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XXXX ATLANTIC FINANCIAL SERVICES, INC.
AND
XXXX ATLANTIC CORPORATION
AND
THE CHASE MANHATTAN BANK, AS TRUSTEE
-----------------------------
Indenture
Dated as of February 26, 1998
-----------------------------
5.75% Senior Exchangeable Notes due 2003
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Reconciliation and tie between Trust Indenture Act of 1939 and Indenture,
dated as of February 26, 1998
XXXX ATLANTIC FINANCIAL SERVICES, INC.
Trust Indenture Indenture
Act Section Section
--------------- ----------
Section 310(a)(1)...............................................................609
(a)(2)...............................................................609
(a)(3)...............................................................Not Applicable
(a)(4)...............................................................Not Applicable
(a)(5)...............................................................609
(b)..................................................................608, 610
(c)..................................................................Not Applicable
Section 311(a)..................................................................613
(b)..................................................................613
(c)..................................................................Not Applicable
Section 312(a)..................................................................701
(b)..................................................................702
(c)..................................................................702
Section 313(a)..................................................................703
(b)..................................................................703
(c)..................................................................703
(d)..................................................................703
Section 314(a)..................................................................704
(b)..................................................................Not Applicable
(c)(1)...............................................................102
(c)(2)...............................................................102
(c)(3)...............................................................Not Applicable
(d)..................................................................Not Applicable
(e)..................................................................102
(f)..................................................................Not Applicable
Section 315(a)..................................................................601(b)
(b)..................................................................602
(c)..................................................................601(a)
(d)(1)...............................................................601(c)(1)
(d)(2)...............................................................601(c)(2)
(d)(3)...............................................................601(c)(3)
(e)..................................................................514
(a)(1)(A)............................................................512
(a)(1)(B)............................................................513
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(a)(2).................................................................Not Applicable
(b)....................................................................508
Section 317(a)(1)..............................................................503
(a)(2).................................................................504
(b)....................................................................1003
Section 318(a).................................................................107
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
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TABLE OF CONTENTS
Page
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Parties...........................................................................................................1
Recitals Of The Company...........................................................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.............................................................................2
Act.............................................................................................3
Additional Amount...............................................................................3
Adjustment Event................................................................................3
Affiliate.......................................................................................3
Ameritech ......................................................................................3
Asset Carve-Out.................................................................................3
ASX.............................................................................................3
Average Market Value ...........................................................................3
Average Market Value Amount ....................................................................4
Bankruptcy Law .................................................................................4
Bearer Securities ..............................................................................4
Xxxx Atlantic ..................................................................................4
Board of Directors..............................................................................4
Board Resolution................................................................................4
Business Day....................................................................................4
Capital Stock ..................................................................................4
Cash Settlement Option .........................................................................4
Cedel .......................................................................................4
Closing Price...................................................................................4
Code .......................................................................................5
Commission......................................................................................5
Common Depositary ..............................................................................5
Company .......................................................................................5
Company Request or Company Order................................................................5
Consolidation ..................................................................................5
Corporate Trust Office..........................................................................5
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Page
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Corporation.....................................................................................6
Currency Exchange Rate..........................................................................6
Defaulted Interest..............................................................................6
Default .......................................................................................6
Depositary .....................................................................................6
DTC ............................................................................................6
Euroclear ......................................................................................6
Event of Default................................................................................6
Exchange Act ...................................................................................6
Exchange Agent .................................................................................6
Exchange Property...............................................................................6
Exchange Ratio .................................................................................7
Exchange Security ..............................................................................7
Extraordinary Cash Dividend ....................................................................7
GAAP............................................................................................7
Global Security ................................................................................7
Holder .......................................................................................8
Indenture.......................................................................................8
Interest Payment Date...........................................................................8
Issue Date .....................................................................................8
Managers .......................................................................................8
Market Price ...................................................................................8
Maturity .......................................................................................8
Mortgage .......................................................................................8
Non-U.S. Person ................................................................................8
Non-U.S. Subsidiaries ..........................................................................8
NZSE .......................................................................................8
Officers' Certificate ..........................................................................9
Opinion of Counsel..............................................................................9
Opinion of Independent Counsel .................................................................9
Outstanding.....................................................................................9
Ownership Certificate .........................................................................10
Participant....................................................................................10
Paying Agent...................................................................................10
Person ......................................................................................10
Place of Payment...............................................................................10
Predecessor Security...........................................................................10
Principal Paying Agent ........................................................................10
Prospectus ....................................................................................10
QIB ......................................................................................11
Quotation Agent ...............................................................................11
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Page
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Redemption Date................................................................................11
Redemption Price...............................................................................11
Registered Securities .........................................................................11
Registrar .....................................................................................11
Registration Rights Agreement .................................................................11
Regulation S ..................................................................................11
Regulation S Global Security ..................................................................11
Regular Record Date............................................................................11
Responsible Officer............................................................................11
Restricted Period .............................................................................12
Rule 144A .....................................................................................12
Rule 144A Global Security .....................................................................12
SBC Warburg Dillon Read .......................................................................12
Securities ....................................................................................12
Securities Act ................................................................................12
Securities Legend..............................................................................12
Security Register..............................................................................12
Shelf Registration Statement ..................................................................12
Special Record Date............................................................................12
Stated Maturity................................................................................12
Subsidiary.....................................................................................13
TCNZ ......................................................................................13
TCNZ Ordinary Shares...........................................................................13
TCNZ Resale Shelf .............................................................................13
TCNZ Shareholders' Agreement ..................................................................13
TCNZ Successor ................................................................................13
Trading Day ...................................................................................13
Transfer Agent ................................................................................13
Trustee ......................................................................................13
Trust Indenture Act............................................................................13
United States .................................................................................13
United States Alien............................................................................13
United States person ..........................................................................14
Unrestricted Date .............................................................................14
Unrestricted Global Security...................................................................14
Unrestricted Securities........................................................................14
Voting Stock ..................................................................................14
Waiver ......................................................................................14
SECTION 102. Compliance Certificates and Opinions..................................................14
SECTION 103. Form of Documents Delivered to Trustee................................................15
SECTION 104. Acts of Holders.......................................................................16
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Page
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SECTION 105. Notices, Etc. to Trustee and the Company..............................................17
SECTION 106. Notice to Holders; Waiver.............................................................17
SECTION 107. Conflict with Trust Indenture Act.....................................................18
SECTION 108. Effect of Headings and Table of Contents.............................................18
SECTION 109. Successors and Assigns................................................................19
SECTION 110. Separability Clause...................................................................19
SECTION 111. Benefits of Indenture.................................................................19
SECTION 112. GOVERNING LAW.........................................................................19
SECTION 113. Legal Holidays........................................................................19
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.......................................................................20
SECTION 202 Restrictive Legends...................................................................21
SECTION 203. Form of Trustee's Certificate of Authentication.......................................24
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms.......................................................................25
SECTION 302. Denominations.........................................................................26
SECTION 303. Execution, Authentication, Delivery and Dating........................................26
SECTION 304. Temporary Securities..................................................................26
SECTION 305. Registration, Registration of Transfer and Exchange...................................27
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities......................................34
SECTION 307. Payment of Interest; Interest Rights Preserved........................................35
SECTION 308. Person Deemed Owners..................................................................37
SECTION 309. Cancellation..........................................................................37
SECTION 310. Computation of Interest...............................................................38
SECTION 311. Adjustment of Interest Rate...........................................................38
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Page
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture
SECTION 402. Application of Trust Money
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.....................................................................39
SECTION 502. Acceleration of Maturity; Rescission and Annulment....................................41
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee...................................................................42
SECTION 504. Trustee May File Proofs of Claim......................................................43
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities................................................................44
SECTION 506. Application of Money Collected........................................................44
SECTION 507. Limitations on Suits..................................................................44
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.........................................................45
SECTION 509. Restoration of Rights and Remedies....................................................45
SECTION 510. Rights and Remedies Cumulative........................................................45
SECTION 511. Delay or Omission Not Waiver..........................................................46
SECTION 512. Control by Holders....................................................................46
SECTION 513. Waiver of Past Defaults...............................................................46
SECTION 514. Undertaking for Costs.................................................................47
SECTION 515. Waiver of Stay, Extension or Usury Laws...............................................47
SECTION 516. Remedies Subject to Applicable Law....................................................48
ARTICLE SIX
THE TRUSTEE
SECTION 601. Duties of the Trustee.................................................................48
SECTION 602. Notice of Defaults....................................................................49
SECTION 603. Certain Rights of Trustee.............................................................49
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Page
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SECTION 604. Trustee Not Responsible for Recitals, Dispositions of
Securities or Applications of Proceeds Thereof...............................51
SECTION 605. Trustee and Agents May Hold Securities; Collections, etc..............................51
SECTION 606. Money Held in Trust...................................................................51
SECTION 607. Compensation and Reimbursement........................................................52
SECTION 608. Conflicting Interests.................................................................52
SECTION 609. Trustee Eligibility...................................................................52
SECTION 610. Resignation and Removal; Appointment of Successor Trustee.............................53
SECTION 611. Acceptance of Appointment by Successor................................................54
SECTION 612. Merger, Conversion, Consolidation or Succession to Business...........................55
SECTION 613. Preferential Collection of Claims Against Company.....................................55
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.............................56
SECTION 702. Disclosure of Names and Addresses of Holders..........................................56
SECTION 703. Reports by Trustee....................................................................56
SECTION 704. Reports by Company and Xxxx Atlantic..................................................57
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. Company May Merge, Consolidate, Etc., Only on
Certain Terms................................................................58
SECTION 802. Successor Substituted.................................................................58
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures and Agreement without
Consent of Holders...........................................................59
SECTION 902. Supplemental Indentures with Consent of Holders.......................................60
SECTION 903. Execution of Supplemental Indentures..................................................61
SECTION 904. Effect of Supplemental Indentures.....................................................61
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SECTION 905. Conformity with Trust Indenture Act...................................................61
SECTION 906. Reference in Securities to Supplemental Indentures....................................61
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest............................................62
SECTION 1002. Trustee, Transfer Agent, Registrar, Quotation Agent, Paying
Agents and Exchange Agents...................................................62
SECTION 1003. Money for Security Payments to Be Held in Trust.......................................63
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Rights of Redemption..................................................................68
SECTION 1102. Applicability of Article..............................................................69
SECTION 1103. Election to Redeem; Notice to Trustee.................................................69
SECTION 1104. Selection by Trustee of Securities to Be Redeemed.....................................69
SECTION 1105. Notice of Redemption..................................................................70
SECTION 1106. Deposit of Redemption Price...........................................................71
SECTION 1107. Securities Payable on Redemption Date.................................................71
SECTION 1108. Securities Redeemed in Part...........................................................71
ARTICLE TWELVE
TAX REDEMPTION
SECTION 1201. Tax Redemption of All Securities......................................................72
SECTION 1202. Tax Redemption of Bearer Securities...................................................73
ARTICLE THIRTEEN
EXCHANGE OF SECURITIES
SECTION 1301. Exchange Rights at the Option of the Holder...........................................75
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SECTION 1302. Method of Exchange....................................................................75
SECTION 1303. Adjustment Events.....................................................................77
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 1401. Exemption from Individual Liability...................................................78
ARTICLE FIFTEEN
HOLDER'S MEETINGS
SECTION 1501. Purposes of Meetings..................................................................78
SECTION 1502. Call of Meetings by Trustee...........................................................79
SECTION 1503. Call of Meetings by Company...........................................................79
SECTION 1504. Call of Meetings by Company or Xxxx Atlantic..........................................80
SECTION 1505. Qualifications for Voting. ..........................................................80
SECTION 1506. Regulations...........................................................................80
SECTION 1507. Voting................................................................................81
SECTION 1508. No Delay of Rights by Meeting.........................................................81
Exhibit A Form of Support Agreement
Exhibit B Rule 144A Global Security
Exhibit C Regulation S Global Security
Exhibit D Temporary Global Bearer Security
Exhibit E Permanent Global Bearer Security
Exhibit F Form of Definitive Bearer Security
Exhibit G Rule 144A Certificate
Exhibit H Regulation S Certificate
Exhibit I Form of Ownership Certificate and Form of Certificate to be Presented
by the Euroclear Operator or Cedel
Exhibit J Form of Transfer Notice
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THIS INDENTURE, dated as of February 26, 1998, among XXXX
ATLANTIC FINANCIAL SERVICES, INC., a corporation duly organized and existing
under the laws of the State of Delaware (hereinafter sometimes called the
"Company"), XXXX ATLANTIC CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware (hereinafter sometimes called "Xxxx
Atlantic"), and THE CHASE MANHATTAN BANK, a banking corporation organized under
the laws of the State of New York, as trustee (hereinafter sometimes called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of
5.75% Senior Exchangeable Notes due 2003 (hereinafter called the "Securities")
of substantially the tenor and amount hereinafter set forth, and to provide
therefor, the Company has duly authorized the execution and delivery of this
Indenture and the Securities;
Upon the effectiveness of the Shelf Registration Statement (as
defined herein), this Indenture will be subject to, and shall be governed by,
the provisions of the Trust Indenture Act (as defined herein) that are required
to be part of and to govern indentures qualified under the Trust Indenture Act;
and
All acts and things necessary have been done to make (i) the
Securities, when duly issued and executed by the Company and authenticated and
delivered hereunder the valid obligations of the Company and (ii) this Indenture
a valid agreement of the Company in accordance with the terms of the Securities
and of this Indenture.
RECITALS OF XXXX ATLANTIC
Xxxx Atlantic has duly authorized the execution and delivery
of this Indenture and the Support Agreement dated as of February 1, 1998 between
the Company and Xxxx Atlantic (the "Support Agreement"), the form of which is
attached as Exhibit A and made a part hereof, in which Xxxx Atlantic agrees,
among other things, to (i) cause the Company to have a positive tangible net
worth as determined in accordance with GAAP (as defined herein) and (ii) provide
the Company with funds or other property, if not obtainable by the Company from
other sources on commercially reasonable terms, to assure that the Company will
be able to make payments of principal, premium, if any, and interest on, or
deliver the cash value of Exchange Property when due; PROVIDED, that no Holder
of Securities shall have recourse to the stock or assets of Xxxx Atlantic -
Pennsylvania, Inc., Xxxx Atlantic - New Jersey, Inc., Xxxx Atlantic - Delaware,
Inc., Xxxx Atlantic - Maryland, Inc., Xxxx Atlantic - Virginia, Inc., Xxxx
Atlantic - West Virginia, Inc., Xxxx Atlantic - Washington, D.C., Inc., New York
Telephone Company, The New England Telephone and Telegraph Company, Xxxx
Atlantic Network Services, Inc. or Xxxx Atlantic's interest in Telecom
Corporation of New Zealand Limited (or any other operating telephone company
which may at the time be owned directly or indirectly by Xxxx Atlantic) (the
"Asset Carve-Out").
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, the Company and Xxxx Atlantic covenant
and agree with the Trustee for the equal and proportionate benefit of all
Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Section 101 (except as herein
otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section
101, and include the plural as well as the singular;
(b) all other terms used in this Indenture which are defined
in the Trust Indenture Act or which are by reference therein defined in
the Securities Act (except as herein otherwise expressly provided or
unless the context otherwise requires), shall have the meanings
assigned to such terms in said Trust Indenture Act and in the
Securities Act as in force at the date of this Indenture;
(c) all references in this Indenture to designated "ARTICLES",
"SECTIONS" and other subdivision are to the designated Articles,
Sections and other subdivisions of this instrument as originally
executed;
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section of other subdivision;
(e) all accounting terms not otherwise defined herein shall
have the meanings given by generally accepted accounting principles in
the United States of America;
(f) all references in this Indenture to "dollar", "U.S. $," or
"$" are to the lawful currency of the United States of America, and all
references to "N.Z. $" are to the lawful currency of New Zealand; and
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(g) all references to the masculine gender shall include the
feminine gender as appropriate.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Amount" has the meaning specified in Section 1005.
"Adjustment Event", has the meaning assigned to it in the
definition of Exchange Property.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Ameritech" means Ameritech Corporation, a Delaware
corporation headquartered in Illinois.
"Asset Carve-Out" has the meaning specified in the Recitals of
Xxxx Atlantic.
"ASX" means the Australian Stock Exchange Limited.
"Authorized Newspapers" means (a) newspapers customarily
published at least once a day for at least five days in each calendar week and
of general circulation in Western Europe and New Zealand, and (b) if and so long
as the Securities are listed on a Stock Exchange, such other newspaper as such
Stock Exchange may require. Unless otherwise instructed by the Company, such
newspapers are expected to be THE WALL STREET JOURNAL, FINANCIAL TIMES, NEW
ZEALAND HERALD, the AUSTRALIAN FINANCIAL REVIEW and the LUXEMBURGER WORT.
"Average Market Value" of TCNZ Ordinary Shares or other
Exchange Property on the date of computation means the arithmetic average of the
daily volume-weighted average price of the TCNZ Ordinary Shares or other
Exchange Security, as reported on the NZSE, or if the TCNZ Ordinary Shares or
other Exchange Security is not then listed on the NZSE, as reported by the
principal securities exchange or interdealer quotation system on which the TCNZ
Ordinary Shares or other Exchange Security is then traded, or in the case of
Exchange Property other than Exchange Securities, the Market Price of such
Exchange Property, for the 30-Trading Day period ending two Trading Days prior
to such date of computation as computed by the Quotation Agent.
-3-
"Average Market Value Amount" means, per $1,000 principal
amount of Securities, the Average Market Value of the TCNZ Ordinary Shares (or
other Exchange Property) that otherwise would be deliverable upon exchange of
such principal amount of Securities were such Securities exchanged at such time
as of any Redemption Date or the Maturity of the Securities, as the case may be.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Bankruptcy Code
of 1978, as amended, or any similar United States Federal or State law relating
to bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization
or relief of debtors or any amendments to, succession in or change in any law.
"Bearer Securities" means interests in a permanent or
temporary Global Bearer Security as well as definitive Global Bearer Securities
and any appurtenant coupons.
"Xxxx Atlantic" means Xxxx Atlantic Corporation, a Delaware
corporation headquartered in New York, and, subject to the provisions of Article
Eight, shall include its successors and assigns.
"Board of Directors" means the board of directors of the
Company or Xxxx Atlantic, as applicable, or any duly authorized committee of
directors and/or officers appointed by such board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of
Payment, place of exchange, or other place, means each Monday, Tuesday,
Wednesday, Thursday, and Friday which is not a day on which banking institutions
in The City of New York or that Place of Payment, place of exchange or other
place are authorized or obligated by law or executive order to close.
"Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents (however designated) of such
Person's capital stock or other equity interests whether now outstanding or
issued after the date of the Indenture.
"Cash Settlement Option" shall have the meaning assigned to
such term in Section 1301.
"Cedel" means Cedel Bank, SOCIETE ANONYME.
"Closing Price" of any Exchange Security means, on any date of
determination, the closing sale price (or, if no closing sale price is reported,
the last reported sale price) of such
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Exchange Security on the NZSE on any such date or, if such Exchange Security is
not listed for trading on the NZSE on any such date, as reported in the
composite transactions for the principal securities exchange on which such
Exchange Security is listed for trading, or, if such Exchange Security is not
listed for trading on a securities exchange, as reported in the composite
transactions for the principal over-the-counter market in which such Exchange
Security if traded or, if such price of such Exchange Security is not available,
the market value of such Exchange Security on such date as determined by an
internationally recognized investment banking firm retained for this purpose by
the Company, provided that if the Closing Price of any item of Exchange Property
as of any date is reported in N.Z. dollars or any currency other than U.S.
dollars then such Closing Price shall be expressed in the U.S. dollar equivalent
of such amount, based on the Currency Exchange Rate for such day.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Depositary" means The Chase Manhattan Bank, London
Branch, as common depositary for, and in respect of interests in the Securities
held through Xxxxxx Guaranty Trust Company of New York, Brussels office, as
operator of Euroclear and Cedel.
"Company" means Xxxx Atlantic Financial Services, Inc., a
Delaware corporation, and, subject to the provisions of Article Eight, shall
include its successors and assigns.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman of the Board, any
Vice Chairman of the Board, its President, any of its Vice Presidents or its
Chief Financial Officer, and by its Treasurer, any of its Assistant Treasurers,
its Controller, its Secretary or any of its Assistant Secretaries, or any
additional Vice President of the Company and delivered to the Trustee.
"Consolidation" means, with respect to any Persons, the
consolidation of the accounts of such Person, and each of its subsidiaries if
and to the extent the accounts of such Person and each of its subsidiaries would
normally be consolidated with those of such Person, all in accordance with GAAP.
The term "Consolidated" shall have a similar meaning.
"Corporate Trust Office" means the principal office of the
Trustee in New York City at which at any particular time its corporate trust
business shall be administered and which, as of the date of this Indenture, is
located at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
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"Corporation" means any corporation, association, company,
partnership or business trust.
"Currency Exchange Rate" between the U.S. Dollar and the N.Z.
Dollar for any date shall be determined by obtaining the N.Z. Dollar/U.S. Dollar
exchange rate for such date from Xxxxxx'x Page "NZD=" (or any successor page) at
approximately 3:30 p.m., New Zealand time (the "Xxxxxx'x Quote"); provided that
if no Xxxxxx'x Quote is shown for such day, the Currency Exchange Rate between
the N.Z. Dollar and the U.S. Dollar shall be determined by obtaining the N.Z.
Dollar/U.S. Dollar exchange rate (at which a leading foreign exchange dealer
selected by the Company (a "Reference Dealer") is willing to purchase N.Z.
Dollars and sell U.S. Dollars) for such day from three Reference Dealers at
approximately 3:30 p.m., New Zealand time (or if quotes are unavailable from
three Reference Dealers, from two such dealers) and calculating the arithmetic
mean of such quotes. The Currency Exchange Rate between the U.S. Dollar and any
currency other than the N.Z. Dollar for any date shall be determined by
obtaining such exchange rate for such day from the comparable Xxxxxx'x Page at
the close of business in the local market for the non-U.S. currency, provided
that if no such Xxxxxx'x quote is available, the Currency Exchange Rate shall be
determined pursuant to a methodology comparable to that set forth above.
"Defaulted Interest" has the meaning specified in Section 307;
"Default" means any event which is, or after notice or passage
of any time or both would be, an Event of Default.
"Depositary" means DTC, its nominees and successors, or
another Person designated as Depositary by the Company, which must be a clearing
agency registered under the Exchange Act.
"DTC" means The Depository Trust Company.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system, or any successor thereof.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute.
"Exchange Agent" means The Chase Manhattan Bank Luxembourg
S.A..
"Exchange Property" means (A) initially one TCNZ Ordinary
Share and (B) subject to Section 1303 hereof, all property received in respect
of such TCNZ Ordinary Share (either directly or as a result of successive
applications of this paragraph) upon the following
-6-
events: (i) the distribution of a dividend on Exchange Property in the same type
of Exchange Property, (ii) the combination of Exchange Property into a smaller
number of shares or other units, (iii) the subdivision of outstanding shares or
other units of Exchange Property, (iv) the conversion or reclassification of
Exchange Property by issuance or exchange of other securities, (v) any
consolidation or merger of TCNZ, or a TCNZ Successor, with or into another
entity (other than a merger or consolidation in which TCNZ is the continuing
corporation and in which the TCNZ Ordinary Shares outstanding immediately prior
to the merger or consolidation are not exchanged for cash, securities or other
property of TCNZ or another corporation), (vi) any statutory exchange of
securities of TCNZ or any TCNZ Successor with another corporation (other than in
connection with a merger or acquisition and other than a statutory exchange of
securities in which TCNZ is the continuing corporation and in which the TCNZ
Ordinary Shares outstanding immediately prior to the statutory exchange are not
exchanged for cash, securities or other property of TCNZ or another
corporation), (vii) any liquidation, dissolution or winding up of TCNZ or any
TCNZ Successor, (viii) any distribution of cash or other property on Exchange
Property of a particular type (excluding cash dividends and other cash
distributions other then Extraordinary Cash Dividends (as defined below)) or
(ix) any tender or exchange offer for Exchange Property of a particular type.
Each of the foregoing events described in clauses (i) through (ix) is referred
to herein as any "Adjustment Event".
"Exchange Ratio" means the ratio, subject to adjustment as set
forth in this Indenture, of 178.0369 TCNZ Ordinary Shares per $1,000 principal
amount of Securities.
"Exchange Security" has the meaning assigned to such term in
the definition of Market Price in this Section 101.
"Extraordinary Cash Dividend" means, with respect to any
Exchange Property consisting of capital stock, any distribution consisting of
cash, excluding any cash dividend on such stock to the extent that with respect
to any consecutive 365-day period the aggregate cash dividend per share of such
stock having its record date during such period does not exceed the greater of
(x) four multiplied by the amount per share of such capital stock of the next
preceding quarterly dividend to the extent that such dividend did not require an
adjustment pursuant to this provision (as adjusted to reflect subdivisions or
combinations of such stock) and (y) 10 percent of the average of the daily
Closing Prices of such stock for the ten (10) consecutive Trading Days
immediately prior to the record date for payment of such distribution, and
excluding any dividend or distribution in connection with the liquidation,
dissolution or winding up of the issuer of such stock.
"Generally Accepted Accounting Principles" or "GAAP" means
generally accepted accounting principles in the United States, consistently
applied, which are in effect on the date of this Indenture.
"Global Securities" has the meaning assigned to such term in
Section 201; and "Global Security" means any of the Global Securities.
-7-
"Holder" means either (1) a Person in whose name a Registered
Security is registered in the Security Register or (2) a Person holding a Bearer
Security, as the case may be.
"Indenture" means this instrument as originally executed
(including all exhibits hereto) and as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof.
"Interest Payment Date" means April 1 or October 1 of each
year, commencing on October 1, 1998.
"Issue Date" means the date on which the Securities are
originally issued under this Indenture.
"Managers" means Swiss Bank Corporation, Credit Suisse First
Boston (Europe) Limited, Xxxxxxx Xxxxx International, Nomura International plc,
Salomon Brothers International Limited and UBS Limited.
"Market Price" means, for any item of Exchange Property as of
any date, (a) if such item of Exchange Property consists of cash, the amount of
such cash, (b) if such item of Exchange Property consists of property other than
cash or Exchange Securities (as defined herein), the fair market value of such
property (as determined by the Company which shall be entitled to rely for such
purpose on the advice of an internationally recognized investment banking firm
retained for this purpose by the Company) and (c) if such item of Exchange
Property consists of a security (an "Exchange Security"), an amount equal to the
average Closing Price per unit of such Exchange Security on the five Trading
Days including and immediately following such date.
"Maturity" means when used with respect to any Security, the
date on which the principal of such Security becomes due and payable as herein
or therein provided, whether at Stated Maturity or the Redemption Date and
whether by declaration of acceleration or otherwise.
"Mortgage" means any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind, whether or not filed, recorded or otherwise
perfected under applicable law.
"Non-U.S. Person" means a Person that is not a "U.S. Person"
as defined in Regulation S.
"Non-U.S. Subsidiaries" means Subsidiaries organized under the
laws of jurisdictions other than any jurisdiction in the United States.
"NZSE" means the New Zealand Stock Exchange.
-8-
"Officers' Certificate" means, when used with respect to the
Company or Xxxx Atlantic, as the case may be, a certificate signed by the
Chairman of the Board or any Vice Chairman, the President or any Vice President
or the Chief Financial Officer and by the Treasurer, an Assistant Treasurer, the
Controller, the Secretary or any Assistant Secretary or any additional Vice
President, of the Company or Xxxx Atlantic, as the case may be, that is
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, which
counsel is reasonably acceptable to the Trustee and who may be counsel for the
Company or Xxxx Atlantic, as the case may be, that is delivered to the Trustee.
"Opinion of Independent Counsel" means a written opinion of
counsel, which counsel is reasonably acceptable to the Trustee and who is not an
employee of or consultant to the Company or Xxxx Atlantic, that is delivered to
the Trustee.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, EXCEPT:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, to be redeemed and with
respect to which the Company has elected to pay the Average Market
Value Amount, for whose redemption money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent (other
than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that notice of such redemption
shall have been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee shall have been made; and
(iii) Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there
shall have been presented to the Trustee and the Company proof
reasonably satisfactory to each of them that such Securities are held
by a BONA FIDE purchaser in whose hands such Securities are valid
obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor on the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so
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owned that have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the reasonable satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor on the Securities or any Affiliate of the Company
or of such other obligor.
"Ownership Certificate" means a certificate substantially in
the form of Exhibit I hereto.
"Participant" means any person who has an account with DTC.
"Paying Agent" means any Person authorized by the Company to
pay the principal of, and premium, if any, or interest on any Securities on
behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, associate, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment" means, (1) when used with respect to the
Registered Securities, the Corporate Trust Office of the Trustee, the office or
agency of the Company in the Borough of Manhattan, the City and State of New
York, for the payment of the principal of, premium, if any, and interest on the
Registered Securities and such other place or places, if any, where the
principal of, premium, if any, and interest on the Registered Securities are
payable as specified as contemplated by Section 301 and (2) when used with
respect to the Bearer Securities, the paying agencies outside the United States
appointed by the Company, from time to time, for the payment of the principal
of, premium, if any, and interest on the Bearer Securities and such other place
or places, if any, where the principal of, premium, if any, and interest on the
Bearer Securities are payable as specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Paying Agent" means The Chase Manhattan Bank.
"Prospectus" means the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including any such
prospectus supplement with respect to the terms of the offering of any portion
of the Securities covered by a Shelf Registration Statement, and by all other
amendments and supplements to a prospectus, including post-effective amendments,
and in each case including all material incorporated by reference therein.
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"QIB" means a "Qualified Institutional Buyer" within the
meaning of Rule 144A under the Securities Act.
"Quotation Agent" means the Trustee and its successors or
substitutes.
"Redemption Date", when used with respect to any Security to
be redeemed pursuant to any provision in this Indenture, means the date fixed
for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, pursuant to any provision in this Indenture, means the price at
which it is to be redeemed pursuant to this Indenture.
"Registered Securities" means the Rule 144A Global Security
and the Regulation S Global Security.
"Registrar" has the meaning assigned to such term in Section
305(a).
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of February 26, 1998, among the Company, Xxxx Atlantic and
the Managers.
"Registration Statement" means any registration statement of
the Company which covers any of the Securities pursuant to the provisions of the
Registration Rights Agreement, and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Security" has the meaning assigned to
such term in Section 201.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the March 15th or September 15th, as the case may be (whether
or not a Business Day), immediately preceding such Interest Payment Date.
"Responsible Officer", when used with respect to the Trustee,
means any officer assigned to the Corporate Trust Office of the Trustee,
including the chairman or vice chairman of the board of directors or the
executive committee of the board of directors, the president, any vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust officer or assistant
trust officer, the controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the
-11-
above designated officers or any other officer appointed hereunder to whom any
corporate trust matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Restricted Period" means, with respect to the Bearer
Securities, the period which begins on the earlier of (i) the date on which the
Company receives the proceeds of the sale of Bearer Securities and (ii) the
first date on which the Bearer Securities are offered to persons other than the
Managers, and which ends 40 days after the date on which the Company receives
the proceeds of the sale of such Bearer Securities; PROVIDED THAT with respect
to a Bearer Security held as part of an unsold allotment or subscription, any
offer or sale of such Bearer Security by the Company or any Manager shall be
deemed to be during the Restricted Period.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Global Security" has the meaning assigned to such
term in Section 201.
"SBC Warburg Dillon Read" means SBC Warburg Dillon Read, a
division of Swiss Bank Corporation.
"Securities" has the meaning specified in the first recital
paragraph of the Company in this Indenture.
"Securities Act" means the Securities Act of 1933, as amended,
or any successor statute.
"Securities Legend" has the meaning specified in Section 201.
"Security Register" has the meaning specified in Section 305.
"Shelf Registration Statement" means a "shelf" registration
statement of the Company to be filed with the Commission pursuant to Section 2
of the Registration Rights Agreement, which covers all of the Registrable
Securities (as defined in the Registration Rights Agreement) on an appropriate
form under Rule 415 under the Securities Act, or any similar rule that may be
adopted by the Commission, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" when used with respect to any Security or
any installment of principal thereof or interest thereon, means with respect to
the payment of principal, April 1,
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2003, and with respect to an installment of interest shall mean each Interest
Payment Date during the period the Security is Outstanding.
"Subsidiary" means any Person, a majority of the equity
ownership or the Voting Stock of which is at the time owned, directly or
indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries.
"TCNZ" means Telecom Corporation of New Zealand Limited, a New
Zealand corporation headquartered in New Zealand.
"TCNZ Ordinary Shares" means fully paid ordinary shares of
TCNZ.
"TCNZ Resale Shelf" has the meaning specified in Section 1007.
"TCNZ Shareholders' Agreement" means the 1991 Shareholders'
Agreement between Xxxx Atlantic and Ameritech, as shareholders of TCNZ.
"TCNZ Successor" means any surviving entity or subsequent
surviving entity of TCNZ.
"Trading Day" means any day on which the Exchange Security,
the Closing Price of which is being determined, (A) is not suspended from
trading on any national or regional securities exchange or association or
over-the-counter market at the close of business and (B) has traded at least
once on the national or regional securities exchange or association or
over-the-counter market that is the principal market for the trading of such
Exchange Security.
"Transfer Agent" means The Chase Manhattan Bank.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture, until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, or any successor statute.
"United States" means the United States of America, the
District of Columbia, Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island, and the Northern Mariana Islands.
"United States Alien" means any person who, for United Stated
federal income tax purposes, is a foreign corporation, a nonresident alien
individual, a nonresident alien fiduciary of a foreign estate or trust, or a
foreign partnership one or more of the members of
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which is a foreign corporation, a nonresident alien individual or a nonresident
alien fiduciary of a foreign estate or trust.
"United States person" means a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in or under the laws of the United States or any political subdivision thereof,
or an estate or trust the income of which is subject to United States federal
income taxation regardless of its source.
"Unrestricted Date" means, with respect to any Security, the
41st day after the later of the commencement of the offering thereof and the
closing date therefor.
"Unrestricted Global Security" has the meaning specified in
Section 201.
"Unrestricted Securities" has the meaning specified in Section
201.
"Voting Stock" means Capital Stock of the class or classes
pursuant to which the holders thereof have the general voting power under
ordinary circumstances to elect at least a majority of the board of directors,
managers or trustees of a corporation (irrespective of whether or not at the
time Capital Stock of any class or classes shall have or might have voting power
by reasons of the happening of any contingency).
"Waiver" means the waiver agreement between Xxxx Atlantic and
Ameritech dated as of February 6, 1998, pursuant to which the TCNZ Shareholders'
Agreement will terminate on the earlier of (i) the sale of Ameritech of 85% of
the TCNZ Ordinary Shares held by it or its affiliates as of February 6, 1998 or
(2) the sale by Xxxx Atlantic of 85% of the Securities governed by this
Indenture.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company and each
other obligor shall furnish to the Trustee (i) an Officers' Certificate in a
form reasonably acceptable to the Trustee stating that all conditions precedent,
if any, provided for in this Indenture (including any covenant compliance which
constitutes a condition precedent) relating to the proposed action have been
complied with and (ii) an Opinion of Counsel in a form reasonably acceptable to
the Trustee stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of any Officers' Certificates
and/or Opinions of Counsel is specifically required by any provision of this
Indenture, relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every Officers' Certificate or Opinion of Counsel with respect
to compliance with a condition or covenant provided for in this Indenture shall
include:
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(a) a statement that each Person signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such Person, he
has made such examination or investigation as is necessary to enable
such Person to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
Person, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to such matters, and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or
other obligor on the Securities may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or representations by, counsel,
unless such officer knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to the matters
upon which his certificate or opinion is based is or are erroneous. Any
certificate or opinion of such an officer or of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company or other obligor on
the Securities with respect to such factual matters and which contains a
statement to the effect that the information with respect to such factual
matters is in the possession of the Company or other obligor on the Securities,
unless such officer or counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters is or are erroneous. Opinions of Counsel required to be delivered
to the Trustee may have qualifications customary for opinions of the type
required, and counsel delivering such Opinions of Counsel may rely on
certificates of the Company or government or other officials customarily for
opinions of the type required, including certificates certifying as to matters
of fact, including that various financial covenants have been complied with.
Any certificate or opinion of an officer of the Company or
other obligor on the Securities may be based, insofar as it relates to
accounting matters, upon a certificate or opinion of, or representations by, an
accountant or firm of accountants in the employ of the Company,
-15-
unless such officer knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to the
accounting matters upon which his certificate or opinion may be based is or are
erroneous. Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent with respect to the Company.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
given or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing; and,
except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of
this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) The ownership of Registered Securities shall be
conclusively proved by the Security Register.
(c) Any request, demand, authorization, direction, notice,
consent, waiver or any other Act of the Holder of any Security
shall bind every future Holder of the same Security or the Holder
of every Security issued upon the transfer thereof or in exchange
thereof, or in lieu thereof in respect of anything done, suffered
or omitted to be done by the Trustee, any Paying Agent, any
Exchange Agent or the Company or any other obligor on the
Securities in reliance thereon, whether or not notation of such
action is made upon such Security.
(d) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of
the Person executing the same, may also be proved in any manner
which the Trustee deems sufficient.
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SECTION 105. NOTICES, ETC. TO TRUSTEE AND THE COMPANY.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Company or by any
other obligor on the Securities shall be sufficient for every purpose
hereunder if made, given, furnished or filed, in writing, by
first-class mail postage prepaid (return receipt requested) or
delivered in person or by recognized overnight courier to or with the
Trustee at its Corporate Trust Office, Attention: Corporate Trust
Administration or at any other address furnished in writing prior
thereto to the Holders, the Company or any other obligor on the
Securities by the Trustee; or
(b) the Company shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid or delivered by recognized
overnight courier, to the Company, to the attention of its corporate
secretary, addressed to it at 1095 Avenue of the Americas, Xxx Xxxx,
Xxx Xxxx, 00000 or at any other address previously furnished in writing
to the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any
event, (1) such notice shall be sufficiently given (unless otherwise herein
expressly provided) to Holders of Registered Securities if in writing and
mailed, first class postage prepaid, to each Holder affected by such event, at
his address as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice, and published in the Authorized Newspapers on a Business Day not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice; and (2) such notice shall be sufficiently given (unless
otherwise herein expressly provided) to Holders of Bearer Securities if
published in the Authorized Newspapers on a Business Day, not later than the
latest date and not earlier than the earliest date prescribed for the giving of
such notice, the first such publication to be not earlier than the earliest
date, and the second such publication to be not later than the latest date,
prescribed herein for the giving of such notice.
In any case where notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of a Registered Security shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice mailed in the manner prescribed by this
Indenture shall be deemed to have been given whether or not received by any
particular Holder. In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable
-17-
to give such notice to Holders of Registered Securities by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
In case by reason of the suspension of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be made
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice to Holders
of Registered Securities given as provided herein.
Additionally, so long as Global Securities are held on behalf
of DTC, Euroclear, Cedel or any other clearing system as shall have been
designated by the Company (the "Alternative Clearing System"), all notices with
respect to such Global Securities shall be delivered to DTC, Euroclear, and
Cedel or, as the case may be, the Alternative Clearing Systems, and DTC,
Euroclear and Cedel or, as the case may be, the Alternative Clearing System,
will communicate such notices to their respective participants in accordance
with its standard procedures.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with
any provision of the Trust Indenture Act or another provision which is required
or deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, the provision or requirement of the Trust Indenture Act shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, such provision
of the Trust Indenture Act shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
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SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company, Xxxx
Atlantic and any other obligor on the Securities shall bind their successors and
assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, expressed or implied,
shall give to any Person, other than the parties hereto and their successors and
assigns hereunder, any Paying Agent, any Exchange Agent and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO
THE CONFLICT OF LAWS PRINCIPLES THEREOF).
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date,
Maturity or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal or premium, if any, need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on such Interest Payment Date or Redemption Date, or at
Maturity or the Stated Maturity, and no interest shall accrue with respect to
such payment for the period from and after such Interest Payment Date,
Redemption Date, Maturity or Stated Maturity, as the case may be, to the next
Business Day.
SECTION 114. EXHIBITS.
All Exhibits attached hereto are by this reference made a part with
the same effect as if herein set forth in full.
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SECTION 115. COUNTERPARTS.
This Indenture may be executed in any number of counterparts, each of
which shall be an original; but such counterparts shall together constitute but
one and the same instrument.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Securities initially will be represented by three Global
Securities. Securities offered in off-shore transactions pursuant to Regulation
S of the Securities Act will be represented by two Global Securities: one
representing Regulation S Global Securities held in bearer form and the other
representing Regulation S Global Securities held in registered form without
coupons. A third Global Security will represent Securities issued in registered
form without interest coupons in the United States in reliance on Rule 144A.
The Securities sold within the United States to U.S. Persons that are
QIBs will be issued in the form of five permanent global Securities
(collectively, the "Rule 144A Global Security"), substantially in the form of
Exhibit B hereto, registered in the name of Cede & Co., as nominee for DTC and
deposited with the Trustee, as custodian for the Depositary.
The Securities offered and sold in off-shore transactions in reliance
on Regulation S under the Securities Act and held in registered form without
coupons will be represented by a single permanent global Security (the
"Regulation S Global Security"), substantially in the form of Exhibit C hereto,
and will be registered in the name of a nominee for, and will be deposited with
the Common Depositary for Euroclear or Cedel.
The Securities offered and sold in off-shore transactions in reliance
on Regulation S under the Securities Act and held in bearer form (the "Global
Bearer Security") will be evidenced initially by a single temporary Global
Bearer Security without interest coupons substantially in the form of Exhibit D
hereto, which will be deposited with the Common Depositary for Cedel and
Euroclear for the accounts of the subscribers of the Regulation S Securities on
the date of payment for and delivery of the Bearer Securities (the "Settlement
Date"). After the expiration of the Restricted Period, the temporary Global
Bearer Security will be exchangeable for (i) an interest in a permanent Global
Bearer Security, without coupons, held by the Common Depositary, substantially
in the form of Exhibit E hereto or (ii) interests in the Regulation S Global
Security, provided that any exchange referred to in the foregoing clause (i)
will be made only upon receipt of Ownership Certificates. Upon 30 days' notice
of request from the applicable Holder, interests in the permanent Global Bearer
Security will be exchangeable for definitive Securities in bearer form with
coupons attached (but only in authorized denominations
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of U.S. $1,000, U.S. $10,000 and U.S. $100,000) in substantially the form of
Exhibit F hereto. Any exchange referred to in the preceding sentence will be
made only upon receipt of Ownership Certificates.
On or after September 1, 1999, Securities in registered form sold
pursuant to an effective registration statement or otherwise not subject to
resale restrictions under the Securities Act (if available) ("Unrestricted
Securities") shall be evidenced by one or more global certificates
(collectively, the "Unrestricted Global Security") to be registered in the name
of Cede & Co., as nominee for DTC and deposited with the Trustee, as custodian
for the Depositary.
The Regulation S Global Security, the Rule 144A Global Security, the
Global Bearer Security and the Unrestricted Global Security are sometimes
collectively herein referred to as the "Global Securities." Any Security may
have such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture and may have imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or with
any rules or regulations pursuant thereto, or with any rules of any securities
exchange or to conform to general usage, all as may be determined by the
officers executing such Securities, as evidenced by their execution of such
Securities. The Securities shall be numbered, lettered, or otherwise
distinguished in such manner or in accordance with such plan as the officers of
the Company executing the same may determine as evidenced by the execution and
authentication thereof.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced by any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 202 RESTRICTIVE LEGENDS.
The form of the face of any Security authenticated and delivered
hereunder shall be substantially as follows: (i) each Rule 144A Global Security
and each definitive Rule 144A Security shall bear the legends set forth below
(the "Securities Legend") on the face thereof and (ii) each Regulation S Global
Security shall bear the Securities Legend on the face thereof until at least 41
days after the Issue Date.
"THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, UNITED STATES PERSONS EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A UNITED STATES PERSON AND IS
ACQUIRING THE SECURITY EVIDENCED HEREBY IN AN OFFSHORE
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TRANSACTION; (2) ACKNOWLEDGES THAT, UNLESS XXXX ATLANTIC CORPORATION SHALL HAVE
CEASED TO BE AN "AFFILIATE" (AS SUCH TERM IS DEFINED UNDER RULE 144 UNDER THE
SECURITIES ACT) OF TELECOM CORPORATION OF NEW ZEALAND LIMITED ("TCNZ") ON OR
PRIOR TO JUNE 1, 1999 (AND SHALL NOT HAVE THEREAFTER BECOME AN AFFILIATE OF
TCNZ), ANY EXCHANGE OF THE SECURITIES REPRESENTED HEREBY FOR ORDINARY SHARES OF
TCNZ SHALL BE MADE ONLY: (A) TO A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
COMPLYING WITH RULE 144A UNDER THE SECURITIES ACT; (B) PURSUANT TO A
REGISTRATION STATEMENT DECLARED EFFECTIVE UNDER THE SECURITIES ACT TO A HOLDER
WHO ACQUIRED THE SECURITIES REPRESENTED HEREBY EITHER (X) PRIOR TO SEPTEMBER 1,
1998 AND HAS HELD THE SECURITIES REPRESENTED HEREBY CONTINUOUSLY SINCE SUCH DATE
OF ACQUISITION OR (Y) PURSUANT TO A REGISTRATION STATEMENT OR REGISTRATION
STATEMENTS, DECLARED EFFECTIVE UNDER THE SECURITIES ACT, REGISTERING THE RESALE
OF THE SECURITIES REPRESENTED HEREBY AND ANY OFFER OF ORDINARY SHARES OF TCNZ
ARISING UPON RESALE OF THE SECURITIES REPRESENTED HEREBY (OR IN A TRANSFER FROM
A HOLDER WHO ACQUIRED THE SECURITIES REPRESENTED HEREBY IN THE MANNER SET FORTH
IN THIS CLAUSE (Y) OR FROM ANY TRANSFEREE OR SUBSEQUENT TRANSFEREES OF SUCH
HOLDER); OR (C) OUTSIDE THE UNITED STATES TO A NON-U.S. PERSON IN RELIANCE ON
REGULATION S (OR ANY SUCCESSOR PROVISION) UNDER THE SECURITIES ACT, AS SUCH
REGULATION MAY BE IN EFFECT AND APPLICABLE AS OF THE TIME OF SUCH EXCHANGE; (3)
AGREES THAT IT WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIODS APPLICABLE
TO SALES OF THE SECURITIES EVIDENCED HEREBY OR THE SECURITIES DELIVERABLE UPON
EXCHANGE OF SUCH SECURITIES UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THE SECURITIES EVIDENCED
HEREBY OR THE SECURITIES DELIVERABLE UPON EXCHANGE OF SUCH SECURITIES EXCEPT (A)
TO THE ISSUER OF SUCH SECURITY OR SECURITIES OR ANY SUBSIDIARY THEREOF, (B)
INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN COMPLIANCE
WITH REGULATION S UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E)
PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT (AND THAT CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER)
OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, AND (4) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THE SECURITIES EVIDENCED HEREBY ARE TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THE SECURITIES EVIDENCED HEREBY PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD
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APPLICABLE TO SALES OF THE SECURITIES EVIDENCED HEREBY UNDER RULE 144(K) UNDER
THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THIS CERTIFICATE TO THE CHASE MANHATTAN BANK, AS TRANSFER
AGENT (OR ANY SUCCESSOR TRANSFER AGENT, AS APPLICABLE), TOGETHER WITH SUCH
CERTIFICATIONS, LEGAL OPINIONS AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY
REASONABLY REQUIRE TO CONFIRM THAT THE PROPOSED TRANSFER IS BEING MADE PURSUANT
TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE
TRANSFER OF THE SECURITIES EVIDENCED HEREBY PURSUANT TO THE CLAUSE 3(E) ABOVE.
AS USED HEREIN THE TERMS "OFF-SHORE TRANSACTION," "UNITED STATES" AND "UNITED
STATES PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT."
Each Rule 144A Global Security shall also bear the following legend of the face
thereof:
"THIS SECURITY IS A RULE 144A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. TRANSFERS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF
CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS
OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 305 AND 306 OF THE
INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT AND ANY SUCH
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
If required by applicable law, the company may require that any securities bear
an appropriate legend to the effect that the securities deliverable upon
exchange thereof are subject to restrictions on transfer under applicable
securities laws.
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Each Regulation S Global Security shall also bear the following legend on the
face thereof:
UNLESS THIS REGULATION S GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE COMMON DEPOSITARY TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY GLOBAL SECURITY ISSUED IS
REGISTERED IN THE NAME OF THE COMMON DEPOSITARY OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE COMMON DEPOSITARY (AND ANY PAYMENT HEREON
IS MADE TO THE COMMON DEPOSITARY OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE COMMON DEPOSITARY) ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, THE COMMON DEPOSITARY, HAS AN INTEREST HEREIN.
TRANSFERS OF THIS REGULATION S GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF THE COMMON DEPOSITARY OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE, AND TRANSFERS OF PORTIONS OF THIS
REGULATION S GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO IN THE TERMS AND
CONDITIONS ATTACHED HERETO.
SECTION 203. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in substantially
the following form:
"This is one of the Securities referred to in the within-mentioned
Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
------------------------------
Authorized Officer"
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ARTICLE THREE
THE SECURITIES
SECTION 301. TITLE AND TERMS.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $2,455,000,000 in
principal amount of Securities, except Securities authenticated and delivered
upon registration of transfer of, or in exchange, for or in lieu of, other
Securities pursuant to Section 303, 304, 305, 306, 307, 308, 906 or 1108.
The Securities shall be known and designated as the 5.75% Senior
Exchangeable Notes due 2003 of the Company. The final Maturity of the Securities
shall be April 1, 2003, and the Securities shall each bear interest at the rate
of 5.75% per annum, payable semiannually on April 1 and October 1 of each year,
commencing October 1, 1998, until the principal thereof is paid or duly provided
for.
The principal of, premium, if any, and interest on, the Registered
Securities will be payable in U.S. dollars, against surrender thereof at the
Corporate Trust Office of the Trustee in New York City or, subject to any
applicable laws and regulations, at the office of any Paying Agent by dollar
check drawn on, or by transfer to a dollar account maintained by the Holder with
a bank in New York City.
Any payment on the Securities due on any day which is not a Business
Day need not be made on such day, but may be made on the next succeeding
Business Day with the same force and effect as if made on such due date, and no
interest shall accrue for the period from and after such date.
Bearer Securities must be presented for payment upon redemption,
outside the United States, together with all unmatured coupons, failing which
the amount of any missing unmatured coupons will be deducted from the sum due
for payment. Each amount so deducted will be paid in the manner mentioned above
against surrender of the related missing coupon, outside the United States.
Interest payable on Bearer Securities on any Redemption Date that is an Interest
Payment Date will be paid to the Holders of the coupons maturing on such
Interest Payment Date. Interest payable on Registered Securities on any
Redemption Date that is an Interest Payment Date will be paid to Holders of
record reflected on the Company's Security Register on the immediately preceding
Regular Record Date.
The Securities shall be redeemable as provided in Article XI, Article
XII and in the Securities.
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SECTION 302. DENOMINATIONS.
The Securities shall be issuable in denominations of U.S. $1,000 and
integral multiples thereof, with respect to Registered Securities; and U.S.
$1,000, U.S. $10,000 and U.S. $100,000, with respect to Bearer Securities.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board of Directors, any of its Vice Chairmen of the Board of
Directors, its President or any of its Vice Presidents, under its corporate seal
reproduced thereon, and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signature of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and make available for delivery such
Securities as provided in this Indenture and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for in Section
203 executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
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If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company in a Place of Payment, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of authorized
denominations. Until so exchanged, the temporary Securities shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
(a) The Company hereby appoints the Trustee as registrar (the
"Registrar") for the Securities. The Trustee shall keep, so long as it is the
Registrar, at the Corporate Trust Office of the Trustee, or such other office as
the Trustee may designate, a register (the register maintained in such office
and in any other office or agency of the Company in any other Place of Payment
being herein sometimes collectively referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Registered Securities and of transfer of
Registered Securities. The Company may change the Registrar or appoint one or
more co-Registrars without notice.
Upon surrender for registration of transfer or exchange of any
Security at the office or agency in a Place of Payment, the Company shall
execute, and the Trustee shall authenticate and deliver, the name of the
designated transferee or transferees, one or more new Securities, of any
authorized denominations and of like tenor and aggregate principal amount.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrender upon such registration of transfer of exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Registrar duly executed, by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities.
The Company shall not be required (i) to issue, register the transfer
of or exchange (other than an exchange pursuant to Article Thirteen) Securities
during a period
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beginning at the opening of business 15 days before the day of any selection of
Securities to be called for redemption, or (ii) to register the transfer of or
exchange (other than an exchange pursuant to Article Thirteen) any Security
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
Payments of the principal of, or premium, if any, and interest on the
Rule 144A Global Security will be made to DTC or its nominee, as the case may
be, as the registered owner thereof. None of the Company, the Trustee, any agent
of the Trustee or any Paying Agent or Exchange Agent will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in the Rule 144A
Global Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
(b) Subject to Sections 305(f) and 305(g), so long as any Rule 144A
Global Security or Regulation S Global Security remains Outstanding, transfers
or exchanges of beneficial interests in any of such Global Securities, may be
made only in accordance with the following provisions of this Section 305(b) and
the provisions of the applicable Global Security:
(i) If the proposed transfer occurs prior to the Unrestricted
Date, and the proposed transferor holds:
(A) an interest in the Rule 144A Global Security, and the
proposed transferor:
(1) delivers (or is deemed to have delivered) a Rule
144A Certificate substantially in the form of Exhibit G
hereto (a "Rule 144A Certificate"), and the proposed
transferee is or is acting through a member of, or
participant in, the Depositary (a "Depositary Agent
Member") and requests that the proposed transferee receive
a beneficial interest in the Rule 144A Global Security,
then the transfer shall be effected in accordance with the
procedures of the Depositary therefor and the transferee
shall receive a beneficial interest in the Rule 144A Global
Security;
(2) delivers (or is deemed to have delivered) a
Regulation S Certificate substantially in the form of
Exhibit H hereto (a "Regulation S Certificate"), and the
proposed transferee is or is acting through a member of, or
participant in, Euroclear or Cedel (an "Offshore Agent
Member") and requests that the proposed transferee receive
a beneficial interest in the Regulation S Global Security,
then the Registrar shall (w) register such transfer in the
name of such transferee and record the date thereof in its
books and records, (x) record a decrease in the principal
amount of
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the Rule 144A Global Security in an amount equal to the
beneficial interest therein being transferred, (y) record
an increase in the principal amount of the Regulation S
Global Security equal to the amount of such decrease in the
principal amount of the Rule 144A Global Security and (z)
notify the Depositary and the Common Depositary in
accordance with the procedures thereof that such transfer
has been approved.
(B) an interest in the Regulation S Global Security and the
proposed transferee or transferor, as applicable:
(1) delivers (or is deemed to have delivered) a Rule
144A Certificate and the proposed transferee is or is
acting through a Depositary Agent Member and requests that
the proposed transferee receive a beneficial interest in
the Rule 144A Global Security, then the Registrar shall (w)
register such transfer in the name of such transferee and
record the date thereof in its books and records, (x)
record a decrease in the principal amount of the Regulation
S Global Security in an amount equal to the beneficial
interest therein being transferred, (y) record an increase
in the principal amount of the Rule 144A Global Security
equal to the amount of such decrease in the principal
amount of the Regulation S Global Security and (z) notify
the Depositary and the Common Depositary in accordance with
the procedures thereof that such transfer has been
approved;
(2) delivers (or is deemed to have delivered) a
Regulation S Certificate and the proposed transferee is or
is acting through an Offshore Agent Member and requests
that the proposed transferee receive a beneficial interest
in the Regulation S Global Security, then the transfer
shall be effected in accordance with the procedures of the
Common Depositary therefor and the transferee shall receive
a beneficial interest in the Regulation S Global Security.
(ii) If the proposed transfer occurs on or after the
Unrestricted Date, and the proposed transferor holds:
(A) (1) an interest in the Rule 144A Global Security, then,
except as set forth in Section 305(b)(ii)(A)(2), the
procedures set forth in Section 305(b)(i)(A) shall apply.
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(2) an interest in the Rule 144A Global Security and if
the proposed transfer occurs on or after September 1, 1999,
and the proposed transferee or transferor delivers such
certifications, legal opinions or other information as the
Company may reasonably require to confirm that the proposed
transfer is being made in a transaction registered under
the Securities Act or pursuant to Rule 144 thereunder, and
the proposed transferee is or is acting through a
Depositary Agent Member and requests that the proposed
transferee receive a beneficial interest in the
Unrestricted Global Security, then the transfer shall be
effected in accordance with the procedures of the
Depositary therefor and the transferor shall receive a
beneficial interest in the Unrestricted Global Security.
(B) an interest in the Regulation S Global Security or the
Global Bearer Security and the proposed transferor:
(1) delivers (or is deemed to have delivered) a Rule
144A Certificate and the proposed transferee is or is
acting through a Depositary Agent Member and requests that
the proposed transferee receive a beneficial interest in
the Rule 144A Global Security, then the Registrar shall (w)
register such transfer in the name of such transferee and
record the date thereof in its books and records, (x)
record a decrease in the principal amount of the Regulation
S Global Security or the Global Bearer Security, as
applicable, in an amount equal to the beneficial interest
therein being transferred, (y) record an increase in the
principal amount of the Rule 144A Global Security equal to
the amount of such decrease in the principal amount of the
Regulation S Global Security or the Global Bearer Security,
as applicable, and (z) notify the Depositary and the Common
Depositary in accordance with the procedures thereof that
such transfer has been approved;
(2) either (x) delivers (or is deemed to have
delivered) a Regulation S Certificate and the proposed
transferee is or is acting through an Offshore Agent Member
and requests that the proposed transferee receive a
beneficial interest in the Regulation S Global Security or
(y) does not make a request covered by Section
305(b)(ii)(B)(1), Section 305(b)(ii)(B)(2)(x), or Section
305(b)(ii)(B)(3), then the transfer shall be effected in
accordance with the procedures of the Common Depositary
therefor; or
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(3) delivers such certifications, legal opinions or
other information as the Company may reasonably require to
confirm that the proposed transfer is being made in a
transaction registered under the Securities Act or pursuant
to Rule 144 thereunder, and the proposed transferee is or
is acting through a Depositary Agent Member and requests
that the proposed transferee receive a beneficial interest
in the Unrestricted Global Security, then the Registrar
shall (w) register such transfer in the name of such
transferee and record the date thereof in its books and
records, (x) record a decrease in the principal amount of
the Regulation S Global Security or the Global Bearer
Security, as the case may be, in an amount equal to the
beneficial interest therein being transferred, (y) record
an increase in the principal amount of the Unrestricted
Global Security equal to the amount of such decrease and
(z) notify the Depositary and the Common Depositary in
accordance with the procedures thereof that such transfer
has been approved.
(iii) A beneficial interest in a Rule 144A Global Security or in
a Regulation S Global Security or an Unrestricted Global Security may not, under
any circumstances, be exchanged for Bearer Securities or interests therein.
(iv) Notwithstanding anything in this Indenture to the contrary,
the Trustee shall have no obligation or liability to monitor any transfers of
interests within the Rule 144A Global Security or the Regulation S Global
Security.
(c) An exchange of beneficial interests in any Global Security for
definitive Securities shall only take place in the circumstances set out in this
Indenture and on the face of the relevant Global Security.
(d) Upon acceptance for transfer of a beneficial interest in a Global
Security for a beneficial interest in another Global Security as provided
herein, the Trustee shall (or shall request the Depositary to) endorse on the
Schedules affixed to each of such Global Securities (or on continuations of such
schedules affixed to each of Global Securities and made parts thereof)
appropriate notations evidencing the date of such transfer and (x) in the case
of the Global Security from which such transfer is made, a decrease in the
principal amount of such Global Security equal to the principal amount being
transferred and (y) in the case of the Global Security into which such transfer
is made, an increase in the principal amount of such Global Security equal to
the principal amount being transferred.
(e) The following provisions shall apply to the placement of the
Securities Legend or any definitive Security issued in exchange for or upon
transfer of another definitive Security or of a beneficial interest in any
Global Security and to the removal of the Securities
-31-
Legend from any definitive Security bearing such legend.
(i) Unless determined otherwise by the Company in accordance with
applicable law, a definitive Security issued upon transfer of or exchange for a
beneficial interest in a Global Security or, if such transfer occurs prior to
the Unrestricted Date a Regulation S Global Security, shall bear the Securities
Legend.
(ii) Unless determined otherwise by the Company in accordance
with applicable law, a definitive Security issued upon transfer of or exchange
for a beneficial interest in a Regulation S Global Security on or after the
Unrestricted Date shall not bear the Securities Legend.
(iii) Upon the transfer, exchange or replacement of a definitive
Security, bearing the Securities Legend, or upon specific request of a holder of
a definitive Security, bearing the Securities Legend, for removal of the
Securities Legend therefrom, the Trustee shall deliver an unlegended definitive
Security or unlegended definitive Securities if there is provided to the Company
evidence reasonable satisfactory to the Company (which may include an opinion of
counsel) that neither the Securities Legend nor the restrictions or transfer set
forth therein are required to ensure compliance with the Securities Act.
(iv) Upon the transfer, exchange or replacement of the unlegended
definitive Security for a definitive Security, the Trustee shall deliver an
unlegended definitive Security or Securities or a definitive Security or
Securities bearing such legend, as the Holder may request.
(f) Subject to Sections 305(b) and 305(g), so long as any Bearer
Security remains Outstanding and is held by or on behalf of the Common
Depositary, transfers or exchanges of beneficial interests in any such Bearer
Security, may be made only in accordance with this Section 305(f) and the
provisions of the applicable Bearer Security and in accordance with the rules of
the Common Depositary, Euroclear and Cedel. These restrictions are in addition
to the restrictions imposed by Regulation S described elsewhere in this
Indenture.
(i) Bearer Securities may not be offered or sold, directly or
indirectly, in connection with their original issuance or during the Restricted
Period, in the United States, or for the account of any United States person,
other than to certain persons described in United States Treasury Regulations
Section 1.163-5(c) (2) (i) (D) (1) (iii) (B) and (C). Bearer Securities may not
be delivered in the United States.
(ii) After the expiration of the Restricted Period, a beneficial
interest in the temporary Global Bearer Security may be transferred to a
transferee that takes delivery in the form of, or exchanged for, (a) a
beneficial interest in a permanent Global Bearer Security to be held by the
Common Depositary or (b) a beneficial interest in the Regulation S Global
Security in accordance with Section 305(b). Transfers pursuant to clause (a) of
this subsection (ii) shall
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be made only upon the receipt of Ownership Certificates, substantially in the
form of Exhibit I hereto.
(iii) The beneficial owner of a Security represented by a
permanent Global Bearer Security may, upon 30 days' written notice to the Paying
Agent, given by the beneficial owner through either Euroclear or Cedel or other
relevant clearing system, exchange such owner's interest in such permanent
Global Bearer Security for a definitive Bearer Security or Securities, which
will be serially numbered, with coupons attached, of any authorized
denominations. Transfers pursuant to this subsection (iii) shall be made only
upon the receipt of Ownership Certificates. Upon receipt by the Paying Agent of
an initial request to exchange an interest in a permanent Global Bearer Security
for a definitive Bearer Security or Securities, all other interests in such
permanent Global Bearer Security shall be exchanged for definitive Bearer
Securities. Interests in a permanent Global Bearer Security will also be
exchanged by the Company in whole, but not in part, for definitive Bearer
Securities, which will be serially numbered, with coupons, attached of any
authorized denominations if any Security represented by such permanent Global
Bearer Security is accelerated following an Event of Default or either Euroclear
or Cedel or any other relevant clearing system is closed for business for a
continuous period of fourteen days (other than by reason of public holidays) or
has announced an intention to cease business permanently or in fact does so. The
Common Depositary for Euroclear and Cedel will instruct the Paying Agent
regarding the aggregate principal amount and denominations of definitive Bearer
Securities that must be authenticated and delivered to each of Euroclear and
Cedel. Such exchanges shall occur at no expense to the beneficial owner as soon
as practicable after the receipt of the initial request for definitive Bearer
Securities of a notice of such acceleration or clearing system closure. No
Bearer Security will be delivered in the United States.
(g) Subject to the restrictions on transfer and exchange set forth in
this Section 305 and to any additional restrictions on transfer or exchange
specified in the definitive Securities, the Holder of any definitive Security
may transfer or exchange the same in whole or in part (in a principal amount
equal to the minimum authorized denomination or any authorized greater amount)
by surrendering such definitive Security at the Corporate Trust Officer or at
the office of any transfer agent together with an executed instrument of
assignment and transfer substantially in the form of Exhibit J to this Indenture
in the case of transfer and a written request for exchange in the case of
exchange. The holder of a beneficial interest in a Global Security may, subject
to the rules and procedures of the Depositary, the Common Depositary, Euroclear
or Cedel, as the case may be, cause the Depositary or the Common Depositary (or
their respective nominees) to notify the Trustee in writing of a request for
transfer or exchange of such beneficial interest for a definitive Security or
Securities. Following a proper request for transfer or exchange, the Trustee
shall, within five Business Days of such request if made at such Corporate Trust
Office, or within ten Business Days if made at the office of a transfer agent
(other than the Trustee), authenticate and deliver at such Corporate Trust
Office or at the office of such transfer agent, as the case may be, to the
transferee (in the case of transfer) or holder (in the case of exchange) or send
by first class mail (at the risk of the transferee in the case of
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transfer or holder in the case of exchange), to such address as the transferee
or holder, as applicable, may request, a definitive Security or Securities, as
the case may require, for a like aggregate principal amount and in such
authorized denomination or denominations as may be requested. The presentation
for transfer or exchange of any definitive Security shall not be valid unless
made at the Corporate Trust Office or at the office of a transfer agent by the
Holder in person, or by a duly authorized attorney-in-fact. A definitive
Security, may not, under any circumstances, be exchanged for a Bearer Security.
(h) Transfer, registration and exchange shall be permitted as
provided in this Section 305 without any charge to the Holder except for the
expenses of delivery (if any) not made by regular mail and the payment of a sum
sufficient to cover any stamp duty, tax or governmental charge or insurance
charge that may be imposed in relation thereto. Registration of the transfer of
a Security by the Trustee shall be deemed to be the acknowledgment of such
transfer on behalf of the Company.
(i) Interests in the Registered Securities will be exchangeable or
transferable, as the case may be, for definitive Registered Securities if (i) in
the case of 144A Securities, DTC notifies the Company that it is unwilling or
unable to continue as depositary for such Global Securities, or DTC ceases to be
a "Clearing Agency" registered under the Exchange Act, and a successor
depositary is not appointed by the Company within 90 days, (ii) in the case of
Regulation S Securities, either Euroclear or Cedel (or any Alternative Clearing
System (as defined herein) on behalf of which the Regulation S Securities may be
held) is closed for business for a continuous period of 14 days (other than by
reason of holidays, statutory or otherwise) or announces an intention to
permanently cease business or does in fact do so; or (iii) an Event of Default
(as defined herein) has occurred and is continuing with respect to such
Securities. Upon the occurrence of any of the events described in the preceding
sentence, the Company will cause the appropriate definitive Registered
Securities to be delivered.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
(a) The Company shall execute and deliver to the Trustee definitive
Securities in such amounts and at such times as to enable the Trustee to fulfill
its responsibilities under the Indenture and the Securities.
(b) The Trustee is hereby authorized, in accordance with any terms
and conditions set forth in the Securities, and (i) if any mutilated or defaced
Security is surrendered to the Trustee or (ii) upon provision of evidence
satisfactory to the Trustee and to the Company that any Security was destroyed,
stolen or lost, together with such indemnity as the Trustee and the Company may
require, to authenticate and deliver from time to time such Securities in
exchange for or in lieu of such Securities that become mutilated, defaced,
destroyed, stolen or lost. Each Security delivered in exchange for or in lieu of
any other Security shall carry all the rights to interest (including rights to
accrued and unpaid interest and Additional Amounts (defined in Section 1005))
that were carried by such other Security.
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(c) All Securities surrendered for payment or exchange shall be
delivered to the Trustee. The Trustee shall cancel and destroy all such
Securities surrendered for payment or exchange, in accordance with its security
destruction policy, and shall deliver a certificate of destruction to the
Company.
(d) Upon the issuance of any substitute Security, the Holder of such
Security, if so requested by the Company, will pay a sum sufficient to cover any
stamp duty, tax or other governmental charge that may be imposed in relation
thereto and any other expense (including the fees and expenses of the Trustee)
connected with the preparation and issuance of the substitute Security.
(e) All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
(f) The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
(a) Interest on any Registered Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security is registered in the Security Register
at the close of business on the relevant Regular Record Date for such interest.
At the option of the Company, payment of interest on any Security may be made by
a dollar check drawn by a bank in New York City mailed to the address of the
Holder at such Holder's address in the Security Register, provided that all
payments with respect to the Securities, the Holders of which have given wire
transfer instructions not later than the applicable Regular Record Date, to the
Paying Agent, will be required to be made by wire transfer of immediately
available funds to the accounts specified by the Holders.
(b) In order to provide for the payment of principal of and interest
on the Bearer Securities on the due date therefor (a "Payment Date"), the
Company will pay to the Luxembourg Paying Agent at the offices thereof at 0 Xxx
Xxxxxxx, X-0000, Xxxxxxxxxx, or such other offices outside the United States, as
the Principal Paying Agent shall direct the Company, in writing, in such coin or
currency of the United States as at the time of payment shall be legal tender
for the payment of public and private debts an amount in cash that shall be
sufficient to pay the interest (including Additional Amounts, if any) or
principal or both, as the case may be, becoming due on such Payment Date. The
Principal Paying Agent shall apply such amounts to the payment due, and pending
such application, such amounts shall be held in trust by the Principal Paying
Agent for the benefit of the persons entitled thereto.
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(c) Principal of, premium, if any, and interest on the Bearer
Securities and coupons will be payable in U.S. dollars against surrender of such
Bearer Securities or coupons, as the case may be, subject to any applicable laws
and regulations, at the option of the Holder, at such paying agencies outside
the United States, as the Company may appoint from time to time and at which, at
the option of the Company, such payment will be made by U.S. dollar check drawn
on a bank in New York City or by transfer to a dollar account maintained by the
payee with a bank located outside the United States. No payment with respect to
any Bearer Security or coupon will be made at the Corporate Trust Office of the
Trustee or any other paying agency maintained by the Company in the United
States. Notwithstanding the foregoing, if payment at all paying agencies outside
the United States is illegal or effectively precluded by exchange controls or
similar restrictions, payments with respect to Bearer Securities or coupons that
are paid in U.S. Dollars may be made at an office or agency of the Corporate
Trust Office of the Trustee in New York City.
(d) The Company may at any time terminate the appointment of any
paying agent and appoint additional or other paying agents; provided that until
the Bearer Securities have been delivered to the Principal Paying Agent for
cancellation, or moneys sufficient to pay all the Bearer Securities and coupons
have been made available for payment and either paid or returned to the Company
as provided herein, the Company will maintain a paying agent in Europe. So long
as the Securities are listed on the Luxembourg Stock Exchange and the Luxembourg
Stock Exchange so requires, there will be a paying agent in Luxembourg. Notice
of any such termination or appointment and of any change in the office through
which any paying agent will act will be promptly given once in the manner
described in Sections 105 and 106 hereof.
(e) Any interest on any Registered Security which is payable, but is
not punctually paid or duly provide for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of his having been such Holder,
and such Defaulted Interest shall be paid by the Company, at its election in
each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Registered Securities are registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Registered Security and the date of
the proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest of shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Person entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15
days and not less then 10 days after the receipt
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by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first class, postage prepaid, to each Holder of Securities of
such series at his address as it appears in the Security Register, not
less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to
the Person in whose name the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of the Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. PERSON DEEMED OWNERS.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of
principal of, premium, if any, and (subject to Section 307) interest on such
Security and for all other purpose whatsoever, whether or not such Registered
Security be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary. The Company,
the Trustee and any agent of the Company or the Trustee may treat the Holder of
a Bearer Security as the owner of such Bearer Security for the purpose of
receiving payment of principal of, premium, if any, and (subject to Section 307)
interest on such Security and for all other purposes whatsoever.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly canceled by the Trustee. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall
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be promptly canceled by the Trustee. No Securities shall be authenticated in
lieu of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities held by
the Trustee shall be destroyed and certification of their destruction delivered
to the Company unless, by a Company Order, the Company shall direct that
canceled Securities to return to it.
SECTION 310. COMPUTATION OF INTEREST.
Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.
SECTION 311. ADJUSTMENT OF INTEREST RATE.
The Company shall have the right to adjust the interest rate payable
on the Securities, either voluntarily or pursuant to the provisions of the
Registration Rights Agreement upon thirty days' notice provided to Holders in
accordance with Section 106 of this Indenture; provided that in no event shall
the Securities bear interest at a rate less than 5.75% per annum plus any
Liquidated Damages Amount (as such term is defined in the Registration Rights
Agreement) as shall be in effect from time to time in accordance with the
Registration Rights Agreement. In the case of an adjustment to the interest
rate, the Company shall promptly notify the Luxembourg Stock Exchange in writing
of such adjustment.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
Subject to applicable federal and state laws, this Indenture shall be
discharged and shall cease to be of further effect (except as to surviving
rights of registration of transfer or exchange or Securities as expressly
provided for herein) as to all Outstanding Securities hereunder, and the
Trustee, upon Company Request and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
when:
(a) All the Securities and interest coupons theretofore authenticated
and delivered (other than (i) Securities which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section 306
and (ii) Securities for whose payment money has theretofore been deposited
in trust with the Trustee or any Paying Agent or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003), have been delivered to the
Trustee for cancellation;
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(b) The Company has paid or delivered or caused to be paid or
delivered all other sums or property payable or deliverable hereunder by
the Company; and
(c) The Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money shall
have been deposited with the Trustee pursuant to subclauses (b) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to the
Securities, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) there shall be a default in the payment of any interest or
Additional Amounts (as defined in Section 1005 hereof) upon any Security
when it becomes due and payable, and continuance of such default for a
period of 15 days; or
(b) there shall be a default in the payment of the principal of (or
premium, if any, on) any Security at its Maturity (upon acceleration,
optional or mandatory redemption, required repurchase or otherwise),
whether or not such payment is prohibited by the provisions of this
Indenture; or
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(c) there shall be a failure by the Company to deliver Exchange
Property (and/or cash in lieu thereof) when such Exchange Property (or
cash in lieu thereof) is required to be delivered following the exchange
of a Security, and continuance of such failure for a period of 10 days; or
(d) there shall be a default in the performance, or breach, of any
covenant or agreement of the Company under this Indenture or the
Securities (other than a default in the performance, or breach, of a
covenant or agreement which is specifically dealt with in clauses (a), (b)
or (c) of this Section 501) and such default or breach shall continue for
a period of 90 days after written notice has been given, by certified
mail, to the Company by the Trustee or by the Holders of at least 25% in
aggregate principal amount at Maturity of the Outstanding Securities,
which notice shall specify that it is a "notice of default" and shall
demand that such a default be remedied; or
(e) there shall have been the entry by a court of competent
jurisdiction of (i) a decree or order for relief in respect of the Company
or Xxxx Atlantic in an involuntary case or proceeding under any applicable
Bankruptcy Law or (ii) a decree or order adjudging the Company or Xxxx
Atlantic bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or Xxxx Atlantic
under any applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or Xxxx Atlantic or of any substantial part of
their respective properties, or ordering the winding up or liquidation of
their respective affairs, and any such decree or order for relief shall
continue to be in effect, or any such other decree or order shall be
unstayed and in effect, for a period of 60 consecutive days;
(f) (1) the Company or Xxxx Atlantic shall have commenced a voluntary
case or proceeding under any applicable Bankruptcy Law or any other case
or proceeding to be adjudicated bankrupt or insolvent, (2) the Company or
Xxxx Atlantic shall have consented to the entry of a decree or order for
relief in respect of the Company or in an involuntary case or proceeding
under any applicable Bankruptcy Law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, (3) the Company or
Xxxx Atlantic shall have filed a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law, (4)
the Company or Xxxx Atlantic shall have (A) consented to the filing of
such petition or the appointment of, or taking possession by, a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official
of the Company or Xxxx Atlantic or of any substantial part of their
respective properties, (B) made an assignment for the benefit of creditors
or (C) admitted in writing its inability to pay its debts generally as
they become due, or (5) the Company or Xxxx Atlantic shall have taken any
corporate action in furtherance of any such actions in this paragraph (f)
and any actions taken pursuant to subsections (1) through (5) of this
Section (f) shall remain in effect and undismissed for 60 days; or
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(g) the Support Agreement ceases to be in full force and effect or is
declared null and void or Xxxx Atlantic denies that it has any further
liability under the Support Agreement and gives written notice to such
effect (other than by reason of the termination of the Indenture or the
release of the Support Agreement in accordance with the Indenture).
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than a Event of Default specified in
Sections 501(e) and (f) with respect to the Company or Xxxx Atlantic) shall
occur and be continuing with respect to this Indenture, the Trustee or the
Holders of not less than 25% in aggregate principal amount at Maturity of the
Outstanding Securities may, and the Trustee at the request of such Holders
shall, declare all unpaid principal of, premium, if any, and accrued interest on
all Securities to be due and payable, by a notice in writing to the Company (and
to the Trustee if given by the Holders of the Securities) and upon any such
declaration, such principal, premium, if any, and interest shall become due and
payable immediately. If an Event of Default specified Sections 501(e) or (f)
occurs with respect to the Company and is continuing, then all the Securities
shall IPSO FACTO become and be due and payable immediately in an amount equal to
the principal amount of the Securities, together with accrued and unpaid
interest, if any, to the date the Securities become due and payable, without any
declaration or other act on the part of the Trustee or any Holder.
After such declaration of acceleration with respect to the
Securities, but before a judgment or decree for payment of the money due has
been obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority aggregate in principal amount at Maturity of the
Outstanding Securities, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(i) all overdue interest on all Outstanding Securities,
(ii) the principal of and premium and Additional Amounts, if any,
on any Outstanding Securities which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate
borne by the Securities, in the event that the Outstanding Securities
are exchanged for Exchange Property, the value of the Exchange
Property or the cash value thereof,
(iii) to the extent that payment of such interest is lawful,
interest upon overdue interest and overdue principal, together with
Additional Amounts, if any, at the rate borne by the Securities, and
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(iv) all sums paid or advanced by the Trustee under this
Indenture and the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel;
and
(b) all Events of Default other than the non-payment of principal of
the Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent Default or impair any
right consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if:
(1) Default is made in the payment of any interest on any Security
when such interest becomes due and payable and such Default continues for
a period of 30 days; or
(2) Default is made in the payment or delivery of the principal of,
or Additional Amounts, if any, or premium, if any, on, any Security at the
Maturity thereof, or in the delivery of Exchange Property or the payment
of the cash value thereof,
the Company will, upon demand of the Trustee, pay or deliver to it, as the case
may be, for the benefit of the Holders of Securities, the whole amount then due
and payable on such Securities for principal of, or Additional Amounts, if any,
and premium, if any, and Exchange Property deliverable with respect to
Securities surrendered for exchange (or the cash value thereof), and interest
upon the overdue principal and premium, if any, or the cash value of Exchange
Property, to the extent that payment of such interest shall be legally
enforceable, upon overdue installments of interest, at the rate borne by the
Securities; and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts or deliver such Exchange
Property forthwith upon such demand, the Trustee, in its own name and as trustee
of an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid and may prosecute such proceeding to judgment or
final decree and may enforce the same against the Company or any other obliger
on the Securities and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or any other
obligor on the Securities situated.
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If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders under this Indenture by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
subject however to Section 512. No recovery of any such judgment upon any
property of the Company shall affect or impair any rights, powers or remedies of
the Trustee or the Holders.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor on the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal, and
premium, if any, and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
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SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without possession of
any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name and as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or premium, if
any or interest, upon presentation of the Securities and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on, and the value of
Exchange Property to be delivered in respect of, the Securities in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal, and premium, if
any, and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. LIMITATIONS ON SUITS.
No Holder of any Securities shall have any right to institute any
remedy or proceeding, judicial or otherwise, with respect to this Indenture or
the Securities, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(1) such Holder shall have previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal amount at
Maturity of the Outstanding Securities shall have made written request to
the Trustee to pursue such remedy or institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
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(3) such Holder or Holders shall have offered to the Trustee
reasonable security or indemnity satisfactory to the Trustee against the
costs, expenses, losses and liabilities to be incurred in compliance with
such request;
(4) the Trustee for 90 days after its receipt of such notice, request
and offer (and if requested, provision) of security or indemnity shall
have failed to institute any such proceeding; and
(5) no direction inconsistent with such written request shall have
been given to the Trustee during such 90-day period by the Holders of a
majority in principal amount of the Outstanding Securities;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive from the Company payment of the principal of, premium, if any, and
(subject to Section 307) interest on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption or
repurchase, on the Redemption Date or the purchase date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, any other obligor on the
Securities, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306, no right or
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remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of not less than a majority in aggregate principal amount
at Maturity of the Outstanding Securities shall have the right to direct the
time, method and place of conducting any proceeding for exercising any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, PROVIDED that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture;
(b) subject to the provisions of Section 315 of the Trust Indenture
Act, the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction; and
(c) the Trustee may refuse to perform any duty or to exercise any
right or power or to extend or risk its own funds or otherwise incur any
financial liability unless it receives indemnity reasonably satisfactory
to it against any loss, liability or expense which it may incur.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount at
Maturity of the Outstanding Securities may on behalf of the Holders of all
Outstanding Securities waive any past Default hereunder and its consequences,
except any Default:
(a) in any payment of the principal of, premium, if any, or interest
on any Security, or
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(b) with respect to the exchange rights of the Securities, or
(c) in respect of a covenant or provision hereof which under this
Indenture cannot be modified or amended without the consent of the Holder
of each Outstanding Security affected by such modification or amendment.
Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorney's fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant, but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount at Maturity of the Outstanding
Securities, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of, premium, if any, or interest on, any Security on or
after the respective Stated Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date).
SECTION 515. WAIVER OF STAY, EXTENSION OR USURY LAWS.
Each of the Company and any other obligor on the Securities covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury or other law wherever
enacted, now or any time hereafter in force, which would prohibit or forgive the
Company from paying all or any portion of the principal of, premium, if any, or
interest on the Securities contemplated herein or in the Securities or which may
affect the covenants or the performance of this Indenture; and each of the
Company and any other obligor on the Securities (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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SECTION 516. REMEDIES SUBJECT TO APPLICABLE LAW.
All rights, remedies and powers provided by this Article V may be
exercised only to the extent that the exercise thereof does not violate any
applicable provision of law in the premises, and all the provisions of this
Indenture are intended to be subject to all applicable mandatory provisions of
law which may be controlling in the premises and to be limited to the extent
necessary so that they will not render this Indenture invalid, unenforceable or
not entitled to be recorded, registered or filed under the provisions of any
applicable law.
ARTICLE SIX
THE TRUSTEE
SECTION 601. DUTIES OF THE TRUSTEE.
Subject to the provisions of Trust Indenture Act Section 315(a)
through 315(d):
(a) if a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture and use the same degree of care and skill
in its exercise thereof as a prudent person would exercise or use under
the circumstances in the conduct of his own affairs;
(b) except during the continuance of a Default or an Event of
Default:
(1) the Trustee need perform only those duties as are
specifically set forth in this Indenture and no covenants or
obligations shall be implied in this Indenture that are adverse to
the Trustee; and
(2) in the absence of bad faith or willful misconduct on its
part, the Trustee may exclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture. However, the Trustee shall
examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture;
(c) the Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this subsection (c) does not limit the effect of
Subsection (b) of this Section 601;
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(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(3) the Trustee shall not be liable with respect to any
action it takes or omits in good faith, in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture;
(d) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of any
of its rights or powers if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(e) whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to
Subsections (a), (b), (c) and (d) of this Section 601; and
(f) the Trustee shall not be liable for interest on any money or
assets received by it except as the Trustee may agree with the Company.
Assets held in trust by the Trustee need not be segregated from other
assets except to the extent required by law.
SECTION 602. NOTICE OF DEFAULTS.
Within 90 days after a Responsible Officer of the Trustee receives
notice or becomes aware of the occurrence of any Default, the Trustee shall
provide all Holders and any other Persons entitled to receive reports pursuant
to Section 313(c) of the Trust Indenture Act, notice of such Default hereunder
known to the Trustee (such notice to be provided pursuant to Sections 105 and
106), unless such Default shall have been cured or waived before the giving of
such notice; PROVIDED, HOWEVER, that except in the case of a Default in the
payment of the principal of or premium, if any, or interest on any Security, the
Trustee shall be protected in withholding such notice if and so long as a trust
committee of or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interest of the Holders.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601 hereof and Sections 315(a)
through 315(d) of the Trust Indenture Act:
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(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel of its selection and
any advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon in accordance with such advice or Opinion of Counsel;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee security or indemnity
satisfactory to the Trustee against the costs, expenses and liabilities
which might be incurred therein or thereby in compliance with such
request or direction;
(f) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture other than any liabilities arising out of the negligence, bad
faith or willful misconduct of the Trustee;
(g) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, approval, appraisal, bond, debenture, note, coupon
security or other paper or document, unless requested in writing to do
so by the Holders of not less than a majority in aggregate principal
amount of the Securities then Outstanding; PROVIDED that, if the
payment within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured
to the Trustee by the security afforded to it by the terms of this
Indenture, the Trustee may require reasonable indemnity against such
expenses or liabilities as a condition to the proceeding; the
reasonable expense of every such investigation so requested by the
Holders of not less than 25% in aggregate principal amount at Maturity
of the Outstanding Securities shall be
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paid by the Company or, if paid by the Trustee or any predecessor
Trustee, shall be repaid by the Company upon demand; PROVIDED, FURTHER,
the Trustee in its discretion may make such further inquiry or
investigation into such facts or matters as it may deem fit, and, if
the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney; and
(h) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
SECTION 604. TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITIONS OF
SECURITIES OR APPLICATIONS OF PROCEEDS THEREOF.
The recitals contained herein and in the Securities, except
the Trustee's certificate of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities, except that the Trustee represents that it is
duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder and that the statements made by
it in any Statement of Eligibility and Qualification on Form T-1 supplied to the
Company are true and accurate subject to the qualifications set forth herein.
The Trustee shall not be accountable for the use or application by the Company
of Securities or the proceeds thereof nor shall the Trustee be responsible for
any statement in any registration statement for the Securities under the
Securities Act or responsible for the determination as to which beneficial
owners are entitled to receive notices hereunder.
SECTION 605. TRUSTEE AND AGENTS MAY HOLD SECURITIES; COLLECTIONS, ETC.
The Trustee, any Paying Agent, any Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner of pledgee of Securities and, subject to Sections 608 and 613 hereof and
Sections 310 and 311 of the Trust Indenture Act, may otherwise deal with the
Company and receive, collect, hold and retain collections from the Company with
the same rights it would have if it were not Trustee, Paying Agent, Registrar or
such other agent.
SECTION 606. MONEY HELD IN TRUST.
All moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. The Trustee shall be under no liability
to the Company for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
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SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, such compensation as the
parties shall agree in writing from time to time for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) and the Company
covenants and agrees to pay or reimburse the Trustee and each predecessor
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by or on behalf of the Trustee in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and all agents and other persons not
regularly in its employ) except any such expense, disbursement or advance as may
arise from its negligence, bad faith or willful misconduct on its part, arising
out of or in connection with the acceptance or administration of this Indenture
or the trusts hereunder and its duties hereunder, including enforcement of this
Section 607 and also including any liability in connection with the expense of
defending itself against or investing any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder. The
obligations of the Company under this Section 607 to compensate and indemnify
the Trustee and each predecessor Trustee and to pay or reimburse the Trustee and
each predecessor Trustee for reasonable expenses, disbursements and advances
shall constitute an additional obligation hereunder and shall survive the
satisfaction and discharge of this Indenture and the resignation or removal of
the Trustee and each predecessor Trustee.
SECTION 608. CONFLICTING INTERESTS.
The Trustee shall comply with the provisions of Section 310(b)
of the Trust Indenture Act.
SECTION 609. TRUSTEE ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
eligible to act as trustee under Section 310(a)(5) of the Trust Indenture Act
and which shall have a combined capital and surplus of at least $100,000,000, to
the extent there is an institution eligible and willing to serve. If the Trustee
does not have a Corporate Trust Office in The City of New York, the Trustee may
appoint an agent in The City of New York reasonably acceptable to the Company to
conduct any activities which the Trustee may be required under this Indenture to
conduct in The City of New York. If such Trustee publishes reports of condition
at least annually, pursuant to law or to the requirements of federal, state,
territorial or District of Columbia supervising or examining authority, then for
the purposes of this Section 609, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section
609, the Trustee shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
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SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR TRUSTEE.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.
(b) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign by giving written notice thereof to the
Company. Upon receiving such notice or resignation, the Company shall promptly
appoint a successor trustee by written instrument executed by authority of the
Board of Directors of the Company, a copy of which shall be delivered to the
resigning Trustee and a copy to the successor trustee. If an instrument of
acceptance by a successor trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignations, the resigning
Trustee may, or any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as it may deem
proper, appoint and prescribe a successor trustee.
(c) The Trustee may be removed at any time for any cause or
for no cause by an Act of the Holders of not less than a majority in aggregate
principal amount at Maturity of the Outstanding Securities, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) The Trustee shall fail to comply with the
provisions of Section 310(b) of the Trust Indenture Act after
written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for a least six months, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent, or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, the Holder of any Security who has been
a bona fide Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
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trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor trustee and shall comply with the applicable requirements of Section
611. If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, the Company has not appointed a successor trustee, a
successor Trustee shall be appointed by the Act of the Holders of a majority in
principal amount of the Outstanding Securities delivered to the Company and the
retiring Trustee. Such successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of
Section 611, become the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the Securities
of any series shall have been so appointed by the Company or the Holders of the
Securities and accepted appointment in the manner hereinafter provided, the
Trustee or the Holder of any such Security who has been a bona fide Holder for
at least six months may, subject to Section 514, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Securities of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor trustee
and the address of its Corporate Trust Office or agent hereunder.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) Every successor trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee as if originally named as
Trustee hereunder; but, nevertheless, on the written request of the Company or
the successor trustee, upon payment of its charges pursuant to Section 607 then
unpaid, such retiring Trustee shall pay over to the successor trustee all moneys
at the time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor trustee all such rights, powers, duties and
obligations.
No successor trustee shall accept its appointment unless at
the time of such acceptance such successor trustee shall be qualified and
eligible under this Article.
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Upon acceptance of appointment by any successor trustee as
provided in this Section 611, the Company shall give notice thereof to the
Holders of the Securities, by mailing such notice to such Holders at their
addresses as they appear on the Security Register. If the acceptance of
appointment is substantially contemporaneous with the appointment, then the
notice called for by the preceding sentence may be combined with the notice
called for by Section 610. If the Company fails to give such notice within 10
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be given at the expense of the Company.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any Corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee (including the trust created by this
Indenture) shall be the successor of the Trustee hereunder, PROVIDED that such
Corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities. In case
at that time any of the Securities shall not have been authenticated, any
successor Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor Trustee. In all such cases
such certificates shall have the full force and effect which this Indenture
provides the certificate of authentication of the Trustee shall have; PROVIDED,
HOWEVER, that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Securities in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the
Company (or other obligor on the Securities), the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such obligor). A Trustee who has resigned or been
removed shall be subject to Section 311(a) of the Trust Indenture Act to the
extent indicated therein.
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the
Trustee:
(a) semi-annually, not more than 15 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of Registered
Securities as of such Regular Record Date; and
(b) at such other times as the Trustee may reasonably request
in writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content to that in Subsection (a)
hereof, as of a date not more than 15 days prior to the time such list
is furnished;
PROVIDED, HOWEVER, that if and so long as the Trustee shall be the Registrar, no
such list need be furnished.
SECTION 702. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
Holders may communicate pursuant to Section 312(b) of the
Trust Indenture Act with other Holders with respect to their rights under this
Indenture or the Securities, and the Trustee shall comply with Section 312(b) of
the Trust Indenture Act. The Company, the Trustee, the Registrar and any other
Person shall have the protection of Section 312(c) of the Trust Indenture Act.
Further, every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of the
disclosure of any information as to the names and addresses of the Holders in
accordance with Section 312 of the Trust Indenture Act, regardless of the source
from which such information was derived, and that the Trustee shall not be held
accountable by reason of such mailing any material pursuant to a request made
under Section 312(b) of the Trust Indenture Act.
SECTION 703. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with
the first May 15 after the issuance of Securities, the Trustee, if so required
under the Trust Indenture Act shall transmit by mail to all Holders in the
manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
a brief report dated as of such May 15 in accordance with and with respect to
the matters required by Section 313(a) of the Trust Indenture Act. The Trustee
shall also transmit by mail to the Holders, in the manner and to the extent
provided in Section 313(c)
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of the Trust Indenture Act, a brief report in accordance with and with respect
to the matters required by Sections 313(a) and 313(b)(2) of the Trust Indenture
Act.
(b) A copy of each report transmitted to Holders pursuant to
Section 703(a) shall, a the time of such transmission, be mailed to the Company
and filed with each stock exchange, if any, upon which the Securities are listed
and also with the Commission. The Company will notify the Trustee promptly if
the Securities are listed on any stock exchange.
SECTION 704. REPORTS BY COMPANY AND XXXX ATLANTIC.
(a) Whether or not the Company or Xxxx Atlantic, or any
successors thereof, is subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act, Xxxx Atlantic shall file with the Trustee, within 15
days after it is or would have been required to file the same with the
Commission, annual and quarterly consolidated financial statements substantially
equivalent to financial statements that would have been included in reports
filed with the Commission if Xxxx Atlantic were subject to the requirements of
Section 13 or 15(d) of the Exchange Act, including, with respect to annual
information only, a report thereon by Xxxx Atlantic's certified independent
public accountants as such would be required in such reports to the Commission
and, in each case, together with a management's discussion and analysis of
results of operations and financial condition as such would be so required.
(b) For so long as the Securities are Registrable Securities,
the Company will continue to provide to the Holders of the Securities and to
prospective purchases of the Securities the information required by Rule
144A(d)(4) of the Securities Act.
(c) The Company shall file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and regulations
(including such information, documents and reports referred to in Section 314(a)
of the Trust Indenture Act).
(d) The Company shall, within 15 days after the filing thereof
with the Trustee, transmit by mail to all Holders in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act, such summaries of
any information, documents and reports required to be filed by the Company
pursuant to subsections (b) and (c) of this Section as is required and not
prohibited by rules and regulations prescribed from time to time by the
Commission.
(e) Each of the Company and Xxxx Atlantic will make available
for inspection by the Trustee or any registered company auditor, defined by the
Australian Corporations Law, appointed by the Trustee its complete accounting or
other records.
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(f) Each of the Company and Xxxx Atlantic will provide the
Trustee with such information as required by the Trustee with respect to all
matters relating to its accounting or other records.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. COMPANY MAY MERGE, CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
Neither the Company nor Xxxx Atlantic shall consolidate with
or merge into any other Corporation, or convey, transfer or lease its properties
and assets substantially as an entirety to any person, and neither the Company
nor Xxxx Atlantic shall permit any Person to consolidate with or merge into the
Company or Xxxx Atlantic or convey, transfer or lease its properties and assets
substantially as an entirety to the Company or Xxxx Atlantic, unless:
(a) the Corporation formed by such consolidation or into which
the Company or Xxxx Atlantic is merged or the Person to which the properties and
assets of the Company or Xxxx Atlantic are transferred substantially as an
entirety shall be a corporation organized and existing under the laws of the
United States, any State thereof or the District of Columbia and shall expressly
assume the payment of the principal of, and premium, if any, and interest on,
and the delivery of Exchange Property, or the cash value thereof, as the case
may be, due with respect to the Securities and the performance of the other
covenants under the Indenture and the Support Agreement, on the part of the
Company or Xxxx Atlantic, as applicable;
(b) after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing and
(c) if, as a result of such transaction, properties or assets
of the Company would become subject to a Mortgage not permitted by Section 1006
of this Indenture without equally and ratably securing the Securities as
provided therein, steps shall have been taken to secure the Securities equally
and ratably with (or prior to) all indebtedness secured thereby pursuant to
Section 1006 of this Indenture.
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation or merger, or any conveyance, transfer
or lease of all or substantially all of the properties and assets of the Company
in accordance with Section 801, the successor Person formed by such
consolidation or merger or the successor Person to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture, with the
same effect as if such successor has been named as the Company herein. When a
successor assumes all the obligations
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of its predecessor under this Indenture or the Securities, the predecessor shall
be released from such assumed obligations and covenants under the Indenture and
the Securities, as the case may be; PROVIDED that in the case of a transfer by
lease, the predecessor shall not be released from the payment of principal and
interest on the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES AND AGREEMENT WITHOUT CONSENT OF
HOLDERS.
Without the consent of any Holders, the Company, Xxxx Atlantic
and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(a) to evidence the succession of another Person to the
Company or any obligor on the Securities and the assumption by any such
successor of the covenants of the Company or obligor herein and in the
Securities in accordance with Article VIII; or
(b) to add to the covenants of the Company or any other
obligor on the Securities for the benefit of the Holders, or to
surrender any right or power herein conferred upon the Company or any
other obligor on the Securities, as applicable, or in the Securities;
or
(c) to add any additional Events of Default;
(d) to cure any ambiguity, or to correct or supplement any
provision herein or any supplemental indenture or the Securities which
may be defective or inconsistent with any other provision herein or in
the Securities or to make any other provisions with respect to matters
or questions arising under this Indenture or the Securities; provided
that, in each case, such provisions shall not adversely affect the
interest of the Holders;
(e) to comply with the requirements of the Commission in order
to effect to maintain the qualification of this Indenture under the
Trust Indenture Act, as contemplated by Section 905 or otherwise;
(f) to evidence and provide the acceptance of the appointment
of a successor trustee hereunder;
(g) to secure the Securities pursuant to the requirements of
Section 1006 or otherwise; or
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(h) to change or eliminate any of the provisions of this
Indenture, PROVIDED that any such change or elimination shall become
effective only when there are no Securities Outstanding which are
entitled to the benefit of such provision.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
Except as permitted by Section 901, with the consent of the
Holders of at least a majority in aggregate principal amount at Maturity of the
Outstanding Securities, by Act of said Holders delivered to the Company, Xxxx
Atlantic and the Trustee, the Company and Xxxx Atlantic, when authorized by a
Board Resolution, and the Trustee may (i) enter into an indenture or indentures
supplemental heretofore the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture of the
Securities (including, but not limited to, for the purpose of modifying in any
manner the rights of the Holders under this Indenture or the Securities) or (ii)
waive compliance with any provision in this Indenture or the Securities (other
waivers of past Defaults covered by Section 513 and waivers of covenants which
are covered by Section 1019); PROVIDED, HOWEVER, that no such supplemental
indenture, agreement or installment or instrument shall, without the consent of
the Holder of each Outstanding Security affected thereby:
(a) change the Stated Maturity of the principal of, or any
installment of interest on (including Additional Amounts, if any), any
Security, or reduce the principal amount thereof or the rate of
interest thereon (including Additional Amounts, if any), or the amount
of Exchange Property deliverable in exchange for the Securities, or any
premium payable upon the redemption thereof, or change or the coin or
currency in which any Security or any premium or the interest thereon
(including Additional Amounts, if any), is payable, or impair the right
to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or after
the Redemption Date), or
(b) reduce the percentage of the principal amount of the
Outstanding Securities, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences provided
for in this Indenture, or
(c) modify any of the provisions of this Section, Section 513
or Section 1005, except to increase the percentage of Outstanding
Securities requires for such actions or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby, or
(d) modify any provision of the Support Agreement adverse to
the Holders of the Securities.
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Upon the written request of the Company and Xxxx Atlantic
accompanied by a copy of the Board Resolution authorizing the execution of any
such supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of Holders as aforesaid, the Trustee shall join with the Company and
Xxxx Atlantic in the execution of such supplemental indenture.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by,
any supplemental indenture, agreement, instrument or waiver permitted by this
Article IV or the modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Sections 315(a)
through 315(b) of the Trust Indenture Act and Section 602 hereof) shall be fully
protected in relying upon, an Opinion of Counsel and an Officer's Certificate
stating that the execution of such supplemental indenture, agreement or
instrument is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture, agreement
or instrument which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated or delivered
hereunder shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
IX shall conform to the requirements of the Trust Indenture Act as then in
effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article IX may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities.
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SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of Section 902, the
Company shall give notice thereof to the Holders of each Outstanding Security
affected, in the manner provided for in Section 106, setting forth in general
terms the substance of such supplemental indenture. Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company shall duly and punctually pay the principal of,
premium, if any, and interest on, and deliver Exchange Property, or the cash
value thereof, as the case may be, due with respect to the Securities in
accordance with the terms of the Securities and this Indenture.
SECTION 1002. TRUSTEE, TRANSFER AGENT, REGISTRAR, QUOTATION AGENT, PAYING
AGENTS AND EXCHANGE AGENTS.
(a) The Trustee, acting through its Corporate Trust Offices in
New York City, shall initially act as Registrar, and the Trustee, acting through
its Corporate Trust Offices in New York City and London, shall initially act as
Transfer Agent and Quotation Agent. The Company reserves the right to vary or
terminate the appointment of the Registrar or of any Transfer Agent or the
Quotation Agent or to appoint additional or other registrars or transfer agents
or quotation agents or to approve any change in the office through which any
Registrar or any Transfer Agent or any Quotation Agent acts, provided that there
will at all times be a Registrar in New York City and a Transfer Agent in a
Western European city and a Paying Agent, Transfer Agent and Exchange Agent
having an office in Luxembourg for so long as the Securities are listed on the
Luxembourg Stock Exchange. The Company hereby appoints The Chase Manhattan Bank
as Principal Paying and Exchange Agent, Transfer Agent and Registrar. The
Company hereby appoints The Chase Manhattan Bank Luxembourg S.A. as Luxembourg
Paying and Exchange Agent, Transfer Agent and Registrar.
(b) Securities may be presented for exchange at the office of
any Transfer Agent or at the office of the Registrar and Registered Securities
may be presented for registration or transfer (with the form of transfer
endorsed thereon duly executed), at the office of any Transfer Agent or any
office of the Registrar, without service charge but upon payment of any taxes
and other governmental charges as described in the Indenture. Any registration
of transfer or exchange will be effected upon the Transfer Agent or the
Registrar, as the case may be, being
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satisfied with the documents of title and identity of the person making the
request and, with respect to the Registered Securities, upon registration of
such transfer in the Security Register, and subject to such reasonable
regulations as the Company may from time to time agree with the Transfer Agents
and the Registrar. Registered Securities may be transferred in whole or in part
in the amount of $1,000 or any integral multiple thereof. Upon presentation for
exchange or transfer of any Security at the office of the Transfer Agent
accompanied by a duly executed written instrument of exchange or transfer in a
form approved by the Company, and upon completion of any certification required
by the terms of this Indenture, or upon the partial redemption of any Security,
such Security shall be exchanged, transferred or redeemed in part, as the case
may be, and one or more new Securities shall be authenticated and issued in lieu
thereof.
(c) The Trustee and certain of its affiliates shall initially
act as Paying Agents and Exchange Agents. The Company may at any time terminate
the appointment of any Paying Agent or Exchange Agent or appoint additional or
other Paying Agents and Exchange Agents, provided that until the Securities have
been delivered to the Trustee for cancellation, or money sufficient to pay the
principal of and interest on the Securities have been made available for payment
and either paid or returned to the Company as provided in the Indenture, it will
maintain an office or agency in New York City for payments with respect to
Registered Securities and for surrender of Securities for exchange, and in a
Western European city and a New Zealand city for payment with respect to the
Securities and for the surrender of Securities for exchange. Notice of any such
termination or appointment and of any change in the office through which any
Paying Agent or Exchange Agent will act will be given in accordance with
Subsection (d) below.
(d) Notice to holders of Securities will be given in
accordance with Section 105.
SECTION 1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If the Company or any of its Affiliates, shall at any time act
as its own Paying Agent, it will, on or before each due date of the principal of
(premium, if any) or interest on any of the Securities, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal, premium, if any, or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided, and
will promptly notify the Trustee of its action or failure to so act.
If the Company or any of its Affiliates is not acting as
Paying Agent, the Company will, on or before each due date of the principal of,
premium, if any, or interest on any of the Securities, deposit with a Paying
Agent a sum in same day funds sufficient to pay the principal, premium, if any,
or interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium, if any, or interest, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of such action or any failure so to act.
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If the Company is not acting as Paying Agent, the Company will
cause each Paying Agent other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal
of, premium, if any, or interest on the Securities in trust for the
benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any Default by the Company (or
any other obligor upon the Securities) in the making of any payment of
principal, premium, if any, or interest on, or delivery of any Exchange
Property with respect to, the Securities;
(c) at any time during the continuance of any such Default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all aspects
with the provisions of this Indenture relating to the duties, rights
and disabilities of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by a Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, and
premium, if any, or interest on any Security and remaining unclaimed for two
years after such principal, and premium, if any, or interest has become due and
payable shall promptly be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, without interest and until such amount must be
remitted to the state under escheat or similar laws, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; PROVIDED, HOWEVER,
that (i) the Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to be published once, in
a newspaper published in the English language, customarily published on each
business day and of general circulation in the Borough of Manhattan, the City
and State of New York, or mailed to each such Holder, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication or mailing, any unclaimed
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balance of such money then remaining will be repaid to the Company, and (ii) all
such amounts payable in respect of Bearer Securities shall be payable only
outside the United States within the meaning of Section 1.163-5(c)(2)(v) of the
Treasury Regulations.
SECTION 1004. CORPORATE EXISTENCE.
(a) Subject to Article VIII, each of the Company and Xxxx
Atlantic shall do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence and related rights and
franchise (charter and statutory); PROVIDED, HOWEVER, that the Company shall not
be required to preserve any such right or franchise if the Board of Directors of
each of the Company and Xxxx Atlantic shall determine that the preservation
thereof is no longer necessary or desirable in the conduct of the business of
the Company of Xxxx Atlantic.
(b) Each of the Company and Xxxx Atlantic shall strive to
carry on and conduct its business in a proper and efficient manner.
SECTION 1005. PAYMENT OF ADDITIONAL AMOUNTS.
The Company shall, subject to certain exceptions and
limitations set forth below, pay such additional amounts (the "Additional
Amounts") to the Holder of any Security or of any coupon appertaining thereto
who is a United States Alien as may be necessary in order that every net payment
of the principal of, premium, if any, and interest (including original issue
discount) on such Security and any other amounts payable on such Security, after
withholding for or on account of any present or future tax, assessment or
governmental charge imposed upon or as a result of such payment by the United
States (or any political subdivision or taxing authority thereof or therein),
will not be less than the amount provided for in such Security or coupon to be
then due and payable.
The Company shall not, however, 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 that
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 such Holder, if such
Holder is an estate, a trust, a partnership or a corporation)
and the United States and its possessions, including, without
limitation, such Holder (or such fiduciary, settlor,
beneficiary, member or shareholder) being or having been a
citizen or resident thereof or being or having been engaged in
a trade or business or presence therein or having, or having
had, a permanent establishment therein or;
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(ii) the presentation by the Holder of any such
Security or coupon for payment on a date more than 15 days
after 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 similar tax, assessment or governmental charge;
(c) any tax, assessment or other governmental charge imposed
by reason of such Holder's past or present status as a personal holding
company or foreign personal holding company or controlled foreign
corporation or passive foreign investment company with respect to the
United States or as a corporation that accumulates earnings to avoid
United States federal income tax or as a private foundation or other
tax-exempt organization;
(d) any tax, assessment or other governmental charge that is
payable otherwise than by withholding from payments on or in respect of
any Security;
(e) 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 Security, if such payment can be made without such
withholding by any other Paying Agent in a city in Western Europe;
(f) any tax, assessment or other governmental charge that
would not have been imposed but for the failure to comply with
certification, information or other reporting requirements concerning
the nationality, residence or identity of the Holder or beneficial
owner of such Security, 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% or more of the total combined voting power of
all classes of stock entitled to vote of the Company or as a direct or
indirect subsidiary of the Company; or
(h) any combination of (a), (b), (c), (d), (e), (f) or (g);
nor shall Additional Amounts be paid with respect to any payment on a Security
to a United States Alien who is a fiduciary or partnership or other than the
sole beneficial owner of such payment to the extent such payment would be
required by the laws of the United States (or any political subdivision thereof)
to be included in the income, for tax purposes, of a beneficiary or settlor with
respect to such fiduciary or a member of such partnership or a beneficial owner
who
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would not have been entitled to the Additional Amounts had such beneficiary,
settlor, member or beneficial owner been the Holder of the Security.
SECTION 1006. LIENS ON ASSETS.
If at any time the Company mortgages, pledges or otherwise
subjects to any Mortgage the whole or any part of any property or assets now
owned or hereafter acquired by it, except as hereinafter provided in this
Section 1006, the Company will secure the Outstanding Securities, and any other
obligations of the Company which may then be outstanding and entitled to the
benefit of a covenant similar in effect to this covenant, equally and ratably
with the indebtedness or obligations secured by such Mortgage, pledge or lien,
for as long as any such indebtedness or obligation is so secured. The foregoing
covenant does not apply to the creation, extension, renewal or refunding of
purchase-money Mortgages or liens or other Mortgages to which any property or
asset acquired by the Company is subject as of the date of its acquisition by
the Company, or to the making of any deposit or pledge to secure public or
statutory obligations or with any governmental agency at any time required by
law in order to qualify the Company to conduct its business or any part thereof
or in order to entitle it to maintain self-insurance or to obtain the benefit of
any law relating to workers' compensation, unemployment insurance, old age
pensions or other social security, or with any court, board, commission or
governmental agency as security incident to the proper conduct of any proceeding
before it. Nothing contained in this Indenture prevents an Affiliate of the
Company, including without limitation Xxxx Atlantic, from mortgaging, pledging
or subjecting to any lien or Mortgage any property or assets, whether or not
acquired by such Affiliate from the Company.
SECTION 1007. DISAFFILIATION OF XXXX ATLANTIC FROM TCNZ.
(a) Not later than June 1, 1999, Xxxx Atlantic will take such
actions as are sufficient to cause Xxxx Atlantic to cease to be an affiliate of
TCNZ (as such term is defined in Rule 144 under the Securities Act) and will
obtain an Opinion of Counsel experienced in such matters to such effect; unless
on or prior to such date TCNZ shall have (i) entered into a registration rights
agreement (the "TCNZ Registration Rights Agreement") with the Company and Xxxx
Atlantic, in customary form and, subject to paragraph (b) of this Section 1007,
with reasonable terms as determined by an internationally recognized investment
bank to be selected by Xxxx Atlantic and SBC Warburg Dillon Read, or any
successor thereto, requiring TCNZ to use its best efforts to cause to become
effective by such date a U.S. "shelf" registration statement for an offering to
be made on a continuous or delayed basis pursuant to Rule 415 under the
Securities Act (a "TCNZ Resale Shelf") with respect to (a) to the extent
permissible under applicable law, any offer, arising on resale of the
Securities, of the TCNZ Ordinary Shares deliverable upon exchange of the
Securities arising upon resale of the Securities, (b) if permissible, the
delivery, upon exchange of the Securities, of TCNZ Ordinary Shares to certain
exchanging holders of Securities, and (c) if necessary, the resale of TCNZ
Ordinary Shares received upon exchange of Securities, and (ii) caused the TCNZ
Resale Shelf to be declared effective on or prior to such date.
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(b) The TCNZ Registration Rights Agreement shall provide that
TCNZ will not be permitted to suspend the use of any Prospectus that is part of
the TCNZ Resale Shelf for any period in excess of 90 days (whether or not
consecutive) in any 12-month period.
SECTION 1008. STATEMENT BY OFFICER AS TO DEFAULT.
(a) The Company will deliver to the Trustee, on or before a
date not more than 120 days after the end of each fiscal year of the Company
ending after the date hereof, a written statement signed by an executive officer
of the Company, who shall be the principal executive officer, principal
financial officer or principal accounting officer of the Company, as to
compliance with this Indenture, including whether or not, after a review of the
activities of the Company during such year and of the Company's performance
under this Indenture, to the best knowledge, based on such review, of the
signers thereof, the Company has fulfilled all of its respective obligations and
is in compliance with all conditions and covenants under this Indenture
throughout such year and, if there has been a Default, specifying each Default
and the nature and status thereof and any actions being taken by the Company
with respect thereto.
(b) When any Default or Event of Default has occurred and is
continuing, the Company shall deliver to the Trustee by registered or certified
mail or facsimile transmission a written notice specifying such Default or Event
of Default, the status thereof and what actions the Company is taking or
proposes to take with respect thereto, within 10 Business Days of becoming aware
of its occurrence.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. RIGHTS OF REDEMPTION.
The Securities are subject to redemption (other than a
redemption described in Article Twelve) at any time on or after April 1, 2001,
at the option of the Company, in whole or in part, upon not less than 30 nor
more than 60 days' notice of redemption given as described in Sections 105, 106
and 1105 to Holders of Securities during the period from April 1, 2001 to March
31, 2002 at a Redemption Price equal to 102.3% of the principal amount thereof
and thereafter and prior to the Maturity Date at 101.15%, (subject to the rights
of Holders of record on relevant Regular Record Dates, and Holders of Bearer
Securities upon presentation of coupons appertaining thereto, to receive
interest due on relevant Interest Payment Dates).
The Company may elect, in connection with a redemption of the
Securities or the Maturity of the Securities, to satisfy its obligations to
Holders who elect to exchange their Securities for TCNZ Ordinary Shares by cash
payment of the Average Market Value Amount. If
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the Company makes such an election, Holders of Securities will no longer be
entitled to receive TCNZ Ordinary Shares in exchange for the Securities called
for redemption.
The Company may make such an election, in respect of any
Securities to be redeemed on a Redemption Date or repaid at Stated Maturity, by
giving an irrevocable notice thereof to the Holders not later than the 35th
Trading Day prior to such Redemption Date or Stated Maturity, in which case the
Company will be obligated to pay the Average Market Value Amount in respect of
all Securities to be redeemed or repaid on such Redemption Date or Stated
Maturity to Holders who elect to exchange their Securities for TCNZ Ordinary
Shares.
SECTION 1102. APPLICABILITY OF ARTICLE.
Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall be
made in accordance with such provision and this Article XI.
SECTION 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities pursuant
to Section 1101 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities to be redeemed.
SECTION 1104. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities are to be redeemed (other than
a redemption described in Article XII), the particular Securities to be redeemed
shall be selected by the Trustee, from the Outstanding Securities, either by
lot, pro rata or by such method as the Trustee shall deem fair and appropriate.
The amounts to be redeemed shall be equal to $1,000 principal amount at maturity
or any integral multiple thereof. If a portion of a Holder's Securities is
selected for partial redemption and such Holder exchanges a portion of such
Securities prior to such redemption, such exchanged portion shall be deemed,
solely for purposes of determining the aggregate principal amount at maturity of
Securities to be redeemed by the Company, to be of the portion selected for
redemption.
The Trustee shall promptly notify the Company and the
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security
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which has been or is to be redeemed.
SECTION 1105. NOTICE OF REDEMPTION.
All notices of redemption (given in accordance with Sections
105 and 106) shall state:
(a) the Redemption Date;
(b) the Redemption Price, including the aggregate number or
amount of each type of Exchange Property and cash to be delivered to a
Holder upon exchange should such Holder elect to exchange Securities
prior to the relevant Redemption Date;
(c) if less than all the Outstanding Securities are to be
redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed;
(d) in the case of a Security to be redeemed in part, the
principal amount of such Security to be redeemed and that after the
Redemption Date upon surrender of such Security, new Security or
Securities in the aggregate principal amount equal to the unredeemed
portion will be issued;
(e) that Securities called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price;
(f) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security, or portion thereof, to
be redeemed and that interest thereon will cease to accrue on and after
said date;
(g) the names and addresses of the Paying Agent and the
offices or agencies referred to in Section 1002 where such Securities
are to be surrendered for payment of the Redemption Price;
(h) the CUSIP number, if any, relating to such Securities; and
(i) the procedures that a Holder must follow to surrender the
Securities to be redeemed.
The notice, if given in the manner herein provided, shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice or any defect in the
notice to the Holder of any Security designated for redemption as a whole or in
part shall not affect the validity of the proceedings for the redemption of any
other Security. Any such redemption must be in integral multiples of $1,000
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principal amount at Maturity.
SECTION 1106. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money sufficient to pay the Redemption Price of and (except if the Redemption
Date shall be an Interest Payment Date), accrued interest on, all the Securities
which are to be redeemed on that date. The Paying Agent shall promptly mail or
deliver to Holders of Securities so redeemed payment in an amount equal to the
Redemption Price of the Securities purchased from each such Holder. All money,
if any, earned on funds held in trust by the Trustee or any Paying Agent shall
be remitted to the Company.
SECTION 1107. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Holders will be
required to surrender the Securities to be redeemed to the Paying Agent at the
address specified in the notice of redemption at least one Business Day prior to
the Redemption Date. Upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the Company at the
Redemption Price together with accrued interest to the Redemption Date;
PROVIDED, HOWEVER, that installments of interest hereunder shall be subject to
the terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and premium, if any, shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Securities.
SECTION 1108. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed or purchased only in part
shall be surrendered to the Paying Agent at the office or agency maintained for
such purpose pursuant to Section 1002 (with, if the Company, the Registrar or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company, the Registrar or the Trustee, as the case
may be, duly executed by the Holder thereof or such Holder's attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities, of any authorized denomination as requested by
such Holder in aggregate principal amount equal to, and in exchange for, the
unredeemed portion of the principal of the Security so surrendered that is not
redeemed or purchased.
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ARTICLE TWELVE
TAX REDEMPTION
SECTION 1201. TAX REDEMPTION OF ALL SECURITIES.
The Securities may be redeemed in whole, or in part, at the
option of the Company upon giving notice of redemption as described below, upon
the occurrence of a Tax Event (as defined below):
(a) at any time prior to September 1, 1999 at a redemption
price (the "Early Tax Redemption Price") equal to 100% of the principal amount
thereof plus an amount in cash equal to the excess, if any, of the Market Price
as of the date fixed for redemption of the number of TCNZ Ordinary Shares (or
the number or amount of each type of other Exchange Property) that would be
deliverable upon exchange of such Securities were such Securities exchangeable
at such time over 100% of the principal amount thereof; and
(b) at any time on or after September 1, 1999 at a redemption
price (the "Tax Redemption Price") equal to 100% of the principal amount of such
Securities, in each case together with accrued interest to the date fixed for
redemption.
A "Tax Event" shall be deemed to have occurred if the Company
determines that, as a result of any change in or amendment to the laws (or any
regulations, rulings or notices 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, which change or amendment
becomes effective on or after the date of the Offering Memorandum, or as a
result of the TCNZ Ordinary Shares or the ADRs no longer being, or the Exchange
Property not being, actively traded within the meaning of Section
871(h)(4)(C)(v)(I) of the Code, in connection with the issuance of such
Securities the Company has or will become obligated to pay Additional Amounts
with respect to such Securities as described in Section 1005.
Prior to the giving of any notice of redemption pursuant to
this Section, the Company shall deliver to the Trustee (i) a certificate stating
that the Company is entitled to effect such redemption and setting forth a
statement of facts showing that the conditions precedent to the right of the
Company to so redeem have occurred (the date on which such certificate is
delivered to the Trustee is the "Redemption Determination Date"), and (ii) an
Opinion of Independent Counsel to such effect based on such statement of facts;
provided that no such notice of redemption shall be given earlier than 60 days
prior to the earliest date on which the Company would be obligated to pay such
Additional Amounts if a payment in respect of such Securities were then due.
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Notice of tax redemption pursuant to this Section will be
given not less than 30 nor more than 60 days prior to the date fixed for
redemption, which date and the applicable Redemption Price will be specified in
the notice. Such notice will be given pursuant to Section 105 and 106.
If any date fixed for redemption is a date prior to the
expiration of the Restricted Period, definitive Bearer Securities will be
issuable on and after such Redemption Date as if such Redemption Date had
occurred on the date of expiration of the Restricted Period, subject to receipt
of Ownership Certificates, delivery of which is a condition to delivery of
definitive Bearer Securities.
SECTION 1202. TAX REDEMPTION OF BEARER SECURITIES.
(a) If the Company shall determine that any payment made
outside the United States by the Company or any Paying Agent of principal,
premium, if any, or interest (including original issue discount) due in respect
of any Bearer Security or coupon appurtenant thereto would, under any present or
future laws or regulations of the United States, be subject to any
certification, identification or other information reporting requirement of any
kind, the effect of which is the disclosure to the Company, any Paying Agent or
any governmental authority of the nationality, residence or identity of a
beneficial owner of such Bearer Security or coupon who is a United States Alien
(other than such a requirement (a) that would not be applicable to a payment
made by the company or any Paying Agent (i) directly to the beneficial owner or
(ii) to a custodian, nominee or other agent of the beneficial owner, (b) that
can be satisfied by such custodian, nominee or other agent certifying to the
effect that such beneficial owner is a United States Alien; provided that in
each case referred to in clauses (a)(ii) and (b) payment by such custodian,
nominee or agent to such beneficial owner is not otherwise subject to any such
requirement, or (c) is imposed as a result of presentation of such Bearer
Security or coupon for payment more than 15 days after the date on which such
payment becomes due and payable or on which payment thereof is duly provided
for, whichever occurs later), the Company shall redeem the Bearer Securities, as
a whole, at a Redemption Price equal to the Early Tax Redemption Price or the
Tax Redemption Price, as applicable, or, at the election of the Company if the
conditions of Subsection 1202(b) are satisfied, pay the additional amounts
specified in such Subsection. 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,
identification or other information reporting requirements, whether the Company
will redeem the Bearer Securities or has elected to pay the additional amounts
specified in Subsection 1202(b), and (if applicable) the last date by which the
redemption of the Bearer Securities must take place, as provided in the next
sentence. If the Company redeems the Bearer Securities, such redemption shall
take place on such date, not later than one year after the publication of the
Determination Notice, as the Company shall elect by notice to the Trustee at
least 60 days prior to the date fixed for redemption. Notice of such tax
redemption of the Bearer Securities will be given to the Holders of the Bearer
Securities not more than 60 nor less than 30 days prior to the date fixed for
redemption. Such redemption notice shall include a statement as
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to the last date by which the Bearer Securities to be redeemed may be exchanged
for Registered Securities. Notwithstanding the foregoing, the Company shall not
so redeem the Bearer Securities if the Company agrees to pay the additional
amounts specified in Subsection 1202(b) or shall subsequently determine, not
less than 30 days prior to the date fixed for redemption, that subsequent
payments would not be subject to any such certification, identification or other
information 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. The right of the holders of Bearer Securities
called for redemption pursuant to this Subsection 1202(a) to exchange Bearer
Securities for Registered Securities will terminate at the close of business of
the Principal Paying Agent on the fifteenth day prior to the date fixed for
redemption, and no further exchanges of Bearer Securities for Registered
Securities shall be permitted. In the event the Securities are called for
redemption pursuant to this Subsection 1202(a), the exchange rights of holders
whose Securities are subject to such redemption shall terminate at the close of
business on the Business Day preceding the Redemption Date.
(b) If and so long as the certification, identification or
other information reporting requirements referred to in Subsection 1202(a) 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 following the effective
date of such requirements by the Company or any Paying Agent of principal,
premium, if any, or interest due (including original issue discount) in respect
of any Bearer Security or any coupon appurtenant thereto of which the beneficial
owner is a United States Alien (but without any requirement that the
nationality, residence or identify of such beneficial owner be disclosed to the
Company, any Paying Agent or any governmental authority, with respect to the
payment of such additional amounts), after deduction or withholding for or on
account of such backup withholding tax or similar charge (other than a backup
withholding tax or similar charge that would not be applicable in the
circumstances referred to in the third parenthetical clause of the first
sentence of Subsection 1202(a)) will not be less than the amount provided for in
such Bearer Security or coupon to be then due and payable. In the event the
Company elects to pay any additional amounts pursuant to this Subsection
1202(b), the Company shall have the right to redeem the Bearer Securities as a
whole at any time pursuant to the applicable provisions of Subsection 1202(a)
and the Redemption Price of such Bearer Securities will not be reduced for
applicable withholding taxes. If the Company elects to pay additional amounts
pursuant to this Subsection 1202(b) and the condition specified in the first
sentence of this Subsection 1202(b) should no longer be satisfied, then the
Company will redeem the Bearer Securities as a whole, pursuant to the applicable
provisions of Subsection 1202(a).
(c) In the event the Bearer Securities are called for
redemption pursuant to the provisions of this Article Twelve, no additional
Bearer Securities will be issued by the Company.
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ARTICLE THIRTEEN
EXCHANGE OF SECURITIES
SECTION 1301. EXCHANGE RIGHTS AT THE OPTION OF THE HOLDER.
At the option of the Holder, the Securities are exchangeable
for TCNZ Ordinary Shares or other Exchange Property (as defined herein) at any
time or from time to time on or after September 1, 1999 and prior to the close
of business on April 1, 2003, unless previously redeemed at the Redemption
Prices set forth herein, at the Exchange Ratio, subject to adjustment under the
circumstances described in Section 1303 and subject to the Company's right to
pay exchanging Holders cash in lieu of Exchange Property under the circumstances
described below or in Section 1101. Holders of Securities have no rights in
respect of the TCNZ Ordinary Shares or other Exchange Property, as the case may
be, unless and until the Securities are exchanged for TCNZ Ordinary Shares or
other Exchange Property.
In lieu of delivering TCNZ Ordinary Shares or other Exchange
Property in exchange for any Securities, beginning on or after September 1, 1999
and prior to the close of business on April 1, 2003, unless the Company shall
have previously elected in connection with a call for redemption or at maturity
to pay in cash the Average Market Value Amount upon any exchange prior to the
applicable Redemption Date or at Maturity (provided that in the case of a
redemption in part, only until such redemption in part is completed), the
Company may elect to make a cash settlement (the "Cash Settlement Option") in
respect of any Security surrendered for exchange by delivering notice thereof to
the tendering Holder not more than five Trading Days after such Security is
surrendered for exchange. Such cash settlement shall be in an amount per $1,000
principal amount of Securities delivered for exchange equal to the Market Price
as of the second Trading Day after delivery of such notice to such Holder of the
TCNZ Ordinary Shares (or the number or amount of each type of other Exchange
Property) that would be deliverable upon exchange of such Securities were such
Securities exchanged at such time. The Company will pay such cash settlement
amount in United States dollars as promptly as practicable (but in no event
later than the tenth business day); after completion of the five Trading Day
period used to determine such Market Price.
SECTION 1302. METHOD OF EXCHANGE.
Securities may be surrendered for exchange, subject to any
applicable laws and regulations, at the office of any Exchange Agent located
outside the United States. In addition, Rule 144A Securities may be surrendered
for exchange at the Corporate Trust Office of the Trustee in New York City.
Securities surrendered for exchange must be accompanied by appropriate notices
(including a duly signed and completed notice of exchange, copies of which may
be obtained at the office of the Principal Paying Agent, any Exchange Agent and
the Paying Agent in Luxembourg), any unmatured coupons and any payments in
respect of interest or taxes as applicable. Unless Xxxx Atlantic shall have
disaffiliated from TCNZ on or prior to June 1,
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1999 (and shall not thereafter have become an affiliate of TCNZ), each notice of
exchange must include either (i) a representation by or on behalf of the
beneficial owner of the Securities covered thereby, substantially in the form of
Exhibit H hereto, to the effect that the person exchanging the Securities is a
non-U.S. person acquiring the Exchange Property to be delivered on exchange of
such Securities in an offshore transaction exempt from registration under the
Securities Act pursuant to Regulation S thereunder or (ii) a written opinion of
counsel to the effect that the Securities and the Exchange Property delivered
upon exercise thereof have been registered under the Securities Act or are
exempt from registration thereunder.
A notice of exchange once given shall be irrevocable and may
not be withdrawn without the consent in writing of the Company. The Company, the
Trustee or the Exchange Agent on its behalf, may reject any incomplete or
incorrect notice of exchange. All costs and expenses incurred or caused by an
incomplete or incorrect notice of exchange shall be for the account of the
relevant Holder of Securities. Unless the Company has elected the Cash
Settlement Option, as promptly as practicable (but in no event later than the
tenth business day) after the exchange date, the Company shall deliver or cause
to be delivered at the office of such Exchange Agent or Trustee, as the case may
be, TCNZ Ordinary Shares or other Exchange Property, as the case may be,
issuable upon exchange, together with payment in cash in lieu of any fractional
security.
No payment or adjustment will be made on exchange of any
Security for interest accrued thereon or dividends on any TCNZ Ordinary Shares;
provided that, subject to the next sentence, if a Security is surrendered for
exchange after the Regular Record Date for any interest payment and before the
Interest Payment Date, then notwithstanding such exchange, the interest falling
due on such Interest Payment Date will be paid to the person in whose name the
Security is registered at the close of business on such Regular Record Date. Any
Security surrendered for exchange during the period from the close of business
on any Regular Record Date next preceding any Interest Payment Date to the
opening of business on such Interest Payment Date (except Securities or portions
thereof called for redemption on a Redemption Date within such period) must be
accompanied by payment of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of such Securities being
surrendered for exchange. The interest payable on any Interest Payment Date with
respect to any Security which has been called for redemption on a Redemption
Date, occurring during that period from the close of business on the Regular
Record Date next preceding such Interest Payment Date to the opening of business
on such Interest Payment Date, which Security is surrendered for exchange during
such period, shall be paid upon exchange to the Holder in an amount equal to the
interest that would have been payable on the portion of such Security that is
being called for redemption and is being exchanged if such portion had been
exchanged as of the close of business on such Interest Payment Date. The
interest so payable on any Interest Payment Date in respect of any Security (or
portion thereof, as the case may be), which has not been called for redemption
on a Redemption Date occurring during the period from the close of business on
the Regular Record Date next preceding such Interest Payment Date to the opening
of business on such Interest Payment Date, which Security (or portion thereof,
as the case may be) is surrendered for
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exchange during such period, shall be paid to the Holder of such Security as of
such Regular Record Date. In the event the Securities are called for redemption,
the exchange rights will terminate at the close of business on the Business Day
preceding the Redemption Date.
As a result of the foregoing provisions, Holders that
surrender Securities for exchange on a date that is not an Interest Payment Date
will not receive any interest for the period from the Interest Payment Date next
preceding the date of exchange to the date of exchange or for any later period,
even if the Securities are surrendered after a notice of redemption has been
given (except for the payment of interest on Securities called for redemption on
a Redemption Date between a Regular Record Date and the Interest Payment Date to
which it relates, as provided above). No other payment or adjustment for
interest, or for any dividends in respect to TCNZ Ordinary Shares, will be made
upon exchange. Holders of TCNZ Ordinary Shares issued upon exchange will not be
entitled to receive any dividends payable to holders of TCNZ Ordinary Shares as
of any record date before the close of business on the exchange date. No
fractional shares will be issued upon exchange, but the Company will pay cash in
lieu thereof.
SECTION 1303. ADJUSTMENT EVENTS.
The Exchange Ratio per $1,000 principal amount of Securities
will be 178.0369 multiplied by the aggregate number or amount of each type of
Exchange Property.
Notice of an Adjustment Event will be given to Holders in the
manner specified in Sections 105 and 106.
In the case of any tender or exchange offer for Exchange
Property of a particular type, Exchange Property shall be deemed to include the
amount of cash or other property paid by the offeror in the tender or exchange
offer and actually received by Xxxx Atlantic (directly or through its
subsidiaries), with respect to such Exchange Property in an amount determined on
the basis of the amount of such cash or other property; provided that, Xxxx
Atlantic (or its subsidiaries) shall not be obligated to exchange, on a
voluntary basis, any Exchange Property for cash, securities or other property.
If cash is received, or deemed received, from time to time in
respect of any Exchange Property (excluding cash dividends and other
distributions other than Extraordinary Cash Dividends), the amount of such cash
at any date of determination of the value of property received shall be
increased by an amount per annum equal to the yield on the then-prevailing 3-
month U.S. treasury xxxx as determined by the Quotation Agent on such cash
between the date of receipt or deemed receipt of such property and the earliest
of the exchange date, Redemption Date or date of Maturity with respect to which
such determination is to be made.
If TCNZ or any TCNZ Successor distributes to all holders of a
particular type of Exchange Property rights or warrants to subscribe for or
purchase any of its securities and the
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expiration date of such rights and warrants precedes the maturity date or
earlier Redemption Date of the Securities, then Exchange Property shall be
deemed to include an amount in cash equal to the Market Price as of the Trading
Day immediately preceding such expiration date of the portion of such rights or
warrants relating to the Exchange Property, whether or not Xxxx Atlantic
(directly or through its subsidiaries) exercises such rights or warrants;
PROVIDED, that if Xxxx Atlantic (directly or through its subsidiaries) sells,
transfers or otherwise disposes of such rights or warrants for fair market value
prior to such expiration date, Exchange Property shall instead be deemed to
include the amount of cash or other property received in consideration of such
sale, transfer or disposition.
Holders of Securities will be responsible for the payment of
any and all brokerage costs upon the subsequent sale of Exchange Property
deliverable upon exchange of such Securities.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 1401. EXEMPTION FROM INDIVIDUAL LIABILITY.
No recourse under or upon any obligation, covenant or
agreement of this Indenture, or of any Security, or for any claim based thereon
or otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company or Xxxx Atlantic in this Indenture or in
any supplemental indenture, or in the Support Agreement or in any Security, or
because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or Xxxx Atlantic or of any successor
corporation, either directly or through the Company or Xxxx Atlantic or any
successor corporation, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issuance of the Securities.
ARTICLE FIFTEEN
HOLDER'S MEETINGS
SECTION 1501. PURPOSES OF MEETINGS.
A meeting of Holders of Securities may be called at any time
and from time to time pursuant to the provisions of this Article Fifteen for any
of the following purposes:
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(a) to give any notice to the Company, to Xxxx Atlantic
or to the Trustee, or to give any directions to the
Trustee, or to consent to the waiving of any Default
hereunder and its consequences, or to take any other
action authorized to be taken by Holders pursuant to
any of the provisions of Article 104;
(b) to remove the Trustee and nominate a successor
Trustee pursuant to the provisions of Article 610;
(c) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the
provisions of Section 902;
(d) to take any other action authorized to be taken by or
on behalf of the Holders of any specified aggregate
principal amount of Securities under any other
provision of this Indenture or the Support Agreement
or under applicable law;
(e) to consider the accounts and balance sheet that were
presented to the last preceding annual general
meeting of the Company; or
(f) to give the Trustee direction in relation to the
exercise by the Trustee of its powers.
SECTION 1502. CALL OF MEETINGS BY TRUSTEE.
The Trustee may at any time call a meeting of Holders of
Securities to take any action specified in Sections 1501(a) through (d) to be
held at such time and at such place in the Borough of Manhattan, the City of New
York, as the Trustee shall determine. Notice of every meeting of Holders of
Securities, setting forth the time and place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given as
provided in Section 106. Such notice shall be given not less than 20 nor more
than 90 days prior to the data fixed for the meeting. Notice to Holders of
Bearer Securities shall be provided in accordance with Section 106.
SECTION 1503. CALL OF MEETINGS BY COMPANY.
The Company must, on the delivery to its registered office in
Australia of an application by the Holders of not less than 10% in aggregate
principal amount at Maturity of the Outstanding Securities, call a meeting of
Holders of Securities to take any actions specified in Sections 1501 (e) or (f)
to be held at such time and at such place in the Borough of Manhattan, the City
of New York, as the Company shall determine and may call such meeting by giving
notice thereof as provided in Section 106. Such meeting shall be presided over
by a person
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nominated by the Trustee or, if the Trustee does not nominate a person to
preside at the meeting, by a person appointed for that purpose by the Holders of
Securities present at the meeting.
SECTION 1504. CALL OF MEETINGS BY COMPANY OR XXXX ATLANTIC.
In case at any time the Company or Xxxx Atlantic, pursuant to
a Board Resolution, shall have requested the Trustee to call a meeting of
Holders of Securities, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
mailed the notice of such meeting within 20 days after receipt of such request,
then the Company or Xxxx Atlantic may determine the time and the place in the
Borough of Manhattan, the City of New York for such meeting and may call such
meeting to take any action authorized in Section 1501, by giving notice thereof
as provided in Section 106.
SECTION 1505. QUALIFICATIONS FOR VOTING.
To be entitled to vote at any meeting of Holders, a Person
shall (a) be a Holder of one or more Securities with respect to which such
meeting is being held or (b) be a Person appointed by an instrument in writing
as proxy by such a Holder. The only Persons who shall be entitled to be present
or to speak at any meeting of Holders shall be the Persons entitled to vote at
such meeting and their counsel and any representative of the Trustee and its
counsel and any representatives of the Company and Xxxx Atlantic and their
counsel.
SECTION 1506. REGULATIONS.
Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders, in regard to proof of the holding of Securities and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or Xxxx Atlantic or as provided in Section 1504, in which case the
Company or Xxxx Atlantic, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be selected by a majority vote of the meeting.
Subject to the provision of Section 1507, at any meeting each
Holder or proxy shall be entitled to one vote for each $1,000 principal amount
of Securities held or represented by such Holder; PROVIDED, HOWEVER, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote other than
by virtue of Securities held by the chairman or instruments in writing as
aforesaid duly designating him as the
-80-
Person to vote on behalf of other Holders. At any meeting of Holders with
respect to which such meeting is being held the presence of Persons holding or
representing Securities with respect to which such meeting is being held in an
aggregate principal amount sufficient to take action on the business for the
transaction of which such meeting was called shall constitute a quorum, but if
less than a quorum is present, the Persons holding or representing a majority in
aggregate principal amount of such Securities represented at the meeting may
adjourn such meeting with the same effect, for all intents and purposes as
though a quorum had been present. Any meeting of Holders duly called pursuant to
the provisions of Section 1502 or 1503 may be adjourned from time to time by a
majority of those present, whether or not constituting a quorum, and the meeting
may be held as so adjourned without further notice.
SECTION 1507. VOTING.
The vote upon any resolution submitted to any meeting of
Holders of Securities with respect to which such meeting is being held shall be
by written ballots on which shall be subscribed the signatures of such Holders
or of their representatives by proxy and the serial number or numbers of the
Securities held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Holders shall be prepared by the secretary of the meeting and there
shall be prepared by the secretary of the meeting and there shall be attached to
said record the original reports of the inspectors of votes on any vote by
ballot taken thereat and affidavits by one or more Persons having knowledge of
the facts setting forth a copy of the notice of the meeting and showing that
said notice was given as provided in Sections 106 and 1502. The record shall
show the serial numbers of the Securities voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Company and the other to the Trustee to be preserved by the
Trustee.
Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
SECTION 1508. NO DELAY OF RIGHTS BY MEETING.
Nothing contained in this Article Fifteen shall be deemed or
construed to authorize or permit, by reason of any call of a meeting of Holders
or any rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to the Holders under any of the provisions of this
Indenture, or of the Securities or of the Support Agreement.
-81-
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
[SEAL] XXXX ATLANTIC FINANCIAL SERVICES, INC.
ATTEST:
By: /S/ XXXXX X. XXXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President and Treasurer
By: /S/ R.E. XXXXXXXXXX, JR.
--------------------------
Title: Assistant Secretary
[SEAL] XXXX ATLANTIC CORPORATION
ATTEST:
By: /S/ XXXXX X. XXXX
----------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President - Treasurer
By: /S/ XXXXXX X. XXX
--------------------------
Title: Assistant Secretary
[SEAL] THE CHASE MANHATTAN BANK
ATTEST:
By: /S/ SHEIK WILTSHIRE
----------------------------------
Name: Sheik Wiltshire
Title: Second Vice President
By: /S/ XXXXXX XXXXXXXX
--------------------------
Title: Trust Officer
-82-
STATE OF DELAWARE )
) SS.:
COUNTY OF NEW CASTLE )
On the 26th day of February, 1998, before me personally came
Xxxxx X. Xxxxxxx, to me known, who, being by me duly sworn, did depose and say
that she resides at 0000 Xxxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxx, that she is
the President and Treasurer of XXXX ATLANTIC FINANCIAL SERVICES, INC., one of
the corporations described in and which executed the foregoing instrument; that
she knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that she signed her name thereto by like
authority.
[SEAL] /S/ XXXXXXX X. XXXXX
------------------------
Notary Public
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On the 26th day of February, 1998, before me personally came
Xxxxx X. Xxxx, to me known, who, being by me duly sworn, did depose and say that
he/she resides at Voorhees, New Jersey, that he/she is the Treasurer of XXXX
ATLANTIC CORPORATION, one of the corporations described in and which executed
the foregoing instrument; that he/she knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
[SEAL] /S/ XXXXXX XXX
------------------------
Notary Public
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On the 26th day of February, 1998, before me personally came
Sheik Wiltshire, to me known, who, being by me duly sworn, did depose and say
that he/she resides at 000 Xxxx 00xx Xxxxxx, that he/she is a Second Vice
President of THE CHASE MANHATTAN BANK, one of the corporations described in and
which executed the foregoing instrument; that he/she knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
[SEAL] /S/ XXXXXXXXX XXXXXX
---------------------
Notary Public
EXHIBIT A
-85-
EXHIBIT A
SUPPORT AGREEMENT
BETWEEN
XXXX ATLANTIC CORPORATION
AND
XXXX ATLANTIC FINANCIAL SERVICES, INC.
This Agreement, made and entered into as of February 1, 1998, by and
between Xxxx Atlantic Corporation, a Delaware corporation ("Parent"), and Xxxx
Atlantic Financial Services, Inc., a Delaware corporation ("Subsidiary").
WITNESSETH
WHEREAS, Parent is directly or indirectly the owner of 100% of the
outstanding common stock of Subsidiary; and
WHEREAS, Subsidiary intends to issue $2,500,000,000 aggregate principal
amount of Senior Exchangeable Notes due 2003 (the "Debt"), thereby incurring
indebtedness to parties other than Parent and its affiliates; and
WHEREAS, Parent and Subsidiary desire to take certain actions to
enhance and maintain the financial condition of Subsidiary as hereinafter set
forth in order to facilitate the issuance of such Debt;
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties hereto agree as follows
1. STOCK OWNERSHIP. During the term of this Agreement, Parent will own
directly or indirectly all of the voting capital stock of Subsidiary now or
hereafter issued and outstanding.
2. NET WORTH. During the term of this Agreement, Parent shall cause
Subsidiary to maintain at all times a positive tangible net worth, as determined
in accordance with generally accepted accounting principles.
3. LIQUIDITY PROVISION. If, during the term of this Agreement,
Subsidiary requires funds to make timely payment of interest, principal or
premium, if any, on any Debt or to acquire and deliver property on exchange of
the Debt, and such funds are not obtainable by Subsidiary from other sources on
commercially reasonable terms, Parent shall provide to Subsidiary, at its
request, such funds either as equity or as a loan, at Parent's option, to assure
that the Subsidiary will be able to pay such principal, interest and premium, if
any, or acquire and deliver such
A-1
property on exchange, when due. If such funds are advanced to Subsidiary as a
loan, such loan shall be on such terms and conditions, including maturity and
rate of interest, as Parent and Subsidiary shall agree. Notwithstanding the
foregoing, any such loan shall be subordinated in all respects to any and all
Debt, whether or not such Debt is outstanding at the time of such loan.
4. WAIVERS. Parent hereby waives any failure or delay on the part of
Subsidiary in asserting or enforcing any of its right or in making any claims or
demands hereunder.
5. RIGHTS OF LENDERS. Except as may be provided in that certain
Indenture, dated as of February 26, 1998, among Parent, Subsidiary, and The
Chase Manhattan Bank, as Trustee (the "Indenture"), any Lender (defined below)
shall have the right to proceed directly against Parent without first proceeding
against Subsidiary to enforce Subsidiary's rights under paragraph 1, 2 and 3 of
this Agreement or to obtain payment of any defaulted, interest, principal or
premium owed to such Lender, or, in the case of a default in an obligation to
deliver property, the cash value of such property. However, in no event may any
Lender, on default by Parent or Subsidiary under the terms of the Indenture, or
upon failure to comply with this Agreement by Parent or Subsidiary, have
recourse to or against the stock or assets of Xxxx Atlantic - Delaware, Inc.,
Xxxx Atlantic - New Jersey, Inc., Xxxx Atlantic - Washington, D.C., Inc., Xxxx
Atlantic - Maryland, Inc., Xxxx Atlantic - Virginia, Inc., Xxxx Atlantic - West
Virginia, Inc., New England Telephone and Telegraph Company, New York Telephone
Company or Telecom Corporation of New Zealand Limited (or any other operating
telephone company which may at the time be owned directly or indirectly by
Parent). The Term "Lender," as used in this Agreement, shall mean any Person,
firm or corporation to which Subsidiary is indebted for the Debt or which is
acting as trustee or authorized representative with respect to the Debt on
behalf of such person, firm or corporation.
6. TERMINATION; AMENDMENT. This Agreement may be modified or amended in
a manner that adversely affects the right of the holders of Debt only if all
Lenders consent in advance and in writing to such modification or amendment. No
modification or amendment to this Agreement relating to the provisions set forth
in paragraphs 1, 2, 3 and 5 or this sentence shall be made unless Subsidiary
applies to the Securities and Exchange Commission for an amended order relating
to such modification or amendment, and the Commission grants such amended order.
This Agreement may be terminated by either Parent or Subsidiary by notice to the
other party, provided that such termination shall be effective only after the
91st day after all outstanding Debt issued by the Subsidiary is paid in full.
7. NOTICES. Any notice, instruction, request, consent, demand or other
communication required or contemplated by this Agreement to be in writing, shall
be given or made or communicated by United States first class mail, addressed as
follows
A-2
If to Parent: Xxxx Atlantic Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Vice President - Treasurer
If to Subsidiary: Xxxx Atlantic Financial Services, Inc.
0000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: President and Treasurer
8. SUCCESSORS. The covenants, representations, warranties and
agreements herein set forth shall be mutually binding upon, and inure to the
mutual benefit of, Parent and its successors, Subsidiary and its successors and
Lenders from time to time.
9. GOVERNING LAW; COUNTERPARTS. This Agreement shall be governed by the
laws of the Commonwealth of Pennsylvania. This instrument may be executed in
counterparts and the executed counterparts shall together constitute one
instrument.
A-3
IN WITNESS WHEREOF, the parties have set their hands and affixed their
corporate seals as of the day and year first above written.
ATTEST: XXXX ATLANTIC CORPORATION
By: /S/XXXX X. XXXXXX By: /S/XXXXX X. XXXX
------------------------------- ------------------------------------
Xxxx X. Xxxxxx Xxxxx X. Xxxx
Assistant Secretary Vice President - Treasurer
(SEAL)
ATTEST: XXXX ATLANTIC FINANCIAL SERVICES, INC.
By: /S/XXXXXX X. XXXXXXX By: /S/XXXXX X. XXXXXXX
------------------------------- ------------------------------------
Xxxxxx X. Xxxxxxx Xxxxx X. Xxxxxxx
Assistant Secretary President and Treasurer
(SEAL)
A-4
EXHIBIT B
EXHIBIT B
[FORM OF RULE 144A GLOBAL SECURITY]
THIS SECURITY IS A RULE 144A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. TRANSFERS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF
CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS
OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 305 AND 306 OF THE
INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT AND ANY SUCH
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY ANY AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, UNITED STATES PERSONS EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A UNITED STATES PERSON AND IS
ACQUIRING THE SECURITY EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION; (2)
ACKNOWLEDGES THAT, UNLESS XXXX ATLANTIC CORPORATION SHALL HAVE CEASED TO BE AN
"AFFILIATE" (AS SUCH TERM IS DEFINED UNDER RULE 144 UNDER THE SECURITIES ACT) OF
TELECOM CORPORATION OF NEW ZEALAND LIMITED ("TCNZ") ON OR PRIOR TO JUNE 1, 1999
(AND SHALL NOT HAVE THEREAFTER BECOME AN AFFILIATE OF TCNZ), ANY EXCHANGE OF THE
SECURITIES REPRESENTED HEREBY FOR ORDINARY SHARES OF TCNZ SHALL BE MADE ONLY:
(A) TO A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION COMPLYING WITH RULE 144A
UNDER THE SECURITIES ACT; (B) PURSUANT TO A REGISTRATION STATEMENT DECLARED
EFFECTIVE UNDER THE SECURITIES ACT TO A HOLDER WHO ACQUIRED THE SECURITIES
REPRESENTED HEREBY EITHER (X) PRIOR TO SEPTEMBER 1, 1998 AND HAS HELD THE
SECURITIES REPRESENTED HEREBY CONTINUOUSLY SINCE SUCH DATE OF ACQUISITION OR (Y)
PURSUANT TO A REGISTRATION STATEMENT OR REGISTRATION STATEMENTS, DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, REGISTERING THE RESALE OF THE SECURITIES
REPRESENTED HEREBY AND ANY OFFER OF ORDINARY SHARES OF TCNZ ARISING UPON RESALE
OF THE SECURITIES REPRESENTED HEREBY (OR IN A TRANSFER FROM A HOLDER WHO
ACQUIRED THE SECURITIES REPRESENTED HEREBY IN THE MANNER SET FORTH IN THIS
CLAUSE (Y) OR FROM ANY TRANSFEREE OR SUBSEQUENT TRANSFEREES OF SUCH HOLDER); OR
(C) OUTSIDE THE UNITED STATES TO A NON-U.S. PERSON IN RELIANCE ON REGULATION S
(OR ANY SUCCESSOR PROVISION) UNDER THE SECURITIES ACT, AS SUCH REGULATION MAY BE
IN EFFECT AND APPLICABLE AS OF THE TIME OF SUCH EXCHANGE; (3) AGREES THAT IT
WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIODS APPLICABLE TO SALES OF THE
SECURITIES EVIDENCED HEREBY OR THE SECURITIES DELIVERABLE UPON EXCHANGE OF SUCH
SECURITIES UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION), RESELL OR OTHERWISE TRANSFER THE SECURITIES EVIDENCED HEREBY OR THE
SECURITIES DELIVERABLE UPON EXCHANGE OF SUCH SECURITIES EXCEPT (A) TO THE ISSUER
OF SUCH SECURITY OR SECURITIES OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED
STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT
(AND THAT CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER) OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, AND (4) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THE SECURITIES EVIDENCED HEREBY ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE SECURITIES
EVIDENCED HEREBY PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO
SALES OF THE SECURITIES EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES
ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT
THIS CERTIFICATE TO THE CHASE MANHATTAN BANK, AS TRANSFER AGENT (OR ANY
SUCCESSOR TRANSFER AGENT, AS APPLICABLE), TOGETHER
B-1
WITH SUCH CERTIFICATIONS, LEGAL OPINIONS AND OTHER INFORMATION AS SUCH TRANSFER
AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE PROPOSED TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO THE
REGISTRATION REQUIREMENTS OF, THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED
UPON THE TRANSFER OF THE SECURITIES EVIDENCED HEREBY PURSUANT TO CLAUSE 3(E)
ABOVE. AS USED HEREIN THE TERMS "OFF-SHORE TRANSACTION," "UNITED STATES" AND
"UNITED STATES PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
THE RIGHTS ATTACHING TO THIS RULE 144A GLOBAL SECURITY (AS DEFINED IN THE
INDENTURE), AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
PHYSICAL SECURITIES, ARE SPECIFIED IN THE INDENTURE.
THE FOREGOING LEGEND MAY BE REMOVED FROM THIS SECURITY UPON SATISFACTION OF THE
CONDITIONS SPECIFIED IN THE INDENTURE.
XXXX ATLANTIC FINANCIAL SERVICES, INC.
------------------------------
5.75% SENIOR EXCHANGEABLE NOTES DUE 2003
CUSIP NO.________
No._____
Xxxx Atlantic Financial Services, Inc., a Delaware corporation (herein
called the "Company," which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to Cede & Co. or its registered assigns, the principal sum set forth on the
table attached as Schedule A hereto on April 1, 2003, at the office or agency of
the Company referred to below, and to pay interest thereon from February 26,
1998, or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, semiannually on April 1 and October 1 of each year,
commencing October 1, 1998 at the rate of 5.75% per annum, in United States
dollars, until the principal hereof is paid or duly provided for. Interest shall
be computed on the basis of a 360-day year comprised of twelve 30-day months.
The Holder of this Security is entitled to the benefits of the
Registration Rights Agreement (the "Registration Rights Agreement") among the
Company, Xxxx Atlantic and the Managers, dated as of February 26, 1998.
The Holder of this Security is entitled to the benefits of the Support
Agreement dated as of February 1, 1998, between the Company and Xxxx Atlantic,
pursuant to which Xxxx Atlantic has agreed to support the Company's obligations
as to payment of principal, premium, if any, interest and the cash value of
Exchange Property.
B-2
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or any Predecessor Security) is registered
at the close of business on the Regular Record Date for such interest, which
shall be the March 15 or September 15 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
Payments of the principal of, or premium, if any, and interest on this
Security will be made to DTC or its nominee, as the case may be, as the
registered owner thereof. None of the Company, the Trustee or any Paying Agent
or Exchange Agent under the Indenture will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests in this Security or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interest.
The Company expects that DTC or its nominee, upon receipt of any
payment of the principal of or premium and interest on this Security, will
credit Participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of this Security as
shown on the records of DTC or its nominee. The Company also expects that
payments by Participants to owners of beneficial interests in this Security held
through such Participants will be governed by standing instructions and
customary practice as is now the case with securities held for the accounts of
customers registered in the names of nominees for such customers. Such payments
will be the responsibility of such Participants.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof or by the authenticating agent
appointed as provided in the Indenture by manual signature of an authorized
signer, this Security shall not be entitled to any benefit under the Indenture,
or be valid or obligatory for any purpose.
B-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by the manual or facsimile signature of its authorized officers and its
corporate seal to be affixed or reproduced hereon.
XXXX ATLANTIC FINANCIAL SERVICES, INC.
By:
----------------------------------
Name:
Title:
Attest:
------------------------------
Secretary
B-4
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 5.75% Senior Exchangeable Notes due 2003 referred to
in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
-----------------------
Authorized Signer
Dated:
B-5
XXXX ATLANTIC FINANCIAL SERVICES, INC.
5.75% Senior Exchangeable Notes due 2003
This Security is one of a duly authorized issue of Securities of the
Company designated as its 5.75% Senior Exchangeable Notes due 2003 (herein
called the "Securities"), limited (except as otherwise provided in the Indenture
referred to below) in aggregate principal amount to $2,455,000,000, issued under
and subject to the terms of an indenture (herein called the "Indenture") dated
as of February 26, 1998, among the Company, Xxxx Atlantic Corporation and The
Chase Manhattan Bank, as trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties, obligations and immunities
thereunder of the Company, the Trustee and the Holders of the Securities, and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. The terms and conditions of the Indenture are incorporated herein by
reference and shall be binding on the Company and the Holder hereof as if fully
set forth herein. Unless the context otherwise requires, the capitalized terms
used herein shall have the meanings specified in the Indenture.
The Securities are subject to redemption (other than a redemption
described in Article Twelve) in accordance with Article Eleven of the Indenture
at any time on or after April 1, 2001, at the option of the Company, in whole or
in part, upon not less than 30 not more than 60 days' notice of redemption given
as described in Section 1105 of the Indenture to Holders of Securities during
the period from April 1, 2001 to March 31, 2002 at a Redemption Price equal to
102.3% of the principal amount thereof and thereafter and prior to the Maturity
Date at 101.15%, (subject to the rights of Holders of record on relevant Regular
Record Dates to receive interest due on relevant Interest Payment Dates). The
Company may elect, in connection with a redemption of the Securities or the
Stated Maturity of the Securities, to satisfy its obligations to Holders who
elect to exchange their Securities for TCNZ Ordinary Shares by cash payment of
the Average Market Value Amount. If the Company makes such an election, Holders
of Securities will no longer be entitled to receive TCNZ Ordinary Shares in
exchange for their Securities until, in the case of a redemption in part, the
Redemption Date. If less than all of the Securities are to be redeemed, the
Trustee shall select the Securities or portions thereof to be redeemed by lot,
pro rata, or by any other method the Trustee shall deem fair and reasonable.
The Securities may be redeemed in whole, or in part, at the option of
the Company in accordance with Article Twelve of the Indenture upon giving
notice of redemption as described below, upon the occurrence of a Tax Event (as
defined in the Indenture).
In the case of any redemption or repurchase of Securities in accordance
with the Indenture, interest installments whose Stated Maturity is on or prior
to the Redemption Date will be payable to Holders of such Securities of record
as of the close of business on the relevant Regular Record Date referred to on
the face hereof. Securities (or portions thereof) for whose
B-6
redemption and payment provision is made in accordance with the Indenture shall
cease to bear interest from and after the Redemption Date.
The Securities will be exchangeable at the option of the Holder for
TCNZ Ordinary Shares at any time on or after September 1, 1999 and prior to
maturity, unless previously redeemed at the redemption prices set forth in the
Indenture, at an Exchange Ratio of 178.0369 TCNZ Ordinary Shares per U.S. $1,000
principal amount of Securities, subject to adjustment in certain events and
subject to the Company's right to pay cash in an amount in U.S. Dollars equal to
the Market Price (or under certain circumstances, the Average Market Value
Amount (as defined in the Indenture)) of the TCNZ Ordinary Shares for which such
Securities are exchangeable in lieu of delivery of such TCNZ Ordinary Shares.
In the event of redemption or repurchase of this Security in accordance
with the Indenture in part only, a new Security or Securities for the unredeemed
portion hereof shall be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default shall occur and be continuing, the principal
amount of all the Securities may be declared due and payable in the manner and
with the effect provided in the Indenture.
The Indenture permits, with certain exceptions (including certain
amendments permitted without the consent of any Holders) as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders under the Indenture and the Securities at
any time by the Company and the Trustee with the consent of the Holders of a
specified percentage in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and the
Securities and certain past Defaults under the Indenture and their consequences.
Any such consent or waiver by or on behalf of the Holder of this Security shall
be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer thereof or
in exchange here for or in lieu hereof whether or not notation of such consent
or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company or any
other obligor on the Securities (in the event such other obligor is obligated to
make payments in respect of the Securities), which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on, this
Security at the times, place, and rate, and in the coin or currency, herein
prescribed.
If this Security is in certificated form, then as provided in the
Indenture and subject to certain limitations therein set forth, the transfer of
this Security is registrable on the Security Register of the Company, upon
surrender of this Security for registration of transfer at the office
B-7
or agency of the Company maintained for such purpose in The City of New York or
at such other office or agency of the Company as may be maintained for such
purpose, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Registrar duly executed by, the Holder
hereof or its attorney duly authorized in writing, and thereupon one or more new
Securities, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
This Security is a Rule 144A Global Security, and as such, is
exchangeable for a Security in certificated form as provided in the Indenture
and in accordance with the rules and procedures of the Trustee and the
Depositary. In addition, certificated securities shall be transferred to all
beneficial holders in exchange for their beneficial interests in a Global
Security if (x) the Depositary notifies the Company that it is unwilling or
unable to continue as depositary for a Global Security or the Depositary ceases
to be a "Clearing Agency" registered under the Exchange Act, and a successor
depositary is not appointed by the Company within 90 days or (y) there shall
occurred and be continuing an Event of Default. Upon any issuance, the Trustee
is required to register such certificated Securities in the name of, and cause
the same to be delivered to, such Person or Persons (or the nominee of any
thereof). All such certificated Securities would be required to include the
Securities Legend.
Securities in certificated form are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
the Securities are exchangeable for a like aggregate principal amount of
Securities of a differing authorized denomination, as requested by the Holder
surrendering the same.
At any time when the Company is not subject to Section 13 or 15(d) of
the Exchange Act, upon the written request of a Holder of a Security, the
Company will promptly furnish or cause to be furnished such information as is
specified pursuant to Rule 144A(d)(4) upon the Securities Act (or any successor
provision thereto) to such Holder or to a prospective purchaser of such Security
who such Holder informs the Company is reasonably believed to be a "Qualified
Institutional Buyer" within the meaning of Rule 144A under the Securities Act,
as the case may be, in order to permit compliance by such Holder with Rule 144A
under the Securities Act.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
B-8
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
THEREOF).
B-9
SCHEDULE A
Aggregate principal amount of any Securities issued or cancelled in exchange for
a portion or portions hereof, any portion or portions hereof exchanged for an
interest or interests in another Global Security and any portion or portions of
another Global Security exchanged for a portion or portions hereof:
-------------------------------------------------------------------------------
Principal Amount Remaining Principal
Issued, Cancelled or Amount of this
Date Exchanged Global Security Notation Made by
-------------------------------------------------------------------------------
B-10
APPENDIX I
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s),
assigns(s) and transfer(s) unto
Insert Taxpayer Identification No.
----------------------------------
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(Please print or typewrite name and address including zip code of assignee)
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the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
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attorney to transfer such Security on the books of the Company with full power
of substitution in the premises.
In connection with any transfer of this Security occurring prior to the
date which is the earlier of the date of an effective Registration Statement or
February 26, 2001, the undersigned confirms that without utilizing any general
solicitation or general advertising that:
Check One
[ ] (a) this Security is being transferred in compliance with
the exemption from registration under the Securities Act of
1933, as amended, provided by Rule 144A thereunder.
OR
[ ] (b) this Security is being transferred other than in
accordance with (a) above and documents are being furnished
which comply with the conditions of transfer set forth in this
Security and the Indenture.
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Security in the name of any Person other than
the Holder hereof unless and until conditions to any such transfer of
registration and in Section 307 of the Indenture shall have been satisfied.
Dated:
------------------------------ -----------------------------------
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within-mentioned instrument in every
particular, without alteration or
any change whatsoever.
Signature Guarantee:
--------------------
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the Exchange
Act.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by RULE 144-A
Date:
----------------- -----------------------------------------
NOTICE: To be executed by an authorized signatory
EXHIBIT C
[FORM OF REGULATION S GLOBAL SECURITY]
UNLESS THIS REGULATION S GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE COMMON DEPOSITARY TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY GLOBAL SECURITY ISSUED IS
REGISTERED IN THE NAME OF THE COMMON DEPOSITARY OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE COMMON DEPOSITARY (AND ANY PAYMENT HEREON
IS MADE TO THE COMMON DEPOSITARY OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE COMMON DEPOSITARY) ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, THE COMMON DEPOSITARY, HAS AN INTEREST HEREIN.
TRANSFERS OF THIS REGULATION S GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF THE COMMON DEPOSITARY OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE, AND TRANSFERS OF PORTIONS OF THIS
REGULATION S GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO IN THE TERMS AND
CONDITIONS ATTACHED HERETO.
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, UNITED STATES PERSONS EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A UNITED STATES PERSON AND IS
ACQUIRING THE SECURITY EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION; (2)
ACKNOWLEDGES THAT, UNLESS XXXX ATLANTIC CORPORATION SHALL HAVE CEASED TO BE AN
"AFFILIATE" (AS SUCH TERM IS DEFINED UNDER RULE 144 UNDER THE SECURITIES ACT) OF
TELECOM CORPORATION OF NEW ZEALAND LIMITED ("TCNZ") ON OR PRIOR TO JUNE 1, 1999
(AND SHALL NOT HAVE THEREAFTER BECOME AN AFFILIATE OF TCNZ), ANY EXCHANGE OF THE
SECURITIES REPRESENTED HEREBY FOR ORDINARY SHARES OF TCNZ SHALL BE MADE ONLY:
(A) TO A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION COMPLYING WITH RULE 144A
UNDER THE SECURITIES ACT; (B) PURSUANT TO A REGISTRATION STATEMENT DECLARED
EFFECTIVE UNDER THE SECURITIES ACT TO A HOLDER WHO ACQUIRED THE SECURITIES
REPRESENTED HEREBY EITHER (X) PRIOR TO SEPTEMBER 1, 1998 AND HAS HELD THE
SECURITIES REPRESENTED HEREBY CONTINUOUSLY SINCE SUCH DATE OF ACQUISITION OR (Y)
PURSUANT TO A REGISTRATION STATEMENT OR REGISTRATION STATEMENTS, DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, REGISTERING THE RESALE OF THE SECURITIES
REPRESENTED HEREBY AND ANY OFFER OF ORDINARY SHARES OF TCNZ ARISING UPON RESALE
OF THE SECURITIES REPRESENTED HEREBY (OR IN A TRANSFER FROM A HOLDER WHO
ACQUIRED THE SECURITIES REPRESENTED HEREBY IN THE MANNER SET FORTH IN THIS
CLAUSE (Y) OR FROM ANY TRANSFEREE OR SUBSEQUENT TRANSFEREES OF SUCH HOLDER); OR
(C) OUTSIDE THE UNITED STATES TO A NON-U.S. PERSON IN RELIANCE ON REGULATION S
(OR ANY SUCCESSOR PROVISION) UNDER THE SECURITIES ACT, AS SUCH REGULATION MAY BE
IN EFFECT AND APPLICABLE AS OF THE TIME OF SUCH EXCHANGE; (3) AGREES THAT IT
WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIODS APPLICABLE TO SALES OF THE
SECURITIES EVIDENCED HEREBY OR THE SECURITIES DELIVERABLE UPON EXCHANGE OF SUCH
SECURITIES UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION), RESELL OR OTHERWISE TRANSFER THE SECURITIES EVIDENCED HEREBY OR THE
SECURITIES DELIVERABLE UPON EXCHANGE OF SUCH SECURITIES EXCEPT (A) TO THE ISSUER
OF SUCH SECURITY OR SECURITIES OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED
STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT
(AND THAT CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER) OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, AND (4) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THE SECURITIES EVIDENCED HEREBY ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE SECURITIES
EVIDENCED HEREBY PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO
SALES OF THE SECURITIES EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES
ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT
THIS CERTIFICATE TO THE CHASE MANHATTAN BANK, AS TRANSFER AGENT (OR ANY
SUCCESSOR TRANSFER AGENT, AS APPLICABLE), TOGETHER WITH SUCH CERTIFICATIONS,
LEGAL OPINIONS AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY
REQUIRE TO CONFIRM THAT THE PROPOSED TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO THE REGISTRATION REQUIREMENTS
OF, THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE TRANSFER OF THE
SECURITIES EVIDENCED HEREBY PURSUANT TO CLAUSE 3(E) ABOVE. AS USED HEREIN THE
TERMS "OFF-SHORE TRANSACTION," "UNITED STATES" AND "UNITED STATES PERSON" HAVE
THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
C-1
THE RIGHTS ATTACHING TO THIS REGULATION S GLOBAL SECURITY (AS DEFINED IN THE
INDENTURE), AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
PHYSICAL SECURITIES, ARE SPECIFIED IN THE INDENTURE.
THE FOREGOING LEGEND MAY BE REMOVED FROM THIS SECURITY OR SATISFACTION OF THE
CONDITIONS SPECIFIED IN THE INDENTURE.
XXXX ATLANTIC FINANCIAL SERVICES, INC.
--------------------------
5.75% SENIOR EXCHANGEABLE NOTES DUE 2003
COMMON CODE NO.
----
ISIN NO.
----
No.
Xxxx Atlantic Financial Services, Inc., a Delaware corporation (herein
called the "Company," which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to or its registered assigns, the principal sum set forth on the table attached
as Schedule A hereto on April 1, 2003, at the office or agency of the Company
referred to below, and to pay interest thereof from February 26, 1998 or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semiannually on April 1 and October 1 of each year, commencing
October 1, 1998 at the rate of 5.75% per annum, in United Stated dollars, until
the principal hereof is paid or duly provided for. Interest shall be computed on
the basis of a 360-day year comprised of twelve 30-day months.
The Holder of this Security is entitled to the benefits of the
Registration Rights Agreement (the "Registration Rights Agreement") among the
Company, Xxxx Atlantic and the Managers, dated as of February 26, 1998.
The Holder of this Security is entitled to the benefits of the Support
Agreement dated as of February 1, 1998, between the Company and Xxxx Atlantic,
pursuant to which Xxxx Atlantic has agreed to support the Company's obligations
as to payment of principal, premium, if any, interest and the cash value of
Exchange Property.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or any Predecessor Security) is registered
at the close of business on the Regular
C-2
Record Date for such interest, which shall be the March 15 or September 15
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date.
Payment of the principal of, premium, if any, and interest on, this
Security, and exchange or transfer of the Security, will be made at the
Corporate Trust Office of the Trustee in New York City or subject to any
applicable laws and regulations, at the office of any Paying Agent, by dollar
check drawn on, or by transfer to a dollar account maintained by the Holder with
a bank in New York City; PROVIDED, HOWEVER, that payments of interest may be
made at the option of the Company by a dollar check drawn on a bank in New York
City mailed to the address of the Person entitled thereto as such address shall
appear on the Security Register, provided that all payments with respect to
Securities, the Holders of which have given wire transfer instructions not later
than the applicable Regular Record Date, to the Paying Agent, will be required
to be made by wire transfer of immediately available funds to the accounts
specified by such Holders.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof or by the authenticating agent
appointed as provided in the Indenture by manual signature of an authorized
signer, this Security shall not be entitled to any benefit under the Indenture,
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by the manual or facsimile signature of its authorized officers and its
corporate seal to be affixed or reproduced hereon.
XXXX ATLANTIC FINANCIAL SERVICES, INC.
By:
---------------------------------
Name:
Title:
Attest:
-----------------------------------
Secretary
C-3
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 5.75% Senior Exchangeable Notes due 2003 referred to
in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
-----------------------
Authorized Signer
Dated:
C-4
XXXX ATLANTIC FINANCIAL SERVICES, INC.
5.75% Senior Exchangeable Notes due 2003
This Security is one of a duly authorized issue of Securities of the
Company designated as its 5.75% Senior Exchangeable Notes due 2003 (herein
called the "Securities"), limited (except as otherwise provided in the Indenture
referred to below) in aggregate principal amount to $2,455,000,000, issued under
and subject to the terms of an indenture (herein called the "Indenture") dated
as of February 26, 1998, among the Company, Xxxx Atlantic Corporation and The
Chase Manhattan Bank, as trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties, obligations and immunities
thereunder of the Company, the Trustee and the Holders of the Securities, and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. The terms and conditions of the Indenture are incorporated herein by
reference and shall be binding on the Company and the Holder hereof as if fully
set forth herein. Unless the context otherwise requires, the capitalized terms
used herein shall have the meanings specified in the Indenture.
The Securities are subject to redemption (other than a redemption
described in Article Twelve) in accordance with Article Eleven of the Indenture
at any time on or after April 1, 2001, at the option of the Company, in whole or
in part, upon not less than 30 not more than 60 days' notice of redemption given
as described in Section 1105 of the Indenture to Holders of Securities during
the period from April 1, 2001 to March 31, 2002 at a Redemption Price equal to
102.3% of the principal amount thereof and thereafter and prior to the Maturity
Date at 101.15%, (subject to the rights of Holders of record on relevant Regular
Record Dates to receive interest due on relevant Interest Payment Dates). The
Company may elect, in connection with a redemption of the Securities or the
Stated Maturity of the Securities, to satisfy its obligations to Holders who
elect to exchange their Securities for TCNZ Ordinary Shares by cash payment of
the Average Market Value Amount. If the Company makes such an election, Holders
of Securities will no longer be entitled to receive TCNZ Ordinary Shares in
exchange for their Securities until, in the case of a redemption in part, the
Redemption Date. If less than all of the Securities are to be redeemed, the
Trustee shall select the Securities or portions thereof to be redeemed by lot,
pro rata, or by any other method the Trustee shall deem fair and reasonable.
The Securities may be redeemed in whole, or in part, at the option of
the Company in accordance with Article Twelve of the Indenture upon giving
notice of redemption as described below, upon the occurrence of a Tax Event (as
defined in the Indenture).
In the case of any redemption or repurchase of Securities in accordance
with the Indenture, interest installments whose Stated Maturity is on or prior
to the Redemption Date will be payable to Holders of such Securities of record
as of the close of business on the relevant Regular Record Date referred to on
the face hereof. Securities (or portions thereof) for whose
C-5
redemption and payment provision is made in accordance with the Indenture shall
cease to bear interest from and after the Redemption Date.
In the event of redemption or repurchase of this Security in accordance
with the Indenture in part only, a new Security or Securities for the unredeemed
portion hereof shall be issued in the name of the Holder hereof upon the
cancellation hereof.
The Securities will be exchangeable at the option of the Holder for
TCNZ Ordinary Shares at any time on or after September 1, 1999 and prior to
maturity, unless previously redeemed at the redemption prices set forth in the
Indenture, at an Exchange Ratio of 178.0369 TCNZ Ordinary Shares per U.S. $1,000
principal amount of Securities, subject to adjustment in certain events and
subject to the Company's right to pay cash in an amount in U.S. Dollars equal to
the Market Price (or under certain circumstances, the Average Market Value
Amount (as defined in the Indenture)) of the TCNZ Ordinary Shares for which such
Securities are exchangeable in lieu of delivery of such TCNZ Ordinary Shares.
If an Event of Default shall occur and be continuing, the principal
amount of all the Securities may be declared due and payable in the manner and
with the effect provided in the Indenture.
The Indenture permits, with certain exceptions (including certain
amendments permitted without the consent of any Holders) as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders under the Indenture and the Securities at
any time by the Company and the Trustee with the consent of the Holders of a
specified percentage in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and the
Securities and certain past Defaults under the Indenture and their consequences.
Any such consent or waiver by or on behalf of the Holder of this Security shall
be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer thereof or
in exchange here for or in lieu hereof whether or not notation of such consent
or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company or any
other obligor on the Securities (in the event such other obligor is obligated to
make payments in respect of the Securities), which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on, this
Security at the times, place, and rate, and in the coin or currency, herein
prescribed.
If this Security is in certificated form, then as provided in the
Indenture and subject to certain limitations therein set forth, the transfer of
this Security is registrable on the Security Register of the Company, upon
surrender of this Security for registration of transfer at the office
C-6
or agency of the Company maintained for such purpose in The City of New York or
at such other office or agency of the Company as may be maintained for such
purpose, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Registrar duly executed by, the Holder
hereof or its attorney duly authorized in writing, and thereupon one or more new
Securities, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
This Security is a Regulation S Global Security, and, as such, it is
exchangeable for a Security in certificated form as provided in the Indenture
and in accordance with the rules and procedures of the Trustee and the
Depositary. In addition, certificated securities shall be transferred to all
beneficial holders in exchange for their beneficial interests in a Global
Security if (x) either Euroclear or Cedel (or any Alternative Clearing System on
behalf of which this Security may be held) is closed for business for a
continuous period of 14 days (other than by reason of holidays, statutory or
otherwise) or announces an intention to permanently cease business or does, in
fact, do so or (y) there shall occurred and be continuing an Event of Default.
Upon any issuance, the Trustee is required to register such certificated
Securities in the name of, and cause the same to be delivered to, such Person or
Persons (or the nominee of any thereof). All such certificated Securities would
be required to include the Securities Legend.
Securities in certificated form are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
the Securities are exchangeable for a like aggregate principal amount of
Securities of a differing authorized denomination, as requested by the Holder
surrendering the same.
At any time when the Company is not subject to Section 13 or 15(d) of
the Exchange Act, upon the written request of a Holder of a Security, the
Company will promptly furnish or cause to be furnished such information as is
specified pursuant to Rule 144A(d)(4) under the Securities Act (or any successor
provision thereto) to such Holder or to a prospective purchaser of such Security
who such Holder informs the Company is reasonably believed to be a "Qualified
Institutional Buyer" within the meaning of Rule 144A under the Securities Act,
as the case may be, in order to permit compliance by such Holder with Rule 144A
under the Securities Act.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
C-7
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
THEREOF).
C-8
SCHEDULE A
Aggregate principal amount of any Securities issued or cancelled in exchange for
a portion or portions hereof, any portion or portions hereof exchanged for an
interest or interests in another Global Security and any portion or portions of
another Global Security exchanged for a portion or portions hereof:
-------------------------------------------------------------------------------
Principal Amount Remaining Principal
Issued, Cancelled or Amount of this
Date Exchanged Global Security Notation Made by
-------------------------------------------------------------------------------
C-9
