the Trustee shall not be entitled to require, nor shall any Noteholder,
Receiptholder or Couponholder be entitled to claim, from the relevant
Obligors, the Trustee or any other person any indemnification or payment
in respect of any tax consequence of any such exercise upon individual
Noteholders, the Receiptholders or Couponholders except to the extent
already provided for in Condition 8 and/or any undertaking given in addition
thereto or in substitution therefor under these presents. |
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| (P) |
Any trustee of these presents being a lawyer,
accountant, broker or other person engaged in any profession or business
shall be entitled to charge and be paid all usual and proper professional
and other charges for business transacted and acts done by him or his
firm in connection with the trusts of these presents and also his reasonable
charges in addition to disbursements for all other work and business
done and all time spent by him or his firm in connection with matters
arising in connection with these presents. |
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| (Q) |
The Trustee may (upon prior notification
to, and after prior consultation with, the relevant Issuer where the
Trustee considers such consultation to be reasonably practicable) whenever
it thinks fit delegate by power of attorney or otherwise to any person
or persons or fluctuating body of persons (whether being a joint trustee
of these presents or not) all or any of its trusts, powers, authorities
and discretions vested in the Trustee by these presents. Such delegation
may be made upon such terms (including power to sub-delegate) and subject
to such conditions and regulations as the Trustee may in the interests
of the Noteholders think fit. Provided that the Trustee shall have exercised
reasonable care in the selection of any such delegate, the Trustee shall
not be under any obligation to supervise the proceedings or acts of any
such delegate or sub-delegate or be in any way responsible for any Liability
incurred by reason of any misconduct or default on the part of any such
delegate or sub-delegate. The Trustee shall within a reasonable time
after any such delegation or any renewal, extension or termination thereof
give notice thereof to the relevant Issuer. |
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| (R) |
The Trustee may in the conduct of the trusts
of these presents (upon prior notification to, and after prior consultation
with, the relevant Issuer where the Trustee considers such consultation
to be reasonably practicable) instead of acting personally employ and
pay an agent (whether being a lawyer or other professional person) to
transact or conduct, or concur in transacting or conducting, any business
and to do, or concur in doing, all acts required to be done in connection
with these presents (including the receipt and payment of money). Provided
that the Trustee shall have exercised reasonable care in the selection
of any such agent, the Trustee shall not be in any way responsible for
any Liability incurred by reason of any misconduct or default on the
part of any such agent or be bound to supervise the proceedings or acts
of any such agent. |
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| (S) |
The Trustee shall not be responsible to
any person for failing to request, require or receive any legal opinion
relating to any Notes or for checking or commenting upon the content
of any such legal opinion. |
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| (T) |
The Trustee shall not be concerned, and
need not enquire, as to whether or not any Notes are issued in breach
of the Programme Limit. |
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| (U) |
The Trustee shall not be liable to any person
by reason of having accepted as valid or not having rejected any document
and/or evidence and/or information and/or certification purporting to
be issued or given by Euroclear and/or Clearstream, Luxembourg whether
pursuant to Clause 3(E) or otherwise and subsequently found to be forged
or not authentic. |
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| (V) |
Any certificate or report of the Auditors
or any other person called for by or provided to the Trustee in accordance
with or for the purposes of these presents may be relied upon by the
Trustee as sufficient evidence of the facts stated therein whether or
not such certificate or report and/or any engagement letter or other
document entered into by the Trustee in connection therewith contains
a monetary or other limit on the liability of the Auditors or such other
person in respect thereof. |
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NOTHING in these presents shall
in any case in which the Trustee has failed to show the degree of care
and diligence required of it as trustee having regard to the provisions
of these presents conferring on it any trusts, powers, authorities or
discretions exempt the Trustee from or indemnify it against any liability
for breach of trust or any liability which by virtue of any rule of law
would otherwise attach to it in respect of any negligence, default, breach
of duty or breach of trust of which it may be guilty in relation to its
duties under these presents. |
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| 18. |
TRUSTEE CONTRACTING WITH
CADBURY SCHWEPPES AND CSF |
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NEITHER the Trustee (which for
the purpose of this Clause shall include the Holding Company of any corporation
acting as trustee hereof or any Subsidiary of such Holding Company) nor
any director or officer or Holding Company, Subsidiary or associated
company of a corporation acting as a trustee under these presents shall
by reason of its or his fiduciary position be in any way precluded from: |
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(i) |
entering into or being interested in any
contract or financial or other transaction or arrangement with any of
the relevant Obligors or any person or body corporate associated with
any of the relevant Obligors (including without limitation any contract,
transaction or arrangement of a banking or insurance nature or any contract,
transaction or arrangement in relation to the making of loans or the
provision of financial facilities or financial advice to, or the purchase,
placing or underwriting of or the subscribing or procuring subscriptions
for or otherwise acquiring, holding or dealing with, or acting as paying
agent in respect of, the Notes or any other notes, bonds, stocks, shares,
debenture stock, debentures or other securities of, any of the relevant
Obligors or any person or body corporate associated as aforesaid); or |
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(ii) |
accepting or holding the trusteeship of
any other trust deed constituting or securing any other securities issued
by or relating to any of the relevant Obligors or any such person or
body corporate so associated or any other office of profit under any
of the relevant Obligors or any such person or body corporate so associated, |
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and each shall be entitled to
exercise and enforce its rights, comply with its obligations and perform
its duties under or in relation to any such contract, transaction or
arrangement as is referred to in (i) above or, as the case may be, any
such trusteeship or office of profit as is referred to in (ii) above
without regard to the interests of the Noteholders and notwithstanding
that the same may be contrary or prejudicial to the interests of the
Noteholders and shall not be responsible for any Liability occasioned
to the Noteholders thereby and shall be entitled to retain and shall
not be in any way liable to account for any profit made or share of brokerage
or commission or remuneration or other amount or benefit received thereby
or in connection therewith. |
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Where any holding company, Subsidiary
or associated company of the Trustee or any director or officer of the
Trustee acting other than in his capacity as such a director or officer
has any information, the Trustee shall not thereby be deemed also to
have knowledge of such information and, unless it shall have actual knowledge
of such information, shall not be responsible for any loss suffered by
Noteholders resulting from the Trustee's failing to take |
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such information into account
in acting or refraining from acting under or in relation to these presents. |
19. WAIVER,
AUTHORISATION AND DETERMINATION
| (A) |
THE Trustee may without the consent or sanction
of the Noteholders, the Receiptholders or the Couponholders and without
prejudice to its rights in respect of any subsequent breach, Event of
Default or Potential Event of Default from time to time and at any time
but only if and in so far as in its opinion the interests of the Noteholders
shall not be materially prejudiced thereby waive or authorise any breach
or proposed breach by any of the relevant Obligors of any of the covenants
or provisions contained in these presents or determine that any Event
of Default or Potential Event of Default shall not be treated as such
for the purposes of these presents PROVIDED ALWAYS THAT the Trustee shall
not exercise any powers conferred on it by this Clause in contravention
of any express direction given by Extraordinary Resolution or by a request
under Condition 10 but so that no such direction or request shall affect
any waiver, authorisation or determination previously given or made.
Any such waiver, authorisation or determination may be given or made
on such terms and subject to such conditions (if any) as the Trustee
may determine, shall be binding on the Noteholders, the Receiptholders
and the Couponholders and, if, but only if, the Trustee shall so require,
shall be notified by the relevant Issuer to the Noteholders in accordance
with Condition 14 as soon as practicable thereafter. |
| (B) |
The Trustee may without the consent or sanction
of the Noteholders, the Receiptholders or the Couponholders at any time
and from time to time concur with the relevant Obligors in making any
modification (i) to these presents (other than the proviso to paragraph
5 of the Third Schedule or any matters referred to in that proviso) which
in the opinion of the Trustee it may be proper to make PROVIDED THAT
the Trustee is of the opinion that such modification will not be materially
prejudicial to the interests of the Noteholders or (ii) to these presents
if in the opinion of the Trustee such modification is of a formal, minor
or technical nature or to correct a manifest error or to comply with
mandatory provisions of applicable law. Any such modification may be
made on such terms and subject to such conditions (if any) as the Trustee
may determine, shall be binding upon the Noteholders, the Receiptholders
and the Couponholders and, unless the Trustee agrees otherwise, shall
be notified by the relevant Issuer to the Noteholders in accordance with
Condition 14 as soon as practicable thereafter. |
| (C) |
Any breach of or failure to comply with
any such terms and conditions as are referred to in sub-clauses (A) and
(B) of this Clause shall constitute a default by the relevant Issuer
or, as the case may be, Cadbury Schweppes (where the relevant Issuer
is CSF or CSI) or, as the case may be, CSF (where the relevant Issuer
is CSI) or, as the case may be, CSI (where the relevant Issuer is CSF)
in the performance or observance of a covenant or provision binding on
it under or pursuant to these presents. |
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| 20. |
HOLDER OF DEFINITlVE NOTE
ASSUMED TO BE RECEIPTHOLDER AND COUPONHOLDER |
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| (A) |
WHEREVER in these presents the Trustee is
required or entitled to exercise a power, trust, authority or discretion
under these presents, except as ordered by a court of competent jurisdiction
or as required by applicable law, the Trustee shall, notwithstanding
that it may have express notice to the contrary, assume that each Noteholder
is the holder of all Receipts and Coupons appertaining to each Definitive
Note of which he is the holder. |
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NO NOTICE TO RECEIPTHOLDERS OR COUPONHOLDERS |
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| (B) |
Neither the Trustee nor the relevant Issuer
shall be required to give any notice to the Receiptholders or Couponholders
for any purpose under these presents and the Receiptholders or Couponholders
shall be deemed for all purposes to have notice of the contents of any
notice given to the holders of Definitive Notes in accordance with Condition
14. |
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EACH of the relevant Obligors
shall severally indemnify the Trustee, every Appointee, the Noteholders,
the Receiptholders and the Couponholders and keep them indemnified against: |
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(a) |
any loss or damage incurred by any of them
arising from the non-payment by any of the relevant Obligors of any amount
due to the Trustee or the holders of the Notes issued by the relevant
Issuer and the relative Receiptholders or Couponholders under these presents
by reason of any variation in the rates of exchange between those used
for the purposes of calculating the amount due under a judgment or order
in respect thereof and those prevailing at the date of actual payment
by such relevant Obligors; and |
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(b) |
any deficiency arising or resulting from
any variation in rates of exchange between (i) the date as of which the
local currency equivalent of the amounts due or contingently due under
these presents (other than this Clause) is calculated for the purposes
of any bankruptcy, insolvency or liquidation of any of the relevant Obligors
and (ii) the final date for ascertaining the amount of claims in such
bankruptcy, insolvency or liquidation. The amount of such deficiency
shall be deemed not to be reduced by any variation in rates of exchange
occurring between the said final date and the date of any distribution
of assets in connection with any such bankruptcy, insolvency or liquidation. |
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The above indemnities shall
constitute obligations of the relevant Obligors separate and independent
from their other obligations under the other provisions of these presents
and shall apply irrespective of any indulgence granted by the Trustee
or the Noteholders, the Receiptholders or the Couponholders from time
to time and shall continue in full force and effect notwithstanding the
judgment or filing of any proof or proofs in any bankruptcy, insolvency
or liquidation of any of the relevant Obligors for a liquidated sum or
sums in respect of amounts due under these presents (other than this
Clause). Any such deficiency as aforesaid shall be deemed to constitute
a loss suffered by the Noteholders, the Receiptholders and the Couponholders
and no proof or evidence of any actual loss shall be required by such
relevant Obligor or its liquidator or liquidators. |
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If the amount receivable by
the Trustee or the Noteholders, Receiptholders or Couponholders if converted
on the relevant date for payment into the relevant currency of payment
would yield a sum in excess of that due in such relevant currency of
payment, the Trustee shall hold such excess to the order of the relevant
Issuer or, as the case may be, the other person making payment. |
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| (A) |
THE power to appoint a new trustee of these
presents shall be vested in the Issuers jointly but no person shall be
appointed who shall not previously have been approved by an Extraordinary
Resolution. One or more persons may hold office as trustee or trustees
of these presents but such trustee or trustees shall be or include a
Trust Corporation. Whenever there shall be more than two trustees of
these presents the majority of such trustees shall be |
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competent to execute and exercise
all the duties, powers, trusts, authorities and discretions vested in
the Trustee by these presents provided that a Trust Corporation shall
be included in such majority. Any appointment of a new trustee of these
presents shall as soon as practicable thereafter be notified by the Issuers
to the Agent and the Noteholders. |
| (B) |
Notwithstanding the provisions of sub-clause
(A) above, the Trustee may, upon giving prior written notice to, and
after prior consultation with, all the relevant Obligors where the Trustee
considers such consultation to be reasonably practicable but without
the consent of the relevant Obligors, the Noteholders, the Receiptholders
or the Couponholders), appoint any person established or resident in
any jurisdiction (whether a Trust Corporation or not) to act either as
a separate trustee or as a co-trustee jointly with the Trustee: |
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(i) |
if the Trustee considers such appointment
to be in the interests of the Noteholders; |
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(ii) |
for the purposes of conforming to any legal
requirements, restrictions or conditions in any jurisdiction in which
any particular act or acts is or are to be performed; or |
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(iii) |
for the purposes of obtaining a judgment
in any jurisdiction or the enforcement in any jurisdiction of either
a judgment already obtained or any of the provisions of these presents
against any of the relevant Obligors. |
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The relevant Issuer irrevocably
appoints the Trustee to be its attorney in its name and on its behalf
to execute any such instrument of appointment. Such a person shall (subject
always to the provisions of these presents) have such trusts, powers,
authorities and discretions (not exceeding those conferred on the Trustee
by these presents) and such duties and obligations as shall be conferred
or imposed by the instrument of appointment. The Trustee shall have power
in like manner to remove any such person. Such reasonable remuneration
as the Trustee may pay to any such person, together with any attributable
costs, charges and expenses properly and reasonably incurred by it in
performing its function as such separate trustee or co-trustee, shall
for the purposes of these presents be treated as costs, charges and expenses
incurred by the Trustee. |
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| 23. |
TRUSTEE'S RETIREMENT AND
REMOVAL |
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A trustee of these presents
may retire at any time on giving not less than three months' prior written
notice to the Issuers without giving any reason and without being responsible
for any Liabilities incurred by reason of such retirement. The Noteholders
shall have the power exercisable by Extraordinary Resolution to remove
any trustee or trustees for the time being of these presents. The Issuers
jointly undertake that in the event of the only trustee of these presents
which is a Trust Corporation giving notice under this Clause or being
removed by Extraordinary Resolution they will use all reasonable endeavours
to procure that a new trustee of these presents being a Trust Corporation
is appointed as soon as reasonably practicable thereafter. The retirement
or removal of any such trustee shall not become effective until a successor
trustee being a Trust Corporation is appointed. |
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| 24. |
TRUSTEE'S POWERS TO BE ADDITIONAL |
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THE powers conferred upon the
Trustee by these presents shall be in addition to any powers which may
from time to time be vested in the Trustee by the general law or as a
holder of any of the Notes, Receipts or Coupons. |
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| 25. |
SUBSTITUTION |
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| (A) |
(1) |
THE Trustee may,
without the consent of the Noteholders, Receiptholders or Couponholders,
at any time agree with CSF, CSI and Cadbury Schweppes to the substitution
in place of CSF or CSI (or of the previous substitute under this Clause)
as the principal debtor under these presents of (a) another Subsidiary
of Cadbury Schweppes, (b) any relevant Obligor or its Successor in Business
(in which case the guarantee of such Obligor shall cease and determine),
(c) a Subsidiary of a Holding Company of Cadbury Schweppes or its Successor
in Business or (d) a Holding Company of Cadbury Schweppes or its Successor
in Business (in each of which cases (c) and (d) the guarantee of Cadbury
Schweppes shall cease and determine if the Trustee is satisfied that
the interests of the Noteholders will not be materially prejudiced if
they became holders of Notes of such Subsidiary or Holding Company without
the benefit of the guarantee of Cadbury Schweppes rather than if they
were to remain holders of Notes of CSF or, as the case may be, CSI with
the benefit of the guarantee of Cadbury Schweppes (such substituted company
being hereinafter called the "New Company") provided
that a trust deed is executed or some other form of undertaking is given
by the New Company in form and manner satisfactory to the Trustee, agreeing
to be bound by the provisions of these presents with any consequential
amendments which the Trustee may deem appropriate as fully as if the
New Company had been named in these presents as the principal debtor
in place of CSF or, as the case may be, CSI (or of the previous substitute
under this Clause) and provided further that, where the New Company is
another Subsidiary of Cadbury Schweppes, Cadbury Schweppes unconditionally
and irrevocably guarantees all amounts payable under these presents to
the satisfaction of the Trustee. |
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(2) |
The following further conditions
shall apply to (1) above: |
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(i) |
CSF, CSI, Cadbury Schweppes
and the New Company shall comply with such other requirements as the
Trustee may direct in the interests of the Noteholders; |
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(ii) |
where the New Company is incorporated,
domiciled or resident in, or subject generally to the taxing jurisdiction
of, a territory other than or in addition to the United Kingdom or any
political sub-division or any authority therein or thereof having power
to tax, both Condition 7(b) and Condition 8 shall be modified so that,
in substitution for (or, as the case may be, addition to) the references
to the United Kingdom or any political sub-division or any authority
therein or thereof having power to tax, such Conditions make reference
to that other or additional territory or any political sub-division or
any authority therein or thereof having power to tax in which the New
Company is incorporated, domiciled or resident or to whose taxing jurisdiction
it is subject; |
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(iii) |
without prejudice to the rights
of reliance of the Trustee under the immediately following paragraph
(iv), the Trustee is satisfied that the relevant transaction is not materially
prejudicial to the interests of the Noteholders; and |
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(iv) |
if two Directors of the New
Company (or other officers acceptable to the Trustee) shall certify that
the New Company is solvent at the time at which the relevant transaction
is proposed to be effected (which certificate the Trustee may rely upon
absolutely) the Trustee shall not be under any duty to have regard to
the financial condition, profits or prospects of the New Company or to
compare the same with those of CSF or, as the case may be, CSI or the
previous substitute under this Clause as applicable. |
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| (B) |
(1) |
The
Trustee may, without the consent of the Noteholders, Receiptholders or
Couponholders, at any time agree with Cadbury Schweppes to the substitution
in place of Cadbury Schweppes (or of any previous substitute under this
Clause) as a principal debtor or as the guarantor under these presents
of (a) a Successor in Business to Cadbury Schweppes, (b) a Holding Company
of Cadbury Schweppes or (c) a Subsidiary of Cadbury Schweppes which is
acceptable to the Trustee (such substituted company being hereinafter
called the "New Company") provided that a trust deed
is executed or some other form of undertaking is given by the New Company
in form and manner satisfactory to the Trustee, agreeing to be bound
by the provisions of these presents with any consequential amendments
which the Trustee may deem appropriate as fully as if the New Company
had been named in these presents as the principal debtor or, as the case
may be, the guarantor in place of Cadbury Schweppes (or of the previous
substitute under this Clause) and provided further that, where the New
Company is a Subsidiary of Cadbury Schweppes, Cadbury Schweppes unconditionally
and irrevocably guarantees all amounts payable under these presents to
the satisfaction of the Trustee. |
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(2) |
The following further
conditions shall apply to (1) above: |
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(i) |
CSF, CSI, Cadbury Schweppes
and the New Company shall comply with such other requirements as the
Trustee may direct in the interests of the Noteholders; |
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(ii) |
where the New Company is incorporated,
domiciled or resident in, or subject generally to the taxing jurisdiction
of, a territory other than or in addition to the United Kingdom or any
political sub-division or any authority therein or thereof having power
to tax, both Condition 7(b) and Condition 8 shall be modified so that,
in substitution for (or, as the case may be, addition to) the references
to the United Kingdom or any political subdivision or any authority therein
or thereof having power to tax, such Conditions make reference to that
other or additional territory or any political subdivision or any authority
therein or thereof having power to tax in which the New Company is incorporated,
domiciled or resident or to whose taxing jurisdiction it is subject; |
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(iii) |
without prejudice to the rights
of reliance of the Trustee under the immediately following paragraph
(iv), the Trustee is satisfied that the relevant transaction is not materially
prejudicial to the interests of the Noteholders; and |
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(iv) |
if two Directors of the New
Company (or other officers acceptable to the Trustee) shall certify that
the New Company is solvent at the time at which the relevant transaction
is proposed to be effected (which certificate the Trustee may rely upon
absolutely) the Trustee shall not be under any duty to have regard to
the financial condition, profits or prospects of the New Company or to
compare the same with those of Cadbury Schweppes or the previous substitute
under this Clause, as applicable. |
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| (C) |
Any such trust deed or undertaking
shall, if so expressed, operate to release the company being substituted
or the previous substitute as aforesaid from all of its obligations as
principal debtor or guarantor under these presents. As soon as reasonably
practicable but in any event not later than 21 days after the execution
of such documents and compliance with such requirements, the New Company
shall give notice thereof in a form previously approved by the Trustee
to the Noteholders in the manner provided in Condition 14. Upon the execution
of such documents and compliance with such requirements, the New Company
shall be |
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deemed to be named in these
presents as the principal debtor or, as the case may be, guarantor in
place of the company being substituted (or in place of the previous substitute
under this Clause) under these presents and these presents shall be deemed
to be modified in such manner as shall be necessary to give effect to
the above provisions and, without limitation, references in these presents
to the relevant Issuer or, as the case may be, Cadbury Schweppes shall,
unless the context otherwise requires, be deemed to be or include references
to the New Company. |
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| 26. |
NOTICES |
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ANY notice or demand to Cadbury
Schweppes, CSF, CSI or the Trustee required to be given, made or served
for any purposes under these presents shall be given, made or served
by sending the same by pre-paid post (first class if inland, first class
airmail if overseas) or facsimile transmission or by delivering it by
hand as follows: |
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to Cadbury Schweppes: |
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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▇▇▇▇▇▇ ▇▇▇ ▇▇▇ |
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▇▇▇▇▇▇▇ |
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(Attention: |
the Company Secretary) |
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Facsimile No. |
020 7830 5200 |
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to CSF: |
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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▇▇▇▇▇▇ ▇▇▇ ▇▇▇ |
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▇▇▇▇▇▇▇ |
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(Attention: |
the Company Secretary) |
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Facsimile No. |
020 7830 5200 |
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Copy to Cadbury
Schweppes |
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to CSI: |
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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▇▇▇▇▇▇ ▇▇ J 6HB |
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England |
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(Attention: |
the Company Secretary) |
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Facsimile No. |
020 7830 5200 |
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Copy to Cadbury
Schweppes |
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to the Trustee: |
▇▇▇▇▇ ▇▇▇▇▇ |
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ |
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▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ |
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England |
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(Attention: |
The Manager, Commercial Trusts) |
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Facsimile No. |
020 7696 5261 |
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or to such other address or
facsimile number as shall have been notified (in accordance with this
Clause) to the other parties hereto and any notice or demand sent by
post as aforesaid shall be deemed to have been given, made or served
48 hours in the case of inland post or five days in the case of overseas
post after despatch and any notice or demand sent by facsimile transmission
as aforesaid shall be deemed to have been given, made or served 24 hours
after the time of despatch provided that in the case of a notice or demand
given by |
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facsimile transmission such
notice or demand shall forthwith be confirmed by post. The failure of
the addressee to receive such confirmation shall not invalidate the relevant
notice or demand given by facsimile transmission. |
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| 27. |
GOVERNING LAW |
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THESE presents are governed
by, and shall be construed in accordance with, English law. |
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| 28. |
COUNTERPARTS |
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THIS Trust Deed and any trust
deed supplemental hereto may be executed and delivered in any number
of counterparts, all of which, taken together, shall constitute one and
the same deed and any party to this Trust Deed or any trust deed supplemental
hereto may enter into the same by executing and delivering a counterpart. |
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| 29. |
CONTRACTS (RIGHTS
OF THIRD PARTIES) ACT 1999 |
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A person who is not a party
to this Trust Deed or any trust deed supplemental hereto has no right
under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any
term of this Trust Deed or any trust deed supplemental hereto, but this
does not affect any right or remedy of a third party which exists or
is available apart from that Act. |
IN WITNESS whereof this Trust Deed
has been executed as a deed by Cadbury Schweppes, CSF, CSI and the Trustee
and delivered on the date stated on page 1.
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THE FIRST SCHEDULE
TERMS AND CONDITIONS OF THE
NOTES
The following are the Terms and Conditions
of the Notes which will be incorporated by reference into each Global Note
(as defined below) and each definitive Note, in the latter case only if permitted
by the relevant stock exchange or other relevant authority (if any) and agreed
by the relevant Issuer and the relevant Dealer at the time of issue but,
if not so permitted and agreed, such definitive Note will have endorsed thereon
or attached thereto such Terms and Conditions. The applicable Pricing Supplement
in relation to any Tranche of Notes may specify other terms and conditions
which shall, to the extent so specified or to the extent inconsistent with
the following Terms and Conditions, replace or modify the following Terms
and Conditions for the purpose of such Notes. The applicable Pricing Supplement
(or the relevant provisions thereof) will be endorsed upon, or attached to,
each Global Note and definitive Note. Reference should be made to "Form
of the Notes" for a description of the content of Pricing Supplements
which will specify which of such terms are to apply in relation to the relevant
Notes.
This Note is one of a Series (as
defined below) of Notes issued by Cadbury Schweppes public limited company
("Cadbury Schweppes"), Cadbury Schweppes Finance p.l.c. ("CSF")
or Cadbury Schweppes Investments plc ("CSI" and, together with
Cadbury Schweppes and CSF in their capacities as Issuers, the "Issuers" and
each an "Issuer") constituted by a Trust Deed (such Trust Deed
as modified and/or supplemented and/or restated from time to time, the "Trust
Deed") dated 26 May 1999 made between Cadbury Schweppes, CSF, CSI and
The Law Debenture Trust Corporation p.l.c. (the "Trustee", which
expression shall include any successor as trustee).
References herein to the "Notes" shall
be references to the Notes of this Series and shall mean:
| (i) |
in relation to
any Notes represented by a global Note (a "Global Note"), units
of the lowest Specified Denomination in the Specified Currency; |
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| (ii) |
any Global Note;
and |
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| (iii) |
any definitive Notes issued
in exchange for a Global Note. |
References herein to the "relevant
Issuer" shall be to the Issuer of the Notes named as such in the applicable
Pricing Supplement (as defined below).
Pursuant to the Trust Deed the payment
of all amounts payable in respect of Notes, Receipts and Coupons issued by
CSF will be unconditionally and irrevocably guaranteed by Cadbury Schweppes
and CSI and the payment of all amounts payable in respect of Notes, Receipts
and Coupons issued by CSI will be unconditionally and irrevocably guaranteed
by Cadbury Schweppes and CSF. With respect to any Note, references to the "relevant
Obligor(s)" are to the relevant Issuer and the guarantors, if any, of
such Note.
The Notes, the Receipts (as defined
below) and the Coupons (as defined below) have the benefit of an Agency Agreement
(such Agency Agreement as amended and/or supplemented and/or restated from
time to time, the "Agency Agreement") dated 27 May, 2004, and made
between Cadbury Schweppes, CSF, CSI, JPMorgan Chase Bank as issuing and principal
paying agent and agent bank (the "Agent", which expression shall
include any successor agent), the other paying agents named therein (together
with the Agent, the "Paying Agents", which expression shall include
any additional or successor paying agents) and the Trustee.
Interest bearing definitive Notes
(unless otherwise indicated in the applicable Pricing Supplement) have interest
coupons ("Coupons") and, if indicated in the applicable Pricing
Supplement, talons for further Coupons ("Talons") attached on issue.
Any reference herein to Coupons or coupons shall, unless the context otherwise
requires, be deemed to include a reference to Talons or talons. Definitive
Notes repayable in instalments have receipts ("Receipts") for the
payment of the instalments of principal (other than the final instalment)
attached on issue. Global Notes do not have Receipts, Coupons or Talons attached
on issue.
The Pricing Supplement for this Note
(or the relevant provisions thereof) is attached to or endorsed on this Note
and supplements these Terms and Conditions and may specify other terms and
conditions which shall, to the extent so specified or to the extent inconsistent
with these Terms and Conditions, replace or modify these Terms and Conditions
for the purposes of this Note. References to the
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"applicable Pricing Supplement" are
to the Pricing Supplement (or the relevant provisions thereof) attached to
or endorsed on this Note.
The Trustee acts for the benefit
of the holders for the time being of the Notes (the "Noteholders",
which expression shall, in relation to any Notes represented by a Global
Note, be construed as provided below), the holders of the Receipts (the "Receiptholders")
and the holders of the Coupons (the "Couponholders", which expression
shall, unless the context otherwise requires, include the holders of the
Talons), in accordance with the provisions of the Trust Deed.
As used herein, "Tranche" means
Notes which are identical in all respects (including as to listing) and "Series" means
a Tranche of Notes together with any further Tranche or Tranches of Notes
which are (i) expressed to be consolidated and form a single series and (ii)
identical in all respects (including as to listing) except for their respective
Issue Dates, Interest Commencement Dates and/or Issue Prices.
Copies of the Trust Deed, the Agency
Agreement and the applicable Pricing Supplement are available for inspection
during normal business hours at the registered office for the time being
of the Trustee (being at the date hereof at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇) and at the specified office of each of the Paying Agents
save that, if this Note is an unlisted Note of any Series, the applicable
Pricing Supplement will only be available for inspection by a Noteholder
holding one or more unlisted Notes of that Series, and such Noteholder must
produce evidence satisfactory to the Trustee or, as the case may be, the
relevant Paying Agent as to its holding of such Notes and identity. The Noteholders,
the Receiptholders and the Couponholders are deemed to have notice of, and
are entitled to the benefit of, all the provisions of the Trust Deed, the
Agency Agreement and the applicable Pricing Supplement which are applicable
to them. The statements in these Terms and Conditions include summaries of,
and are subject to, the detailed provisions of the Trust Deed and the Agency
Agreement.
Words and expressions defined in
the Trust Deed or the Agency Agreement or used in the applicable Pricing
Supplement shall have the same meanings where used in these Terms and Conditions
unless the context otherwise requires or unless otherwise stated and provided
that, in the event of inconsistency between the Trust Deed and the Agency
Agreement, the Trust Deed will prevail and, in the event of inconsistency
between the Agency Agreement or the Trust Deed and the applicable Pricing
Supplement, the applicable Pricing Supplement will prevail.
| 1. |
Form, Denomination and Title |
The Notes are in bearer form and,
in the case of definitive Notes, serially numbered, in the Specified Currency
and the Specified Denomination(s). Notes of one Specified Denomination may
not be exchanged for Notes of another Specified Denomination.
This Note is a Fixed Rate Note, a
Floating Rate Note, a Zero Coupon Note, an Index Linked Interest Note, a
Dual Currency Interest Note or a combination of any of the foregoing, depending
upon the Interest Basis shown in the applicable Pricing Supplement.
This Note may be an Index Linked
Redemption Note, an Instalment Note, a Dual Currency Redemption Note, a Partly
Paid Note or a combination of any of the foregoing, depending on the Redemption/Payment
Basis shown in the applicable Pricing Supplement.
Definitive Notes are issued with
Coupons attached, unless they are Zero Coupon Notes in which case references
to Coupons and Couponholders in these Terms and Conditions are not applicable.
Subject as set out below, title to
the Notes, Receipts and Coupons will pass by delivery. Each relevant Obligor,
any Paying Agent and the Trustee will (except as otherwise required by law)
deem and treat the bearer of any Note, Receipt or Coupon as the absolute
owner thereof (whether or not overdue and notwithstanding any notice of ownership
or writing thereon or notice of any previous loss or theft thereof) for all
purposes but, in the case of any Global Note, without prejudice to the provisions
set out in the next succeeding paragraph.
For so long as any of the Notes is
represented by a Global Note held on behalf of Euroclear Bank S.A./N.V. as
operator of the Euroclear System ("Euroclear") and/or Clearstream
Banking, société anonyme ("Clearstream, Luxembourg"),
each person (other than Euroclear or Clearstream, Luxembourg) who is for
the time being shown in the records of Euroclear or of Clearstream, Luxembourg
as the holder of a particular nominal amount of such Notes (in which regard
any certificate or other document issued by
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Euroclear or Clearstream, Luxembourg
including any form of statement or print out of electronic records provided
by the relevant clearing system in accordance with its usual procedures and
in which the holder of a particular nominal amount of the Notes is clearly
identified together with the amount of such holding or any other letter of
confirmation form of recent information and/or certification made by either
of them shall be conclusive and binding for all purposes save in the case
of manifest error) shall be treated by each relevant Obligor, the Paying
Agents and the Trustee as the holder of such nominal amount of such Notes
for all purposes other than with respect to the payment of principal or interest
on such nominal amount of such Notes, for which purpose the bearer of the
relevant Global Note shall be treated by each relevant Obligor, the Paying
Agents and the Trustee as the holder of such nominal amount of such Notes
in accordance with and subject to the terms of the relevant Global Note and
the expressions "Noteholder" and "holder of Notes" and
related expressions shall be construed accordingly.
Notes which are represented by a
Global Note will be transferable only in accordance with the rules and procedures
of Euroclear and Clearstream, Luxembourg, as the case may be. References
to Euroclear and/or Clearstream, Luxembourg shall, whenever the context so
permits, be deemed to include a reference to any successor operator and/or
successor clearing system and/or any additional or alternative clearing system
authorised to maintain accounts therein, specified in the applicable Pricing
Supplement and/or approved by the relevant Issuer, the Agent and the Trustee.
The Notes and any relative Receipts
and Coupons are direct, unconditional, unsubordinated and (subject to the
provisions of Condition 4) unsecured obligations of the relevant Issuer and
(subject as aforesaid) rank pari passu without any preference among themselves
and equally with all other outstanding unsecured and unsubordinated obligations
of the relevant Issuer (save for certain obligations required to be preferred
by law).
The payment of principal and interest
in respect of all Notes, Receipts and Coupons issued by CSF and all other
moneys payable by CSF under or pursuant to the Trust Deed has been unconditionally
and irrevocably guaranteed by Cadbury Schweppes and CSI in the Trust Deed
and the payment of principal and interest in respect of all Notes, Receipts
and Coupons issued by CSI and all other moneys payable by CSI under or pursuant
to the Trust Deed has been unconditionally and irrevocably guaranteed by
Cadbury Schweppes and CSF in the Trust Deed (together, the "Guarantees").
The obligations of Cadbury Schweppes and CSI (if the relevant Issuer is CSF)
or Cadbury Schweppes and CSF (if the relevant Issuer is CSI) under the Guarantees
are direct, unconditional, unsubordinated and (subject to the provisions
of Condition 4) unsecured obligations of such company and subject as aforesaid
rank equally with all other unsecured and unsubordinated obligations of each
such company (save for certain obligations required to be preferred by law).
So long as any of the Notes remains
outstanding (as defined in the Trust Deed), no relevant Obligor will (except
as otherwise required by law or a court of competent jurisdiction) create
or permit to subsist any Security upon, or with respect to, any of its present
or future assets or revenues to secure any existing or future Relevant Indebtedness
of any person (or to secure any guarantee given by any relevant Obligor of
any Relevant Indebtedness of any person), unless such Obligor shall, simultaneously
with, or prior to, the creation of such Security, take any and all action
necessary to procure that all amounts payable by any relevant Obligor under
the Notes, the Coupons and the Trust Deed are secured equally and rateably
therewith by such Security in the same manner or in a manner satisfactory
to the Trustee or that such other Security is provided as the Trustee shall,
in its absolute discretion, deem not materially less beneficial to the Noteholders
or as shall be approved by an Extraordinary Resolution (as defined in the
Trust Deed) of the Noteholders.
The foregoing shall not apply to
| (i) |
any Security created by any
relevant Obligor after the date of issue of the Notes in substitution
for any Security created by a company which becomes a Subsidiary (as
defined in the Trust Deed) of such Obligor after the date of issue of
the Notes (if such last-mentioned Security shall have been created prior
to the date of, and not in contemplation of, such company becoming a
Subsidiary of |
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| |
such Obligor the value of which
does not materially exceed the then current value of the Security for
which it is being substituted; |
| |
|
| (ii) |
any Security created by any
relevant Obligor (whether prior to, simultaneously with or following
the issue of the Relevant Indebtedness) upon an amount or assets with
a value not exceeding the amount of the proceeds or the anticipated proceeds
of, or upon the proceeds (or any part or parts of the proceeds) of, or
upon any assets, returns, revenues or other benefits acquired or to be
acquired with, or relating to, the proceeds (or any part or parts of
the proceeds) of, any such Relevant Indebtedness; and |
| |
|
| (iii) |
any Security relating to any
loan or other indebtedness which does not wholly come within the definition
of Relevant Indebtedness set out below. |
"Relevant Indebtedness" means
any loan or other indebtedness which:
| (a) |
has an initial maturity of
over 12 months; |
| |
|
| (b) |
is in the form of, or represented
by, any bonds, notes, loan stock or other securities issued otherwise
than to constitute or represent advances made by banks and/or other lending
institutions; |
| |
|
| (c) |
is denominated or payable
(whether compulsorily or at the option of the holder) in any currency
other than the currency of the country in which the issuer has its principal
place of business or is denominated in the currency of the country in
which the issuer has its principal place of business but is initially
placed or offered for subscription or sale by or on behalf of, or by
agreement with, the issuer as to more than 50 per cent. to persons resident
outside such country; and |
| |
|
| (d) |
at the time of its initial
distribution is, or is intended by the issuer to become, quoted or listed
on any stock exchange. Where any bonds, notes or other securities are
agreed to be issued to any person (wherever resident) with a view to
their being offered as to more than 50 per cent. to persons resident
outside any country of the currency in which they are denominated or
payable, they shall be deemed to have been so offered by or on behalf
of the issuer; and, subject always as provided above, "Security" means
any mortgage, pledge or charge (other than arising by operation of law)
upon the whole or any part of the undertaking or assets, present or future
(including any uncalled capital), of the grantor. |
| |
|
| 5. |
Interest |
| |
|
| (a) |
Interest on Fixed Rate
Notes |
| |
| Each Fixed Rate Note bears interest
on its outstanding nominal amount (or, if it is a Partly Paid Note, the
amount paid up) from (and including) the Interest Commencement Date at
the rate(s) per annum equal to the Rate(s) of Interest. Interest will
be payable in arrear on the Interest Payment Date(s) in each year up
to (and including) the Maturity Date. |
Except as provided in the applicable
Pricing Supplement, the amount of interest payable on each Interest Payment
Date in respect of the Fixed Interest Period ending on (but excluding) such
date will amount to the Fixed Coupon Amount. Payments of interest on any
Interest Payment Date will, if so specified in the applicable Pricing Supplement,
amount to the Broken Amount so specified.
As used in these Terms and Conditions,"Fixed
Interest Period" means the period from (and including) an Interest Payment
Date (or the Interest Commencement Date) to (but excluding) the next (or
first) Interest Payment Date.
If interest is required to be calculated
for a period ending other than a Fixed Interest Period, such interest shall
be calculated by applying the Rate of Interest to each Specified Denomination,
multiplying such sum by the applicable Day Count Fraction, and rounding the
resultant figure to the nearest sub-unit of the relevant Specified Currency,
half of any such sub-unit being rounded upwards or otherwise in accordance
with applicable market convention.
"Day Count Fraction" means
in respect of the calculation of an amount of interest in accordance with
this Condition 5(a):
| (i) |
if "Actual/Actual (ISMA)" is
specified in the applicable Pricing Supplement: |
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| |
(a) |
in the case of Notes where
the number of days in the relevant period from (and including) the most
recent Interest Payment Date (or, if none, the Interest Commencement
Date) to (but excluding) the relevant payment date (the "Accrual
Period") is equal to or shorter than the Determination Period during
which the Accrual Period ends, the number of days in such Accrual Period
divided by the product of (1) the number of days in such Determination
Period and (2) the number of Determination Dates (as specified in the
applicable Pricing Supplement) that would occur in one calendar year;
or |
| |
|
|
| |
(b) |
in the case of Notes where
the Accrual Period is longer than the Determination Period during which
the Accrual Period ends, the sum of: |
| |
|
|
|
| |
|
(1) |
the number of days in such
Accrual Period falling in the Determination Period in which the Accrual
Period begins divided by the product of (x) the number of days in such
Determination Period and (y) the number of Determination Dates that would
occur in one calendar year; and |
| |
|
|
|
| |
|
(2) |
the number of days in such
Accrual Period falling in the next Determination Period divided by the
product of (x) the number of days in such Determination Period and (y)
the number of Determination Dates that would occur in one calendar year;
and |
| |
|
| (ii) |
if "30/360" is specified
in the applicable Pricing Supplement, the number of days in the period
from (and including) the most recent Interest Payment Date (or, if none,
the Interest Commencement Date) to (but excluding) the relevant payment
date (such number of days being calculated on the basis of a year of
360 days with 12 30-day months) divided by 360. |
In these Terms and Conditions:
"Determination Period" means
the period from (and including) a Determination Date to (but excluding) the
next Determination Date (including, where either the Interest Commencement
Date or the final Interest Payment Date is not a Determination Date, the
period commencing on the first Determination Date prior to, and ending on
the first Determination Date falling after, such date).
"sub-unit" means,
with respect to any currency other than euro, the lowest amount of such currency
that is available as legal tender in the country of such currency and, with
respect to euro, means one cent.
| (b) |
Interest on Floating
Rate Notes and Index Linked Interest Notes |
| |
|
| (i) |
Interest Payment
Dates |
| |
| Each Floating Rate Note and Index
Linked Interest Note bears interest on its outstanding nominal amount
(or, if it is a Partly Paid Note, the amount paid up) from (and including)
the Interest Commencement Date and such interest will be payable in arrear
on either: |
| |
|
| (A) |
the Specified Interest Payment
Date(s) in each year specified in the applicable Pricing Supplement;
or |
| |
|
| (B) |
if no Specified Interest Payment
Date(s) is/are specified in the applicable Pricing Supplement, each date
(each such date, together with each Specified Interest Payment Date,
an "Interest Payment Date") which falls the number of months
or other period specified as the Specified Period in the applicable Pricing
Supplement after the preceding Interest Payment Date or, in the case
of the first Interest Payment Date, after the Interest Commencement Date. |
Such interest will be payable in
respect of each Interest Period (which expression shall, in these Terms and
Conditions, mean the period from (and including) an Interest Payment Date
(or the Interest Commencement Date) to (but excluding) the next (or first)
Interest Payment Date).
If a Business Day Convention is specified
in the applicable Pricing Supplement and (x) if there is no numerically corresponding
day in the calendar month in which an Interest Payment Date should occur
or (y) if any Interest Payment Date would otherwise fall on a day which is
not a Business Day, then, if the Business Day Convention specified is:
| (1) |
in any case where Specified
Periods are specified in accordance with Condition 5(b)(i)(B) above,
the Floating Rate Convention, such Interest Payment Date (i) in the case
of (x) above, shall be the |
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| |
last day that is a Business
Day in the relevant month and the provisions of (B) below shall apply mutatis
mutandis or (ii) in the case of (y) above, shall be postponed to
the next day which is a Business Day unless it would thereby fall into
the next calendar month, in which event (A) such Interest Payment Date
shall be brought forward to the immediately preceding Business Day and
(B) each subsequent Interest Payment Date shall be the last Business
Day in the month which falls the Specified Period after the preceding
applicable Interest Payment Date occurred; or |
| |
|
| (2) |
the Following Business Day
Convention, such Interest Payment Date shall be postponed to the next
day which is a Business Day; or |
| |
|
| (3) |
the Modified Following Business
Day Convention, such Interest Payment Date shall be postponed to the
next day which is a Business Day unless it would thereby fall into the
next calendar month, in which event such Interest Payment Date shall
be brought forward to the immediately preceding Business Day; or |
| |
|
| (4) |
the Preceding Business Day
Convention, such Interest Payment Date shall be brought forward to the
immediately preceding Business Day. |
In this Condition, "Business
Day" means a day which is both:
| (A) |
a day on which commercial
banks and foreign exchange markets settle payments in London and any
Additional Business Centre specified in the applicable Pricing Supplement;
and |
| |
|
| (B) |
either (1) in relation to
any sum payable in a Specified Currency other than euro, a day on which
commercial banks and foreign exchange markets settle payments in the
principal financial centre of the country of the relevant Specified Currency
(if other than London and any Additional Business Centre and which, if
the Specified Currency is New Zealand dollars, shall be Auckland) or
(2) in relation to any sum payable in euro, a day on which the TARGET
System is open. In these Terms and Conditions,"TARGET system" means
the Trans-European Automated Real-Time Gross Settlement Express Transfer
(TARGET) System. |
| |
|
| (ii) |
Rate of Interest |
| |
| The Rate of Interest payable
from time to time in respect of Floating Rate Notes and Index Linked
Interest Notes will be determined in the manner specified in the applicable
Pricing Supplement. |
| |
|
| (A) |
ISDA Determination for
Floating Rate Notes |
| |
Where ISDA Determination is
specified in the applicable Pricing Supplement as the manner in which
the Rate of Interest is to be determined, the Rate of Interest for each
Interest Period will be the relevant ISDA Rate plus or minus (as indicated
in the applicable Pricing Supplement) the Margin (if any). For the purposes
of this sub-paragraph (A). "ISDA Rate" for an Interest Period
means a rate equal to the Floating Rate that would be determined by the
Agent under an interest rate swap transaction if the Agent were acting
as Calculation Agent for that swap transaction under the terms of an
agreement incorporating the 2000 ISDA Definitions as published by the
International Swaps and Derivatives Association, Inc. and as amended
and updated as at the Issue Date of the first Tranche of the Notes (the "ISDA
Definitions") and under which: |
| |
|
|
| |
(1) |
the Floating Rate Option is
as specified in the applicable Pricing Supplement; |
| |
|
|
| |
(2) |
the Designated Maturity is
a period specified in the applicable Pricing Supplement; and |
| |
|
|
| |
(3) |
the relevant Reset Date is
either (i) if the applicable Floating Rate Option is based on the London
inter-bank offered rate ("LIBOR") or on the Euro-zone interbank
offered rate ("EURIBOR"), the first day of that Interest Period
or (ii) in any other case, as specified in the applicable Pricing Supplement. |
| |
|
| |
For the purposes of this sub-paragraph
(A), "Floating Rate", "Calculation Agent", "Floating
Rate Option", "Designated Maturity" and "Reset Date" have
the meanings given to those terms in the ISDA Definitions. |
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| (B) |
Screen Rate Determination for Floating Rate Notes |
| |
|
| |
Where Screen Rate Determination
is specified in the applicable Pricing Supplement as the manner in which
the Rate of Interest is to be determined, the Rate of Interest for each Interest
Period will, subject as provided below, be either: |
| |
|
|
| |
(1) |
the offered quotation; or |
| |
|
|
| |
(2) |
the arithmetic mean (rounded if necessary to the fifth decimal place, with 0.000005 being rounded upwards) of the offered quotations, |
| |
|
| |
(expressed as a percentage rate
per annum) for the Reference Rate which appears or appear, as the case may
be, on the Relevant Screen Page as at 11.00 a.m. (London time, in the case
of LIBOR, or Brussels time, in the case of EURIBOR) on the Interest Determination
Date in question plus or minus (as indicated in the applicable Pricing Supplement)
the Margin (if any), all as determined by the Agent. If five or more of such
offered quotations are available on the Relevant Screen Page, the highest
(or, if there is more than one such highest quotation, one only of such quotations)
and the lowest (or, if there is more than one such lowest quotation, one
only of such quotations) shall be disregarded by the Agent for the purpose
of determining the arithmetic mean (rounded as provided above) of such offered
quotations. |
| |
|
| |
The Agency Agreement contains
provisions for determining the Rate of Interest in the event that the Relevant
Screen Page is not available or if, in the case of (1) above, no such offered
quotation appears or, in the case of (2) above, fewer than three such offered
quotations appear, in each case as at the time specified in the preceding
paragraph. |
| |
|
| |
If the Reference Rate from time
to time in respect of Floating Rate Notes is specified in the applicable
Pricing Supplement as being other than LIBOR or EURIBOR, the Rate of Interest
in respect of such Notes will be determined as provided in the applicable
Pricing Supplement. |
| |
|
| (iii) |
Minimum Rate of Interest and/or Maximum Rate of Interest |
| |
| If the applicable Pricing Supplement
specifies a Minimum Rate of Interest for any Interest Period, then, in
the event that the Rate of Interest in respect of such Interest Period
determined in accordance with the provisions of paragraph (ii) above is
less than such Minimum Rate of Interest, the Rate of Interest for such
Interest Period shall be such Minimum Rate of Interest. |
If the applicable Pricing Supplement specifies a Maximum Rate of Interest for any Interest Period, then, in the event that the Rate of Interest in respect of such Interest Period determined in accordance with the provisions of paragraph (ii) above is greater than such Maximum Rate of Interest, the Rate of Interest for such Interest Period shall be such Maximum Rate of Interest.
| (iv) |
Determination of Rate of Interest and
Calculation of Interest Amounts |
| |
| The Agent, in the case of Floating
Rate Notes, and the Calculation Agent, in the case of Index Linked Interest
Notes,
will at or as soon as practicable after each time at which the Rate of
Interest is to be determined, determine the Rate of Interest for the
relevant Interest Period. In the case of Index Linked Interest Notes, the
Calculation Agent will notify the Agent of the Rate of Interest for the
relevant Interest Period as soon as practicable after calculating the
same. |
The Agent will calculate the amount of interest (the "Interest Amount") payable on the Floating Rate Notes or Index Linked Interest Notes in respect of each Specified Denomination for the relevant Interest Period. Each Interest Amount shall be calculated by applying the Rate of Interest to each Specified Denomination, multiplying such sum by the applicable Day Count Fraction, and rounding the resultant figure to the nearest sub-unit of the relevant Specified Currency, half of any such sub-unit being rounded upwards or otherwise in accordance with applicable market convention.
"Day Count Fraction" means, in respect of the calculation of an amount of interest in accordance with this Condition 5(b):
| (i) |
if "Actual/365" or "Actual/Actual
(ISDA)" is
specified in the applicable Pricing Supplement, the actual number of days in
the Interest Period divided by 365 (or, if any portion of that Interest Period
falls in a leap year, the sum of (A) the actual number of days in that portion
of the Interest Period |
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| |
falling in a leap year divided by
366 and (B) the actual number of days in that portion of the Interest Period
falling in a non-leap year divided by 365); |
| |
|
| (ii) |
if "Actual/365 (Fixed)" is specified
in
the applicable Pricing Supplement, the actual number of days in the Interest
Period divided by 365; |
| |
|
| (iii) |
if "Actua1/360" is specified in the applicable
Pricing Supplement, the actual number of days in the Interest Period divided
by 360; |
| |
|
| (iv) |
if "30/360","360/360" or "Bond
Basis" is specified in the applicable Pricing Supplement, the number
of days in the Interest Period divided by 360 (the number of days to be
calculated on the basis of a year of 360 days with 12 30-day months (unless
(a) the last day of the Interest Period is the 31st day of a month but
the first day of the Interest Period is a day other than the 30th or 31st
day of a month, in which case the month that includes that last day shall
not be considered to be shortened to a 30-day month, or (b) the last day
of the Interest Period is the last day of the month of February, in which
case the month of February shall not be considered to be lengthened to
a 30-day month)); and |
| |
|
| (v) |
if "30E/360" or "Eurobond
Basis" is specified in the applicable Pricing Supplement, the number
of days in the Interest Period divided by 360 (the number of days to be
calculated on the basis of a year of 360 days with 12 30-day months, without
regard to the date of the first day or last day of the Interest Period
unless, in the case of the final Interest Period, the Maturity Date is
the last day of the month of February, in which case the month of February
shall not be considered to be lengthened to a 30-day month). |
| |
|
| (v) |
Notification of Rate of Interest and Interest
Amounts |
| |
| The Agent will cause the Rate
of Interest and each Interest Amount for each Interest Period and the relevant
Interest Payment Date to be notified to the relevant Issuer and any stock
exchange or other relevant authority on which the relevant Floating Rate
Notes or Index Linked Interest Notes are for the time being listed or by
which they have been admitted to listing and notice thereof to be published
in accordance with Condition 14 as soon as possible after their determination
but in no event later than the fourth London Business Day thereafter. Each
Interest Amount and Interest Payment Date so notified may subsequently
be amended (or appropriate alternative arrangements made by way of adjustment)
without prior notice in the event of an extension or shortening of the
Interest Period. Any such amendment will be promptly notified to each stock
exchange or other relevant authority on which the relevant Floating Rate
Notes or Index Linked Interest Notes are for the time being listed or by
which they have been admitted to listing and to the Noteholders in accordance
with Condition 14. For the purposes of this paragraph, the expression "London
Business Day" means a day (other than a Saturday or a Sunday) on which
banks and foreign exchange markets are open for general business in London. |
| |
| (vi) |
Determination or Calculation by Trustee |
| |
| If for any reason at any relevant
time the Agent or, as the case may be, the Calculation Agent defaults in
its obligation to determine the Rate of Interest or the Agent defaults
in its obligation to calculate any Interest Amount in accordance with sub-paragraph
(ii)(A) or (B) above or as otherwise specified in the applicable Pricing
Supplement, as the case may be, and in each case in accordance with paragraph
(iv) above, the Trustee shall determine the Rate of Interest at such rate
as, in its absolute discretion (having such regard as it shall think fit
to the foregoing provisions of this Condition, but subject always to any
Minimum Rate of Interest or Maximum Rate of Interest specified in the applicable
Pricing Supplement), it shall deem fair and reasonable in all the circumstances
or, as the case may be, the Trustee shall calculate the Interest Amount(s)
in such manner as it shall deem fair and reasonable in all the circumstances
and each such determination or calculation shall be deemed to have been
made by the Agent or the Calculation Agent, as applicable. |
| |
| (vii) |
Certificates to be final |
| |
| All certificates, communications,
opinions, determinations, calculations, quotations and decisions given,
expressed, made or obtained for the purposes of the provisions of this
Condition 5(b), whether by the Agent or, if applicable, the Calculation
Agent or the Trustee, shall (in the absence of wilful default, bad faith
or manifest error) be binding on each relevant Obligor, the Agent, the
Calculation Agent (if applicable), the other Paying Agents and all Noteholders,
Receiptholders and Couponholders and (in the |
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absence as aforesaid) no liability
to each relevant Obligor, the Noteholders, the Receiptholders or the Couponholders
shall attach to the Agent or, if applicable, the Calculation Agent or the
Trustee in connection with the exercise or non-exercise by it of its powers,
duties and discretions pursuant to such provisions.
| (c) |
Interest on Dual Currency Notes |
| |
| The rate or amount of interest
payable in respect of Dual Currency Interest Notes shall be determined
in the manner specified in the applicable Pricing Supplement. |
| |
| (d) |
Interest on Partly Paid Notes |
| |
| In the case of Partly Paid Notes
(other than Partly Paid Notes which are Zero Coupon Notes), interest will
accrue as aforesaid on the paid-up nominal amount of such Notes and otherwise
as specified in the applicable Pricing Supplement. |
| |
| (e) |
Accrual of interest |
| |
| Each Note (or in the case of the
redemption of part only of a Note, that part only of such Note) will cease
to bear interest (if any) from the date for its redemption unless, upon
due presentation thereof, payment of principal is improperly withheld or
refused. In such event, interest will continue to accrue as provided in
the Trust Deed. |
| |
| 6. |
Payments |
| |
|
| (a) |
Method of payment |
| |
| Subject as provided below: |
| |
|
| (i) |
payments in a Specified Currency other than euro
will be made by credit or transfer to an account in the relevant Specified Currency
(which, in the case of a payment in Japanese Yen to a non-resident of Japan,
shall be a non-resident account) maintained by the payee with, or, at the option
of the payee, by a cheque in such Specified Currency drawn on, a bank in the
principal financial centre of the country of such Specified Currency (which,
if the Specified Currency is New Zealand dollars, shall be Auckland); and |
| |
|
| (ii) |
payments in euro will be made by credit or transfer to a euro account (or any other account to which euro may be credited or transferred) specified by the payee or, at the option of the payee, by a euro cheque. |
Payments will be subject in all cases to any fiscal or other laws and regulations applicable thereto in the place of payment, but without prejudice to the provisions of Condition 8.
| (b) |
Presentation of definitive Notes, Receipts and Coupons |
| |
| Payments of principal in respect
of definitive Notes will (subject as provided below) be made in the manner
provided in paragraph (a) above only against presentation and surrender
(or, in the case of part payment of any sum due, endorsement) of definitive
Notes, and payments of interest in respect of definitive Notes will (subject
as provided below) be made as aforesaid only against presentation and surrender
(or, in the case of part payment of any sum due, endorsement) of Coupons,
in each case at the specified office of any Paying Agent outside the United
States (which expression, as used herein, means the United States of America
(including the States and the District of Columbia, its territories, its
possessions and other areas subject to its
jurisdiction)). |
Payments of instalments of principal (if any) in respect of definitive Notes, other than the final instalment, will (subject as provided below) be made in the manner provided in paragraph (a) above against presentation and surrender (or, in the case of part payment of any sum due, endorsement) of the relevant Receipt in accordance with the preceding paragraph. Payment of the final instalment will be made in the manner provided in paragraph (a) above only against presentation and surrender (or, in the case of part payment of any sum due, endorsement) of the relevant Note in accordance with the preceding paragraph. Each Receipt must be presented for payment of the relevant instalment together with the definitive Note to which it appertains.
Receipts presented without the definitive Note to which they appertain do not constitute valid obligations of the relevant Issuer. Upon the date on which any definitive Note becomes due and repayable, unmatured Receipts (if any) relating thereto (whether or not attached) shall become void and no payment shall be made in respect thereof.
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Fixed Rate Notes in definitive form (other than Dual Currency Notes, Index Linked Notes or Long Maturity Notes (as defined below)) should be presented for payment together with all unmatured Coupons appertaining thereto (which expression shall for this purpose include Coupons falling to be issued on exchange of matured Talons), failing which the amount of any missing unmatured Coupon (or, in the case of payment not being made in full, the same proportion of the amount of such missing unmatured Coupon as the sum so paid bears to the sum due) will be deducted from the sum due for payment. Each amount of principal so deducted will be paid in the manner mentioned above against surrender of the relative missing Coupon at any time before the expiry of
10 years after the Relevant Date (as defined in Condition 8) in respect
of such principal (whether or not such Coupon would otherwise have become void
under Condition 9) or, if later, five years from the date on which such Coupon
would otherwise have become due, but in no event thereafter.
Upon any Fixed Rate Note in definitive form becoming due and repayable prior to its Maturity Date, all unmatured Talons (if any) appertaining thereto will become void and no further Coupons will be issued in respect thereof.
Upon the date on which any Floating Rate Note, Dual Currency Note, Index Linked Note or Long Maturity Note in definitive form becomes due and repayable, unmatured Coupons and Talons (if any) relating thereto (whether or not attached) shall become void and no payment or, as the case may be, exchange for further Coupons shall be made in respect thereof. A "Long Maturity Note" is a Fixed Rate Note (other than a Fixed Rate Note which on issue had a Talon attached) whose nominal amount on issue is less than the aggregate interest payable thereon provided that such Note shall cease to be a Long Maturity Note on the Interest Payment Date on which the aggregate amount of interest remaining to be paid after that date is less than the nominal
amount of such Note.
If the due date for redemption of any definitive Note is not an Interest Payment Date, interest (if any) accrued in respect of such Note from (and including) the preceding or Interest Payment Date or, as the case may be, the Interest Commencement Date shall be payable only against surrender of the relevant definitive Note.
| (c) |
Payments in respect of Global Notes |
| |
| Payments of principal and interest
(if any) in respect of Notes represented by any Global Note will (subject
as provided below) be made in the manner specified above in relation to
definitive Notes and otherwise in the manner specified in the relevant
Global Note against presentation or surrender, as the case may be, of such
Global Note at the specified office of any Paying Agent outside the United
States. A record of each payment made against presentation or surrender
of any Global Note, distinguishing between any payment of principal and
any payment of interest, will be made on such Global Note by the Paying
Agent to which it is presented and such record shall be prima facie evidence
that the payment in question has been made. |
| |
| (d) |
General provisions applicable to payments |
| |
| The holder of a Global Note shall
be the only person entitled to receive payments in respect of Notes represented
by such Global Note and each relevant Obligor will be discharged by payment
to, or to the order of, the holder of such Global Note in respect of each
amount so paid. Each of the persons shown in the records of Euroclear or
Clearstream, Luxembourg as the beneficial holder of a particular nominal
amount of Notes represented by such Global Note must look solely to Euroclear
or Clearstream, Luxembourg, as the case may be, for his share of each payment
so made by each relevant Obligor to, or to the order of, the holder of
such Global Note. |
Notwithstanding the foregoing provisions
of this Condition, if any amount of principal and/or interest in respect
of Notes is payable in U.S. dollars, such U.S. dollar payments of principal
and/or interest in respect of such Notes will be made at the specified office
of a Paying Agent in the United States if:
| (i) |
the relevant Issuer has appointed Paying Agents with specified offices outside the United States with the reasonable expectation that such Paying Agents would be able to make payment in U.S. dollars at such specified offices outside the United States of the full amount of principal and interest on the Notes in the manner provided above when due; |
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| (ii) |
payment of the full amount of such principal and interest at all such specified offices outside the United States is illegal or effectively precluded by exchange controls or other similar restrictions on the full payment or receipt of principal and interest in U.S. dollars; and |
| |
|
| (iii) |
such payment is then permitted under United States law without involving, in the opinion of each relevant Obligor, adverse tax consequences to any such Obligor. |
| |
|
| (e) |
Payment Day |
| |
| If the date for payment of any
amount in respect of any Note, Receipt or Coupon is not a Payment Day,
the holder thereof shall not be entitled to payment until the next following
Payment Day in the relevant place and shall not be entitled to further
interest or other payment in respect of such delay. For these purposes,"Payment
Day" means any day which (subject to Condition 9) is: |
| |
| (i) |
a day on which commercial banks and foreign exchange markets settle payments in: |
| |
|
|
| |
(A) |
the relevant place of presentation; |
| |
|
|
| |
(C) |
any Additional Financial Centre
specified in the applicable Pricing Supplement; and |
| |
|
| (ii) |
either (1) in relation to any sum payable in a Specified Currency other than euro, a day on which commercial banks and foreign exchange markets settle payments in the principal financial centre of the country of the relevant Specified Currency (if other than the place of presentation, London and any Additional Financial Centre and which, if the Specified Currency is New Zealand dollars, shall be Auckland) or (2) in relation to any sum payable in euro, a day on which the TARGET System is open. |
| |
|
| (f) |
Interpretation
of principal and interest |
| |
| Any reference in these Terms and
Conditions to principal in respect of the Notes shall be deemed to include,
as applicable: |
| |
| (i) |
any additional amounts which may be payable with
respect to principal under Condition 8 or under any undertaking or covenant given
in addition thereto, or in substitution therefore, pursuant to the Trust Deed; |
| |
|
| (ii) |
the Final Redemption Amount of the Notes; |
| |
|
| (iii) |
the Early Redemption Amount of the Notes; |
| |
|
| (iv) |
the Optional Redemption Amount(s) (if any) of the
Notes; |
| |
|
| (v) |
in relation to Notes redeemable in instalments, the Instalment Amounts; |
| |
|
| (vi) |
in relation to Zero Coupon Notes, the Amortised Face Amount (as defined in Condition 7(e)); and |
| |
|
| (vii) |
any premium and any other amounts (other than interest) which may be payable by the relevant Issuer under or in respect of the Notes. |
Any reference in these Terms and
Conditions to interest in respect of the Notes shall be deemed to include,
as applicable, any additional amounts which may be payable with respect to
interest under Condition 8 or under any undertaking or covenant given in
addition thereto, or in substitution therefor, pursuant to the Trust Deed.
| 7. |
Redemption and Purchase |
| |
|
| (a) |
Redemption at maturity |
| |
| Unless previously redeemed or purchased
and cancelled as specified below, each Note (including each Index Linked
Redemption Note and Dual Currency Redemption Note) will be redeemed by
the relevant Issuer at its Final Redemption Amount specified in, or determined
in the manner specified in, the applicable Pricing Supplement in the relevant
Specified Currency on the Maturity Date. |
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| (b) |
Redemption for tax reasons |
| |
| The Notes may be redeemed at the
option of the relevant Issuer in whole, but not in part, at any time (if
this Note is neither a Floating Rate Note nor an Index Linked Interest
Note) or on any Interest Payment Date (if this Note is either a Floating
Rate Note or an Index Linked Interest Note), on giving not less than 30
nor more than 60 days' notice to the Trustee and the Agent and, in accordance
with Condition 14, the Noteholders (which notice shall be irrevocable),
if: |
| |
| (i) |
on the occasion of the next payment due under the
Notes, the relevant Issuer has or will become obliged to pay additional amounts
as provided or referred to in Condition 8 or any other Obligor in respect of
such Note would be unable for reasons outside its control to procure payment
by the relevant Issuer and in making payment itself would be required to pay
such additional amounts, in each case as a result of any change in, or amendment
to or interpretation of the laws, published practice or regulations of a Tax
Jurisdiction (as defined in Condition 8), or any change in the application or
interpretation of such laws or regulations, which change or amendment becomes
effective on or after the date on which agreement is reached to issue the first
Tranche of the
Notes; and |
| |
|
| (ii) |
such obligation cannot be avoided by any relevant Obligor taking reasonable measures available to it, |
provided that no such notice of redemption shall be given earlier than 90 days prior to the earliest date on which any relevant Obligor would be obliged to pay such additional amounts were a payment in respect of the Notes then due.
Prior to the publication of any notice of redemption pursuant to this Condition, the relevant Issuer shall deliver to the Trustee a certificate signed by two Directors of the relevant Issuer stating that the relevant Issuer is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to the right of the relevant Issuer so to redeem have occurred, and an opinion in a form satisfactory to the Trustee of independent legal advisers of recognised standing to the effect that any relevant Obligor has or will become obliged to pay such additional amounts as a result of such change or amendment.
A relevant Obligor which is not the
relevant Issuer in any case shall be entitled to require the relevant Issuer
to exercise the Issuer's rights under this Condition 7(b).
Notes redeemed pursuant to this Condition
7(b) will be redeemed at their Early Redemption Amount referred to in paragraph
(e) below
together (if appropriate) with interest accrued to (but excluding) the date
of redemption.
| (c) |
Redemption at the option
of the relevant Issuer (Issuer Call) |
| |
| If Issuer Call is specified in the
applicable Pricing Supplement, the relevant Issuer may, having given: |
| |
|
| (i) |
not less than 15 nor more than 30 days' notice
to the Noteholders in accordance with Condition 14; and |
| |
|
| (ii) |
not less than 15 days before the giving of the notice referred to in (i), notice to the Trustee and the Agent; |
| |
|
| (which
notices shall be irrevocable and shall specify the date fixed for redemption),
redeem all or some only of the Notes then outstanding on any Optional Redemption
Date and at the Optional Redemption Amount(s) specified in, or determined
in the manner specified in, the applicable Pricing Supplement together, if
appropriate, with interest accrued to (but excluding) the relevant Optional
Redemption Date. Any such redemption must be of a nominal amount not less
than the Minimum Redemption Amount or not more than a Higher Redemption Amount
in each case as may be specified in the applicable Pricing Supplement. In
the case of a partial redemption of Notes, the Notes to be redeemed ("Redeemed Notes") will be selected individually by lot,
in the case of Redeemed Notes represented by definitive Notes, and in accordance with the rules of Euroclear and/or Clearstream, Luxembourg, in the case of Redeemed Notes represented by a Global Note, not more than 30 days prior to the date fixed for redemption (such date of selection being hereinafter called the "Selection Date"). In the case of Redeemed Notes represented by definitive Notes, a list of the serial numbers of such Redeemed Notes will be published in accordance with Condition 14 not less than 15 days prior to the date fixed for |
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| redemption. The aggregate nominal amount of Redeemed Notes represented by definitive Notes shall bear the same proportion to the aggregate nominal amount of all Redeemed Notes as the aggregate nominal amount of definitive Notes outstanding bears to the aggregate nominal amount of the Notes outstanding, in each case on the Selection Date, provided that such first-mentioned nominal amount shall, if necessary, be rounded downwards to the nearest integral multiple of the Specified Denomination, and the aggregate nominal amount of Redeemed Notes represented by a Global Note shall be equal to the balance of the Redeemed Notes. No exchange of the relevant Global Note will be permitted during the period from (and including) the Selection Date to (and
including) the date fixed for redemption pursuant to this paragraph (c) and notice to that effect shall be given by the relevant Issuer to the Noteholders in accordance with Condition 14 at least five days prior to the Selection Date. |
| |
| (d) |
Redemption at the option of the Noteholders (Investor Put) |
| |
| If Investor Put is specified in
the applicable Pricing Supplement, upon the holder of any Note giving to
the relevant Issuer in accordance with Condition 14 not less than 15 nor
more than 30 days' notice the relevant Issuer will, upon the expiry of
such notice, redeem, subject to, and in accordance with, the terms specified
in the applicable Pricing Supplement, in whole (but not in part), such
Note on the Optional Redemption Date and at the Optional Redemption Amount
together, if appropriate, with interest accrued to (but excluding) the
Optional Redemption Date. |
If this Note is in definitive form, to exercise the right to require redemption of this Note the holder of this Note must deliver such Note at the specified office of any Paying Agent at any time during normal business hours of such Paying Agent falling within the notice period, accompanied by a duly completed and signed notice of exercise in the form (for the time being current) obtainable from any specified office of any Paying Agent (a "Put Notice") and in which the holder must specify a bank account (or, if payment is required to be made by cheque, an address) to which payment is to be made under this Condition accompanied by, if this Note is in definitive form, this Note or evidence satisfactory to the Paying Agent concerned that
this Note will, following delivery of the Put Notice, be held to its order or under its control.
| (e) |
Early Redemption Amounts |
| |
| For the purpose of paragraph (b) above
and Condition 10, each Note will be redeemed at its Early Redemption Amount
calculated as follows: |
| |
| (i) |
in the case of a Note with a Final Redemption Amount equal to the Issue Price, at the Final Redemption Amount thereof; |
| |
|
| (ii) |
in the case of a Note (other than a Zero Coupon
Note but including an Instalment Note and Partly Paid Note) with a Final Redemption
Amount which is or may be less or greater than the Issue Price or which is payable
in a Specified Currency other than that in which the Notes are denominated, at
the amount specified in, or determined in the manner specified in, the applicable
Pricing Supplement or, if no such amount or manner is so specified in the applicable
Pricing Supplement, at its nominal amount; or |
| |
|
| (iii) |
in the case of a Zero Coupon Note, at an amount (the "Amortised Face Amount") calculated in accordance with the following formula: |
| |
|
| |
Early
Redemption Amount = RP 6 (1 + AY)y |
| |
|
|
| |
"RP" |
means the Reference Price; |
| |
|
|
| |
"AY" |
means the Accrual Yield expressed
as a decimal;
and |
| |
|
|
| |
"y" |
is a fraction the numerator of which is equal to the number of days (calculated on the basis of a 360-day year consisting of 12 months of 30 days each) from (and including) the Issue Date of the first Tranche of the Notes to (but excluding) the date fixed for redemption or (as the case may be) the date upon which such Note becomes due and repayable and the denominator of which is 360, |
| |
|
| |
or on such other calculation basis
as may be specified in the applicable Pricing Supplement. |
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| (f) |
Instalments |
| |
| Instalment Notes will be redeemed
in the Instalment Amounts and on the Instalment Dates. In the case of early
redemption, the Early Redemption Amount will be determined pursuant to
paragraph (e) above. |
| |
| (g) |
Partly Paid Notes |
| |
| Partly Paid Notes will be redeemed,
whether at maturity, early redemption or otherwise, in accordance with
the provisions of this Condition and the applicable Pricing Supplement. |
| |
| (h) |
Purchases |
| |
| Cadbury Schweppes or any Subsidiary
of Cadbury Schweppes may at any time purchase Notes (provided that, in
the case of definitive Notes, all unmatured Receipts, Coupons and Talons
appertaining thereto are purchased therewith) at any price in the open
market or otherwise. If purchases are made by tender, tenders must be available
to all Noteholders alike. Such Notes may be held, reissued, resold or,
at the option of any relevant Obligor, surrendered to any Paying Agent
for cancellation. |
| |
| (i) |
Cancellation |
| |
| All Notes which are redeemed will
forthwith be cancelled (together with all unmatured Receipts, Coupons and
Talons attached thereto or surrendered therewith at the time of redemption).
All Notes so cancelled and Notes purchased and cancelled pursuant to paragraph (h) above
(together with all unmatured Receipts, Coupons and Talons cancelled therewith)
shall be forwarded to the Agent and cannot be reissued or resold. |
| |
| (j) |
Late payment on Zero Coupon Notes |
| |
| If the amount payable in respect
of any Zero Coupon Note upon redemption of such Zero Coupon Note pursuant
to paragraph (a), (b), (c) or (d) above or upon its becoming due and repayable
as provided in Condition 10 is improperly withheld or refused, the amount
due and repayable in respect of such Zero Coupon Note shall be the amount
calculated as provided in paragraph (e)(iii) above as though the references
therein to the date fixed for the redemption or the date upon which such
Zero Coupon Note becomes due and payable were replaced by references to
the date which is the earlier of: |
| |
| (i) |
the date on which all amounts due in respect of such Zero Coupon Note have been paid; and |
| |
|
| (ii) |
five days after the date on which the full amount
of the moneys payable in respect of such Zero Coupon Notes has been received
by the Agent or the Trustee and notice to that effect has been given to the Noteholders
in accordance with Condition 14. |
| |
|
| 8. |
Taxation |
| |
| All payments of principal and interest
in respect of the Notes, Receipts and Coupons by each relevant Obligor
will be made without withholding or deduction for or on account of any
present or future taxes or duties of whatever nature imposed or levied
by or on behalf of any Tax Jurisdiction unless such withholding or deduction
is required by law. In such event, each relevant Obligor will pay such
additional amounts as shall be necessary in order that the net amounts
received by the holders of the Notes, Receipts or Coupons after such withholding
or deduction shall equal the respective amounts of principal and interest
which would otherwise have been receivable in respect of the Notes, Receipts
or Coupons, as the case may be, in the absence of such requirement to make
such withholding or deduction; except that no such additional amounts shall
be payable with respect to any Note, Receipt or Coupon presented for payment: |
| |
| (i) |
by or on behalf of a holder who is liable for such
taxes or duties in respect of such Note, Receipt or Coupon by reason of his having
some connection with a Tax Jurisdiction other than the mere holding of such Note,
Receipt or Coupon; or |
| |
|
| (ii) |
by or on behalf of a holder who would have been able to avoid such withholding or deduction (i) by presenting any form or certificate or (ii) by making a declaration of non-residence or other similar claim for exemption to the relevant tax authority; or |
| |
|
| (iii) |
more than 30 days after the Relevant Date (as defined below) except to the extent that the holder thereof would have been entitled to an additional amount on presenting the same for payment on such thirtieth day assuming that day to have been a Payment Day (as defined in Condition 6(e)); or |
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| (iv) |
where such withholding or deduction is imposed on
a payment to an individual and is required to be made pursuant to any law implementing
or complying with, or introduced in order to conform to European Union Directive
2003/48/EC or any other directive on the taxation of savings income implementing
the conclusions of the ECOFIN Council meeting of 26-27 November 2000; or |
| |
|
| (v) |
by or on behalf of a holder who would have been able to avoid such withholding or deduction by presenting such Note, Receipt or Coupon to another Paying Agent in a Member State of the European Union. |
As used herein:
| (A) |
"Tax Jurisdiction" means the United Kingdom or any political subdivision or any authority thereof or therein having power to tax; and |
| |
|
| (B) |
the "Relevant Date" means the date on which such payment first becomes due, except that, if the full amount of the moneys payable has not been duly received by the Agent or the Trustee on or prior to such due date, it means the date on which, the full amount of such moneys having been so received, notice to that effect is duly given to the Noteholders in accordance with Condition 14. |
Any reference in these Conditions to principal or interest shall be deemed also to refer to any additional amounts which may be payable under this Condition or any undertakings given in addition thereto or in substitution thereof pursuant to the Trust Deed.
| 9. |
Prescription |
| |
| The Notes, Receipts and Coupons
will become void unless presented for payment within a period of 10 years
(in the case of principal) and five years (in the case of interest) after
the Relevant Date (as defined in Condition 8) therefor. |
There shall not be included in any
Coupon sheet issued on exchange of a Talon any Coupon the claim for payment
in respect of which would be void pursuant to this Condition or Condition
6(b) or any Talon which would be void pursuant to Condition 6(b).
| 10. |
Events of Default |
| |
| If any of the following events
(each an "Event of Default") occurs the Trustee at its discretion
may, and if so requested in writing by holders of at least one-quarter
in nominal amount of the Notes then outstanding or if so directed by an
Extraordinary Resolution of the Noteholders shall (subject to being indemnified
to its satisfaction), give notice to each relevant Obligor that the Notes
are, and they shall thereupon immediately become, due and repayable at
their Early Redemption Amount (as described in Condition 7(e)) together
with accrued interest as provided in the Trust Deed: |
| |
| (i) |
there is failure by any relevant Obligor to pay any principal or interest payable on any of the Notes within 15 days of its due date; or |
| |
|
| (ii) |
any relevant Obligor defaults in the performance or observance of any of its other obligations set out in the Notes or the Trust Deed which default is in the opinion of the Trustee incapable of remedy or, if in the opinion of the Trustee capable of remedy, is not in the opinion of the Trustee remedied within 30 days (or such longer period as the Trustee may permit) after notice of such default shall have been given to each relevant Obligor by the Trustee requiring the same to be remedied; or |
| |
|
| (iii) |
any holder or trustee for the holders of any Capital
Markets Indebtedness of any relevant Obligor amounting in aggregate to not less
than £25,000,000
or its equivalent in any other currency shall demand premature repayment thereof
following a default or enforces any security therefor or any relevant Obligor
defaults (after whichever is the longer of any originally applicable grace period
and 30 days after the due date) in the repayment of any such Capital Markets
Indebtedness at the maturity thereof or any guarantee or indemnity given by any
relevant Obligor in respect of any Capital Markets Indebtedness of any third
party amounting in aggregate to not less than £25,000,000 or its equivalent
in any other currency shall not be honoured (after whichever is the longer of
any
originally applicable grace period and 30 days after the due date) when due and
called upon, unless, in any of the above cases, in the opinion of the Trustee,
the Obligor is contesting in good faith and by appropriate proceedings that such
amounts are due; or |
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| (iv) |
any relevant Obligor becomes insolvent or is unable
to pay its debts within the meaning of section 123(1)(e) or section 123(2) of
the Insolvency ▇▇▇ ▇▇▇▇ of the United Kingdom or applies for or consents to or
suffers the appointment of an administrator, liquidator or administrative or
other receiver of the whole or any material part of its undertaking, property,
assets or revenues or takes any proceedings under any law for a readjustment
or deferment of its obligations or any part of them or makes or enters into a
general assignment or an arrangement or composition with or for the benefit of
its creditors (otherwise than, with the prior consent of the Trustee, for the
purposes of consolidation, amalgamation, merger or reconstruction or any other
process the result of which will be that all or part of such Obligor's assets
and undertaking will be transferred to another solvent entity); or |
| |
|
| (v) |
an order is made or an effective resolution passed
for winding-up of any relevant Obligor (otherwise than, with the prior consent
of the Trustee, for the purposes of consolidation, amalgamation, merger or reconstruction
or any other process the result of which will be that all or part of such Obligor's
assets and undertaking will be transferred to another solvent entity); or |
| |
|
| (vi) |
for any reason the applicable Guarantee ceases, or is claimed by any applicable guarantor not, to be in full force and effect; or |
| |
|
| (vii) |
Cadbury Schweppes ceases or threatens to cease to
carry on the whole or substantially the whole of its business save for the purposes
of reconstruction, union, transfer, merger or amalgamation which is effected
with the prior written consent of the Trustee or which is approved by an Extraordinary
Resolution of the Noteholders, |
provided that, in the case of each
of paragraphs (ii), (iii), (iv) and (vii) above, the Trustee shall have certified
that, in its opinion, such event is materially prejudicial to the interests
of the Noteholders.
"Capital Markets Indebtedness" means any loan or other indebtedness of any person which is in the form of or represented by any bonds, notes, depositary receipts or other securities for the time being quoted or listed, with the agreement of the issuer, on any stock exchange.
| 11. |
Replacement of Notes, Receipts, Coupons and Talons |
| |
| Should any Note, Receipt, Coupon
or Talon be lost, stolen, mutilated, defaced or destroyed, it may be replaced
at the specified office of the Agent upon payment by the claimant of such
costs and expenses as may be incurred in connection therewith and on such
terms as to evidence and indemnity as the relevant Issuer may reasonably
require. Mutilated or defaced Notes, Receipts, Coupons or Talons must be
surrendered before replacements will be issued. |
| |
| 12. |
Paying Agents |
| |
| The names of the initial Paying
Agents and their initial specified offices are set out below. |
| |
| The relevant Issuer and (as the
case may be) any other relevant Obligors are entitled (with the prior written
consent of the Trustee) to vary or terminate the appointment of any Paying
Agent and/or appoint additional or other Paying Agents and/or approve any
change in the specified office through which any Paying Agent acts, provided
that: |
| |
| (i) |
there will at all times be an Agent; |
| |
|
| (ii) |
so long as the Notes are listed on any stock exchange, or admitted to listing by any other relevant authority, there will at all times be a Paying Agent with a specified office in such place as may be required by the rules and regulations of the relevant stock exchange or other relevant authority; |
| |
|
| (iii) |
there will at all times be a Paying Agent with a specified office outside the United Kingdom; |
| |
|
| (iv) |
if the Trustee requests, there will be appointed by the relevant Issuer, a Paying Agent outside the European Union; and |
| |
|
|
(v) |
if and when any law implementing or complying with,
or introduced in order to conform to, European Union Directive 2003/48/EC or
any
other Directive on the taxation of savings income implementing the conclusions
of the ECOFlN Council meeting of 26-27 November 2000 is introduced, the relevant
Issuer and (as the case may be) any other relevant Obligors will ensure |
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| |
that they maintain a Paying
Agent in a Member State of the European Union that will not be obliged
to withhold or deduct tax pursuant to any such law or Directive (if there
is such a Member State). |
In addition, the relevant Issuer
and (as the case may be) any other relevant Obligor(s) shall forthwith appoint
a Paying Agent having a specified office in New York City in the circumstances
described in Condition 6(d). Any variation, termination, appointment or change
shall only take effect (other than in the case of insolvency, when it shall
be of immediate effect) after not less than 30 nor more than 45 days' prior
notice thereof shall have been given to the Noteholders in accordance with
Condition 14.
In acting under the Agency Agreement,
the Paying Agents act solely as agents of the relevant Issuer and (as the
case may be) any other relevant Obligors and, in certain circumstances specified
therein, of the Trustee and do not assume any obligation to, or relationship
of agency or trust with, any Noteholders, Receiptholders or Couponholders.
The Agency Agreement contains provisions permitting any entity into which
any Paying Agent is merged or converted or with which it is consolidated
or to which it transfers all or substantially all of its assets to become
the successor paying agent.
| 13. |
Exchange of Talons |
| |
| On and after the Interest Payment
Date on which the final Coupon comprised in any Coupon sheet matures,
the Talon (if any) forming part of such Coupon sheet may be surrendered
at the specified office of the Agent or any other Paying Agent in exchange
for a further Coupon sheet including (if such further Coupon sheet does
not include Coupons to (and including) the final date for the payment
of interest due in respect of the Note to which it appertains) a further
Talon, subject to the provisions of Condition 9. |
| |
| 14. |
Notices |
| |
| All notices regarding the Notes
will be deemed to be validly given if published in a leading English
language daily newspaper of general circulation in London. It is expected
that such publication will be made in the Financial Times in London.
The relevant Issuer shall also ensure that notices are duly published
in a manner which complies with the rules and regulations of any stock
exchange or other relevant authority on which the Notes are for the time
being listed or by which they have been admitted to listing. Any such
notice will be deemed to have been given on the date of the first publication
or, where required to be published in more than one newspaper, on the
date of the first publication in all required newspapers. If publication
as provided above is not practicable, notice will be given in such other
manner, and will be deemed to have been given on such date, as the Trustee
may approve. |
Until such time as any definitive
Notes are issued, there may, so long as any Global Notes representing the
Notes are held in their entirety on behalf of Euroclear and/or Clearstream,
Luxembourg, be substituted for such publication in such newspaper(s) the
delivery of the relevant notice to Euroclear and/or Clearstream, Luxembourg
for communication by them to the holders of the Notes and, in addition, for
so long as any Notes are listed on a stock exchange or have been admitted
to listing by another relevant authority and the rules of that stock exchange
or other relevant authority so require, such notice will be published in
a daily newspaper of general circulation in the place or places required
by that stock exchange or other relevant authority. Any such notice shall
be deemed to have been given to the holders of the Notes on the seventh day
after the day on which the said notice was given to Euroclear and/or Clearstream,
Luxembourg.
Notices to be given by any Noteholder
shall be in writing and given by lodging the same, together (in the case
of any Note in definitive form) with the relative Note or Notes, with the
Agent. Whilst any of the Notes is represented by a Global Note, such notice
may be given by any holder of a Note to the Agent through Euroclear and/or
Clearstream, Luxembourg, as the case may be, in such manner as the Agent
and Euroclear and/or Clearstream, Luxembourg, as the case may be, may approve
for this purpose.
| 15. |
Meetings of Noteholders,
Modification and Waiver |
| |
| The Trust Deed contains provisions
for convening meetings of the Noteholders to consider any matter affecting
their interests, including the sanctioning by Extraordinary Resolution
of a modification of any of these Terms and Conditions, the Notes, the
Receipts, the Coupons or any of the provisions of the Trust Deed. Such
a meeting may be convened by the relevant Issuer or the Trustee and shall
be convened by the relevant Issuer at the request of Noteholders holding
not less than five per cent. in nominal amount |
| |
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of the Notes for the time being remaining
outstanding. The quorum at any such meeting for passing an Extraordinary
Resolution is one or more persons holding or representing a clear majority
in nominal amount of the Notes for the time being outstanding, or at any
adjourned meeting one or more persons being or representing Noteholders whatever
the nominal amount of the Notes so held or represented, except that at any
meeting the business of which includes the modification of certain provisions
of these Terms and Conditions, the Notes, the Receipts, the Coupons or the
Trust Deed (including modifying the date of maturity of the Notes or any
date for payment of interest thereon, reducing or cancelling the amount of
principal or the rate of interest payable in respect of the Notes or altering
the currency of payment of the Notes, the Receipts or the Coupons), the quorum
shall be one or more persons holding or representing not less than two-thirds
in nominal amount of the Notes for the time being outstanding, or at any
adjourned such meeting one or more persons holding or representing not less
than one-third in nominal amount of the Notes for the time being outstanding.
An Extraordinary Resolution passed at any meeting of the Noteholders shall
be binding on all the Noteholders, whether or not they are present at the
meeting, and on all Receiptholders and Couponholders.
The Trustee may agree, without the
consent of the Noteholders, Receiptholders or Couponholders, to:
| (i) |
any modification (except as
mentioned above) of any of these Terms and Conditions, the Notes, the
Receipts, the Coupons or the Trust Deed which is not in the opinion of
the Trustee materially prejudicial to the interests of the Noteholders;
or |
| |
|
| (ii) |
any modification of any of
these Terms and Conditions, the Notes, the Receipts, the Coupons or the
Trust Deed which is of a formal, minor or technical nature or is made
to correct a manifest error or to comply with mandatory provisions of
the law. |
The Trustee may also agree, without
the consent of the Noteholders. Receiptholders or Couponholders, to the waiver
or authorisation of any breach or proposed breach of any of these Terms and
Conditions or any of the provisions of the Trust Deed or determine, without
any such consent as aforesaid, that any Event of Default or Potential Event
of Default (as defined in the Trust Deed) shall not be treated as such, which
in any such case is not, in the opinion of the Trustee, materially prejudicial
to the interests of the Noteholders.
In connection with the exercise by
it of any of its trusts, powers, authorities or discretions (including, but
without limitation, any modification, waiver, authorisation, determination
or substitution under Condition 18), the Trustee shall have regard to the
general interests of the
Noteholders as a class but shall
not have regard to any interests arising from circumstances particular to
individual Noteholders, Receiptholders or Couponholders (whatever their number)
and, in particular, but without limitation, shall not have regard to the
consequences of such exercise for individual Noteholders, Receiptholders
or Couponholders (whatever their number) resulting from their being for any
purpose domiciled or resident in, or otherwise connected with, or subject
to the jurisdiction of, any particular territory and the Trustee shall not
be entitled to require, nor shall any Noteholder, Receiptholder or Couponholder
be entitled to claim, from the relevant Issuer and (as the case may be) any
other relevant Obligor or any other person any indemnification or payment
in respect of any tax consequence of any such exercise upon individual Noteholders,
Receiptholders or Couponholders except, in the case of the relevant Issuer
and (as the case may be) any other relevant Obligor, to the extent provided
for in Condition 8 and/or any undertaking given in addition to, or in substitution
for, Condition 8 pursuant to the Trust Deed.
Any such modification, waiver, authorisation,
determination or substitution under Condition 18 shall be binding on the
Noteholders, the Receiptholders and the Couponholders and, unless the Trustee
otherwise agrees, any such modification or substitution shall be notified
to the Noteholders in accordance with Condition 14 as soon as practicable
thereafter.
| 16. |
Indemnification of the
Trustee and its contracting with any relevant Obligor |
| |
| The Trust Deed contains provisions
for the indemnification of the Trustee and for its relief from responsibility,
including provisions relieving it from taking action unless indemnified
to its satisfaction. |
The Trust Deed also contains provisions
pursuant to which the Trustee is entitled, inter alia, (i) to enter
into business transactions with any relevant Obligor and/or any of Cadbury
Schweppes' other Subsidiaries and to act as trustee for the holders of any
other securities issued or guaranteed by, or
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relating to, any relevant Obligor
and/or any of Cadbury Schweppes' other Subsidiaries, (ii) to exercise and
enforce its rights, comply with its obligations and perform its duties under
or in relation to any such transactions or, as the case may be, any such
trusteeship without regard to the interests of, or consequences for, the
Noteholders, Receiptholders or Couponholders, and (iii) to retain and not
be liable to account for any profit made or any other amount or benefit received
thereby or in connection therewith.
| 17. |
Further Issues |
| |
| The relevant Issuer shall be
at liberty from time to time without the consent of the Noteholders,
the Receiptholders or the Couponholders to create and issue further notes
having terms and conditions the same as the Notes or the same in all
respects save for the amount and date of the first payment of interest
thereon and so that the same shall be consolidated and form a single
Series with the outstanding Notes. |
| |
|
| 18. |
Substitution |
| |
| The Trustee may, without the
consent of the Noteholders, Receiptholders or Couponholders, agree with
Cadbury Schweppes to the substitution in place of Cadbury Schweppes in
its capacity as either Issuer or Guarantor (or of any previous substitute
under this Condition) of (i) a Successor in Business (as defined in the
Trust Deed) to Cadbury Schweppes or (ii) a Holding Company (as defined
in the Trust Deed) of Cadbury Schweppes or (iii) a Subsidiary of Cadbury
Schweppes which is acceptable to the Trustee, in each case subject to
the Trustee being satisfied that the interests of the Noteholders will
not be materially prejudiced thereby and certain other conditions set
out in the Trust Deed being complied with. |
The Trustee may, without the consent
of the Noteholders, Receiptholders or Couponholders, agree with CSF, CSI
and Cadbury Schweppes to the substitution in place of CSF or CSI (or of any
previous substitute under this Condition) of (i) another Subsidiary of Cadbury
Schweppes, (ii) any relevant Obligor or its Successor in Business (in which
case the Guarantee of such Obligor shall cease and determine), (iii) a Subsidiary
of a Holding Company of Cadbury Schweppes or its Successor in Business or
(iv) a Holding Company of Cadbury Schweppes or its Successor in Business
(in each of which cases (iii) and (iv) the Guarantee of Cadbury Schweppes
shall cease and determine if the Trustee is satisfied that the interests
of the Noteholders will not be materially prejudiced if they become holders
of Notes of such Subsidiary or Holding Company without the benefit of the
Guarantee of Cadbury Schweppes rather than if they were to remain holders
of Notes of CSF or, as the case may be, CSI with the benefit of the Guarantee
of Cadbury Schweppes), in each case subject to the Trustee being satisfied
that the interests of the Noteholders will not be materially prejudiced thereby
and certain other conditions set out in the Trust Deed being complied with.
| 19. |
Governing Law |
| |
| The Trust Deed (including the
Guarantee), the Notes, the Receipts and the Coupons are governed by,
and shall be construed in accordance with, English law. |
| |
|
| 20. |
Enforcement
and Rights of Third Parties |
| |
| At any time after the Notes shall
have become immediately due and repayable the Trustee may, at its discretion
and without further notice, take such proceedings against any relevant
Obligor as it may think fit to enforce repayment thereof together with
accrued interest (if any) and any other moneys payable pursuant to the
provisions of the Trust Deed, the Notes, the Receipts and the Coupons,
but it shall not be bound to take any such proceedings or any other action
in relation to the Trust Deed, the Notes, the Receipts or the Coupons
unless (i) it shall have been so directed by an Extraordinary Resolution
of the Noteholders or so requested in writing by the holders of at least
one-quarter in nominal amount of the Notes then outstanding, and (ii)
it shall have been indemnified to its satisfaction. |
| |
| No Noteholder, Receiptholder
or Couponholder shall be entitled to proceed directly against any Obligor
unless the Trustee, having become bound so to proceed, fails so to do
within a reasonable period and such failure is continuing. No rights
are conferred on any person under the Contracts (Rights of Third Parties)
▇▇▇ ▇▇▇▇ to enforce any term of this Note, but this does not affect any
right or remedy of any person which exists or is available apart from
that Act. |
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AGENT
JPMorgan Chase Bank
Trinity Tower
9 ▇▇▇▇▇▇ ▇▇▇▇ Street
London E1W 1YT
OTHER PAYING AGENT
▇.▇. ▇▇▇▇▇▇ Bank Luxembourg S.A.
▇, ▇▇▇ ▇▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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THE SECOND SCHEDULE
FORMS OF GLOBAL AND DEFINITIVE
NOTES, RECEIPTS, COUPONS AND TALONS
PART I
FORM OF TEMPORARY GLOBAL NOTE
[ANY UNITED STATES PERSON (AS
DEFINED IN THE INTERNAL REVENUE CODE OF THE UNITED STATES) WHO HOLDS THIS
OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME
TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a)
OF THE INTERNAL REVENUE CODE.]1
[CADBURY SCHWEPPES PUBLIC LIMITED
COMPANY
(the "Issuer")
(incorporated with limited liability in England and Wales with registered
number 52457)/
CADBURY SCHWEPPES FINANCE p.l.c.
(the "Issuer")
(incorporated with limited liability in England and Wales with registered
number 465012)/
CADBURY SCHWEPPES INVESTMENTS
plc
(the "Issuer")
(incorporated with limited liability in England and Wales with registered
number 01135043)]2
[Unconditionally and irrevocably
guaranteed by
CADBURY SCHWEPPES PUBLIC LIMITED COMPANY
("Cadbury Schweppes")
(incorporated with limited liability
in England and Wales with registered number 52457)
CADBURY SCHWEPPES FINANCE p.l.c.
("CSF")
(incorporated with limited liability in England and Wales with registered
number 465012)/
CADBURY SCHWEPPES INVESTMENTS
plc
("CSI")
(incorporated with limited liability in England and Wales with registered
number 01135043)]3
TEMPORARY GLOBAL NOTE
This Note is a Temporary Global Note
in respect of a duly authorised issue of Notes of the Issuer (the "Notes")
of the Nominal Amount, Specified Currency(ies) and Specified Denomination(s)
as are specified in the Pricing Supplement applicable to the Notes (the "Pricing
Supplement"), a copy of which is annexed hereto. References herein
to the Conditions shall be to the Terms and Conditions of the Notes as set
out in the First Schedule to the Trust Deed (as defined below) as supplemented,
replaced and modified by the Pricing Supplement but, in the event of any
conflict between the provisions of the Conditions and the information in
the Pricing Supplement, the Pricing Supplement will prevail. Words and expressions
defined in the Conditions shall bear the same meanings when
|
|
| 1 |
Include where the original maturity
of the Notes is more than 365 days. |
|
| 2 |
Delete as applicable. |
|
| 3 |
Delete where the relevant Issuer
is Cadbury Schweppes. Where the relevant Issuer is CSF or CSI, delete
as appropriate. |
|
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used in this Global Note. This Global
Note is issued subject to, and with the benefit of, the Conditions and a
Trust Deed (such Trust Deed as modified and/or supplemented and/or restated
from time to time, the "Trust Deed") dated 26th May, 1999
and made between [(inter alios)]1 the Issuer[, Cadbury
Schweppes and CSF as guarantors/Cadbury Schweppes and CSI as guarantors]2 and
The Law Debenture Trust Corporation p.1.c. as trustee for the holders of
the Notes.
The Issuer, subject as hereinafter
provided and subject to and in accordance with the Conditions and the Trust
Deed, promises to pay to the bearer hereof on each Instalment Date (if the
Notes are repayable in instalments) and on the Maturity Date and/or on such
earlier date(s) as all or any of the Notes represented by this Global Note
may become due and repayable in accordance with the Conditions and the Trust
Deed, the amount payable under the Conditions in respect of such Notes on
each such date and to pay interest (if any) on the nominal amount of the
Notes from time to time represented by this Global Note calculated and payable
as provided in the Conditions and the Trust Deed together with any other
sums payable under the Conditions and the Trust Deed, upon presentation and,
at maturity, surrender of this Global Note at the specified office of the
Agent at Trinity Tower, 9 ▇▇▇▇▇▇ ▇▇▇▇ Street, London E1W 1YT, England or
such other specified office as may be specified for this purpose in accordance
with the Conditions or at the specified office of any of the other Paying
Agents located outside the United States, its territories and possessions
(except as provided in the Conditions) from time to time appointed by the
Issuer [, Cadbury Schweppes and CSF/, Cadbury Schweppes and CSI]3 in
respect of the Notes. On any redemption or payment of an instalment or interest
being made in respect of, or purchase and cancellation of, any of the Notes
represented by this Global Note details of such redemption, payment or purchase
and cancellation (as the case may be) shall be entered by or on behalf of
the Issuer in Schedule One hereto and the relevant space in Schedule One
hereto recording any such redemption, payment or purchase and cancellation
(as the case may be) shall be signed by or on behalf of the Issuer. Upon
any such redemption, payment of an instalment or purchase and cancellation
the nominal amount of this Global Note and the Notes represented by this
Global Note shall be reduced by the nominal amount of such Notes so redeemed
or purchased and cancelled or the amount of such instalment. The nominal
amount from time to time of this Global Note and of the Notes represented
by this Global Note following any such redemption, payment of an instalment
or purchase and cancellation as aforesaid or any exchange as referred to
below shall be the nominal amount most recently entered in the relevant column
in Part II, III or IV of Schedule One hereto or in Schedule Two hereto.
Payments of principal and interest
(if any) due prior to the Exchange Date (as defined below) will only be made
to the bearer hereof to the extent that there is presented to the Agent by
Euroclear Bank S.A./N.V., as operator of the Euroclear System ("Euroclear")
or Clearstream, Luxembourg a certificate in or substantially in the form
set out in Part VII of the Second Schedule to the Trust Deed to the effect
that it has received from or in respect of a person entitled to a particular
nominal amount of the Notes represented by this Global Note (as shown by
its records) a certificate in or substantially in the form of Certificate "A" as
set out in Part VII of the Second Schedule to the Trust Deed. The bearer
of this Global Note will not (unless, upon due presentation of this Global
Note for exchange, delivery of the appropriate number of Definitive Notes
(together, if applicable, with the Receipts, Coupons and Talons appertaining
thereto in or substantially in the forms set out in Parts III, IV, V and
VI of the Second Schedule to the Trust Deed) or, as the case may be, issue
and delivery (or, as the case may be, endorsement) of the Permanent Global
Note is improperly withheld or refused and such withholding or refusal is
continuing at the relevant payment date) be entitled to receive any payment
hereon due on or after the Exchange Date.
|
| 1 |
Include where the relevant Issuer
is Cadbury Schweppes. |
| 2 |
Delete where the relevant Issuer
is Cadbury Schweppes. Where the relevant Issuer is CSF or CSI, delete
as appropriate. |
| 3 |
Delete where the relevant Issuer
is Cadbury Schweppes. Where the relevant Issuer is CSF or CSI, delete
as appropriate. |
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On or after the date (the "Exchange
Date") which is the later of (i) 40 days after the Issue Date
and (ii) 40 days after the completion of the distribution of the Notes
as certified by the relevant Dealer(s) (in the case of a non-syndicated
issue) or the relevant lead manager (in the case of a syndicated issue),
this Global Note may be exchanged (free of charge) in whole or in part
for, as specified in the Pricing Supplement, either Definitive Notes and
(if applicable) Receipts, Coupons and/or Talons (on the basis that all
the appropriate details have been included on the face of such Definitive
Notes and (if applicable) Receipts, Coupons and/or Talons and the relevant
information supplementing, replacing or modifying the Conditions appearing
in the Pricing Supplement has been endorsed on or attached to such Definitive
Notes) or a Permanent Global Note in or substantially in the form set out
in Part II of the Second Schedule to the Trust Deed (together with the
Pricing Supplement attached thereto) upon notice being given by Euroclear
and/or Clearstream, Luxembourg acting on the instructions of any holder
of an interest in this Global Note and subject, in the case of Definitive
Notes, to such notice period as is specified in the Pricing Supplement.
If Definitive Notes and (if applicable) Receipts, Coupons and/or Talons
have already been issued in exchange for all the Notes represented for
the time being by the Permanent Global Note, then this Global Note may
only thereafter be exchanged for Definitive Notes and (if applicable) Receipts,
Coupons and/or Talons pursuant to the terms hereof. Presentation of this
Global Note for exchange shall be made by the bearer hereof on any day
(other than a Saturday or Sunday) on which banks are open for business
in London at the office of the Agent specified above. The Issuer shall
procure that Definitive Notes or (as the case may be) the Permanent Global
Note shall be so issued and delivered in exchange for only that portion
of this Global Note in respect of which there shall have been presented
to the Agent by Euroclear or Clearstream, Luxembourg a certificate in or
substantially in the form set out in Part VII of the Second Schedule to
the Trust Deed to the effect that it has received from or in respect of
a person entitled to a particular nominal amount of the Notes represented
by this Global Note (as shown by its records) a certificate in or substantially
in the form of Certificate "A" as set out in Part VII of the
Second Schedule to the Trust Deed. On an exchange of the whole of this
Global Note, this Global Note shall be surrendered to the Agent. On an
exchange of part only of this Global Note, details of such exchange shall
be entered by or on behalf of the Issuer in Schedule Two hereto and the
relevant space in Schedule Two hereto recording such exchange shall be
signed by or on behalf of the Issuer, whereupon the nominal amount of this
Global Note and the Notes represented by this Global Note shall be reduced
by the nominal amount of this Global Note so exchanged. On any exchange
of this Global Note for a Permanent Global Note, details of such exchange
shall be entered by or on behalf of the Issuer in Schedule Two to the Permanent
Global Note and the relevant space in Schedule Two thereto recording such
exchange shall be signed by or on behalf of the Issuer.
Until the exchange of the whole of
this Global Note as aforesaid, the bearer hereof shall in all respects (except
as otherwise provided herein or in the Trust Deed) be entitled to the same
benefits as if he were the bearer of Definitive Notes and the relative Receipts,
Coupons and/or Talons (if any) in the form(s) set out in Parts III, IV, V
and VI (as applicable) of the Second Schedule to the Trust Deed.
Each person (other than Euroclear
or Clearstream, Luxembourg) who is for the time being shown in the records
of Euroclear or Clearstream, Luxembourg as the holder of a particular nominal
amount of the Notes represented by this Global Note (in which regard any
certificate or other document issued by Euroclear or Clearstream, Luxembourg
as to the nominal amount of such Notes standing to the account of any person
shall be conclusive and binding for all purposes save in the case of manifest
error) shall be treated by the Issuer, [Cadbury Schweppes, CSF,/Cadbury Schweppes,
CSI,]1 the Trustee, the Agent and any other Paying Agent as the
holder of such nominal amount of such Notes for all purposes other than with
respect to the payment of principal and interest on such nominal amount of
such Notes, the right to which shall be vested, as against the Issuer [,
Cadbury Schweppes
|
| 1 |
Delete where the relevant Issuer is Cadbury
Schweppes. Where the relevant Issuer is CSF or CSI, delete as appropriate. |
61
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and CSF/, Cadbury Schweppes and CSI]1,
solely in the bearer of this Global Note in accordance with and subject to
the terms of this Global Note and the Trust Deed.
This Global Note is governed by,
and shall be construed in accordance with, English law.
This Global Note shall not be valid
unless authenticated by JPMorgan Chase Bank, London office, as Agent.
IN WITNESS whereof the Issuer has
caused this Global Note to be signed manually or in facsimile by a person
duly authorised on its behalf.
Issued as of .............................................
[CADBURY SCHWEPPES PUBLIC LIMITED
COMPANY/
CADBURY SCHWEPPES FINANCE p.l.c./
CADBURY SCHWEPPES INVESTMENTS plc]2
| By: .............................................. |
| |
Duly Authorised |
Authenticated without recourse, warranty
or liability by
JPMorgan Chase Bank,
London office,
as Agent.
| By: .................................................... |
| |
Authorised Officer |
| |
|
|
| 1 |
Delete where the relevant Issuer is Cadbury
Schweppes. Where the relevant Issuer is CSF or CSI, delete as appropriate. |
| 2 |
Delete as applicable. |
62
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Schedule One
PART I
INTEREST PAYMENTS
| Date made |
|
Interest Payment
Date |
|
Total amount of
interest payable |
|
Amount of interest
paid |
|
Confirmation of
payment by or on behalf of the Issuer |
|
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63
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PART II
PAYMENT OF INSTALMENT AMOUNTS
| Date made |
|
Total amount of
Instalment Amounts payable |
|
Amount of Instalment
Amounts paid |
|
Remaining nominal
amount of this Global Note following such payment* |
|
Confirmation of
payment by or on behalf of the Issuer |
|
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* See most recent entry in Part II,
III or IV or Schedule Two in order to determine this amount.
64
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PART III
REDEMPTIONS
| Date made |
|
Total amount of
principal payable |
|
Amount of principal
paid |
|
Remaining nominal
amount of this Global Note following such redemption* |
|
Confirmation of
redemption by or on behalf of the Issuer |
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* See most recent entry in Part II,
III or IV or Schedule Two in order to determine this amount.
65
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PART IV
PURCHASES AND CANCELLATIONS
| Date made |
|
Part of nominal
amount of this Global Note purchased and cancelled |
|
Remaining nominal
amount of this Global Note following such purchase and cancellation* |
|
Confirmation of
purchase and cancellation by or on behalf of the Issuer |
|
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* See most recent entry in Part II,
III or IV or Schedule Two in order to determine this amount.
66
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Schedule Two
EXCHANGES
FOR DEFINITIVE NOTES OR PERMANENT GLOBAL NOTE
The following exchanges of a part
of this Global Note for Definitive Notes or a part of a Permanent Global
Note have been made:
| Date made |
|
Nominal amount of
this Global Note exchanged for Definitive Notes or a part of a Permanent
Global Note |
|
Remaining nominal
amount of this Global Note following such exchange* |
|
Notation made by
or on behalf of the Issuer |
|
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* See most recent entry in Part II,
III or IV of Schedule One or in this Schedule Two in order to determine this
amount.
67
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PART II
FORM OF PERMANENT GLOBAL NOTE
[ANY UNITED STATES PERSON (AS
DEFINED IN THE INTERNAL REVENUE CODE OF THE UNITED STATES) WHO HOLDS THIS
OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME
TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a)
OF THE INTERNAL REVENUE CODE.]1
[CADBURY SCHWEPPES PUBLIC LIMITED
COMPANY
(the "Issuer")
(incorporated with limited liability in England and Wales with registered
number 52457)/
CADBURY SCHWEPPES FINANCE p.l.c.
(the "Issuer")
(incorporated with limited liability in England and Wales with registered
number 465012)
CADBURY SCHWEPPES INVESTMENTS
plc
(the "Issuer")
(incorporated with limited liability in England and Wales with registered
number 01135043)]2
[Unconditionally and irrevocably
guaranteed by
CADBURY SCHWEPPES PUBLIC LIMITED COMPANY
("Cadbury Schweppes")
(incorporated with limited liability
in England and Wales with registered number 52457)
CADBURY SCHWEPPES FINANCE p.l.c.
("CSF")
(incorporated with limited liability
in England and Wales with registered number 465012)
CADBURY SCHWEPPES INVESTMENTS
plc
("CSI")
(incorporated with limited liability
in England and Wales with registered number 01135043)]3
PERMANENT GLOBAL NOTE
This Note is a Permanent Global Note
in respect of a duly authorised issue of Notes of the Issuer (the "Notes")
of the Nominal Amount, Specified Currency(ies) and Specified Denomination(s)
as are specified in the Pricing Supplement applicable to the Notes (the "Pricing
Supplement"), a copy of which is annexed hereto. References herein
to the Conditions shall be to the Terms and Conditions of the Notes as set
out in the First Schedule to the Trust Deed (as defined below) as supplemented,
replaced and modified by the Pricing Supplement but, in the event of any
conflict between the provisions of the Conditions and the information in
the Pricing Supplement, the Pricing Supplement will prevail. Words and expressions
defined in the Conditions shall bear the same meanings when used in this
Global Note. This Global Note is issued subject to, and with the benefit
of, the Conditions and a Trust Deed (such Trust Deed as modified and/or supplemented
and/or restated from
|
|
| 1 |
Include where the original maturity
of the Notes is more than 365 days. |
|
| 2 |
Delete as applicable. |
|
| 3 |
Delete where the relevant Issuer
is Cadbury Schweppes. Where the relevant Issuer is CSF or CSI, delete
as appropriate. |
|
68
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time to time, the "Trust
Deed") dated 26th May, 1999 and made between [(inter alios)1 the
Issuer[, Cadbury Schweppes and CSF as guarantors/, Cadbury Schweppes and
CSI as guarantors]2 and The Law Debenture Trust Corporation
p.l.c. as trustee for the holders of the Notes.
The Issuer, subject to and in accordance
with the Conditions and the Trust Deed, promises to pay to the bearer hereof
on each Instalment Date (if the Notes are repayable in instalments) and on
the Maturity Date and/or on such earlier date(s) as all or any of the Notes
represented by this Global Note may become due and repayable in accordance
with the Conditions and the Trust Deed, the amount payable under the Conditions
in respect of such Notes on each such date and to pay interest (if any) on
the nominal amount of the Notes from time to time represented by this Global
Note calculated and payable as provided in the Conditions and the Trust Deed
together with any other sums payable under the Conditions and the Trust Deed,
upon presentation and, at maturity, surrender of this Global Note at the
specified office of the Agent at Trinity Tower, 9 ▇▇▇▇▇▇ ▇▇▇▇ Street, London
E1W 1YT, England or such other specified office as may be specified for this
purpose in accordance with the Conditions or at the specified office of any
of the other Paying Agents located outside the United States, its territories
and possessions (except as provided in the Conditions) from time to time
appointed by the Issuer [, Cadbury Schweppes and CSF/, Cadbury Schweppes
and CSI]3 in respect of the Notes. On any redemption or payment
of an instalment or interest being made in respect of, or purchase and cancellation
of, any of the Notes represented by this Global Note details of such redemption,
payment or purchase and cancellation (as the case may be) shall be entered
by or on behalf of the Issuer in Schedule One hereto and the relevant space
in Schedule One hereto recording any such redemption, payment or purchase
and cancellation (as the case may be) shall be signed by or on behalf of
the Issuer. Upon any such redemption, payment of an instalment or purchase
and cancellation the nominal amount of this Global Note and the Notes represented
by this Global Note shall be reduced by the nominal amount of such Notes
so redeemed or purchased and cancelled or the amount of such instalment.
The nominal amount from time to time of this Global Note and of the Notes
represented by this Global Note following any such redemption, payment of
an instalment or purchase and cancellation as aforesaid or any exchange as
referred to below shall be the nominal amount most recently entered in the
relevant column in Part II, III or IV of Schedule One hereto or in Schedule
Two hereto.
If the Notes represented by this
Global Note were, on issue, represented by a Temporary Global Note then on
any exchange of such Temporary Global Note for this Global Note or any part
hereof, details of such exchange shall be entered by or on behalf of the
Issuer in Schedule Two hereto and the relevant space in Schedule Two hereto
recording such exchange shall be signed by or on behalf of the Issuer, whereupon
the nominal amount of this Global Note and the Notes represented by this
Global Note shall be increased by the nominal amount of the Temporary Global
Note so exchanged.
This Global Note may be exchanged
(free of charge) in whole, but not in part, for Definitive Notes and (if
applicable) Receipts, Coupons and/or Talons in or substantially in the forms
set out in Parts III, IV, V and VI of the Second Schedule to the Trust Deed
(on the basis that all the appropriate details have been included on the
face of such Definitive Notes and (if applicable) Receipts, Coupons and/or
Talons and the relevant information supplementing, replacing or modifying
the Conditions appearing in the Pricing Supplement has been endorsed on or
attached to such Definitive Notes) either, as specified in the applicable
Pricing Supplement:
| (i) |
upon not less than 60 days'
written notice being given to the Agent by Euroclear Bank S.A./N.V. as
operator of the Euroclear System ("Euroclear") and/or
Clearstream Banking |
| |
|
|
|
| 1 |
Include where the relevant Issuer
is Cadbury Schweppes. |
|
| 2 |
Delete where the relevant Issuer
is Cadbury Schweppes. Where the relevant Ilssuer is CSF or CSI, delete
as appropriate. |
|
| 3 |
Delete where the relevant Issuer
is Cadbury Schweppes. Where the relevant Issuer is CSF or CSI, delete
as appropriate. |
|
69
Back to Contents
| |
société anonyme
("Clearstream, Luxembourg"), (acting on the instructions
of any holder of an interest in this Global Note); or |
| |
|
| (ii) |
only upon the occurrence of
an Exchange Event |
| |
|
| |
An "Exchange Event" means: |
| |
|
| |
(1) |
an Event of Default has occurred
and is continuing; |
| |
|
|
| |
(2) |
the Issuer has been notified
that both Euroclear and Clearstream, Luxembourg have been closed for
business for a continuous period of 14 days (other than by reason of
holiday, statutory or otherwise) or have announced an intention permanently
to cease business or have in fact done so and no alternative clearing
system satisfactory to the Trustee is available; or |
| |
|
|
| |
(3) |
the Issuer has or will become
obliged to pay additional amounts as provided for or referred to in Condition
8 which would not be required were the Notes in definitive form. |
| |
|
|
| Upon the occurrence of an Exchange
Event: |
| |
|
|
| |
(i) |
the Issuer will promptly give
notice to Noteholders in accordance with Condition 14 of the occurrence
of such Exchange Event; and |
| |
|
|
| |
(ii) |
Euroclear and/or Clearstream,
Luxembourg (acting on the instructions of any holder of an interest in
this Global Note) or the Trustee may give notice to the Agent requesting
exchange and, in the event of the occurrence of an Exchange Event as
described in (3) above, the Issuer may also give notice to the Agent
requesting exchange. |
Any such exchange shall occur on
a date specified in the notice not later than 60 days after the date of receipt
of the first relevant notice by the Agent.
The first notice requesting exchange
in accordance with the above provisions shall give rise to the issue of Definitive
Notes for the total nominal amount of Notes represented by this Global Note.
Any such exchange as aforesaid will
be made upon presentation of this Global Note by the bearer hereof on any
day (other than a Saturday or Sunday) on which banks are open for business
in London at the office of the Agent specified above.
The aggregate nominal amount of Definitive
Notes issued upon an exchange of this Global Note will be equal to the aggregate
nominal amount of this Global Note. Upon exchange of this Global Note for
Definitive Notes, the Agent shall cancel it or procure that it is cancelled.
Until the exchange of the whole of
this Global Note as aforesaid, the bearer hereof shall (subject as provided
in the next paragraph) in all respects be entitled to the same benefits as
if he were the bearer of Definitive Notes and the relative Receipts, Coupons
and/or Talons (if any) in the form(s) set out in Parts III, IV, V and VI
(as applicable) of the Second Schedule to the Trust Deed.
Each person (other than Euroclear
or Clearstream, Luxembourg) who is for the time being shown in the records
of Euroclear or Clearstream, Luxembourg as the holder of a particular nominal
amount of the Notes represented by this Global Note (in which regard any
certificate or other document issued
70
Back to Contents
by Euroclear or Clearstream, Luxembourg
as to the nominal amount of such Notes standing to the account of any person
shall be conclusive and binding for all purposes save in the case of manifest
error) shall be treated by the Issuer, [Cadbury Schweppes, CSF,/Cadbury Schweppes,
CSI,]1 the Trustee, the Agent and any other Paying Agent as the
holder of such nominal amount of such Notes for all purposes other than with
respect to the payment of principal and interest on such nominal amount of
such Notes, the right to which shall be vested, as against the Issuer [,
Cadbury Schweppes and CSF/, Cadbury Schweppes and CSI]2, solely
in the bearer of this Global Note in accordance with and subject to the terms
of this Global Note and the Trust Deed.
This Global Note is governed by,
and shall be construed in accordance with, English law.
This Global Note shall not be valid
unless authenticated by JPMorgan Chase Bank, London office, as Agent.
IN WITNESS whereof the Issuer has
caused this Global Note to be signed manually or in facsimile by a person
duly authorised on its behalf.
Issued as of ...................................
[CADBURY SCHWEPPES PUBLIC LIMITED
COMPANY/
CADBURY SCHWEPPES FINANCE p.l.c./
CADBURY SCHWEPPES INVESTMENTS
plc]3
| By: |
........................................
Duly Authorised
|
Authenticated without recourse, warranty
or liability by
JPMorgan Chase Bank,
London office,
as Agent.
| By: |
.............................................
Authorised
Officer
|
| |
|
|
| 1 |
Delete where the relevant Issuer
is Cadbury Schweppes. Where the relevant Issuer is CSF or CSI, delete
as appropriate. |
|
| 2 |
Delete where the relevant Issuer
is Cadbury Schweppes. Where the relevant Issuer is CSF or CSI, delete
as appropriate. |
|
| 3 |
Delete as applicable. |
|
71
Back to Contents
| Schedule One |
| |
| PART I |
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| INTEREST PAYMENTS |
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| Date made |
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Interest Payment
Date |
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Total amount of
interest payable |
|
Amount of interest
paid |
|
Confirmation of
payment by or on behalf of the Issuer |
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72
Back to Contents
| PART II |
| |
| PAYMENT OF
INSTALMENT AMOUNTS |
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| Date made |
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Total amount of
Instalment Amounts payable |
|
Amount of Instalment
Amounts paid |
|
Nominal amount of
this Global Note following such payment* |
|
Confirmation of
payment by or on behalf of the Issuer |
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* See
most recent entry in Part
II, III or IV or Schedule Two in order to determine this amount.
73
Back to Contents
| PART III |
| |
| REDEMPTION |
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| Date made |
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Total amount of
principal payable |
|
Amount of principal
paid |
|
Remaining nominal
amount of this Global Note following such redemption* |
|
Confirmation of
redemption by or on behalf of the Issuer |
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* See most recent
entry in Part II, III or IV or Schedule
Two in order to determine
this amount.
74
Back to Contents
PART IV
PURCHASES AND CANCELLATIONS
| Date made |
|
Part of nominal
amount of this Global Note purchased and cancelled |
|
Remaining nominal
amount of this Global Note following such purchase and cancellation* |
|
Confirmation of
purchase and cancellation by or on behalf of the Issuer |
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* See
most recent entry in Part
II, III or IV or
Schedule Two in order to determine this amount.
75
Back to Contents
Schedule Two
EXCHANGES
(only applicable where the Notes
represented by this Global Note were, on issue, represented by a Temporary
Global Note)
| Date made |
|
Nominal amount of Temporary
Global Note exchanged for this Global Note |
|
Nominal amount of this Global
Note following such exchange* |
|
Notation made by or on behalf
of the Issuer |
|
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* See
most recent entry in Part II,
III or IV of Schedule One or in this
Schedule Two in
order to determine this amount.
76
Back to Contents
PART III
FORM OF DEFINITIVE NOTE
[ANY UNITED STATES PERSON (AS
DEFINED IN THE INTERNAL REVENUE CODE OF THE UNITED STATES) WHO HOLDS THIS
OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME
TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a)
OF THE INTERNAL REVENUE CODE.]1
[CADBURY SCHWEPPES PUBLIC LIMITED
COMPANY
(the "Issuer")
(incorporated with limited liability in England and Wales with registered
number 52457)/
CADBURY SCHWEPPES FINANCE p.l.c.
(the "Issuer")
(incorporated with limited liability in England and Wales with registered
number 465012)/
CADBURY SCHWEPPES INVESTMENTS
plc
(the "Issuer")
(incorporated with limited liability in England and Wales with registered
number 01135043)]2
[Unconditionally and irrevocably
guaranteed by
CADBURY SCHWEPPES PUBLIC LIMITED COMPANY
("Cadbury Schweppes")
(incorporated with limited liability
in England and Wales with registered number 52457)
CADBURY SCHWEPPES FINANCE p.l.c.
("CSF")
(incorporated with limited liability
in England and Wales with registered number 465012)/
CADBURY SCHWEPPES INVESTMENTS
plc
("CSI")
(incorporated with limited liability
in England and Wales with registered number 01135043)]3
[Specified Currency and Nominal
Amount of Tranche]
NOTES DUE
[Year of Maturity]
This Note is one of a Series of Notes
of [Specified Currency(ies) and Specified Denomination(s)] each of the Issuer
("Notes"). References herein to the Conditions shall be
to the Terms and Conditions [endorsed hereon/set out in the First Schedule
to the Trust Deed (as defined below) which shall be incorporated by reference
herein and have effect as if set out herein] as supplemented, replaced and
modified by the relevant information (appearing in the Pricing Supplement
(the "Pricing Supplement")) endorsed hereon but, in the
event of any conflict between the provisions of the said Conditions and such
information in the Pricing Supplement, such information will prevail. Words
and expressions defined in the Conditions shall bear the same meanings when
used in this Note. This Note is issued subject to, and with the benefit of,
the Conditions and a Trust Deed (such Trust Deed as modified and/or supplemented
and/or restated from time to time, the "Trust Deed")
|
|
| 1 |
Include where the original maturity
of the Notes is more than 365 days. |
|
| 2 |
Delete as applicable. |
|
| 3 |
Delete where the relevant Issuer
is Cadbury Schweppes. Where the relevant Issuer is CSF or CSI, delete
as appropriate. |
|
77
Back to Contents
dated 26th May, 1999 and made between
[(inter alios)]l the Issuer[, Cadbury Schweppes and CSF
as guarantors], Cadbury Schweppes and CSI as guarantors]2 and
The Law Debenture Trust Corporation p.l.c. as trustee for the holders of
the Notes.
The Issuer, subject to and in accordance
with the Conditions and the Trust Deed, promises to pay to the bearer hereof
on [each Instalment Date and] the Maturity Date or on such earlier date as
this Note may become due and repayable in accordance with the Conditions
and the Trust Deed, the amount payable on redemption of this Note and to
pay interest (if any) on the nominal amount of this Note calculated and payable
as provided in the Conditions and the Trust Deed together with any other
sums payable under the Conditions and the Trust Deed.
This Note shall not be valid unless
authenticated by JPMorgan Chase Bank, London office, as Agent.
IN WITNESS whereof this Note has
been executed on behalf of the Issuer.
Issued as of ..................................
[CADBURY SCHWEPPES PUBLIC LIMITED
COMPANY/
CADBURY SCHWEPPES FINANCE p.l.c./
CADBURY SCHWEPPES INVESTMENTS
plc]3
| By: ................................................... |
| |
Duly Authorised |
| |
Authenticated
without recourse, warranty or liability by
JPMorgan Chase Bank,
London office,
as Agent. |
| |
| By: .......................................... |
| |
|
|
|
|
| 1 |
Include where the relevant Issuer
is Cadbury Schweppes. |
|
| 2 |
Delete where the
relevant Issuer is Cadbury Schweppes. Where the relevant Issuer is CSF or CSI,
delete as appropriate. |
|
| 3 |
Delete as applicable. |
|
78
Back to Contents
[Conditions]
[Conditions to be as set out in the
First Schedule to this Trust Deed or such other form as may be agreed between
the relevant Issuer, the Agent, the Trustee and the relevant Dealer(s), but
shall not be endorsed if not required by the relevant Stock Exchange]
79
Back to Contents
Pricing Supplement
[Here to be set out the text of
the relevant information supplementing,
replacing or modifying the Conditions which appears in the Pricing
Supplement relating to the Notes]
80
Back to Contents
PART IV
FORM OF RECEIPT
[CADBURY SCHWEPPES PUBLIC LIMITED
COMPANY/
CADBURY SCHWEPPES FINANCE p.l.c./
CADBURY SCHWEPPES INVESTMENTS plc]1
[Specified Currency and Nominal
Amount of Tranche]
NOTES DUE
[Year of Maturity]
Series No. [ ]
Receipt for the sum of [ ] being
the instalment of principal payable in accordance with the Terms and Conditions
applicable to the Note to which this Receipt appertains (the "Conditions")
on [ ].
This Receipt is issued subject to
and in accordance with the Conditions which shall be binding upon the holder
of this Receipt (whether or not it is for the time being attached to such
Note) and is payable at the specified office of any of the Paying Agents
set out on the reverse hereof (and/or any other or further Paying Agents
and/or specified offices as may from time to time be duly appointed and notified
to the Noteholders).
This Receipt must be presented for
payment together with the Note to which it appertains. The Issuer shall have
no obligation in respect of any Receipt presented without the Note to which
it appertains or any unmatured Receipts.
[ANY UNITED STATES PERSON (AS
DEFINED IN THE INTERNAL REVENUE CODE OF THE UNITED STATES) WHO HOLDS THIS
OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME
TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a)
OF THE INTERNAL REVENUE CODE.]2
|
|
| 1 |
Delete as applicable. |
|
| 2 |
Include
where the original maturity of the Notes
is more than 365 days. |
|
81
Back to Contents
[CADBURY SCHWEPPES PUBLIC
LIMITED COMPANY/
CADBURY SCHWEPPES FINANCE p.l.c./
CADBURY SCHWEPPES INVESTMENTS plc]1 |
| |
[Specified Currency and
Nominal Amount of Tranche]
NOTES DUE
[Year of Maturity]
Series No. [ ] |
[Coupon appertaining to a Note in
the denomination of [Specified Currency and Specified Denomination]].2
Part A
[For Fixed Rate Notes:
| This Coupon is payable
to bearer, separately negotiable and subject to the Terms and Conditions
of the said Notes. |
Coupon for
[ ]
due on [ ], [ ]] |
Part B
[For Floating Rate Notes or Indexed
Interest Notes:
Coupon for the amount due in accordance
with the Terms and Conditions endorsed on, attached to or incorporated by
reference into the said Notes on [the Interest Payment Date falling in [
] [ ]/[ ]]
This Coupon is payable to bearer,
separately negotiable and subject to such Terms and Conditions, under which
it may become void before its due date.]
[ANY UNITED STATES PERSON (AS
DEFINED IN THE INTERNAL REVENUE CODE OF THE UNITED STATES) WHO HOLDS THIS
OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME
TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a)
OF THE INTERNAL REVENUE CODE.]3
|
|
| 1 |
Delete as applicable. |
|
| 2 |
Delete where the Notes are all
of the same denomination. |
|
| 3 |
Include where the original maturity
of the Notes is more than 365 days. |
|
82
Back to Contents
PART VI
FORM OF TALON
On the front:
[CADBURY SCHWEPPES PUBLIC LIMITED
COMPANY/
CADBURY SCHWEPPES FINANCE p.l.c./
CADBURY SCHWEPPES INVESTMENTS plc]1
[Specified Currency and Nominal
Amount of Tranche]
NOTES DUE
[Year of Maturity]
Series No. [ ]
[Talon appertaining to a Note in
the denomination of [Specified Currency and Specified Denomination]]2.
On and after [ ] further Coupons
[and a further Talon]3 appertaining to the Note to which this
Talon appertains will be issued at the specified office of any of the Paying
Agents set out on the reverse hereof (and/or any other or further Paying
Agents and/or specified offices as may from time to time be duly appointed
and notified to the Noteholders) upon production and surrender of this Talon.
This Talon may, in certain circumstances,
become void under the Terms and Conditions endorsed on the Note to which
this Talon appertains.
[ANY UNITED STATES PERSON (AS
DEFINED IN THE INTERNAL REVENUE CODE OF THE UNITED STATES) WHO HOLDS THIS
OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME
TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a)
OF THE INTERNAL REVENUE CODE.]4
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| 1 |
Delete as applicable. |
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| 2 |
Delete
where the Notes are all of the same denomination. |
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| 3 |
Not
required on last
Coupon sheet. |
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| 4 |
Include where the original majority
of the Notes is more than 365 days. |
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On the back of Receipts, Coupons
and Talons:
AGENT
JPMorgan Chase Bank
Trinity Tower
9 ▇▇▇▇▇▇ ▇▇▇▇ Street
London E1W 1YT
OTHER PAYING AGENT
▇.▇. ▇▇▇▇▇▇ Bank Luxembourg S.A.
▇, ▇▇▇ ▇▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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PART VII
FORM OF CERTIFICATE TO BE PRESENTED
BY
EUROCLEAR OR CLEARSTREAM, LUXEMBOURG
[CADBURY SCHWEPPES PUBLIC LIMITED
COMPANY/
CADBURY SCHWEPPES FINANCE p.l.c.)/
CADBURY SCHWEPPES INVESTMENTS plc]1
[Title of Notes]
(the "Securities")
This is to certify that, based solely
on certifications we have received in writing, by tested telex or by electronic
transmission from member organisations appearing in our records as persons
being entitled to a portion of the nominal amount set forth below (our "Member
Organisations") substantially to the effect set forth in the temporary
Global Note representing the Securities, as of the date hereof, [ ] nominal
amount of the above-captioned Securities (i) is owned by persons that are
not citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("United States
persons"), (ii) is owned by United States persons that (a) are foreign
branches of United States financial institutions (as defined in U.S. Treasury
Regulations Sections 1.165-12(c)(1)(v) ("financial institutions")
purchasing for their own account or for resale, or (b) acquired the Securities
through foreign branches of United States financial institutions and who
hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States financial
institution has agreed, on its own behalf or through its agent, that we may
advise the Issuer or the Issuer's agent that it will comply with the requirements
of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986,
as amended, and the regulations thereunder), or (iii) is owned by United
States or foreign financial institutions for purposes of resale during the
restricted period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and to the further effect that United States or foreign financial institutions
described in Clause (iii) above (whether or not also described in Clause
(i) or (ii)) have certified that they have not acquired the Securities for
purposes of resale directly or indirectly to a United States person or to
a person within the United States or its possessions.
If the Securities are of the category
contemplated in Section 230.903(c)(3) of Regulation S under the Securities
Act of 1933, as amended, then this is also to certify with respect to such
principal amount of Securities set forth above that, except as set forth
below, we have received in writing, by tested telex or by electronic transmission,
from our Member Organisations entitled to a portion of such principal amount,
certifications with respect to such portion, substantially to the effect
set forth in the temporary Global Note representing the Securities.
We further certify (i) that we are
not making available herewith for exchange (or, if relevant, exercise of
any rights or collection of any interest) any portion of the temporary Global
Note excepted in such certifications and (ii) that as of the date hereof
we have not received any notification from any of our Member Organisations
to the effect that the statements made by such Member Organisations with
respect to any portion of the part submitted herewith for exchange (or, if
relevant, exercise of any rights or collection of any interest) are no longer
true and cannot be relied upon as of the date hereof.
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We understand that this certification
is required in connection with certain tax laws and, if applicable, certain
securities laws of the United States. In connection therewith, if administrative
or legal proceedings or official enquiries are commenced or threatened in
connection with which this certification is or would be relevant, we irrevocably
authorise you to produce this certification to any interested party in such
proceedings or enquiries.
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[Euroclear Bank S.A./N.V. as
operator of the Euroclear System] |
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[Clearstream Banking, société anonyme] |
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By: ............................... |
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| 1 |
To
be dated no earlier
than the date to which this certification relates, namely (a)
the payment date or (b) the Exchange
Date. |
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CERTIFICATE "A"
[CADBURY SCHWEPPES PUBLIC LIMITED
COMPANY/
CADBURY SCHWEPPES FINANCE p.l.c./
CADBURY SCHWEPPES INVESTMENTS plc]1
[Title of Notes]
(the "Securities")
This is to certify that as of the
date hereof, and except as set forth below, the above-captioned Securities
held by you for our account (i) are owned by person(s) that are not citizens
or residents of the United States, domestic partnerships, domestic corporations
or any estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States person(s)"),
(ii) are owned by United States person(s) that (a) are foreign branches of
United States financial institutions (as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v)) ("financial institutions") purchasing
for their own account or for resale, or (b) acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you
may advise the Issuer or the Issuer's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue
Code of 1986, as amended, and the regulations thereunder), or (iii) are owned
by United States or foreign financial institution(s) for purposes of resale
during the restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and in addition if the owner of the Securities is
a United States or foreign financial institution described in Clause (iii)
above (whether or not also described in Clause (i) or (ii)) this is to further
certify that such financial institution has not acquired the Securities for
purposes of resale directly or indirectly to a United States person or to
a person within the United States or its possessions.
If the Securities are of the category
contemplated in Section 230.903(c)(2) of Regulation S under the Securities
Act of 1933, as amended, (the "Act") then this is also to certify
that, except as set forth below, the Securities are beneficially owned by
(a) non-U.S. person(s) or (b) U.S. person(s) who purchased the Securities
in transactions which did not require registration under the Act. As used
in this paragraph, the term "U.S. person" has the meaning given
to it by Regulation S under the Act.
As used herein, "United States" means
the United States of America (including the States and the District of Columbia);
and its "possessions" include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly
by tested telex on or prior to the date on which you intend to submit your
certification relating to the Securities held by you for our account in accordance
with your operating procedures if any applicable statement herein is not
correct on such date, and in the absence of any such notification it may
be assumed that this certification applies as of such date.
This certification excepts and does
not relate to [ ] of such interest in the above Securities in respect of
which we are not able to certify and as to which we understand exchange and
delivery of definitive Securities (or, if relevant, exercise of any right
or collection of any interest) cannot be made until we do so certify.
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We understand that this certification
is required in connection with certain tax laws and, if applicable, certain
securities laws of the United States. In connection therewith, if administrative
or legal proceedings or official enquiries are commenced or threatened in
connection with which this certification is or would be relevant, we irrevocably
authorise you to produce this certification to any interested party in such
proceedings or enquiries.
Dated: ,
200 1
Name of person making certification
By: ...............................
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| 1 |
To
be dated no earlier
than the fifteenth day prior to the date to which this certification
relates, namely (a) the payment date or (b) the Exchange Date. |
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THE THIRD SCHEDULE
PROVISIONS FOR MEETINGS OF NOTEHOLDERS
| 1. |
(A) |
As used in this Schedule the
following expressions shall have the following meanings unless the context
otherwise requires: |
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(i) |
"voting certificate" shall
mean an English language certificate issued by a Paying Agent and dated
in which it is stated: |
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(a) |
that on the date thereof Notes
(whether in definitive form or represented by a Global Note and not being
Notes in respect of which a block voting instruction has been issued
and is outstanding in respect of the meeting specified in such voting
certificate or any adjourned such meeting) were deposited with such Paying
Agent or (to the satisfaction of such Paying Agent) were held to its
order or under its control or blocked in an account with a clearing system
and that no such Notes will cease to be so deposited or held or blocked
until the first to occur of: |
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(1) |
the conclusion of the meeting
specified in such certificate or, if later, of any adjourned such meeting;
and |
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(2) |
the surrender of the certificate
to the Paying Agent who issued the same; and |
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(b) |
that the bearer thereof is
entitled to attend and vote at such meeting and any adjourned such meeting
in respect of the Notes represented by such certificate; |
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(ii) |
"block voting instruction" shall
mean an English language document issued by a Paying Agent and dated
in which: |
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(a) |
it is certified that Notes
(whether in definitive form or represented by a Global Note and not being
Notes in respect of which a voting certificate has been issued and is
outstanding in respect of the meeting specified in such block voting
instruction and any adjourned such meeting) have been deposited with
such Paying Agent or (to the satisfaction of such Paying Agent) were
held to its order or under its control or blocked in an account with
a clearing system and that no such Notes will cease to be so deposited
or held or blocked until the first to occur of: |
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(1) |
the conclusion of the meeting
specified in such document or, if later, of any adjourned such meeting;
and |
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(2) |
the surrender to the Paying
Agent not less than 48 hours before the time for which such meeting or
any adjourned such meeting is convened of the receipt issued by such
Paying Agent in respect of each such deposited Note which is to be released
or (as the case may require) the Note or Notes ceasing with the agreement
of the Paying Agent to be held to its order or under its control or so
blocked and the giving of notice by the Paying Agent to the relevant
Issuer in accordance with paragraph 17 hereof of the necessary amendment
to the block voting instruction; |
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(b) |
it is certified that each
holder of such Notes or a duly authorised agent on his behalf has instructed
such Paying Agent that the vote(s) attributable to the Note or Notes
so deposited or held or blocked should be cast in a particular way in
relation to the resolution or resolutions to be put to such meeting or
any adjourned such meeting and that all such instructions are during
the period commencing 48 hours prior to the time for which such meeting
or any adjourned such meeting is convened and ending at the conclusion
or adjournment thereof neither revocable nor capable of amendment; |
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(c) |
the aggregate nominal amount
of the Notes so deposited or held or blocked are listed distinguishing
with regard to each such resolution between those in respect of which
instructions have been given as aforesaid that the votes attributable
thereto should be cast in favour of the resolution and those in respect
of which instructions have been so given that the votes attributable
thereto should be cast against the resolution; and |
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(d) |
one or more persons named
in such document (each hereinafter called a "proxy")
is or are authorised and instructed by such Paying Agent to cast the
votes attributable to the Notes so listed in accordance with the instructions
referred to in (c) above as set out in such document; |
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(iii) |
"24 hours" shall
mean a period of 24 hours including all or part of a day upon which banks
are open for business in both the place where the relevant meeting is
to be held and in each of the places where the Paying Agents have their
specified offices (disregarding for this purpose the day upon which such
meeting is to be held) and such period shall be extended by one period
or, to the extent necessary, more periods of 24 hours until there is
included as aforesaid all or part of a day upon which banks are open
for business in all of the places as aforesaid; and |
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(iv) |
"48 hours" shall
mean a period of 48 hours including all or part of two days upon which
banks are open for business both in the place where the relevant meeting
is to be held and in each of the places where the Paying Agents have
their specified offices (disregarding for this purpose the day upon which
such meeting is to be held) and such period shall be extended by one
period or, to the extent necessary, more periods of 24 hours until there
is included as aforesaid all or part of two days upon which banks are
open for business in all of the places as aforesaid. |
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(B) |
A holder of a Note (whether
in definitive form or represented by a Global Note) may obtain a voting
certificate in respect of such Note from a Paying Agent or require a
Paying Agent to issue a block voting instruction in respect of such Note
by depositing such Note with such Paying Agent or (to the satisfaction
of such Paying Agent) by such Note being held to its order or under its
control or being blocked in an account with a clearing system, in each
case not less than 48 hours before the time fixed for the relevant meeting
and on the terms set out in sub-paragraph (A)(i)(a) or (A)(ii)(a) above
(as the case may be), and (in the case of a block voting instruction)
instructing such Paying Agent to the effect set out in sub-paragraph
(A)(ii)(b) above. The holder of any voting certificate or the proxies
named in any block voting instruction shall for all purposes in connection
with the relevant meeting or adjourned meeting of Noteholders be deemed
to be the holder of the Notes to which such voting certificate or block
voting instruction relates and the Paying Agent with |
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which such Notes have been deposited
or the person holding the same to the order or under the control of such
Paying Agent or the clearing system in which such Notes have been blocked
shall be deemed for such purposes not to be the holder of those Notes. |
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| 2. |
The relevant Issuer, Cadbury
Schweppes (where the relevant Issuer is CSF or CSI), CSF (where the relevant
Issuer is CSI), CSI (where the relevant Issuer is CSF) or the Trustee
may at any time and the relevant Issuer shall upon a requisition in writing
in the English language signed by the holders of not less than five per
cent. in nominal amount of the Notes for the time being outstanding convene
a meeting of the Noteholders and if the relevant Issuer makes default
for a period of seven days in convening such a meeting the same may be
convened by the Trustee or the requisitionists. Whenever the relevant
Issuer or (where the relevant Issuer is CSF or CSI) Cadbury Schweppes
or (where the relevant Issuer is CSI) CSF or (where the relevant Issuer
is CSF) CSI is about to convene any such meeting the relevant Issuer
or, as the case may be, Cadbury Schweppes (where the relevant Issuer
is CSF or CSI) or, as the case may be, CSF (where the relevant Issuer
is CSI) or, as the case may be, CSI (where the relevant Issuer is CSF)
shall forthwith give notice in writing to the Trustee of the day, time
and place thereof and of the nature of the business to be transacted
thereat. Every such meeting shall be held at such time and place as the
Trustee may appoint or approve. |
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| 3. |
At least 21 days' notice (exclusive
of the day on which the notice is given and the day on which the meeting
is to he held) specifying the place, day and hour of meeting shall be
given to the holders of the relevant Notes prior to any meeting of such
holders in the manner provided by Condition 14. Such notice, which shall
be in the English language, shall state generally the nature of the business
to be transacted at the meeting thereby convened but (except for an Extraordinary
Resolution) it shall not be necessary to specify in such notice the terms
of any resolution to be proposed. Such notice shall include statements,
if applicable, to the effect that Notes may, not less than 48 hours before
the time fixed for the meeting, be deposited with Paying Agents or (to
their satisfaction) held to their order or under their control or blocked
in an account with a clearing system for the purpose of obtaining voting
certificates or appointing proxies. A copy of the notice shall be sent
by post to the Trustee (unless the meeting is convened by the Trustee),
to the relevant Issuer (unless the meeting is convened by the relevant
Issuer), (where the relevant Issuer is CSF or CSI) to Cadbury Schweppes
(unless the meeting is convened by Cadbury Schweppes), (where the relevant
Issuer is CSI) CSF (unless the meeting is convened by CSF) and (where
the relevant Issuer is CSF) CSI (unless the meeting is convened by CSI). |
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| 4. |
A person (who may but need
not be a Noteholder) nominated in writing by the Trustee shall be entitled
to take the chair at the relevant meeting or adjourned meeting but if
no such nomination is made or if at any meeting or adjourned meeting
the person nominated shall not be present within 15 minutes after the
time appointed for holding the meeting or adjourned meeting the Noteholders
present shall choose one of their number to be Chairman, failing which
the relevant Issuer may appoint a Chairman. The Chairman of an adjourned
meeting need not be the same person as was Chairman of the meeting from
which the adjournment took place. |
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| 5. |
At any such meeting one or
more persons present holding Definitive Notes or voting certificates
or being proxies and holding or representing in the aggregate not less
than one-twentieth of the nominal amount of the Notes for the time being
outstanding shall (except for the purpose of passing an Extraordinary
Resolution) form a quorum for the transaction of business and no business
(other than the choosing of a Chairman) shall be transacted at any meeting
unless the requisite quorum be present at the commencement of the relevant
business. The quorum at any such meeting for passing an Extraordinary
Resolution shall (subject as provided below) be one or more persons present
holding Definitive Notes or voting certificates or being proxies and
holding or representing in the aggregate a clear majority in nominal
amount of the Notes for the time being outstanding PROVIDED THAT |
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at any meeting the business
of which includes any of the following matters (each of which shall,
subject only to Clause 19(B)(ii), only be capable of being effected after
having been approved by Extraordinary Resolution) namely: |
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(i) |
reduction or cancellation
of the amount payable or, where applicable, modification, except where
such modification is in the opinion of the Trustee bound to result in
an increase, of the method of calculating the amount payable or modification
of the date of payment or, where applicable, of the method of calculating
the date of payment in respect of any principal or interest in respect
of the Notes; |
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(ii) |
alteration of the currency
in which payments under the Notes, Receipts and Coupons are to be made; |
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(iii) |
alteration of the majority
required to pass an Extraordinary Resolution; |
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(iv) |
the sanctioning of any such
scheme or proposal as is described in paragraph 18(I) below; and |
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(v) |
alteration of this proviso
or the proviso to paragraph 6 below; |
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the quorum shall be one or more
persons present holding Definitive Notes or voting certificates or being
proxies and holding or representing in the aggregate not less than two-thirds
of the nominal amount of the Notes for the time being outstanding. |
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| 6. |
If within 15 minutes (or such
longer period not exceeding 30 minutes as the Chairman may decide) after
the time appointed for any such meeting a quorum is not present for the
transaction of any particular business, then, subject and without prejudice
to the transaction of the business (if any) for which a quorum is present,
the meeting shall if convened upon the requisition of Noteholders be
dissolved. In any other case it shall stand adjourned to the same day
in the next week (or if such day is a public holiday the next succeeding
business day) at the same time and place (except in the case of a meeting
at which an Extraordinary Resolution is to be proposed in which case
it shall stand adjourned for such period, being not less than 13 clear
days nor more than 42 clear days, and to such place as may be appointed
by the Chairman either at or subsequent to such meeting and approved
by the Trustee). If within 15 minutes (or such longer period not exceeding
30 minutes as the Chairman may decide) after the time appointed for any
adjourned meeting a quorum is not present for the transaction of any
particular business, then, subject and without prejudice to the transaction
of the business (if any) for which a quorum is present, the Chairman
may either (with the approval of the Trustee) dissolve such meeting or
adjourn the same for such period, being not less than 13 clear days (but
without any maximum number of clear days), and to such place as may be
appointed by the Chairman either at or subsequent to such adjourned meeting
and approved by the Trustee, and the provisions of this sentence shall
apply to all further adjourned such meetings. At any adjourned meeting
one or more persons present holding Definitive Notes of the relevant
one or more Series or voting certificates or being proxies (whatever
the nominal amount of the Notes so held or represented by them) shall
(subject as provided below) form a quorum and shall have power to pass
any resolution and to decide upon all matters which could properly have
been dealt with at the meeting from which the adjournment took place
had the requisite quorum been present PROVIDED THAT at any adjourned
meeting the quorum for the transaction of business comprising any of
the matters specified in the proviso to paragraph 5 above shall be one
or more persons present holding Definitive Notes or voting certificates
or being proxies and holding or representing in the aggregate not less
than one-third of the nominal amount of the Notes for the time being
outstanding. |
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| 7. |
Notice of any adjourned meeting
at which an Extraordinary Resolution is to be submitted shall be given
in the same manner as notice of an original meeting but as if 10 were |
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substituted for 21 in paragraph
3 above and such notice shall state the required quorum. Subject as aforesaid
it shall not be necessary to give any notice of an adjourned meeting. |
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| 8. |
Every question submitted to
a meeting shall be decided in the first instance by a show of hands and
in case of equality of votes the Chairman shall both on a show of hands
and on a poll have a casting vote in addition to the vote or votes (if
any) to which he may be entitled as a Noteholder or as a holder of a
voting certificate or as a proxy. |
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| 9. |
At any meeting unless a poll
is (before or on the declaration of the result of the show of hands)
demanded by the Chairman, any of the relevant Obligors, the Trustee or
any person present holding a Definitive Note of the relevant Series or
a voting certificate or being a proxy (whatever the nominal amount of
the Notes so held or represented by him) a declaration by the Chairman
that a resolution has been carried or carried by a particular majority
or lost or not carried by a particular majority shall be conclusive evidence
of the fact without proof of the number or proportion of the votes recorded
in favour of or against such resolution. |
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| 10. |
Subject to paragraph 12 below,
if at any such meeting a poll is so demanded it shall be taken in such
manner and subject as hereinafter provided either at once or after an
adjournment as the Chairman directs and the result of such poll shall
be deemed to be the resolution of the meeting at which the poll was demanded
as at the date of the taking of the poll. The demand for a poll shall
not prevent the continuance of the meeting for the transaction of any
business other than the motion on which the poll has been demanded. |
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| 11. |
The Chairman may with the
consent of (and shall if directed by) any such meeting adjourn the same
from time to time and from place to place but no business shall be transacted
at any adjourned meeting except business which might lawfully (but for
lack of required quorum) have been transacted at the meeting from which
the adjournment took place. |
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| 12. |
Any poll demanded at any such
meeting on the election of a Chairman or on any question of adjournment
shall be taken at the meeting without adjournment. |
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| 13. |
The Trustee and its lawyers
and any director, officer or employee of a corporation being a trustee
of these presents and any director or officer of the relevant Issuer
or, as the case may be, Cadbury Schweppes (where the relevant Issuer
is CSF or CSI) or, as the case may be, CSF (where the relevant Issuer
is CSI) or, as the case may be, CSI (where the relevant Issuer is CSF)
and its or their lawyers and any other person authorised so to do by
the Trustee may attend and speak at any meeting. Save as aforesaid, but
without prejudice to the proviso to the definition of "outstanding" in
Clause 1, no person shall be entitled to attend and speak nor shall any
person be entitled to vote at any meeting of Noteholders or join with
others in requesting the convening of such a meeting or to exercise the
rights conferred on Noteholders by Condition 10 unless he either produces
the Definitive Note or Definitive Notes of which he is the holder or
a voting certificate or is a proxy. No person shall be entitled to vote
at any meeting in respect of Notes held by, for the benefit of, or on
behalf of, any of the relevant Obligors or any Holding Company or other
Subsidiary of any of the relevant Obligors. Nothing herein shall prevent
any of the proxies named in any block voting instruction from being a
director, officer or representative of or otherwise connected with any
of the relevant Obligors. |
14. Subject
as provided in paragraph 13 hereof at any meeting:
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(A) |
on a show of hands every person
who is present in person and produces a Definitive Note or voting certificate
or is a proxy shall have one vote; and |
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(B) |
on a poll every person who
is so present shall have one vote in respect of each £1.00 or such
other pounds sterling amount as the Trustee may in its absolute discretion |
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stipulate (or, in the case of
meetings of holders of Notes denominated in another currency, such amount
in such other currency as the Trustee in its absolute discretion may
stipulate) in nominal amount of the Definitive Notes so produced or represented
by the voting certificate so produced or in respect of which he is a
proxy. |
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Without prejudice to the obligations
of the proxies named in any block voting instruction any person entitled
to more than one vote need not use all his votes or cast all the votes
to which he is entitled in the same way. |
| 15. |
The proxies named in any block
voting instruction need not be Noteholders. |
| |
|
| 16. |
Each block voting instruction
together (if so requested by the Trustee) with proof satisfactory to
the Trustee of its due execution on behalf of the relevant Paying Agent
shall be deposited by the relevant Paying Agent at such place as the
Trustee shall approve not less than 24 hours before the time appointed
for holding the meeting or adjourned meeting at which the proxies named
in the block voting instruction propose to vote and in default the block
voting instruction shall not be treated as valid unless the Chairman
of the meeting decides otherwise before such meeting or adjourned meeting
proceeds to business. A notarially certified copy of each block voting
instruction shall be deposited with the Trustee before the commencement
of the meeting or adjourned meeting but the Trustee shall not thereby
be obliged to investigate or be concerned with the validity of or the
authority of the proxies named in any such block voting instruction. |
| |
|
| 17. |
Any vote given in accordance
with the terms of a block voting instruction shall be valid notwithstanding
the previous revocation or amendment of the block voting instruction
or of any of the relevant Noteholders' instructions pursuant to which
it was executed provided that no intimation in writing of such revocation
or amendment shall have been received from the relevant Paying Agent
by the relevant Issuer at its registered office (or such other place
as may have been required or approved by the Trustee for the purpose)
by the time being 24 hours before the time appointed for holding the
meeting or adjourned meeting at which the block voting instruction is
to be used. |
| |
|
| 18. |
A meeting of the Noteholders
shall in addition to the powers hereinbefore given have the following
powers exercisable only by Extraordinary Resolution (subject to the provisions
relating to quorum contained in paragraphs 5 and 6 above) namely: |
| |
|
|
| |
(A) |
Power to sanction any compromise
or arrangement proposed to be made between the relevant Obligors, the
Trustee, any Appointee and the Noteholders, Receiptholders and Couponholders
or any of them. |
| |
|
|
| |
(B) |
Power to sanction any abrogation,
modification, compromise or arrangement in respect of the rights of the
Trustee, any Appointee, the Noteholders, the Receiptholders, the Couponholders
or any of the relevant Obligors against any other or others of them or
against any of their property whether such rights shall arise under these
presents or otherwise. |
| |
|
|
| |
(C) |
Power to assent to any modification
of the provisions of these presents which shall be proposed by any of
the relevant Obligors, the Trustee or any Noteholder. |
| |
|
|
| |
(D) |
Power to give any authority
or sanction which under the provisions of these presents is required
to be given by Extraordinary Resolution. |
| |
|
|
| |
(E) |
Power to appoint any persons
(whether Noteholders or not) as a committee or committees to represent
the interests of the Noteholders and to confer upon such committee or
committees any powers or discretions which the Noteholders could themselves
exercise by Extraordinary Resolution. |
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| |
(F) |
Power to approve of a person
to be appointed a trustee and power to remove any trustee or trustees
for the time being of these presents. |
| |
|
|
| |
(G) |
Power to discharge or exonerate
the Trustee and/or any Appointee from all liability in respect of any
act or omission for which the Trustee and/or such Appointee may have
become responsible under these presents. |
| |
|
|
| |
(H) |
Power to authorise the Trustee
and/or any Appointee to concur in and execute and do all such deeds,
instruments, acts and things as may be necessary to carry out and give
effect to any Extraordinary Resolution. |
| |
|
|
| |
(I) |
Power to sanction any scheme
or proposal for the exchange or sale of the Notes for or the conversion
of the Notes into or the cancellation of the Notes in consideration of
shares, stock, notes, bonds, debentures, debenture stock and/or other
obligations and/or securities of any of the relevant Obligors or any
other company formed or to be formed, or for or into or in consideration
of cash, or partly for or into or in consideration of such shares, stock,
notes, bonds, debentures, debenture stock and/or other obligations and/or
securities as aforesaid and partly for or into or in consideration of
cash. |
| |
|
| 19. |
Any resolution passed at a
meeting of the Noteholders duly convened and held in accordance with
these presents shall be binding upon all the Noteholders whether present
or not present at such meeting and whether or not voting and upon all
Receiptholders and Couponholders and each of them shall be bound to give
effect thereto accordingly and the passing of any such resolution shall
be conclusive evidence that the circumstances justify the passing thereof.
Notice of the result of the voting on any resolution duly considered
by the Noteholders shall be published in accordance with Condition 14
by the relevant Issuer within 14 days of such result being known PROVIDED
THAT the non-publication of such notice shall not invalidate such result. |
| |
|
| 20. |
The expression "Extraordinary
Resolution" when used in these presents means (a) a resolution
passed at a meeting of the Noteholders duly convened and held in accordance
with these presents by a majority consisting of not less than three-fourths
of the persons voting thereat upon a show of hands or if a poll is
duly demanded by a majority consisting of not less than three-fourths
of the votes cast on such poll; or (b) a resolution in writing signed
by or on behalf of all the Noteholders, which resolution in writing
may be contained in one document or in several documents in like form
each signed by or on behalf of one or more of the Noteholders. |
| |
|
| 21. |
Minutes of all resolutions
and proceedings at every meeting of the Noteholders shall be made and
entered in books to be from time to time provided for that purpose by
the relevant Issuer and any such minutes as aforesaid if purporting to
be signed by the Chairman of the meeting at which such resolutions were
passed or proceedings transacted shall be conclusive evidence of the
matters therein contained and until the contrary is proved every such
meeting in respect of the proceedings of which minutes have been made
shall be deemed to have been duly held and convened and all resolutions
passed or proceedings transacted thereat to have been duly passed or
transacted. |
| |
|
|
| 22. |
(A) |
If and whenever the relevant
Issuer shall have issued and have outstanding Notes of more than one
Series the foregoing provisions of this Schedule shall have effect subject
to the following modifications: |
| |
|
|
|
| |
|
(i) |
a resolution which in the
opinion of the Trustee affects the Notes of only one Series shall be
deemed to have been duly passed if passed at a separate meeting of the
holders of the Notes of that Series; |
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| |
|
(ii) |
a resolution which in the
opinion of the Trustee affects the Notes of more than one Series but
does not give rise to a conflict of interest between the holders of Notes
of any of the Series so affected shall be deemed to have been duly passed
if passed at a single meeting of the holders of the Notes of all the
Series so affected; |
| |
|
|
|
| |
|
(iii) |
a resolution which in the
opinion of the Trustee affects the Notes of more than one Series and
gives or may give rise to a conflict of interest between the holders
of the Notes of one Series or group of Series so affected and the holders
of the Notes of another Series or group of Series so affected shall be
deemed to have been duly passed only if passed at separate meetings of
the holders of the Notes of each Series or group of Series so affected;
and |
| |
|
|
|
| |
|
(iv) |
to all such meetings all the
preceding provisions of this Schedule shall mutatis mutandis apply
as though references therein to Notes and Noteholders were references
to the Notes of the Series or group of Series in question or to the holders
of such Notes, as the case may be. |
| |
|
|
| |
(B) |
If the relevant Issuer shall
have issued and have outstanding Notes which are not denominated in pounds
sterling in the case of any meeting of holders of Notes of more than
one currency the nominal amount of such Notes shall (i) for the purposes
of paragraph 2 above be the equivalent in pounds sterling at the spot
rate of a bank nominated by the Trustee for the conversion of the relevant
currency or currencies into pounds sterling on the seventh dealing day
prior to the day on which the requisition in writing is received by the
relevant Issuer and (ii) for the purposes of paragraphs 5, 6 and 14 above
(whether in respect of the meeting or any adjourned such meeting or any
poll resulting therefrom) be the equivalent at such spot rate on the
seventh dealing day prior to the day of such meeting. In such circumstances,
on any poll each person present shall have one vote for each £1.00
(or such other pounds sterling amount as the Trustee may in its absolute
discretion stipulate) in nominal amount of the Notes (converted as above)
which he holds or represents. |
| |
|
| 23. |
Subject to all other provisions
of these presents the Trustee may, without the consent of any of the
relevant Obligors, the Noteholders, the Receiptholders or the Couponholders,
prescribe such further regulations regarding the requisitioning and/or
the holding of meetings of Noteholders and attendance and voting thereat
as the Trustee may in its sole discretion think fit. |
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| EXECUTED as
a deed by |
) |
| CADBURY SCHWEPPES PUBLIC |
) |
| LIMITED COMPANY |
) |
| acting by |
) |
| and: |
) |
| |
|
| EXECUTED as
a deed by |
) |
| CADBURY SCHWEPPES FINANCE
p.l.c. |
) |
| acting by |
) |
| and: |
) |
| |
|
| EXECUTED as
a deed by |
) |
| CADBURY SCHWEPPES |
) |
| INVESTMENTS plc |
) |
| acting by |
) |
| and: |
) |
| |
|
| THE COMMON SEAL of |
) |
| THE LAW DEBENTURE TRUST |
) |
| CORPORATION p.l.c. |
) |
| was affixed to this deed in |
) |
| the presence of |
) |
97
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DATED 26TH MAY, 1999
CADBURY SCHWEPPES PUBLIC LIMITED
COMPANY
as an Issuer and as Guarantor
- and -
CADBURY SCHWEPPES FINANCE p.l.c.
as an Issuer and as Guarantor
- and -
CADBURY SCHWEPPES INVESTMENTS
plc
as an Issuer and as Guarantor
- and -
THE LAW DEBENTURE TRUST CORPORATION
p.l.c.
TRUST DEED
relating to a
£ 5,000,000,000
Euro Medium Term Note Programme
For Cadbury Schweppes public
limited company,
Cadbury Schweppes Finance p.l.c. and
Cadbury Schweppes Investments plc:
▇▇▇▇▇▇▇▇▇ AND MAY
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
For The Law Debenture Trust
Corporation p.l.c.:
▇▇▇▇▇ & OVERY
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Back to Contents
| EXECUTED as
a deed by |
) |
|
| CADBURY SCHWEPPES
PUBLIC |
) |
|
| LIMITED COMPANY |
) |
|
| acting by |
) |
|
| and |
) |
|
| |
|
|
| |
Director |
|
K G ▇▇▇▇▇ |
| |
|
|
| |
Director |
|
▇ ▇ ▇▇▇▇▇ |
| |
|
|
| EXECUTED as
a deed by |
) |
|
| CADBURY SCHWEPPES |
) |
|
| FINANCE p.l.c. |
) |
|
| acting by |
) |
|
| and |
) |
|
| |
|
|
| |
Director |
|
▇ ▇ ▇▇▇▇ |
| |
|
|
| |
Secretary |
|
▇ ▇ ▇▇▇▇▇▇▇▇ |
| |
|
|
| EXECUTED as
a deed by |
) |
|
| CADBURY SCHWEPPES |
) |
|
| INVESTMENTS plc |
) |
|
| acting by |
) |
|
| and |
) |
|
| |
|
|
| |
Director |
|
▇ ▇ ▇▇▇▇▇▇ |
| |
|
|
| |
Secretary |
|
▇ ▇ ▇▇▇▇▇▇▇▇ |
| |
|
|
| THE COMMON SEAL of |
) |
|
| THE LAW DEBENTURE
TRUST |
) |
|
| CORPORATION p.l.c. |
) |
|
| was affixed to this
deed in |
) |
|
| the presence of: |
) |
|
| |
|
|
| |
Director |
|
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
| |
|
|
| |
Authorised Signatory |
▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ |
4
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DATED 27TH MAY, 2004
CADBURY SCHWEPPES PUBLIC LIMITED
COMPANY
as an Issuer and as Guarantor
- and -
CADBURY SCHWEPPES FINANCE p.l.c.
as an Issuer and as Guarantor
- and -
CADBURY SCHWEPPES INVESTMENTS
plc
as an Issuer and as Guarantor
- and -
THE LAW DEBENTURE TRUST CORPORATION
p.l.c.
FOURTH SUPPLEMENTAL TRUST DEED
further modifying the provisions
of the
Trust Deed dated 26th May, 1999
relating to the
£ 5,000,000,000 (formerly £1,500,000,000)
Euro Medium Term Note Programme
For Cadbury Schweppes public
limited company,
Cadbury Schweppes Finance p.l.c. and
Cadbury Schweppes Investments plc:
▇▇▇▇▇▇▇▇▇ AND MAY
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
For The Law Debenture Trust
Corporation p.l.c.:
▇▇▇▇▇ & OVERY
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇