EXHIBIT 1.2
INTERNATIONAL GUARANTY
THIS AGREEMENT MADE THIS DAY OF APRIL, 1998 AMONG:
AMERITECH CORPORATION,
a corporation organized and existing
under the laws of Delaware (the "Guarantor")
and
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
as Representatives of the Several Underwriters named
in Schedule I to the International Underwriting Agreement
referred to below (the "U.S. Underwriters")
and
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
XXXXXXX XXXXX INTERNATIONAL
as Representatives of the Several Underwriters named
in Schedule II to the International Underwriting Agreement
(the "Rest of the World Underwriters" and, together with
the U.S. Underwriters, the "International Underwriters")
and
TELECOM CORPORATION OF NEW ZEALAND LIMITED
a corporation organized and existing under the laws of
New Zealand (the "Company")
WHEREAS:
(1) The International Underwriters are parties to an International
Underwriting Agreement dated the date hereof (the "International
Underwriting Agreement", the
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terms defined therein and not otherwise defined herein being used
herein as defined therein) among themselves, Ameritech New Zealand
Investments, Inc., a Delaware corporation and a wholly-owned
subsidiary of the Guarantor (the "Selling Shareholder"), and the
Company;
(2) It is a condition precedent to the purchase of the Offered Shares
by the International Underwriters pursuant to Section 8(t) of the
International Underwriting Agreement that the Guarantor, as owner of
100% of the outstanding shares of capital stock of the Selling
Shareholder, shall have executed and delivered this International
Guaranty;
(3) Pursuant to Section 2(c) of the International Underwriting
Agreement, the Selling Shareholder has made certain representations
and warranties to the several International Underwriters as set forth
in Section 2(c) of the International Underwriting Agreement (the
"Underwriting Representations and Warranties");
(4) Pursuant to section 6(b)(vii) of the International Underwriting
Agreement the Company is entitled to rely on the Underwriting
Representations and Warranties (the obligations of the Selling
Shareholder to the Company in respect of such Underwriting
Representations and Warranties being referred to below as the "Company
Obligations");
(5) Pursuant to Section 9 of the International Underwriting Agreement,
the Selling Shareholder and the International Underwriters have agreed
to indemnify each other under certain circumstances and in the manner
described therein (the "Underwriting Indemnification Obligations");
and
(6) Pursuant to (without limitation) Section 2(c), 3, 5, 6(b), 7, 8,
9, 11 and 17 of the International Underwriting Agreement, the Selling
Shareholder has agreed to fulfill certain other obligations,
including, but not limited to, the obligation to sell the Offered
Shares to the International Underwriters, the obligation to transfer
legal title in the Offered Shares to the Trustee under the Trust Deed
upon receipt by the Selling Shareholder of payment of the First
Instalment (the "Other Underwriting Obligations" and, together with
the Underwriting Indemnification Obligations, the "Underwriting
Obligations").
NOW, THEREFORE, in consideration of the premises and in order to
induce the International Underwriters to purchase the Offered Shares under the
International Underwriting Agreement and in order to induce the Company to enter
into the International Underwriting Agreement, the Guarantor hereby agrees as
follows:
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Section 1. International Guaranty. The Guarantor hereby
unconditionally and irrevocably guarantees to the International Underwriters the
performance and punctual payment as, when and to the extent due of all the
Underwriting Obligations of the Selling Shareholder now or hereafter existing
under the International Underwriting Agreement and unconditionally and
irrevocably guarantees to the Company the performance and punctual payment as,
when and to the extent due of all the Company Obligations of the Selling
Shareholder now or hereafter existing under the International Underwriting
Agreement, agrees to indemnify the International Underwriters pursuant to
Section 6 in this International Guaranty, and agrees to pay any and all
reasonable expenses (including reasonable counsel fees and expenses) incurred by
the International Underwriters and the Company in enforcing any rights under
this International Guaranty.
Section 2. International Guaranty Absolute. The Guarantor guarantees
that the Underwriting Obligations and the Company Obligations of the Selling
Shareholder will be paid and performed as, when and to the extent due strictly
in accordance with the terms, and subject to the conditions, of the
International Underwriting Agreement. The obligations of the Guarantor under
this International Guaranty are independent of the Underwriting Obligations and
the Company Obligations, as the case may be, and of obligations of the Company
under the International Underwriting Agreement, and a separate action or actions
may be brought and prosecuted against the Guarantor to enforce this
International Guaranty, irrespective of whether any action is brought against
the Selling Shareholder or the Company or whether the Selling Shareholder or the
Company is joined in any such action or actions. The liability of the Guarantor
under this International Guaranty shall be irrevocable, absolute and
unconditional.
Section 3. Payments Free and Clear of Taxes, Etc. The Guarantor will
indemnify and hold harmless the International Underwriters and the Company
against any New Zealand documentary, stamp, transaction, registration or similar
tax, including interest and penalties, in relation to the execution and delivery
of the International Guaranty. Any and all payments made by the Guarantor
hereunder shall be made without withholding or deduction for or on account of
any present or future taxes, duties or governmental charges whatsoever unless
the Guarantor is compelled by law to deduct or withhold such taxes, duties or
charges. In that event, the Guarantor shall pay such additional amounts as may
be necessary in order that the net amounts received after such withholding or
deduction shall equal the amounts that would have been received if no
withholding or deduction had been made.
Section 4. Representations and Warranties. (A) The Guarantor hereby
represents and warrants to each of the International Underwriters and the
Company as of the date hereof, as of the First Time of Delivery and of each Time
of Delivery, and agrees with each International Underwriter and the Company as
follows:
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(1) The Guarantor hereby makes all of the Underwriting Representations
and Warranties, all of which are incorporated by reference in this International
Guaranty.
(2) The Guarantor is duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to perform its
obligations hereunder; and the Guarantor has good and valid title to all of the
outstanding capital stock of the Selling Shareholder;
(3) This International Guaranty has been duly authorized,
executed and delivered by the Guarantor;
(4) All consents, approvals, authorizations and orders necessary for
the execution, delivery and performance of this International Guaranty and the
consummation of the transactions contemplated hereby have been obtained
provided, however, that this representation shall not apply to any such
consents, approvals, authorizations or orders as may be required by laws of
jurisdictions other than New Zealand, Australia and the United States.
(5) The execution, delivery and performance of this International
Guaranty do not and will not conflict with or result in a breach or violation of
any of the terms and provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other material agreement
or instrument to which the Guarantor or the Selling Shareholder is a party or by
which the Guarantor or the Selling Shareholder is bound, or to which any
property or assets, which is material to the Guarantor or the Selling
Shareholder is subject, nor will such action result in any violation by the
Guarantor or the Selling Shareholder of the provisions of the charter or by-laws
of the Guarantor or the Selling Shareholder or any statute or regulation or any
rule or regulation of any court or governmental agency or body having
jurisdiction over the Guarantor or the Selling Shareholder or such property or
assets of the Guarantor or the Selling Shareholder.
(6) There are no conditions precedent to the effectiveness of this
International Guaranty that have not been satisfied or waived.
(B) Each International Underwriter hereby makes to, and agrees with,
the Guarantor the representations and agreements set forth in Annex C to the
International Underwriting Agreement.
Section 5. Covenants. The Guarantor covenants and agrees with
the several International Underwriters that:
(1) it will perform or pay in full or cause the performance or payment
in full of each of the Underwriting Obligations as and to the extent due under
the International Underwriting Agreement.
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(2) on the First Time of Delivery and on each subsequent Time of
Delivery, it will deliver to the International Underwriters a certificate, dated
such Time of Delivery, of a duly authorized executive officer of the Guarantor
in which such officer, to the best of such officer's knowledge after reasonable
investigation, shall state that: (i) the representations and warranties of the
Guarantor in this International Guaranty are true and correct at such Time of
Delivery as if given on such Time of Delivery and (ii) the Guarantor has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to such Time of Delivery.
Section 6. Indemnification. (I) (a) Without prejudice to the
Underwriting Indemnification Obligations in the International Underwriting
Agreement, the Guarantor will indemnify and hold harmless each International
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such International Underwriter may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the Registration
Statement, any F-6 Registration Statement, the Prospectus, or any amendments or
supplements thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, and,
in the case of the Prospectus in light of the circumstances under which they
were made, not misleading, and will reimburse each International Underwriter for
any legal or other expenses reasonably incurred by such International
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Guarantor will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company or the Selling Shareholder by any
International Underwriter through the Joint Global Coordinators expressly for
use therein, it being understood and agreed that the only information so
furnished by or on behalf of any International Underwriter is the Furnished
Information; and provided, further, that with respect to any untrue statement or
alleged untrue statement in or omission or alleged omissions from any
preliminary prospectus, the indemnity agreement contained in this subsection (a)
shall not inure to the benefit of any International Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased the
Offered Shares concerned, to the extent that a prospectus relating to such
Offered Shares was required to be delivered by such International Underwriter
under the Act in connection with such purchase and any such loss, claim, damage
or liability of such International Underwriter results from the fact that there
was not sent or given to such person, at or prior to the written confirmation of
the sale of such Offered Shares to such person, a copy of the U.S. Prospectus
(exclusive of material incorporated by reference) if the Company had previously
furnished copies thereof to such International Underwriter.
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(b) Each International Underwriter will severally and not jointly
indemnify and hold harmless the Guarantor against any losses, claims, damages or
liabilities to which the Guarantor may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
any F-6 Registration Statement, the Prospectus, or any amendments or supplements
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by such International Underwriter through the Joint Global Coordinators
expressly for use therein (it being understood and agreed that the only
information so furnished by or on behalf of any International Underwriter is the
Furnished Information), and will reimburse any legal or other expenses
reasonably incurred by the Guarantor in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under this Section
(6)(I) of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action.
(d) If the indemnification provided for in this Section (6)(I) is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as
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a result of the losses, claims, damages or liabilities referred to in subsection
(a) or (b) above (i) in such proportion as is appropriate to reflect the
relative benefits received by the Selling Shareholder and the Guarantor on the
one hand and the International Underwriters on the other from the offering of
the Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Selling Shareholder, the Guarantor and the Company on the one hand
and the International Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Selling Shareholder and the Guarantor on the one hand
and the International Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering pursuant to the
International Underwriting Agreement (before deducting expenses but after
underwriting discounts) received by the Selling Shareholder and the Guarantor
bear to the total underwriting discounts and commissions received by the
International Underwriters. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, the Selling Shareholder or the
Guarantor on the one hand or the International Underwriters on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no International Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such International Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The International Underwriters' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Guarantor under this Section (6)(I) shall
be in addition to any liability which the Guarantor may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any International Underwriter within the meaning of the Act; and the obligations
of the International Underwriters under this Section (6)(I) shall be in addition
to any liability which the respective International Underwriters may otherwise
have and shall extend, upon the same terms and conditions, and to
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each person, if any, who controls the Company or the Guarantor within the
meaning of the Act.
(II) Without limitation on any other obligations of the Guarantor or
remedies of the International Underwriters or the Company under this
International Guaranty, the Guarantor shall, to the fullest extent permitted by
law, indemnify, defend and save and hold harmless each International Underwriter
and the Company, as the case may be, from and against, and shall pay on demand,
any and all losses, liabilities, damages, costs, expenses and charges (including
the reasonable fees and disbursements of such International Underwriter's and
the Company's legal counsel) suffered or incurred by such International
Underwriter as a result of any Underwriting Obligation or suffered or incurred
by the Company as result of any Company Obligation not being a legal, valid and
binding obligation of the Guarantor enforceable against the Guarantor in
accordance with its terms because the Guarantor has undertaken the Underwriting
Obligations and Company Obligations in the form of this International Guaranty
rather than as a primary obligation of the Guarantor.
Section 7. Amendments, Etc. No amendment or waiver of any provision
of this International Guaranty and no consent to any departure by the Guarantor
therefrom shall in any event be effective (i) as between the Guarantor and the
International Underwriters unless the same shall be in writing and signed by the
Joint Global Coordinators on behalf of the International Underwriters, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given and (ii) as between the Guarantor and the
Company unless the same shall be in writing and signed by or on behalf of the
Company and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
Section 8. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telegraphic communication)
and mailed, delivered or telegraphed and confirmed to it, if to the Guarantor,
addressed to it at 00 Xxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx, X.X.X. 00000,
Attention: Assistant General Counsel Transactions, with a copy to Xxxxxxxx &
Xxxxx, 000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx, X.X.X. 00000, Attention:
Xxxxxx X. Xxxxxxx, P.C., if to the International Underwriters, to the attention
of the Joint Global Coordinators and their counsel at their respective addresses
specified in the International Underwriting Agreement, provided, however that
any notice to an International Underwriter pursuant to Section 6 hereof will be
mailed, delivered or telegraphed and confirmed to such International Underwriter
and, if to the Company, to Xxxxx 0, Xxxxx Xxxxx, Xxxxxxx Xxxxxxxx Xxxxx, 68
Jervois Quay, X.X. Xxx 000, Xxxxxxxxxx, Xxx Xxxxxxx (Facsimile No. 64-4-498-
9039) Attention: General Counsel, or such other address as may be notified by
the Company to the Guarantor.
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Section 9. No Waiver; Remedies. No failure on the part of the
International Underwriters or the Company to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
Section 10. Continuing Guaranty. This International Guaranty shall
(a) remain in full force and effect until the later of the performance in full
of the Underwriting Obligations and all other amounts payable under this
International Guaranty; (b) be binding upon the Guarantor, its successors and
assigns and (c) inure to the benefit of and be enforceable by the Guarantor and
the International Underwriters and the Company and their respective successors,
transferees and assigns.
Section 11. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc.
(a) This International Guaranty shall be governed by, and construed in
accordance with, the laws of the State of New York.
(b) The Guarantor hereby submits to the non-exclusive jurisdiction of
the Federal and state courts in the Borough of Manhattan in The City of New York
in any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. The Guarantor irrevocably appoints CT
Corporation System, 0000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its
authorized agent in the Borough of Manhattan in The City of New York upon which
process may be served in any such suit or proceeding, and agrees that service of
process upon such agent, and written notice of said service to the Guarantor by
the person serving the same to the address provided in Section 8, shall be
deemed in every respect effective service of process upon the Guarantor in any
such suit or proceeding. The Guarantor further agrees to take any and all
action as may be necessary to maintain such designation and appointment of such
agent in full force and effect for a period of seven years from the date of this
International Guaranty.
Section 12. Severability. Any provision or part of this Agreement
which is invalid, unenforceable or illegal in any situation in any jurisdiction
shall, as to such situation and such jurisdiction, be ineffective only to the
extent of such invalidity, unenforceability or illegality and shall not affect
the validity, enforceability or legality of the remaining provisions hereof, or
the validity, enforceability or legality of any such provision in any other
situation or in any other jurisdiction. If the final judgment of a court of
competent jurisdiction declares that any term or provision hereof is invalid,
unenforceable or illegal, the parties agree that the court making such
determination of invalidity, unenforceability or illegality shall have the power
to reduce the scope of such provision, to delete specific words or phrases or to
replace any invalid, unenforceable or illegal term or provision with a term or
provision that is valid, enforceable and legal and that comes closest to
expressing the intention of the invalid,
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unenforceable or illegal term or provision, and this Agreement shall be valid,
enforceable and legal as so modified subject to the rights of any party to
appeal any such determination.
Section 13. Counterparts. This International Guaranty may be
executed in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
agreement.
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IN WITNESS WHEREOF, the International Underwriters, the Company and
the Guarantor have caused this International Guaranty to be duly executed and
delivered by their respective officers thereunto duly authorized as of the date
first above written.
AMERITECH CORPORATION
By
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Title:
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
Acting for themselves and as representatives on
behalf of the several U.S. Underwriters.
By CREDIT SUISSE FIRST BOSTON CORPORATION
By
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Name:
Title:
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
XXXXXXX XXXXX INTERNATIONAL
Acting for themselves and as representatives on
behalf of the several Rest of the World
Underwriters.
By XXXXXXX XXXXX INTERNATIONAL
By
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Name:
Title:
TELECOM CORPORATION OF NEW ZEALAND
LIMITED
By:
---------------------------------
Director
By:
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Director/Authorized Signatory
