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EXHIBIT 4(i)
CONFORMED COPY
Dated November 14, 1997
XXX XXXXXXXX XXXXXXX
U.S.$300,000,000
6 per cent. Notes
Due November 14, 2000
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FISCAL AGENCY AGREEMENT
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XXXXX & OVERY
New York
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XXX XXXXXXXX XXXXXXX
U.S.$300,000,000
6 PER CENT. NOTES
DUE NOVEMBER 14, 2000
FISCAL AGENCY AGREEMENT
This AGREEMENT is dated November 14, 1997 and made BETWEEN:
(1) XXX XXXXXXXX XXXXXXX, having its xxxxxx xx Xxxxxxxxxx Xxxxx Xxxxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter referred to as "XXXXXXXX" or the
"COMPANY");
(2) XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, LONDON OFFICE having its office
at 00 Xxxxxxxx Xxxxxxxxxx, Xxxxxx XX0X 0XX (hereinafter referred to as the
"FISCAL AGENT"); and
(3) BANQUE PARIBAS LUXEMBOURG having its office at 00X Xxxxxxxxx Xxxxx, X-0000
Xxxxxxxxxx (hereinafter referred to, together with the Fiscal Agent and
with any additional or successor paying agents which may be appointed
pursuant to Clause 20, as the "PAYING AGENTS").
WHEREAS:
(A) Xxxxxxxx, pursuant to an authorisation by its board of directors on
September 18, 1997 has agreed to issue 6 per cent. Notes Due November 14,
2000 (the "NOTES") having an aggregate principal amount of
U.S.$300,000,000.
(B) The Notes will be issued in bearer form in the denomination of U.S$1,000,
U.S. $10,000 and U.S. $100,000 each with interest coupons (the "COUPONS")
attached.
(c) The Notes will be initially represented by a temporary global Note without
interest coupons (the "TEMPORARY GLOBAL NOTE") in or substantially in the
form of Schedule 2 this Agreement which shall, following authentication by
or on behalf of the Fiscal Agent, be delivered (outside the United States
or its possessions) to a common depositary for Cedel Bank, societe anonyme
("CEDEL BANK") and Xxxxxx Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear System ("EUROCLEAR"). The Temporary
Global Note will be exchangeable for definitive Notes not earlier than 40
days after November 14, 1997 (the "EXCHANGE DATE").
(D) The definitive Notes and Coupons for which the Temporary Global Note will
be exchanged (subject to its provisions) will be in, or substantially in,
the respective forms set out in Parts A and B of Schedule 1. The conditions
of the Notes (the "CONDITIONS") will be in, or substantially in, the form
set out in Part C of Schedule 1 this Agreement.
NOW IT IS HEREBY AGREED as follows:
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1. INTERPRETATION
(1) Words and expressions defined in the Conditions and not otherwise defined
in this Agreement shall have the same meanings when used in this Agreement.
(2) References in this Agreement to principal and/or interest shall include any
Additional Amounts payable pursuant to Condition 5.
2. UNDERTAKINGS OF AGENTS
The Fiscal Agent undertakes to act as Fiscal Agent and the Paying Agents
undertake to act as Paying Agent for Xxxxxxxx with respect to the Notes and
to perform the functions respectively expressed to be performed by them in,
and otherwise comply with, the Conditions and the provisions of this
Agreement and, in connection therewith, shall take all such action as may
be incidental thereto.
3. AUTHENTICATION AND DELIVERY OF NOTES
(1) Xxxxxxxx undertakes that it will deliver (outside the United States or its
possessions) to, or to the order of, the Fiscal Agent, not later than the
Exchange Date, definitive Notes (with Coupons attached) in an aggregate
principal amount of U.S$300,000,000 or such lesser amount as is the
principal amount of Notes represented by the Temporary Global Note in order
to enable the exchange of the Temporary Global Note for definitive Notes in
accordance with its terms. Each definitive Note and Coupon so delivered
shall be duly executed on behalf of Xxxxxxxx.
(2) Xxxxxxxx authorises and instructs the Fiscal Agent to authenticate the
Temporary Global Note and the definitive Notes delivered pursuant to
subclause (1).
(3) Xxxxxxxx authorises and instructs the Fiscal Agent to cause interests in
the Temporary Global Note to be exchanged for definitive Notes in
accordance with its terms. Following the exchange of the last interest in
the Temporary Global Note, the Fiscal Agent shall cause the Temporary
Global Note to be cancelled and delivered to Xxxxxxxx or as it may direct.
(4) The Fiscal Agent shall cause all Notes delivered to and held by it under
this Agreement to be maintained in safe custody and shall ensure that
interests in the Temporary Global Note are issued only in accordance with
the terms of the Temporary Global Note and this Agreement.
(5) So long as any of the Notes is outstanding the Fiscal Agent shall, within
seven days of any request by Xxxxxxxx, certify to Xxxxxxxx the number of
definitive Notes held by it under this Agreement.
4. PAYMENT TO THE FISCAL AGENT
(1) Xxxxxxxx will, not later than 10.00 a.m. (New York City time) on each date
on which any payment of principal and/or interest in respect of any of the
Notes becomes due and payable in accordance with the Conditions, transfer
to an account specified by the Fiscal Agent such amount of U.S.
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dollars as shall be sufficient for the purposes of the payment of principal
and/or interest in same day funds.
(2) Xxxxxxxx shall ensure that, not later than two Business Days preceding the
date on which any payment is to be made to the Fiscal Agent pursuant to
subclause (1), the Fiscal Agent shall receive a copy of a payment
instruction to the bank through which the payment is to be made. For the
purposes of this subclause (2), "BUSINESS DAY" means a day on which banks
are open for business in London and New York City.
5. NOTIFICATION OF NON-PAYMENT BY XXXXXXXX
The Fiscal Agent shall notify by telex or facsimile each of the other
Paying Agents forthwith:
(a) if it has not by the relevant date specified in clause 4(1)
received unconditionally the full amount in U.S. dollars
required for the payment; and
(b) if it receives unconditionally the full amount of any sum due
in respect of the Notes or Coupons after such date.
The Fiscal Agent shall, at the expense of Xxxxxxxx, forthwith upon receipt
of any amount as described in subparagraph (b), cause notice of that
receipt to be published under Condition 10.
6. DUTIES OF THE PAYING AGENTS
(1) Subject to the payments to the Fiscal Agent provided for by clause 4 being
duly made, the Paying Agents shall act as paying agents of Xxxxxxxx in
respect of the Notes and pay or cause to be paid on behalf of Xxxxxxxx, on
and after each date on which any payment becomes due and payable, the
amounts of principal and/or interest then payable on surrender or, in the
case of the Temporary Global Note, endorsement, of Notes or Coupons under
the Conditions and this Agreement. If any payment provided for by clause 4
is made late but otherwise under the terms of this Agreement the Paying
Agents shall nevertheless act as paying agents.
(2) If default is made by Xxxxxxxx in respect of any payment, unless and until
the full amount of the payment has been made under the terms of this
Agreement (except as to the time of making the same) or other arrangements
satisfactory to the Fiscal Agent have been made, neither the Fiscal Agent
nor any of the other Paying Agents shall be bound to act as paying agents.
(3) If on presentation of a Notes or Coupon the amount payable in respect of
the Notes or Coupon is not paid in full (otherwise than as a result of
withholding or deduction for or on account of any present or future tax,
assessment or governmental charge as permitted by the Conditions) the
Paying Agent to whom the Notes or Coupon is presented shall procure that
the Notes or Coupon is enfaced with a memorandum of the amount paid and the
date of payment.
7. REIMBURSEMENT OF THE PAYING AGENTS
The Fiscal Agent shall charge the account referred to in clause 4 for all
payments made by it under this Agreement and will credit or transfer to the
respective accounts of the other Paying Agents the
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amount of all payments made by them under the Conditions. immediately upon
notification from them, subject in each case to any applicable laws or
regulations.
8. NOTICE OF ANY WITHHOLDING OR DEDUCTION OR PAYMENT OF ADDITIONAL AMOUNTS
If Xxxxxxxx is, in respect of any payment in respect of the Notes,
compelled to withhold or deduct any amount for or on account of any present
or future tax, assessment or governmental charge or to pay any Additional
Amount as contemplated by Condition 5, Xxxxxxxx shall give notice to the
Fiscal Agent as soon as reasonably practicable after it becomes aware of
the requirement to make the withholding or deduction or to pay any
Additional Amount and shall give to the Fiscal Agent such information as
the Fiscal Agent shall require to enable it to comply with the requirement.
9. DUTIES OF THE FISCAL AGENT IN CONNECTION WITH REDEMPTION FOR TAXATION
REASONS
If Xxxxxxxx decides to redeem all the Notes for the time being outstanding
under Condition 4, it shall give notice of the decision to the Fiscal Agent
at least 15 days before notice is to be given to Noteholders of the
relevant redemption date, unless shorter notice is acceptable to the Fiscal
Agent.
10. PUBLICATION OF NOTICES
On behalf of and at the request and expense of Xxxxxxxx, the Fiscal Agent
shall cause to be published ALL notices required to be given by Xxxxxxxx
under the Conditions.
11. CANCELLATION OF NOTES AND COUPONS
(1) All Notes which are surrendered in connection with redemption (together
with all unmatured Coupons attached to or delivered with Notes) and all
Coupons which are paid shall be cancelled by the Paying Agent to which they
are surrendered. Each of the Paying Agents shall give to the Fiscal Agent
details of all payments made by it and shall deliver all cancelled Notes
and Coupons to the Fiscal Agent (or as the Fiscal Agent may specify). Where
Notes are purchased by or on behalf of Xxxxxxxx, Xxxxxxxx may procure that
the Notes (together with all unmatured Coupons appertaining to the Notes)
are cancelled and delivered to the Fiscal Agent or its authorised agent.
(2) The Fiscal Agent or its authorised agent shall (unless otherwise instructed
by Xxxxxxxx in writing) destroy all cancelled Notes and Coupons and furnish
Xxxxxxxx with a certificate of destruction containing written particulars
of the serial numbers of the Notes and the number by maturity date of
Coupons so destroyed.
12. ISSUE OF REPLACEMENT NOTES AND COUPONS
(1) Xxxxxxxx shall cause a sufficient quantity of additional forms of Notes and
Coupons to be available, upon request, to the Paying Agent in Luxembourg
(the "REPLACEMENT AGENT") at its specified office for the purpose of
issuing replacement Notes or Coupons as provided below.
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(2) The Replacement Agent shall, subject to the following provisions of this
clause, cause to be authenticated (in the case only of replacement Notes)
and delivered any replacement Notes or Coupons which Xxxxxxxx may determine
to issue in place of Notes or Coupons which have been lost, stolen,
mutilated, defaced or destroyed.
(3) In the case of a mutilated or defaced Notes, the Replacement Agent shall
ensure that (unless otherwise covered by such indemnity as Xxxxxxxx and the
Replacement Agent may require) any replacement Notes only has attached to
it Coupons corresponding to those attached to the mutilated or defaced
Notes which is presented for replacement.
(4) The Replacement Agent shall obtain verification, in the case of an
allegedly lost, stolen or destroyed Notes or Coupon in respect of which the
serial number is known, that the Notes or Coupon has not previously been
redeemed or paid. The Replacement Agent shall not issue a replacement Notes
or Coupon unless and until the applicant has:
(a) paid such expenses and costs as may be recurred in connection
with the replacement;
(b) furnished it with such evidence and indemnity as Xxxxxxxx and
the Replacement Agent may reasonably require; and
(c) in the case of a mutilated or defaced Notes or Coupon,
surrendered it to the Replacement Agent.
(5) The Replacement Agent shall cancel mutilated or defaced Notes or Coupons in
respect of which replacement Notes or Coupons have been issued pursuant to
this clause and all Notes which are so cancelled shall be delivered by the
Replacement Agent to the Fiscal Agent (or as it may specify). The Fiscal
Agent shall furnish Xxxxxxxx with a certificate stating the serial numbers
of the Notes or Coupons received by it and cancelled pursuant to this
clause and shall, unless otherwise requested by Xxxxxxxx, destroy all those
Notes and Coupons and furnish Xxxxxxxx with a destruction certificate
containing the information specified in clause 11(2).
(6) The Replacement Agent shall, on issuing any replacement Notes or Coupon,
forthwith inform Xxxxxxxx and the other Paying Agents of the serial number
of the replacement Notes or Coupon issued and (if known) of the serial
number of the Notes or Coupon in place of which the replacement Notes or
Coupon has been issued. Whenever replacement Coupons are issued under this
clause, the Fiscal Agent shall also notify the other Paying Agents of the
maturity dates of the lost, stolen, mutilated, defaced or destroyed Coupons
and of the replacement Coupons issued.
(7) Whenever a Notes or Coupon for which a replacement Notes or Coupon has been
issued and the serial number of which is known is presented to a Paying
Agent for payment, the relevant Paying Agent shall immediately send notice
to Xxxxxxxx and the Fiscal Agent.
13. RECORDS AND CERTIFICATES
(1) The Fiscal Agent shall keep a full and complete record of all Notes and
Coupons (other than serial numbers of Coupons) and of their redemption
and/or purchase by or on behalf of Xxxxxxxx, cancellation or payment (as
the case may be) and of all replacement Notes or Coupons issued in
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substitution for lost, stolen, mutilated, defaced or destroyed Notes or
Coupons. The Fiscal Agent shall at all reasonable times make the records
available to Xxxxxxxx.
(2) The Fiscal Agent shall give to Xxxxxxxx, as soon as possible and in any
event within four months after the date of redemption, purchase, payment or
replacement of a Note or Coupon (as the case may be), a certificate stating
(a) the aggregate principal amount of Notes which have been redeemed and
the aggregate amount in respect of Coupons which have been paid, (b)the
total number of each denomination by maturity date of those Coupons, (c)
the aggregate principal amounts of Notes (if any) which have been purchased
by or on behalf of Xxxxxxxx and cancelled (subject to delivery of the Notes
to the Fiscal Agent) and the serial numbers of such Notes in definitive
form and the total number of each denomination by maturity date of the
Coupons attached to or surrendered with the purchased Notes, and (d) the
aggregate principal amounts of Notes which have been surrendered and
replaced and the serial numbers of those Notes in definitive form and the
total number of each denomination by maturity date of those Coupons
surrendered therewith.
14. COPIES OF THIS AGREEMENT AVAILABLE FOR INSPECTION
The Paying Agents shall hold copies of this Agreement available for
inspection by Noteholders and Couponholders. For this purpose, Xxxxxxxx
shall furnish the Paying Agents with sufficient copies of such document.
15. COMMISSIONS AND EXPENSES
(1) Xxxxxxxx shall pay to the Fiscal Agent such commissions in respect of the
services of the Paying Agents under this Agreement as shall be agreed
between Xxxxxxxx and the Fiscal Agent. Xxxxxxxx shall not be concerned with
the apportionment of payment among the Paying Agents.
(2) Xxxxxxxx shall also pay to the Fiscal Agent an amount equal to any value
added tax which may be payable in respect of the commissions (other than
any amounts which may otherwise be reimbursed by credit or otherwise)
together with all reasonable expenses recurred by the Paying Agents in
connection with their services under this Agreement.
(3) The Fiscal Agent shall arrange for payment of the commissions due to the
other Paying Agents and arrange for the reimbursement of their expenses
promptly afar receipt of the relevant moneys from Xxxxxxxx.
(4) At the request of the Fiscal Agent, the parties to this Agreement may from
time to time during the continuance of this Agreement review the
commissions agreed initially pursuant to subclause (1) with a view to
determining whether the parties can mutually agree upon any changes to the
commissions.
16. INDEMNITY
(1) Xxxxxxxx undertakes to indemnify each of the Paying Agents and their
directors, officers, employees and controlling persons against all losses,
liabilities, costs, claims, actions, damages, expenses or demands which any
of them may recur or which may be made against any of them as a result of
or
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in connection with the appointment of or the exercise of the powers and
duties by any Paying Agent under this Agreement except as may result from
its wilful default, negligence or bad faith or that of its directors,
officers, employees or controlling persons or any of them, or breach by it
of the terms of this Agreement.
(2) Each of the Paying Agents severally undertakes to indemnify Xxxxxxxx and
its directors, officers, employees and controlling persons against all
losses, liabilities, costs, claims, actions, damages, expenses or demands
which any of them may incur or which may be made against any of them as a
result of its wilful default, negligence or bad faith or that of its
directors, officers, employees or controlling persons or any of them, or
breach by it of the terms of this Agreement.
17. REPAYMENT BY FISCAL AGENT
Any money deposited with the Fiscal Agent or any other Paying Agent for the
payment of the principal of or interest on any Notes and remaining
unclaimed for two years afar such principal or interest has become due and
payable, shall be paid to Xxxxxxxx upon its request and the holder of such
Notes or the relevant Coupon shall thereafter, as an unsecured general
creditor, look only to Xxxxxxxx for payment thereof and all liability of
the Fiscal Agent or such other Paying Agent with respect to such money
shall thereupon cease.
18. CONDITIONS OF APPOINTMENT
(1) Subject as provided in subclause (3) of this clause the Fiscal Agent shall
be entitled to deal with money paid to it by Xxxxxxxx for the purposes of
this Agreement in the same manner as other money paid to a banker by its
customers and shall not be liable to account to Xxxxxxxx for any interest
or other mounts in respect of the money. No money held by any Paying Agent
need be segregated except as required by law or contemplated in subclause
(2) of this clause.
(2) In acting under this Agreement and in connection with the Notes and the
Coupons the Paying Agents shall act solely as agents of Xxxxxxxx and will
not assume any obligations towards or relationship of agency or trust for
or with any of the owners or holders of the Notes or the Coupons, except
that funds received by the Paying Agents for the payment of any sums due in
respect of any Notes and Coupons shall be held by them on trust for the
relevant Noteholders and Couponholders, as the case may be, until the
expiration of the relevant period under Condition 13.
(3) No Paying Agent shall exercise any right of set-off or lien against
Xxxxxxxx or any holders of Notes or Coupons in respect of any moneys
payable to or by it under the terms of this Agreement.
(4) Except as ordered by a court of competent jurisdiction or required by law
or otherwise instructed by Xxxxxxxx, each of the Paying Agents shall be
entitled to treat the holder of any Notes or Coupon as the absolute owner
for all purposes (whether or not the Notes or Coupon shall be overdue and
notwithstanding any notice of ownership or other writing on the Notes or
Coupon or any notice of previous loss or theft of the Notes or Coupon or
trust or other interest therein).
(5) The Paying Agents shall be obliged to perform such duties and only such
duties as are set out in this Agreement and the Notes and no implied duties
or obligations shall be read into this Agreement or the Notes against the
Paying Agents.
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(6) The Fiscal Agent may consult with legal and other professional advisers and
the opinion of the advisers shall be full and complete protection in
respect of action taken, omitted or suffered under this Agreement in good
faith and in accordance with the opinion of the advisers.
(7) Each of the Paying Agents shall be protected and shall incur no liability
for or in respect of action taken, omitted or suffered in reliance upon any
instruction, request or order from Xxxxxxxx or any other Paying Agent, or
any Notes or Coupon, or any notice, resolution, direction, consent,
certificate, affidavit, statement, facsimile, telex or other paper or
document which it reasonably believes to be genuine and to have been
delivered, signed or sent by the proper party or parties or upon written
instructions from Xxxxxxxx.
(8) Any of the Paying Agents, their officers, directors, employees or
controlling persons may become the owner of, or acquire any interest in,
Notes or Coupons with the same rights that it or he would have if the
Paying Agent concerned were not appointed under this Agreement, and may
engage or be interested in any financial or other transaction with
Xxxxxxxx, and may act on, or as depositary, trustee or agent for, any
committee or body of holders of Notes or Coupons or other obligations of
Xxxxxxxx, as freely as if the Paying Agent were not appointed under this
Agreement.
(9) The Fiscal Agent shall not be under any obligation to take any action under
this Agreement which it expects will result in any expense or liability
accruing to it, the payment of which within a reasonable time is not, in
its opinion, assured to it.
19. COMMUNICATION WITH PAYING AGENTS
A copy of all communications relating to the subject matter of this
Agreement between Xxxxxxxx and any of the Paying Agents other than the
Fiscal Agent shall be sent to the Fiscal Agent.
20. TERMINATION OF APPOINTMENT
(1) Xxxxxxxx may terminate the appointment of any Paying Agent at any time
and/or appoint additional or other Paying Agents by giving to the Paying
Agent whose appointment is concerned and, where appropriate, the Fiscal
Agent at least 90 days' prior written notice to that effect, provided that,
so long as any of the Notes is outstanding, (a) in the case of a Paying
Agent the notice shall not expire less than 45 days before any due date for
the payment of interest and (b) notice shall be given under Condition 10 at
least 30 days before the removal or appointment of a Paying Agent.
(2) Notwithstanding the provisions of subclause (1), if at any time Paying
Agent becomes incapable of acting, or is adjudged bankrupt or insolvent, or
files a voluntary petition in bankruptcy or makes an assignment for the
benefit of its creditors or consents to the appointment of an
administrator, liquidator or administrative or other receiver of all or any
substantial part of its property, or if an administrator, liquidator or
administrative or other receiver of it or of all or a substantial part of
its property is appointed, or it admits in writing its inability to pay or
meet its debts as they may mature or suspends payment of its debts, or if
an order of any court is entered approving any petition filed by or
against it under the provisions of any applicable bankruptcy or insolvency
law or if a public officer takes charge or control of the Paying Agent or
of its property or affairs for the purpose of rehabilitation,
administration or liquidation, Xxxxxxxx may forthwith without notice
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terminate the appointment of the Paying Agent, in which event notice shall
be given to the Noteholders under Condition 10 as soon as is practicable.
(3) The termination of the appointment of a Paying Agent under this Agreement
shall not entitle the Paying Agent to any amount by way of compensation but
shall be without prejudice to any amount then accrued due.
(4) All or any of the Paying Agents may resign their respective appointments
under this Agreement at any time by giving to Xxxxxxxx and, where
appropriate, the Fiscal Agent at least 90 days' prior written notice to
that effect provided that, so long as any of the Notes is outstanding, the
notice shall not, in the case of a Paying Agent, expire less than 45 days
before any due date for the payment of interest. Following receipt of a
notice of resignation from a Paying Agent, Xxxxxxxx shall promptly, and in
any event not less than 30 days before the resignation takes effect, give
notice to the Noteholders under Condition 10. If any of the Paying Agents
shall resign or be removed pursuant to subclauses (1) or (2) above or in
accordance with this subclause (4), Xxxxxxxx shall promptly and in any
event within 30 days appoint a successor (being a leading bank acting
through its office in London or, in the case of a Paying Agent who is not
to be the Fiscal Agent, in Luxembourg). If Xxxxxxxx fails to appoint a
successor within such period, such Paying Agent may select a leading bank
acting through its office in London or, in the case of a Paying Agent who
is not to be the Fiscal Agent, in Luxembourg, to act as Paying Agent
hereunder and Xxxxxxxx shall appoint that bank as the successor Paying
Agent.
(5) Notwithstanding the provisions of subclauses (1), (2) and (4), so long as
any of the Notes is outstanding, or monies sufficient to pay the principal
and interest on all outstanding Notes have been made available for payment
and either paid or returned to Xxxxxxxx, as the case may be, as provided in
the Notes, the termination of the appointment of a Paying Agent (whether by
Xxxxxxxx or by the resignation of the Paying Agent) shall not be effective
unless upon the expiry of the relevant notice there is (a) a Fiscal Agent,
(b) a Paying Agent (which may be the Fiscal Agent) having its specified
office in a European city which, so long as the Notes are listed on the
Luxembourg Stock Exchange, shall be Luxembourg and, (c) so long as the
Notes are listed on the Luxembourg Stock Exchange, a Replacement Agent in
Luxembourg.
(6) Any successor Paying Agent shall execute and deliver to its predecessor,
Xxxxxxxx and, where appropriate, the Fiscal Agent an instrument accepting
the appointment under this Agreement, and the successor Paying Agent,
without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations
of the predecessor with like effect as if originally named as a Paying
Agent.
(7) If the appointment of a Paying Agent under this Agreement is terminated
(whether by Xxxxxxxx or by the resignation of the Paying Agent), the Paying
Agent shall on the date on which the termination takes effect deliver to
its successor Paying Agent (or, if none, the Fiscal Agent) all Notes and
Coupons surrendered to it but not yet destroyed and all records concerning
the Notes and Coupons maintained by it (except such documents and records
as it is obliged by law or regulation to retain or not to release) and pay
to its successor Paying Agent (or, if none, to the Fiscal Agent) the
amounts (if any) held by it in respect of Notes or Coupons which have
become due and payable but
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which have not been presented for payment, but shall have no other duties
or responsibilities under this Agreement.
(8) If the Fiscal Agent or any of the other Paying Agents shall change its
specified office, it shall give to Xxxxxxxx and, where appropriate, the
Fiscal Agent not less than 45 days' prior written notice to that effect
giving the address of the new specified office. As soon as practicable
thereafter and in any event at leas 30 days before the change, the Fiscal
Agent shall give to the Noteholders on behalf of and at the expense of
Xxxxxxxx notice of the change and the address of the new specified office
under Condition 10.
(9) A corporation into which any Paying Agent for the time being may be merged
or converted or a corporation with which the Paying Agent may be
consolidated or a corporation resulting from a merger, conversion or
consolidation to which the Paying Agent shall be a party shall, to the
extent permitted by applicable law, be the successor Paying Agent under
this Agreement without the execution or filing of any paper or any further
act on the part of any of the parties to this Agreement. Notice of any
merger, conversion or consolidation shall forthwith be given to Xxxxxxxx
and, where appropriate, the Fiscal Agent.
21. MEETINGS OF NOTEHOLDERS
(1) The provisions of Schedule 3 shall apply to meetings of the Noteholders and
shall have effect in the same manner as if set out m this Agreement
provided that, so long as any of the Notes are represented by the Temporary
Global Note, the expression "Noteholders" shall include the persons for the
time being shown in the records of Xxxxxx Guaranty Trust Company of New
York, Brussels office, as operator of the Euroclear system ("EUROCLEAR")
and/or Cedel Bank, societe anonyme ("CEDEL BANK") as the holders of a
particular principal amount of such Notes (each an "ACCOUNTHOLDER") (in
which regard a certificate or other document issued by Euroclear or Cedel
Bank as to the principal amount of such Notes standing to the account of
any person shall be conclusive and binding) for all purposes other than
with respect to the payment of principal and interest on such Notes, the
right to which shall be vested as against Xxxxxxxx solely in the bearer of
the Temporary Global Note in accordance with and subject to its terms, and
the expressions "HOLDER" and "HOLDERS" shall be construed accordingly and
the expression "NOTES" shall mean units of U.S. $1,000 principal amount of
the Notes.
(2) Without prejudice to subclause (a), each of the Paying Agents shall, on
the request of any holder of Notes, issue Voting Certificates and Block
Voting Instructions (as defined in paragraph 1 of Schedule 3) together, if
so required by Xxxxxxxx, with reasonable proof satisfactory to Xxxxxxxx of
their due execution on behalf of the Paying Agent under the provisions of
Schedule 3 and shall forthwith give notice to Xxxxxxxx under Schedule 3 of
any revocation or amendment of a Voting Certificate or Block Voting
Instruction. Each Paying Agent shall keep a full and complete record of all
Voting Certificates and Block Voting Instructions issued by it and shall,
not less than 24 hours before the time appointed for holding any meeting or
adjourned meeting, deposit at such place as the Fiscal Agent shall
designate or approve, full particulars of all Voting Certificates and Block
Voting Instructions issued by it in respect of any meeting or adjourned
meeting.
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22. NOTICES
Any notice required to be given under this Agreement to any of the
parties shall be delivered in person, sent by pre-paid post (first
class if inland, first class airmail if overseas) or by facsimile or
telex addressed to:
Xxxxxxxx: Xxx Xxxxxxxx Xxxxxxx
Prudential Xxxxx Xxxxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No: 000 000 0000
Telephone No: 000 000 0000
(Attention: Treasurer)
The Fiscal and Paying Agent: Xxxxxx Guaranty Trust Company of
New York, London branch
60 Victoria Embankment
Xxxxxx XX0X OJP
Telex No: 896631 MGTG
Facsimile No: 011 44 171 325 8154
(Attention: Global Trust and Agency
Services)
The Paying Agent: Banque Paribas Luxembourg
00X Xxxxxxxxx Xxxxx
X-0000 Xxxxxxxxxx
Telex No: 60764 PROM LU
Facsimile No: 000 000 000 64332
(Attention: Department des
Operations de Marche)
or such other address of which notice in writing has been given to the
other parties to this Agreement under the provisions of this clause.
Any such notice shall take effect, if delivered in person, at the time
of delivery, if sent by post, three days in the case of inland post or
seven days in the case of overseas post after despatch, and, in the
case of telex or facsimile, 24 hours afar the time of despatch,
provided that in the case of a notice given by telex or facsimile
transmission such notice shall forthwith be confirmed by post. The
failure of the addressee to receive such confirmation shall not
invalidate the relevant notice given by telex or facsimile.
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23. TAXES
Xxxxxxxx agrees to pay any and all stamp and other documentary taxes or
duties which may be payable in connection with the execution, delivery,
performance and enforcement of this Agreement.
24. COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which,
taken together, shall constitute one and the same agreement and any party
may enter into this Agreement by executing a counterpart.
25. DESCRIPTIVE HEADINGS
The descriptive headings in this Agreement are for convenience of reference
only and shall not define or limit the provisions of this Agreement.
26. GOVERNING LAW, SUBMISSION TO JURISDICTION AND WAIVER OF JURY TRIAL
(1) This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York, United States of America (without reference
to any conflict of law rules).
(2) Each party expressly submits to the non-exclusive jurisdiction of the
courts of the State of New York and to the Federal Courts situated in New
York City (without recourse to arbitration). Each party expressly waives
any objection to such jurisdiction on the grounds that it is an
inconvenient forum or any other similar grounds. Each party irrevocably
waives, to the fullest extent permitted by applicable law, its right to a
jury trial.
27. AMENDMENTS
This Agreement may be amended by Xxxxxxxx and the Fiscal Agent, without the
consent of any Noteholder or Couponholder, either (i) for the purpose of
curing any ambiguity or of curing, correcting or supplementing any
defective provision contained in this Agreement, (ii) permitting payment of
the principal of or interest IN the Notes in the United States, (iii) in
any other manner which Xxxxxxxx and the Fiscal Agent may mutually deem
necessary or desirable and which shall not be inconsistent with the Notes
and Coupons and shall not adversely affect to the interests of the holders
of the Notes or any Coupons in any material respect or (iv) as permitted by
Condition 9.
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SIGNED by each of the parties (or their duly authorised representatives) on
November 14, 1997.
XXX XXXXXXXX XXXXXXX
By: XXXX XXXXXXX
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, LONDON OFFICE
(in its capacity as Fiscal Agent and Paying Agent)
By: XXXXX XXXXX
BANQUE PARIBAS LUXEMBOURG
By: XXXXX XXXXX
Without prejudice to the foregoing execution of this Agreement by the parties to
this Agreement, Banque Paribas Luxembourg hereby expressly and specifically
confirms its agreement with the provisions of Clause 26.
BANQUE PARIBAS LUXEMBOURG
By: XXXXX XXXXX
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SCHEDULE 1
PART A
FORM OF DEFINITIVE NOTES
(Face of Notes)
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000000 [ISIN] 00 00000
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XXX XXXXXXXX XXXXXXX
(incorporated with limited liability under the laws of the State of Delaware)
U.S.$300,000,000
6 per cent. Notes Due November 14, 2000
The issue of the Notes was authorised by a resolution of the board of directors
of Xxx Xxxxxxxx Xxxxxxx ("XXXXXXXX" or the "COMPANY")passed on September 18,
1997.
This Note forms one of a series of Notes issued as bearer Notes in denominations
of U.S.$1,000, U.S.$10,000 and U.S.$100,000, each, in an aggregate amount of
U.S.$300,000,000.
Xxxxxxxx for value received and subject to and in accordance with the Conditions
endorsed hereon hereby promises to pay to the bearer on November 14, 2000 (or on
such earlier date as the principal sum may become repayable under the
Conditions) the principal sum of:
U.S.$[ ] ([ ] United States Dollars)
together with interest on such principal sum at the rate of 6 per cent. per
annum payable annually in arrears on November 14 and together with such other
amounts as may be payable, all subject to and under the Conditions.
The Notes are issued pursuant to a Fiscal Agency Agreement(the "AGENCY
AGREEMENT") dated November 14, 1997 between inter altos, Xxxxxxxx and Xxxxxx
Guaranty Trust Company of New York, London office as Fiscal Agent. The Notes
have the benefit of, and are subject to, the provisions contained in the Agency
Agreement and the Conditions.
Neither this Note nor any of the Coupons relating to this Note shall become
valid or enforceable for any purpose unless and until this Note has been
authenticated by or on behalf of the Fiscal Agent.
IN WITNESS WHEREOF Xxxxxxxx has caused this Note to be signed in its corporate
name by a duly authorised officer.
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Dated as of [ ], 1997
Issued in [London, England]
XXX XXXXXXXX XXXXXXX
By:
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes described
in the Agency Agreement.
By or on behalf of
Xxxxxx Guaranty Trust Company of
New York, London office
as Fiscal Agent
(without recourse, warranty or liability)
................................
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
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(Reverse of Notes)
CONDITIONS OF THE NOTES
[To be incorporated from Part C hereto]
FISCAL AND PAYING AGENT
Xxxxxx Guaranty Trust Company
of New York, London office
00 Xxxxxxxx Xxxxxxxxxx
Xxxxxx XX0X 0XX
OTHER PAYING AGENT
Banque Paribas Luxembourg
00X Xxxxxxxxx Xxxxx
X-0000 Xxxxxxxxxx
and/or such other or further Fiscal Agent or Paying Agents and/or specified
offices as may from time to time be appointed by Xxxxxxxx and notice of which
has been given to the Noteholders.
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SCHEDULE 1
PART B
- FORM OF COUPON-
(Face of Coupon)
XXX XXXXXXXX XXXXXXX
U.S.$300,000,000 6 per cent. Notes Due November 14, 2000
This Coupon relating to a Note
in the denomination of
U.S. $[1,000/10,000/100,000] payable Coupon for
to bearer, separately U.S.$[ ]
negotiable and subject to the due on
Conditions of the Notes [ ], [ ]
XXX XXXXXXXX XXXXXXX
By: ................
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
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00 000000 [ISIN] 00 000000
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(Reverse of Coupon)
FISCAL AND PAYING AGENT:
Xxxxxx Guaranty Trust Company
of New York, London office
00 Xxxxxxxx Xxxxxxxxxx
Xxxxxx XX0X 0XX
OTHER PAYING AGENT:
Banque Paribas Luxembourg
00X Xxxxxxxxx Xxxxx
X-0000 Xxxxxxxxxx
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SCHEDULE 1
PART C
TERMS AND CONDITIONS OF THE NOTES
The Notes will be issued in the aggregate principal amount of U.S.$300,000,000
under a fiscal agency agreement dated as of November 14, 1997 (the "FISCAL
AGENCY AGREEMENT") between the Company, Xxxxxx Guaranty Trust Company of New
York, London office as fiscal and paying agent (the "FISCAL AGENT") and Banque
Paribas Luxembourg as paying agent (the "PAYING AGENT" and together with the
Fiscal Agent, the "PAYING AGENTS"). The Notes are dated November 14, 1997 and
will mature at par on November 14, 2000, unless previously redeemed.
These terms and conditions of the Notes are qualified in their entirety by the
provisions of the Fiscal Agency Agreement, copies of which will be available for
inspection at the offices of the Paying Agents and the office of any additional
paying agents appointed by the Company in accordance with Condition 3 below. As
used under this heading, all capitalised terms not otherwise defined herein
shall have the meanings given in the Fiscal Agency Agreement. The holders of the
Notes and holders of the interest coupons are deemed to have notice of all the
provisions of the Fiscal Agency Agreement applicable to them.
1. STATUS OF THE NOTES AND FORM, DENOMINATIONS AND TRANSFER
(1) The obligations of the Company under the Notes will constitute direct,
unsecured and unsubordinated obligations of the Company and will rank pan
passu without any preference amongst themselves with all other present and
future unsecured and unsubordinated indebtedness of the Company save for
those preferred by mandatory provisions of law.
The Fiscal Agency Agreement and the Notes will not limit other
indebtedness or securities which may be issued by the Company and will
contain no financial or similar restrictions on the Company, except as
described below under Condition 6.
(2) The Notes will be represented initially by a single Temporary Global Note,
in bearer form (the "GLOBAL NOTE"), without interest coupons, which will be
deposited on or about November 14, 1997 with a common depositary of Xxxxxx
Guaranty Trust Company of New York, Brussels office, as operator for the
Euroclear System ("EUROCLEAR"), and Cedel Bank, societe anonyme ("CEDEL
BANK") for credit to certain accounts maintained by Euroclear or Cedel
Bank.
The Global Note will be exchangeable for definitive Notes in bearer form
in denominations of U.S.S1,000, U.S.$10,000 and U.S.$100,000 with interest
coupons attached, not earlier than 40 days afar November 14, 1997. Such
exchange will only be made upon certification that the beneficial owner is
not a United States person or, if it is a United States person, that either
it is a foreign branch of a U.S. financial institution that meets certain
requirements or it acquired the Notes through such a foreign branch and
continues to hold the Notes through that financial institution and if it is
a financial institution, that it has not acquired such Notes for resale to
any United States person or persons in the United States or its
possessions.
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Title to the definitive Notes and coupons will pass by delivery. The
Company and the Fiscal Agent and any paying agent may treat the holder of
any Note and the holder of any coupon as the absolute owner thereof
(whether or not such Note or coupon shall be overdue and notwithstanding
any notice of ownership or writing thereon or any notice of previous loss
or theft or trust or other interest thereto) for the purpose of making
payment and for all other purposes.
The Notes and coupons will carry a legend substantially to the following
effect: "Any United States person who holds this obligation will be subject
to limitations under the United States income tax laws, including the
limitations provided in Section 1650) and 1287(a) of the Internal Revenue
Code." The sections referred to in such legend provide that persons who are
subject to United States taxation, with certain exceptions, will not be
entitled to deduct any loss on the Notes and will not be entitled to
capital gains treatment of any gain on sale, disposition or payment of
principal of the Notes.
2. INTEREST
The Notes will bear interest from, and including, November 14, 1997 to, but
excluding November 14, 2000 at a rate of 6 per cent. per annum, payable annually
in arrears on November 14 in each year the Notes are outstanding, commencing
November 14, 1998.
3. PAYMENTS
Principal of, and interest (which term includes any Additional Amounts, as
defined herein, unless the context otherwise requires) on, the Notes will be
payable in U.S. dollars against surrender of such Notes or coupons, as the case
may be, at such paying agencies outside the United States and its possessions as
the Company may appoint from me to time or, at the option of the holder, by
transfer to a U.S. dollar account maintained by the payee with, or by cheque
drawn in U.S. dollars on, a bank located outside the United States and its
possessions, subject m each case to all applicable laws and regulations. If the
date for payment of any amount in respect of any Note or coupon is not a Payment
Business Day, the holder thereof shall not be entitled to payment until the next
following Payment Business 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 BUSINESS Day" means any day which is a day on which
commercial banks and foreign exchange markets settle payments in the relevant
place of presentation, and in London and New York City. No payment of principal
of, or interest on, any Note may be made at any office of the Fiscal Agent or
any other paying agent maintained by the Company m the United States, nor may
payment be made to any address in the United States or by transfer to an account
maintained in the United States. Notwithstanding the foregoing, if U.S. dollar
payments in respect of the Notes or any coupons at the offices of all paying
agents outside the United States and its possessions become illegal or are
effectively precluded because of the imposition of exchange controls or similar
restrictions on the full payment or receipt of such amounts in U.S. dollars, the
Company will appoint an office or agency in the United States at which such
payments may be made.
The Company has initially appointed the paying agents listed at the end hereof.
The Company may at any time terminate the appointme and appoint additional or
other paying agents outside the United States and its possessions, provided
that, until all outstanding Notes have been cancelled and delivered to the
Fiscal Agent, or moines sufficient to pay the principal of, and interest on, all
outstanding Notes have been made available for payment and either paid or
returned to the Company, as the case may
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be, as provided m the Notes, the Company will maintain a paying agent in a
European city for payments on Notes or coupons (which will be Luxembourg so long
as the Notes are listed on the Luxembourg Stock Exchange and the rules of the
Luxembourg Stock Exchange so require). Notice of any such termination or
appointment and of any change in the office through which any paying agent will
act will be given in accordance with Condition 10.
In case of early redemption, the Notes should be presented for payment together
with all relative unmatured coupons, failing which the full amount of any such
missing unmatured coupons (or, in the case of payment not being made in full,
that proportion of the full amount of such missing unmatured coupons which the
sum of principal so paid bears to the total amount of principal due) will be
deducted from the sum due for payment. Each amount so deducted will be paid m
the mariner mentioned above against surrender of the relative missing coupon at
any time before the expiry of five years following the due date for payment of
such principal (whether or not such coupons would have become unenforceable
pursuant to Condition 13).
All monies paid by the Company to the Fiscal Agent for the payment of principal
of, or interest on, any Note which remains unclaimed at the end of two years
after such principal or interest shall have become due and payable will be
repaid to the Company upon the Company's request and the holder of such Note or
any coupon will thereafter look only to the Company for payment thereof.
As set out in the Fiscal Agency Agreement, the Fiscal Agent and each paying
agent will act as agents of the Company and will not assume any obligation or
relationship of agency or trust for or with the holders of the Notes except that
funds held by the paying agents for payment to the holders of the Notes will be
held in trust.
4. REDEMPTION AND PURCHASE
The Notes are not redeemable before maturity except as provided under this
Condition. The Notes will be redeemed by the Company m full at a redemption
price equal to 100 per cent. of the principal amount of the Notes on November
14, 2000 (the "Maturity Date") if they have not been otherwise redeemed as
described herein.
The Notes may be redeemed at the option of the Company, as a whole but not in
part, at any time before maturity, upon the giving of a notice of redemption as
described below, at a redemption price equal to 100 per cent. of the principal
amount of the Notes, together with accrued interest to the date fixed for
redemption if the Company determines that, as a result of any change in or
amendment to the laws (or any regulations or rulings promulgated thereunder) of
the United States or of any political subdivision or taxing authority thereof or
therein affecting taxation, or any change in official position regarding the
application or interpretation of such laws, regulations or rulings (including a
holding by a court of competent jurisdiction or any change in official position
regarding or application of any treaty affecting taxation to which the United
States is a party), which change or amendment becomes effective on or afar
November 12, 1997, the Company has or will become obligated to pay Additional
Amounts with respect to the Notes as described under Condition 5. Before the
publication of any notice of redemption of the Notes, pursuant to. the
foregoing, the Company shall deliver to the Fiscal Agent an opinion of a tax
advisor to the Company (who may be an employee of the Company) stating that the
Company is entitled to effect such redemption and a certificate setting out
facts showing that the conditions precedent to the right of the Company as to
redeem have occurred.
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Notice of redemption will be given by the Company not less than 30 nor more than
60 days before the date fixed for redemption, which date and the redemption
price will be specified in the notice.
The Company or any of its subsidiaries may purchase the Notes but having done so
they may not resell or reissue those Notes.
- SPECIAL TAX REDEMPTION
If the Company shall determine, based upon an opinion of a tax advisor to the
Company (who may be an employee of the Company), that any payment made outside
the United States and its possessions by the Company or any of its paying agents
of principal of, or interest on, any Note or coupon would, under any present or
future laws or regulations of the United States affecting taxation or otherwise,
be subject to any certification, identification, documentation, information or
other reporting requirement of any kind with regard to the nationality,
residence or identity of a beneficial owner of such Note, or of any coupon, who
is a United States Alien (as defined under Condition 5) (other than such a
requirement which can be satisfied by the custodian nominee or other agent (if
any) of the beneficial owner certifying to the effect that such beneficial owner
is a United States Alien, provided that payment by such custodian, nominee or
agent to such beneficial owner is not otherwise subject to any such
requirement), the Company shall, at its election, either redeem the Notes as a
whole at a redemption price equal to 100 per cent. of the principal amount of
the Notes together with accrued interest to the date fixed for redemption, or,
if the conditions of the second succeeding paragraph are satisfied, pay the
Additional Amounts specified in such paragraph. The Company shall make such
determination and election as soon as practicable and publish prompt notice
thereof (the "Determination Notice") stating the effective date of such
certification, documentation, identification, information or other reporting
requirement, whether the Company has elected to redeem the Notes or pay the
Additional Amounts specified in the second succeeding paragraph, and (if
applicable) the last date by which the redemption of the Notes must take place,
as provided in the next succeeding sentence. If the Company elects to redeem the
Notes, such redemption shall take place on such date, not later than one year
after the publicaination Notice, as the Company shall elect by notice to the
Fiscal Agent at least 15 days before notice is given to holders of the Notes of
the date fixed for redemption. Notice of such redemption of the Notes will be
given to the holders of the Notes not more than 60 nor less than 30 days before
the date fixed for such redemption. Notwithstanding the foregoing, the Company
will not so redeem the Notes if the Company shall subsequently determine, not
less than 30 days before the date fixed for redemption, that subsequent payments
on the Notes would not be subject to any such certification, identification,
documentation, information or other reporting requirement, in which case the
Company shall publish prompt notice of such determination and any earlier
redemption notice shall be revoked and of no further effect.
Each notice referred to in the prig paragraph shall be given in the manner
described below under Condition 10.
If, and so long as, the certification, identification, documentation,
information or other reporting requirement referred to in the second preceding
paragraph would be fully satisfied by payment of a backup withholding tax or
similar charge, the Company may elect to pay as Additional Amounts such amounts
as may be necessary so that every net payment made outside the United States and
its possessions following the effective date of such requirement by the Company
or any paying agent of principal of, or interest on, any Note or coupon of which
the beneficial owner is a United States Alien (but without any requirement that
the nationality, residence or identity of such beneficial owner be disclosed to
the Company or any
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paying agent or any governmental authority), afar deduction or withholding for,
or on account of, such backup withholding tax or similar charge, will not be
less than the amount provided for in such Note or coupon to be then due and
payable. However, the Company may elect not to pay such Additional Amounts in
respect of any backup withholding tax or similar charge, which (a) would not be
applicable to a payment of principal of, or interest on, any Note or coupon made
by the Company or any one of its paying agents (i) directly to the beneficial
owner or to a custodian, nominee or other agent of the beneficial owner of such
Note or (ii) if such custodian, nominee or other agent were to certify to the
effect that such beneficial owner is a United States Alien or (b) is imposed as
a result of presentation of such Note or coupon for payment more than 10 days
after the date on which such payment became due and payable or on which payment
thereof is duly provided for, whichever occurred later. In the event the Company
elects to pay any Additional Amounts pursuant to this paragraph, the Company
shall have the right to redeem the Note at any time pursuant to the applicable
provisions of the second preceding paragraph, the redemption price of which
shall not be reduced for applicable withholding taxes. If the Company elects to
pay Additional Amounts pursuant to this paragraph and the condition specified in
the first sentence of the paragraph should not be satisfied, then the Company
shall redeem the Notes pursuant to the applicable provisions of the second
preceding paragraph.
5. PAYMENT OF Additional Amounts
All payments of principal and interest on the Notes and coupons will be made
without deduction of, withholding of, or deduction for or on account of, any
present or future taxes, assessments or governmental charges of whatever nature
imposed or levied by or on behalf of the government of the United States, or any
political subdivision or taxing authority thereof or therein, unless the
withholding or deduction of such taxes, assessments or governmental charges is
required by law or the application or interpretation thereof. In that event the
Company will, subject to the exceptions and limitations set out below, pay such
additional amounts (the "Additional Amounts") to the holder of any Note, or of
any coupon, who is a United States Alien as may be necessary in order that every
net payment of the principal of, or interest on, such Note afar deduction or
withholding for, or on account of, any such present or future tax, assessment or
governmental charge upon, or as a result of, such payment, will not be less than
the amount provided for in such Note or coupon to be then due and payable.
However, the Company will not be required to make any payment of Additional
Amounts to any such holder for or on account of:
(a) any such tax, assessment or other governmental charge which would not have
been so imposed but for (i) the existence of any present or former
connection between such holder (or between a fiduciary, settlor,
beneficiary, member or shareholder of, or possessor of a power over, such
holder, if such holder is an estate, a trust, a partnership or a
corporation) and the United States, including, without limitation, such
holder (or such fiduciary, settlor, beneficiary, member, shareholder or
possessor) being or having been a citizen or resident thereof or being or
having been engaged in a trade or business or present therein or having, or
having had, a permanent establishment therein or (ii) the presentation by
the holder of any such Note or coupon for payment on a date more than 10
days afar the date on which such payment became due and payable or the date
on which payment thereof is duly provided for, whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer or personal property tax or
any similar tax, assessment or other governmental charge;
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(c) any tax, assessment or other governmental charge imposed by reason of such
holder's past or present status as a personal holding company, foreign
personal holding company, controlled foreign corporation related to the
Company through stock ownership, private foundation or other tax exempt
organisation in each case with respect to the United States, or as a
corporation which accumulates earnings to avoid United States federal
income tax;
(d) any tax, assessment or other governmental charge which is payable otherwise
than by withholding from payments on or in respect of any Note or coupon;
any tax, assessment or other governmental charge required to be withheld by
any paying agent from any payment of principal of, or interest on, any Note
if such payment can be made without such withholding by any other paying
agent in Europe;
(f) any tax, assessment or other governmental charge which would not have been
imposed but for the failure to comply with any certification,
identification, documentation, information or other reporting requirement
concerning the nationality, residence, identity or connection with the
United States of the holder or beneficial owner of such Note or coupon, if
such compliance is required by statute or by regulation of the United
States or of any political subdivision or taxing authority thereof or
therein as a precondition to relief or exemption from such tax, assessment
or other governmental charge;
(g) any tax, assessment or other governmental charge imposed by reason of such
holder's past or present status as the actual or constructive owner of 10
per cent. or more of the total combined voting power of all classes of
stock of the Company entitled to vote;
(h) any tax, assessment or governmental charge which would 'not be applicable
to a payment of principal or interest on any Ner agent were to certify that
such beneficial owner is a United States Alien); or
(i) any combination of terms (a), (b), (c) (d), (e), (f), (g) or (h);
nor shall Additional Amounts be paid with respect to any payment in respect of a
Note or coupon to a United States Alien holder who is a fiduciary or partnership
or other than the sole beneficial owner of such Note or coupon to the extent
that a beneficiary or settlor with respect to such fiduciary or a member of such
partnership or a beneficial owner would not have been entitled to such
Additional Amounts had such beneficiary, settlor, member or beneficial owner
been the holder of the Note or coupon.
The term "United States Alien" means any person who, for United States federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which,' for United States federal
income tax purposes, is a foreign corporation, a non-resident alien individual
or a non-resident alien fiduciary of a foreign estate or trust.
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6. Negative Pledge
- Certain Definitions
The term "Subsidiary" means a corporation of which at the time of determination
the Company or one or more Subsidiaries of the Company, or the Company and one
or more Subsidiaries, own or control directly or indirectly sufficient
securities having general voting power under ordinary circumstances to elect a
majority of the board of directors of such corporation irrespective of whether
at the time of determination securities of any other class or classes shall
have, or might have, voting power by reason of the happening of any contingency.
The term "Restricted Subsidiary" means any Subsidiary substantially all the
property of which is located, or substantially all the business of which is
carried on, within the United States of America and which owns a Principal
Property, but does not include a Subsidiary of the Company engaged primarily in
the development and sale or financing of real property.
The term "Principal Property" means any manufacturing or processing plant or
facility (other than any pollution control facility) which is located within the
continental United States of America and is owned by the Company or any
Restricted Subsidiary, whether owned at or acquired after November 12, 1997 and
the book value (net of any depreciation reserves) of which on the date as of
which the determination is being made exceeds 2 per cent. of Consolidated Net
Tangible Assets other than (i) any property which in the good faith opinion of
the Board of Directors of the Company is not of material importance to the total
business conducted by the Company as an entirety or (ii) any portion of a
particular property which is similarly found not to be of material importance to
the use or operation of such property
The term "Attributable Debt" m respect of the sale and leaseback transactions
described below, is defined to mean the amount determined by multiplying the
greater, at the time such transaction is entered into, of (i) the fair value of
the property, plant or facility subject to such arrangement (as detempany acting
in good faith) or (ii) the net proceeds of the sale of such property, plant or
facility to the lender or investor, by a fraction of which the numerator shall
be the unexpired initial term of the lease of such real property as of the date
of determination of such computation and of which the denominator shall be the
full initial term of such lease. Attributable Debt shall not include any such
arrangement for financing air, water or noise pollution control facilities or
sewage or solid waste disposal facilities or involving industrial development
bonds which are tax exempt pursuant to Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Internal
Revenue Code, as amended (or which receive similar tax treatment under any
subsequent amendments thereto or successor laws thereof).
The term "Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves) after deducting therefrom (a)all current liabilities
(excluding any thereof constituting Funded Debt by reason of being extendible or
renewable at the option of the borrower), and (b) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles, all as set forth on the books and records of the Company and its
consolidated subsidiaries and computed in accordance with generally accepted
accounting principles in the United States.
The term "Funded Debt" means all indebtedness whether or not evidenced by a
bond, debenture, note or similar instrument or agreement, for the repayment of
money borrowed, having a maturity of more than 12 months from the date of its
creation or having a maturity of less than 12 months from the date of its
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creation but by its terms being renewable or extendible beyond 12 months from
such date at the option of the borrower. For the purpose of determining "Funded
Debt" of any corporation, there shall be excluded any particular indebtedness
if, on or prior to the maturity thereof, there shall have been deposited with a
proper depositary in trust the necessary funds for the payment, redemption or
satisfaction of such indebtedness.
The term "Lien" means any pledge, mortgage or other lien (including lease
purchase, instalment purchase and other title retention financing arrangements)
on or in respect of any Principal Property owned by the Company or any
Restricted Subsidiary, or on any shares of stock or indebtedness for money
borrowed of any Restricted Subsidiary.
- LIMITATIONS ON LIENS
So long as any of the Notes remains outstanding, the Company will not, nor will
it permit any Restricted Subsidiary to, secure indebtedness for money borrowed
or a guarantee for indebtedness for money borrowed (hereafter referred to as
"Secured Debt") by placing a Lien on any Principal Property now or hereafter
owned by the Company or any Restricted Subsidiary or on any shares of stock or
indebtedness for money borrowed of any Restricted Subsidiary without equally and
rateably securing the Notes, unless (i) the aggregate principal amount of such
Secured Debt then outstanding plus (ii) all Attributable Debt of the Company and
its Restricted Subsidiaries in respect of sale and leaseback transactions
described below covering Principal Properties (other than sale and leaseback
transactions under (b) of "Limitations on Sale and Leaseback Transactions") does
not exceed an amount equal to 10 per cent. of Consolidated Net Tangible Assets.
This restriction will not apply to, and there shall be excluded in computing
such Secured Debt for purposes of this restriction (a) Liens existing as of
November 12, 1997; (b) Liens on property or assets or shares of stock or
indebtedness for money borrowed existing at the time of acquisition thereof
(including acquisition through merger or consolidation) or to secure the payment
of all or any part of the purchase price or construction cost thereof or to
secure indebtedness incurred prior to, at the time of or within 360 days after
the later of the acquisition of such property or assets or shares of stock or
indebtedness for money borrowed or the completion of the construction of and
commencement of operation of such property, for the purpose of financing all or
any part of the purchase price or construction cost thereof; (c) Liens on any
property or assets to secure all or any part of the cost of development,
operation, construction, alteration, repair or improvement of all or any part of
such property or assets, or to secure debt incurred befor or within 360 days
after the completion of such development, operation, construction, alteration,
repair or improvement, whichever is later, for the purpose of financing all or
any part of such cost; (d) Liens in favour of, or which secure indebtedness
owing to, the Company or any Restricted Subsidiary, (e)Liens to secure the
performance of government contracts, including the assignment of moneys due or
to come due thereon, (f) any pledges, liens or deposits as security for the
performance of any bid, tender, contract, lease or undertaking not in connection
with the securing of debt; any pledges, liens or deposits with any governmental
agency required or permitted to qualify the Company or any Restricted Subsidiary
to conduct business, to maintain serf-insurance or to obtain the benefits of any
law pertaining to worker's compensation, unemployment insurance, old age
pensions, social security or similar matters, or to obtain any stay or discharge
in any legal or administrative proceedings; any mechanics', worker's,
repairmen's, materialmen's or warehousemen's liens or other similar liens
arising in. the ordinary course of business or deposits or pledges to obtain the
release of any of the foregoing liens; any security interest created in
connection with the sale, discount or guarantee of notes, chattel mortgages,
leases, accounts receivable, trade acceptances or other paper, or contingent
repurchase obligations, arising out of sales of merchandise in the ordinary
course of business; or other liens, deposits or pledges similar to those
referred to in this clause (f); (g) Liens arising by reason of any attachment,
judgment, decree or order
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of any court or other governmental authority, so long as any appropriate legal
proceedings which may have been initiated for review of such attachment,
judgment, decree or order shall not have been finally terminated or so long as
the period within which such prigs may be initiated shall not have expired, (h)
Liens on property securing obligations issued by a domestic governmental Company
to finance the cost of acquisition or construction of such property, (i)Liens
securing indebtedness owing by any Restricted Subsidiary to the Company, (j)
Liens on any assets of a corporation existing at the time such corporation is
merged into or consolidated with the Company or any Restricted Subsidiary or at
the time of a purchase, lease or other acquisition of the assets or shares of a
corporation or firm as an entirety or substantially as an entirety by the
Company or any Restricted Subsidiary, (k) Liens for taxes or assessments,
landlord's liens and similar hens and charges incidental to the conduct of the
business, or the ownership of the assets of the Company or of any Restricted
Subsidiary, which were not incurred IN connection with the borrowing of money
and which do not, m the opinion of the Company acting in good faith, materially
impair the use of such assets in the operation of the business of the Company or
such Restricted Subsidiary or the value of such assets for the purposes thereof
and (1)extensions, substitutions, replacements or renewals of the foregoing.
For these purposes, debt created by the Company or any Restricted Subsidiary
shall not be cumulated with a guarantee of the same debt by the Company or any
other Restricted Subsidiary for the same financial obligation.
- Limitations on Sale and Leaseback Transactions
So long as any of the Notes remain outstanding, the Company will not, nor will
it permit any Restricted Subsidiary to, enter into any sale and leaseback
transaction (exempt a lease for a period not exceeding five years) covering any
Principal Property which was or is owned or leased by the Company or any
Restricted Subsidiary and which has been or is to be sold or transferred more
THAN 360 days afar such property has been owned by the Company or such
Restricted Subsidiary and completion of construction and commencement of full
operation thereof, unless (a)the Attributable Debt m respect thereto and all
other sale and leaseback transactions entered into afar November 12, 1997 (other
than those the proceeds of which are applied to reduce Funded Debt or acquire
additional real property under Co) following), plus the aggregate principal
amount of then outstanding Secured Debt not otherwise permitted or excepted
without equally and rateably securing the Notes does not exceed 10 per cent. of
Consolidated Net Tangible Assets, or (b) an amount equal to the value of the
Principal Property sold and leased back is applied within 360 days afar the sale
or transfer to (x)the voluntary retirement of Funded Debt (including the Notes)
or (y) the acquisition of additional real property.
7. EVENTS OF DEFAULT
A default will occur under the Notes:
(a) if the Company shall fail to make any payment of principal of any of
the Notes or the Company shall fail to make any payment of interest on
any of the Notes (whether at maturity or on redemption or otherwise)
for 30 days afar such payment becomes due and payable; or
(b) if the Company shall fail to perform or observe any other term,
covenant or agreement contained in the Notes, for a period of 60 days
(180 days with respect to the Company's
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compliance with Condition 6 above) after written notice thereof to the
Company and the Fiscal Agent by the holders of 25 per cent. or more m
aggregate principal amount of the Notes at the time outstanding; or
(c) on a court having jurisdiction entering a decree or order for relief
in respect of the Company or any Significant Subsidiary m an
involuntary ease under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or any Significant Subsidiary or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and such decree or order having remained
unstayed and in effect for a period of 60 consecutive days; or
(d) on the Company or any Significant Subsidiary commencing a voluntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or consenting to the entry of an order for
relief in an involuntary ease under such law, or consenting to the
appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator or similar official of the
Company or any Significant Subsidiary if the effect of the foregoing
would have a material adverse effect on the Group or on any
substantial part of its property, or making any general assignment for
the benefit of creditors, or failing generally to pay its debts as
they become due.
If a default shall occur and be continuing, the holder of any Note, on
written notice to the Company and the Fiscal Agent, may declare to be due
and payable in respect of such Note the principal amount thereof plus
interest accrued thereon.
For the purposes of this Condition, "Significant Subsidiary" shall mean any
significant subsidiary as defined m regulation S-X as promulgated by the
Securities and Exchange Commission and "Group" shall mean the Company and
its consolidated subsidiaries for the time being.
8. CONSOLIDATION, MERGER OR SALE OF ASSETS
The Company may, without the consent of the holders of the Notes, consolidate
with or merge into or sell, convey or lease all or substantially all of its
property to another corporation, provided that the successor corporation (a)
assumes all payment and related obligations of the Company under the Fiscal
Agency Agreement and the Notes, (b) is a corporation organised and validly
existing under the laws of the United States or any State thereof or the
District of Columbia and (c) shall not immediately thereafter be in default of
any such payments or obligations. Following such assumption the Company shall be
discharged from all obligations and covenants under the Fiscal Agency Agreement
and the Notes.
9. MODIFICATION OF FISCAL AGENCY AGREEMENT AND NOTES
The Fiscal Agency Agreement and the terms and conditions of the Notes and
coupons may be modified or amended by the Company and the Fiscal Agent, without
the consent of the holder of any Note or coupon, for the purposes, among other
things, of (a) curing any ambiguity, or curing, correcting or supplementing any
defective provisions contained therein, (b) permitting payment of the principal
of, or interest on, the Notes in the United States or (c) in any other manner
which the Company and the Fiscal Agent may deem
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necessary or desirable and which will not be inconsistent with the Notes and
coupons and which will not adversely affect the interests of the holders of the
Notes or any coupons m any material respect.
Modifications and amendments to the Fiscal Agency Agreement or to the terms and
conditions of the Notes and coupons may also be made by the Company and the
Fiscal Agent, and future compliance therewith or past default by the Company may
be waived, either with the written consent of the holders of at least 25 per
cent. in aggregate principal amount of the Notes at the time outstanding, or by
the adoption of an Ordinary Resolution at a meeting of the holders of the Notes;
provided, however, that no such modification, amendment or waiver may, without
the consent in writing of the holders of at least 75 per cent. m aggregate
principal amount of the Notes at the time outstanding or the passing of an
Extraordinary Resolution as defined below, inter alia (a) waive a default in the
payment of the principal of, or interest on, any Note or change the stated
maturity of the principal of or payment date of interest on any Note, (b)reduce
the principal amount of or interest on any Note, (c) change the obligation of
the Company to pay Additional Amounts (as described in Condition 5), (d) change
the currency of payment of principal of or interest on any Note, (e) impair the
right to institute suit for the enforcement of any such payment on or with
respect to any Note, (f) modify the obligation to maintain an office or agency
in Europe, (g) reduce the above-stated percentage of holders of the Notes
necessary to modify or amend the Fiscal Agency Agreement or the terms and
conditions of the Notes or the coupons or reduce the percentage of votes
required for the adoption of a resolution or the quorum required at any meeting
of holders of the Notes at which a resolution is to be adopted, or (h)reduce the
above-stated percentage of outstanding Notes necessary to waive any future
compliance or past default. The quorum required for adopting a resolution at any
such meeting or any adjournment thereof will be persons holding or representing
at least (in the case of an Ordinary Resolution) 25 per cent. and (in the case
of an Extraordinary Resolution) 50 per cent. in principal amount of the Notes at
the time outstanding. Any modifications, amendments or waivers to the Fiscal
Agency Agreement or to the terms and conditions of the Notes or the coupons made
in accordance with the foregoing will be conclusive and binding on all holders
of the Notes and on all holders of coupons, whether or not they have given such
consent or were present at such meeting, and on all future holders of the Notes
and coupons. Any instrument given by or on behalf of any holder of a Note in
connection with any consent to any such modification, amendment or waiver will
be irrevocable once given and will be conclusive and binding on all subsequent
holders of such Note and any coupons. For the purposes of this section
"Extraordinary Resolution" shall mean a resolution passed at a meeting of the
Noteholders duly convened and held in accordance with the provisions contained
in the Fiscal Agency Agreement by a majority consisting of not less than 75 per
cent. of the votes given on a poll or a show of hands and "Ordinary Resolution"
shall mean a resolution passed at a meeting of the Noteholders duly convened and
held in accordance with the provisions contained in the Fiscal Agency Agreement
by a majority consisting of more than 50 per cent. of votes given on a poll or a
show of hands.
10. NOTICES
Notices to holders of the Notes will be given by publication in a daily
newspaper of general circulation in London, England. In addition, so long as the
Notes are listed on the Luxembourg Stock Exchange and the rules of such Exchange
shall so require, notices to holders of the Notes will be given by publication
in a daily newspaper of general circulation in Luxembourg. If publication m
either London or Luxembourg is not practical, such publication shall be made
elsewhere in Europe. Such publication is expected to be made in the Financial
Times and the Luxemburger Wort. Such notices will be deemed to have been given
on the date of such publication, and if published in such newspapers on
different dates, on the date of the first such publication.
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11. REPLACEMENT OF NOTES AND COUPONS
Notes (including any coupons appertaining to the Notes) that become mutilated,
destroyed, stolen or lost will be replaced by the Company at the expense of the
holder upon delivery to the Paying Agent IN Luxembourg (the "Replacement Agent")
of the Notes and coupons or evidence of the loss, theft or destruction thereof
satisfactory to the Company and the Replacement Agent. In the case of a lost,
stolen or destroyed Note or coupon, an indemnity satisfactory to the Replacement
Agent and the Company may be required at the expense of the holder of such Note
or coupon before a replacement Note or coupon, as the case may be, will be
issued.
12. Further ISSUES
The Company may from time to time, without the consent of the holder of any Note
or coupon, issue further Notes pursuant to an agreement supplemental to the
Fiscal Agency Agreement so as to form a single series with the Notes for all
purposes.
13. Prescription
The Notes and coupons will become void unless presented for payment within a
period of ten years (in the case of principal) and five years (in the case of
interest) after the Relevant Date (as defined in this Condition 13).
For the purposes of these Terms and Conditions, the "Relevant Date" in respect
of any payment means (in the case of Notes) the due date for payment and (in the
case of coupons) the date for payment shown on the coupons.
14. Governing Law
The Fiscal Agency Agreement, the Notes and the coupons will be governed by and
construed in accordance with the laws of the State of New York.
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SCHEDULE 2
FORM OF TEMPORARY GLOBAL NOTE
XXX XXXXXXXX XXXXXXX
TEMPORARY GLOBAL NOTE
representing
U.S.$300,000,000
6 per cent. NOTES DUE November 14, 2000
This Note is a Temporary Global Note without interest coupons in respect of a
duly authorised issue of notes of Xxx Xxxxxxxx Xxxxxxx ("Xxxxxxxx or the
"Company""), designated as specified in the title hereof (the "Notes"), limited
to the aggregate principal amount of U.S.$300,000,000 and issued under a Fiscal
Agency Agreement dated November 14, 1997 (the "Agency Agreement") between, inter
alios, Xxxxxxxx and Xxxxxx Guaranty Trust Company of New York, London office as
fiscal agent (the "Fiscal Agent"). References herein to the Conditions (or to
any particular numbered Condition) shall be to the Conditions (or that
particular one of them) set out in Part C of Schedule 1 to the Agency Agreement.
1. Promise to pay
Subject as provided in this Temporary Global Note, for value received,
Xxxxxxxx promises to pay to the bearer upon presentation and surrender the
principal amount of this Temporary Global Note (being at the date hereof
U.S.$300,000,000) on the Maturity Date (as defined in Condition 4) (or on
such earlier date as the said principal amount may become repayable in
accordance with the Conditions) and to pay interest on the principal amount
for the time being outstanding at the rate of 6 per cent. per annum from
November 14, 1997, payable annually in arrears on November 14 m each year
until payment of the principal amount has been made or duly provided for in
full together with such other amounts (if any) as may be payable, all
subject to and in accordance with the Conditions.
2. EXCHANGE FOR DEFINITIVE NOTES AND PURCHASES
The definitive Notes to be issued on exchange will be in bearer form in the
denomination of U.S.$1,000, U.S.$10,000 or U.S.$100,000 each with interest
coupons ("Coupons"), in each case in the respective form set out in the
schedules to the Agency Agreement.
On and after the day being 40 days after the closing date for the Notes
(the "Exchange Date") this Temporary Global Note may be exchanged in whole
or in part (free of charge to the bearer) at the specified office of the
Fiscal Agent (or such other place as the Fiscal Agent may direct) for duly
executed and authenticated definitive Notes (together with the Coupons
appertaining thereto) and Xxxxxxxx shall procure that the Fiscal Agent
shall deliver, in full or partial exchange for this Temporary Global Note,
definitive Notes (together with the Coupons appertaining thereto) in an
aggregate principal amount equal to the principal amount of this Temporary
Global Note submitted for exchange. Notwithstanding the foregoing, no
definitive Notes will be so issued and delivered unless there shall have
been presented to the Fiscal Agent a certificate from Xxxxxx Guaranty
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Trust Company of New York, Brussels office, as operator of the Euroclear
System ("Euroelear") or Cedel Bank, societe anonyme ("Cedel Bank")
substantially in the form of the certificate attached as Exhibit A.
Any person who would, but for the provisions of this Temporary Global Note
and of the Agency Agreement, otherwise be entitled to receive a definitive
Note or definitive Notes shall not be entitled to require the exchange of
an appropriate part of this Temporary Global Note unless and until he shall
have delivered or caused to be delivered to Euroclear or Cedel Bank a
certificate substantially in the form of the certificate attached as
Exhibit B (copies of which form of certificate will be available at the
offices of Euroclear in Brussels and Cedel Bank in Luxembourg and the
specified office of each of the Paying Agents).
Upon (i) any exchange of a part of this Temporary Global Note for a
definitive Note or (ii) the purchase by or on behalf of Xxxxxxxx and
cancellation of a part of this Temporary Global Note m accordance with the
Conditions, the portion of the principal mount hereof so exchanged or so
purchased and cancelled shall be endorsed by or on behalf of the Fiscal
Agent on behalf of Xxxxxxxx on Part I of the Schedule hereto, whereupon the
principal mount hereof shall be reduced for all purposes by the amount so
exchanged or so purchased and cancelled and, in each case, endorsed.
3. Payments
Until the entire principal amount of this Temporary Global Note has been
extinguished, this Temporary Global Note shall in all respects be entitled
to the same benefits as the definitive Notes for which it may be exchanged,
except that the holder of this Temporary Global Note shall not (unless upon
due presentation of this Temporary Global Note for exchange, issue and
delivery of definitive Notes are improperly withheld or refused and such
withholding or refusal is continuing at the relevant payment date) be
entitled (i) (subject to (ii) below) to receive any payment of interest on
this Temporary Global Note except upon certification as hereafter provided
or (ii) on and afar the Exchange Date, to receive any payment on this
Temporary Global Note. Upon any payment of principal or interest on this
Temporary Global Note the amount so paid shall be endorsed by or on behalf
of the Fiscal Agent on behalf of Xxxxxxxx on Part II of the Schedule
hereto.
Payments of interest in respect of Notes for the time being represented by
this Temporary Global Note shall be made to the bearer only upon
presentation to the Fiscal Agent of a certificate from Euroclear or from
Cedel Bank substantially in the form of the certificate attached as Exhibit
A. Any person who would, but for the provisions of this Temporary Global
Note, otherwise be beneficially entitled to a payment of interest on this
Temporary Global Note shall not be entitled to require such payment unless
and until he shall have delivered or caused to be delivered to Euroclear or
Cedel Bank a certificate substantially in the. form of the certificate
attached as Exhibit B (copies of which form of certificate will be
available at the offices of Euroclear in Brussels and Cedel Bank m
Luxembourg and the specified office of each of the Paying Agents).
Upon any payment of principal and endorsement of such payment on Part II of
the Schedule hereto, the principal amount of this Temporary Global Note
shall be reduced for all purposes by the principal amount so paid and
endorsed.
All payments of any amounts payable and paid to the bearer of this
Temporary Global Note shall be valid and, to the extent of the sums so
paid, effectual to satisfy and discharge the liability for the moneys
payable hereon, on the relevant definitive Notes and Coupons.
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4. NOTICES
For so long as the Notes are represented by this Temporary Global Note and
this Temporary Global Note is held on behalf of Euroclear and/or Cedel
Bank, notices to Noteholders may be given by delivery of the relevant
notice to Euroclear and/or Cedel Bank (as the case may be) for
communication to the relative Accountholders (as defined below) rather than
by publication as required by Condition 10, provided that so long as the
Notes are listed on the Luxembourg Stock Exchange and the rules of the
Luxembourg Stock Exchange so require, notices shall also be published in a
leading newspaper having general circulation in Luxembourg (which is
expected to be the Luxemburger Wort).
5. ACCOUNTHOLDERS
For so long as the Notes are represented by this Temporary Global Note and
this Temporary Global Note is held on behalf of Euroclear and/or Cedel
Bank, each person who is for the time being shown in the records of
Euroclear or Cedel Bank as the holder of a particular principal mount of
the Notes (each an "Accountholder") (in which regard any certificate or
other document issued by Euroclear or Cedel Bank as to the principal amount
of the Notes standing to the account of any person shall be conclusive and
binding for all purposes) shall be treated as the holder of such principal
amount of the Notes for all purposes (including for the purposes of any
quorum requirements of, or the right to demand a poll at, meetings of the
Noteholders) other than with respect to the payment of principal and
interest on such Notes, the right to which shall be vested, as against
Xxxxxxxx, solely in the bearer of this Temporary Global Note in accordance
with and subject to its terms. Each Accountholder must look solely to
Euroclear or Cedel Bank, as the case may be, for its share of each payment
made to the bearer of this Temporary Global Note.
6. PRESCRIPTION
Claims against Xxxxxxxx m respect of principal and interest on the Notes
represented by this Temporary Global Note will be void unless it is
presented for payment within a period of 10 years (in the case of
principal) and five years (in the case of interest) from the Relevant Date
(as defined in Condition 13).
7. AUTHENTICATION
This Temporary Global Note shall not be or become valid or obligatory for
any purpose unless and until authenticated by or on behalf of the Fiscal
Agent.
8. GOVERNING LAW
This Temporary Global Note is governed by, and shall be construed in
accordance with, the laws of the State of New York, United States of
America (without reference to any conflict of law rules).
IN WITNESS whereof Xxxxxxxx has caused this Temporary Global Note to be signed
in its corporate name by a duly authorised officer.
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XXX XXXXXXXX XXXXXXX
By: ......................
Duly authorised
Name:
Title:
Issued in London on November 14, 1997.
Certificate of authentication
This is the Temporary Global Note
described in the Agency Agreement.
...............................
Duly authorised
for and on behalf of
Xxxxxx Guaranty Trust Company
of New York, London office
as Fiscal Agent.
(without recourse, warranty or liability)
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 1650) AND 1287(a) OF THE INTERNAL REVENUE CODE.
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THE SCHEDULE
PART I
EXCHANGES FOR DEFINITIVE NOTES
AND PURCHASES AND CANCELLATIONS
The following exchanges of a part of this Temporary Global Note for definitive
Notes and/or purchases and cancellations of a part of the aggregate principal
amount of this Temporary Global Note have been made:
Date Part of the Part of the Remaining Notation
of aggregate aggregate principal made by or on
exchange principal principal amount of behalf of
or amount of this amount of this the
cancellation Temporary this Temporary Temporary Fiscal Agent
Global Note Global Note Global Note
exchanged for purchased and following
definitive cancelled exchange
Notes or purchase
and
cancellation
U.S.$ U.S$ U.S$
------------ --------- -------------- --------- ------------
------------ --------- -------------- --------- ------------
------------ --------- -------------- --------- ------------
------------ --------- -------------- --------- ------------
------------ --------- -------------- --------- ------------
------------ --------- -------------- --------- ------------
------------ --------- -------------- --------- ------------
------------ --------- -------------- --------- ------------
------------ --------- -------------- --------- ------------
------------ --------- -------------- --------- ------------
------------ --------- -------------- --------- ------------
------------ --------- -------------- --------- ------------
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PART II
PAYMENTS OF PRINCIPAL AND INTEREST
The following payments on this Temporary Global Note have been made:
Date Amount of Amount of Remaining Notation
of interest paid principal paid principal made by
payment amount of or on
this behalf of the
Temporary Fiscal Agent
Global Note
following
payment
U.S.$ U.S.$ U.S.$
------------ --------- -------------- --------- ------------
------------ --------- -------------- --------- ------------
------------ --------- -------------- --------- ------------
------------ --------- -------------- --------- ------------
------------ --------- -------------- --------- ------------
------------ --------- -------------- --------- ------------
------------ --------- -------------- --------- ------------
------------ --------- -------------- --------- ------------
------------ --------- -------------- --------- ------------
------------ --------- -------------- --------- ------------
------------ --------- -------------- --------- ------------
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EXHIBIT A
CERTIFICATE OF CLEARING SYSTEM
XXX XXXXXXXX XXXXXXX
US$300,000,000
6 PER CENT. NOTES DUE NOVEMBER 14, 2000
(the "Securities")
This is to certify that, based solely on certifications we have received m
writing, by tested telex or by electronic transmission from member organisations
appearing in our records as persons being entitled to a portion of the principal
amount set forth below (our "Member Organisations") substantially to the effect
set forth in the agency agreement (the "Agency Agreement"), as of the date
hereof, U.S.$[ ] principal amount of the above-captioned Securities (i) is owned
by persons that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States persons"), (ii) is owned by United States persons that (a) are
foreign branches of United States financial institutions (as defined in U.S.
Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions")
purchasing for their own account or for resale, or Co) 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 m either case (a) or Co), each such United States financial
institution has agreed, on its own behalf or through its agent, that we may
advise Xxxxxxxx or Xxxxxxxx'x agent that it will comply with the requirements of
Section 1650)(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 m U.S. Treasury Regulations Section 1.1635(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 out 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 out in the Agency Agreement.
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 Security 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.
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 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.
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*Dated
[Xxxxxx Guaranty Trust Company of New York,
Brussels office, as operator of the
Euroclear System] [Cedel Bank, societe anonyme]
By ...................................
Authorised Signatory
------------------------------
* To be dated no earlier than the date to which this certification relates,
namely (a) the payment date or (b) the date set for the exchange of the
Temporary Global Note for the Definitive Notes.
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EXHIBIT B
XXX XXXXXXXX XXXXXXX
U.S.$300,000,000
6 PER CENT. NOTES DUE NOVEMBER 14, 2000
CERTIFICATE INCORPORATED BY REFERENCE TO CERTIFICATE
OF CLEARING SYSTEM
(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 m u.s.
Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions")
purchasing for their own account or for resale, or Co) 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 Xxxxxxxx or Xxxxxxxx'x 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 1.1635(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 further to certify that such financial
institution has not acquired the Securities for the 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 axe of the category contemplated in Section 230.903(c)(3) 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 (i) in the case of debt
securities, 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; or (ii) in the case of equity securities,
the Securities are owned by (x) non-U.S. person(s) (and such person(s) are not
acquiring the Securities for the account or benefit of U.S. person(s)) or (y)
U.S. person(s) who purchased the Securities in a transaction which did not
require registration under the Act. If this certification is being delivered in
connection with the exercise of warrants pursuant to Section 230.902(m) of
Regulation S under the Act, then this is further to certify that, except as set
forth below, the Securities are being exercised by and on behalf of non-U.S.
person(s). 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 m accordance with your operating
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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 U.S.$[ ] 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 rights or collection of any interest) cannot be made
until we do so certify.
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 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.
* Dated
By ......................
[Name of person giving certification]
(As, or as agent for, the beneficial
owner(s) of the Securities
to which this certification relates)
----------------------------------
* To be dated no earlier than the fifteenth day before the date to which this
certification relates, namely (a) the payment xxxx or (b) the date set for
the exchange of the Temporary Global Note for the definitive Notes.
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SCHEDULE 3
PROVISIONS FOR MEETINGS OF NOTEHOLDERS
1. As used in this schedule the following expressions shall have the following
meanings unless the context otherwise requires:
(a) "Voting Certificate" shall mean an English language certificate issued
by a Paying Agent and dated in which it is stated:
(i) that on the date of the Voting Certificate Notes (not being Notes
in respect of which a Block Voting Instruction has been issued
and is outstanding in respect of the meeting specified in the
Voting Certificate and any adjourned meeting) were deposited with
the Paying Agent or (to the satisfaction of the Paying Agent)
were held to its order or under its control and that the Notes
will not cease to be so deposited or held until the first to
occur of:
(A) the conclusion of the meeting specified in the Voting
Certificate or, if applicable, any adjourned meeting; and
(B) the surrender of the Voting Certificate to the Paying Agent
who issued the same; and
(ii) that the bearer of the Voting Certificate is entitled to attend
and vote at the meeting and any adjourned meeting in respect of
the Notes represented by the Voting Certificate;
(b) "Block Voting Instruction" shall mean an English language document
issued by a Paying Agent and dated in which:
(i) it is certified that Notes (not being Notes in respect of which a
Voting Certificate has been issued and is outstanding in respect
of the meeting specified in the Block Voting Instruction and any
adjourned meeting) have been deposited with the Paying Agent or
(to the satisfaction of the Paying Agent) were held to its order
or under its control and that the Notes will not cease to be so
deposited or held until the first to occur of:
(A) the conclusion of the meeting specified in the document or,
if applicable, any adjourned meeting; and
(B) the surrender to the Paying Agent not less than 48 hours
before the time for which the meeting or any adjourned
meeting is convened of the receipt issued by the Paying
Agent in respect of each deposited Notes which is to be
released or (as the case may require) the Notes ceasing with
the agreement of the Paying Agent to be held to its order or
under its control and the giving of notice by the Paying
Agent to Xxxxxxxx under paragraph 17 of the necessary
amendment to the Block Voting Instruction;
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(ii) it is certified that each holder of the Notes has
instruction the Paying Agent that the vote(s) attributable
to the Notes so deposited or held should be cast m a
particular way in relation to the resolution to be put to
the meeting or any adjourned meeting and that all the
instructions are, during the period commencing 48 hours
before the time for which the meeting or any adjourned
meeting is convened and ending at the conclusion or
adjournment, neither revocable nor capable of amendment;
(iii) the total number, total principal amount and the serial
numbers (if available) of the Notes so deposited or held are
listed distinguishing, with regard to each resolution,
between those m respect of which instructions have been
correctly given that the attributable votes should be cast
in favour of the resolution and those in respect of which
instructions have been so given that the attributable votes
should be cast against the resolution; and
(iv) one or more persons named in the Block Voting Instruction (a
"proxy") is or are authorised and instructed by the Paying
Agent to cast the votes attributable to the Notes so listed
in accordance with the instructions referred to in
subparagraph (iii) as set out in the Block Voting
Instruction.
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 the Voting Certificate or Block Voting Instruction
relates and the Paying Agent with which the Notes have been deposited or
the person holding the same to the order or under the control of the Paying
Agent shall be deemed for such purpose not to be the holder of those Notes.
2. Xxxxxxxx may at any time and shall upon a requisition in writing signed by
the holders of not less than one-tenth in principal amount of the Notes for
the time being outstanding convene a meeting of the Noteholders and if
Xxxxxxxx makes default for a period of seven days in convening a meeting
the same may be convened by the requisitionists. Every meeting shall be
held at such place as the Fiscal Agent may approve.
3. At least 21 days' notice (exclusive of the day on which the notice is given
and the day on which the meeting is held) specifying the place, day and
hour of meeting shall be given to the Noteholders before any meeting of the
Noteholders m the manner provided by Condition 10. The notice shall state
generally the nature of the business to be transacted at the meeting. Such
notice shall include a statement to the effect that Notes my be deposited
with Paying Agents for the purpose of obtaining Voting Certificates or
appointing proxies. A copy of the notice shall be sent by post to Xxxxxxxx
(unless the meeting is convened by Xxxxxxxx).
4. Some person (who may but need not be a Noteholder) nominated in writing by
Xxxxxxxx shall be entitled to take the chair at every meeting but if no
nomination is made or if at any meeting the person nominated shall not be
present within fifteen minutes afar the time appointed for holding the
meeting the Noteholders present shall choose one of their number to be
Chairman.
5. At any meeting persons present holding Notes or Voting Certificates or
being proxies and holding or representing m the aggregate at least 25 per
cent. of the principal amount of the Notes for the time being outstanding
shall (except for the purpose of passing an Extraordinary Resolution) form
a quorum for the passing of an Ordinary Resolution 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 business. The
quorum at any meeting for passing AN Extraordinary Resolution
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shall be persons present holding Notes or Voting Certificates or being
proxies and holding or representing in the aggregate not less than 50 per
cent. of the principal amount of the Notes for the time being outstanding;
without limiting the provisions of paragraph 18, the following matters
shall only be capable of being effected after having been approved by
Extraordinary Resolution:
(a) waiver of a default in the payment of the principal of, or interest
on, any Note or change of the stated maturity of the principal of or
payment date of interest on any Note;
(b) reduction of the principal amount of or interest on any Note;
(c) change of the obligation of Xxxxxxxx to pay Additional Amounts;
(d) change the currency of payment of principal or interest on any Note;
(e) impair the right to institute suit for the enforcement of any such
payment on or with respect to any Note;
(f) modify the obligation to maintain an office or agency in Europe;
(g) reduce the above-stated percentage of holders of the Notes necessary
to amend or modify the Fiscal Agency Agreement or the terms and
conditions of the Notes or the coupons or reduce the percentage of
votes required for the adoption of a resolution (including an
Extraordinary Resolution) or the quorum required at any meeting of
holders of the Notes at which a resolution is to be adopted;
(h) the sanctioning of any scheme or proposal as is described in paragraph
18(f); and
(i) reduce the stated percentage of outstanding Notes necessary pursuant
to the conditions to waive any future compliance or past default.
and all other matters shall be effected after being approved by.
Ordinary Resolution.
6. If within fifteen minutes alter the time appointed for any meeting a quorum
is not 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 the 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 the period being not less than 14 days
nor more than 42 days, and at such place as may be appointed by the
Chairman and approved by the Fiscal Agent) and at the adjourned meeting
persons present holding Notes or Voting Certificates or being proxies
whatever the principal amount of the Notes so held or represented by them
shall (subject as provided below) form a quorum and 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
business of which includes the passing of an Extraordinary Resolution, the
quorum shall be persons present holding Notes or Voting Certificates or
being proxies and holding or representing in the aggregate not less than
one-third of the principal amount of the Notes for the time being
outstanding.
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 l0 were substituted for 21 in paragraph 3 and the notice
shall (except in cases where the proviso to paragraph 6 shall apply
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when it shall state the relevant quorum) state that the persons present
holding Notes or Voting Certificates or being proxies at the adjourned
meeting whatever the principal amount of the Notes held or represented by
them will form a quorum. Subject as provided above it shall not be
necessary to give any notice of an adjourned meeting.
8. Every question submitted to a meeting shall be decided by a simple majority
vote which shall be taken in the first instance by a show of hands or if
(before or on the declaration of the result of the show of hands) a poll is
demanded by the Chairman or Xxxxxxxx or by one or more persons present
holding Notes or Voting Certificates or being proxies and holding or
representing in the aggregate not less than one-fiftieth part of the
principal amount of the Notes then outstanding then by a poll. 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 any votes to which he may be entitled as
a Noteholder or as a holder of a Voting Certificate or as a proxy.
9. At any meeting 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
the resolution unless a poll is demanded in accordance with paragraph 8.
10. Subject to paragraph 12, if at any meeting a poll is demanded it shall be
taken in such manner and, subject as provided below, either at once or
after an adjournment, as the Chairman may direct and the result of the 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.
11. The Chairman may with the consent of (and shall if directed by) any 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.
12. Any poll demanded at any meeting on the election of a Chairman or on any
question of adjournment shall be taken at the meeting without adjournment.
13. Any director or officer of Xxxxxxxx and its lawyers and financial advisers
may attend and speak at any meeting. Save as provided above no person shall
be entitled to attend and speak nor shall any person be entitled to vote at
any meeting of the Noteholders .or join with others in requesting the
convening of a meeting unless he either produces the Notes of which he is
the holder or a Voting Certificate or is a proxy. Neither Xxxxxxxx nor any
of its subsidiaries shall be entitled to vote at any meeting in respect of
Notes held by it for the benefit of any such company. Nothing contained in
this Agreement shall prevent any of the proxies named in any Block Voting
Instruction from being a director, officer of or otherwise connected with
Xxxxxxxx.
14. Subject as provided in paragraph 13 at any meeting:
(a) on a show of hands every person who is present in person and produces
a Note or Voting Certificate or is a proxy shall have one vote; and
(b) on a poll every person who is so present shall have one vote in
respect of each US.S1,000 in principal amount of the Notes so produced
or represented by the Voting Certificate so produced or in respect of
which he is a proxy or in respect of which he is the Noteholder.
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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 m the same way.
15. The proxies named in any Block Voting Instruction or form of proxy need not
be Noteholders.
16. Each Block Voting Instruction together (if so requested by Xxxxxxxx) with
reasonable proof satisfactory to Xxxxxxxx of its due execution on behalf of
the relevant Paying Agent shall be deposited at such place as the Fiscal
Agent 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 m default the Block Voting
Instruction shall not be treated as valid unless the Chairman of the
meeting decides otherwise before the meeting or adjourned meeting proceeds
to business. A notarially certified copy of each Block Voting Instruction
shall (if so requested by Xxxxxxxx) be deposited with the Fiscal Agent
before the commencement of the meeting or adjourned meeting but the Fiscal
Agent shall not be obliged to investigate or be concerned with the validity
of or the authority of the proxies named in any 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 Noteholders' instructions
pursuant to which it was executed, provided that no intimation in writing
of the revocation or amendment shall have been received from the relevant
Paying Agent by Xxxxxxxx at its registered office (or such other place as
may have been approved by the Fiscal Agent 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 provided above
have the following powers exercisable by Extraordinary Resolution (subject
to the provisions relating to quorum contained in paragraphs 5 and 6) only
namely:
(a) power to sanction any compromise or arrangement proposed to be made
between Xxxxxxxx and the Noteholders and Couponholders or any of them;
(b) power to sanction any abrogation, modification, compromise or
arrangement in respect of the rights of the Noteholders and
Couponholders against Xxxxxxxx or against any of its property whether
the rights shall arise hereunder or otherwise;
(c) power to give any authority or sanction which under the Notes or
hereunder is required to be given by Extraordinary Resolution;
(d) power to appoint any persons (whether Noteholders or not) as a
committee to represent the interests of the Noteholders and to confer
upon the committee any powers or discretions which the Noteholders
could themselves exercise by Extraordinary Resolution; and
(e) 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 m consideration of shares, stock, Notes, Notes,
debentures, debenture stock and/or other obligations and/or securities
of Xxxxxxxx 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 the shares, stock, Notes, Notes,
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debentures, debenture stock and/or other obligations and/or securities
as provided above and partly for or into or in consideration of cash.
19. Any business which is to be approved by an Ordinary Resolution may also be
approved by the written consent of at least 25 per cent. in aggregate
principal mount of the Notes at the time outstanding and any business which
is to be approved by an Extraordinary Resolution may also be approved by
the written consent of at least 75 per cent. m aggregate principal mount of
the Notes at the time outstanding and, m each case, shall be deemed for all
purposes to have been approved by the requisite resolution passed at a
meeting of the Noteholders duly convened and held hereunder.
20. Any resolution passed at a meeting of the Noteholders duly convened and
held hereunder shall be binding upon all the Noteholders whether present or
not present at the meeting and whether or not voting and upon all
Couponholders and each of them shall be bound to give effect to the
resolution accordingly and the passing of any resolution shall be
conclusive evidence that the circumstances justify the passing of the
resolution. Notice of any resolution duly passed by the Noteholders shall
be published under Condition 10 by Xxxxxxxx within 14 days of the passing
of the resolution, provided that the non-publication of the notice shall
not invalidate the resolution.
21. The expression "Ordinary Resolution" when used in this Schedule and in the
Conditions means a resolution passed at a meeting of the Noteholders duly
convened and held in accordance with the provisions contained in this
Agreement by a majority consisting of more than half of the persons voting
thereat upon a show of hands or if a poll shall be duly demanded then by a
majority consisting of more than half of the votes given on the poll, and
the expression "Extraordinary Resolution" when used in this Schedule and m
the Conditions means a resolution passed at a meeting of the Noteholders
duly convened and held in accordance with the provisions contained in this
Agreement by a majority consisting of not less than three-fourths of the
persons voting thereat upon a show of hands or if a poll shall be duly
demanded then by a majority consisting of not less than three-fourths of
the votes given on the poll.
22. Minutes of all resolutions and prigs at every meeting shall be made and
duly entered in books to be from time to time provided for that purpose by
Xxxxxxxx and any Minutes purporting to be signed by the Chairman of the
meeting at which the resolutions were passed or proceedings had shall be
conclusive evidence of the matters contained in the Minutes and until the
contrary is proved every 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 had to have been duly passed or
had.
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