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EXHIBIT 4.2
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CHINA MOBILE (HONG KONG) LIMITED
TO
THE BANK OF NEW YORK,
Trustee, Security Registrar and Paying Agent
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INDENTURE
Dated as of __________, 2000
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US$_______________
___% Convertible Notes
due _____________
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CHINA MOBILE (HONG KONG) LIMITED
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT
OF 1939 AND INDENTURE, DATED AS OF ______________ , 2000
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
Section 310 (a)(1) 607
(a)(2) 607
(b) 608
Section 312 (c) 701
Section 314 (a) 703
(a)(4) 1004
(c)(1) 102
(c)(2) 102
(e) 102
Section 315 (b) 601
Section 316 (a)(last sentence) 101 ("Outstanding")
(a)(1)(A) 502, 512
(a)(1)(B) 513
(b) 508
(c) 104(e)
Section 317 (a)(1) 503
(a)(2) 504
(b) 1003
Section 318 (a) 111
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Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions 1
SECTION 102. Compliance Certificates and Opinions 13
SECTION 103. Form of Documents Delivered to Trustee 14
SECTION 104. Acts of Holders 14
SECTION 105. Notices, etc., to Trustee and Company 16
SECTION 106. Notice to Holders; Waiver 16
SECTION 107. Effect of Headings and Table of Contents 17
SECTION 108. Successors and Assigns 17
SECTION 109. Separability Clause 17
SECTION 110. Benefits of Indenture 17
SECTION 111. Governing Law; Conflict with Trust Indenture Act 18
SECTION 112. Legal Holidays 18
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally 18
SECTION 202. Form of Face of Security 19
SECTION 203. Form of Reverse of Security 20
SECTION 204. Form of Trustee's Certificate of Authentication 28
SECTION 205. Securities Issuable in Global Form 28
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms 31
SECTION 302. Denominations 32
SECTION 303. Execution, Authentication, Delivery and Dating 33
SECTION 304. Temporary Securities 33
SECTION 305. Registration, Registration of Transfer and Exchange 34
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities 35
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Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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SECTION 307. Payment of Interest; Interest Rights Preserved 36
SECTION 308. Persons Deemed Owners 37
SECTION 309. Cancellation 37
SECTION 310. Computation of Interest 38
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture 38
SECTION 402. Application of Trust Money 39
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default 40
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. Limitation on Suits 44
SECTION 508. Unconditional Right of Holders to Receive Principal and
Interest and to Convert 45
SECTION 509. Restoration of Rights and Remedies 45
SECTION 510. Rights and Remedies Cumulative 46
SECTION 511. Delay or Omission Not Waiver 46
SECTION 512. Control by Holders 46
SECTION 513. Waiver of Past Defaults 47
SECTION 514. Waiver of Stay or Extension Laws 48
SECTION 515. Company's Agent for Service of Process and Submission to
New York Jurisdiction 48
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities 48
SECTION 602. Certain Rights of Trustee 50
SECTION 603. Trustee Not Responsible for Recitals or Issuance of Securities 52
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SECTION 604. May Hold Securities 52
SECTION 605. Money Held in Trust 52
SECTION 606. Compensation and Reimbursement 52
SECTION 607. Corporate Trustee Required; Eligibility 53
SECTION 608. Resignation and Removal; Appointment of Successor 54
SECTION 609. Acceptance of Appointment by Successor 55
SECTION 610. Merger, Conversion, Consolidation or Succession to Business 56
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 702. Reports by Trustee 58
SECTION 703. Reports by Company 58
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms 59
SECTION 802. Successor Person Substituted 60
SECTION 803. Securities to Be Secured in Certain Events 60
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders 61
SECTION 902. Supplemental Indentures with Consent of Holders 62
SECTION 903. Execution of Supplemental Indentures 63
SECTION 904. Effect of Supplemental Indentures 63
SECTION 905. Conformity with Trust Indenture Act 63
SECTION 906. Reference in Securities to Supplemental Indentures 63
SECTION 907. Notice of Supplemental Indentures 63
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Interest and Additional Amounts 64
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SECTION 1002. Maintenance of Office or Agency 65
SECTION 1003. Money for Security Payments to Be Held in Trust 66
SECTION 1004. Statement as to Compliance 68
SECTION 1005. Payment of Taxes and Other Claims 68
SECTION 1006. Maintenance of Principal Properties 68
SECTION 1007. Corporate Existence 68
SECTION 1008. Limitation on Security Interests 69
SECTION 1009. Limitation on Sale and Leaseback Transactions 70
SECTION 1010. Limitation on Subsidiary Indebtedness 71
SECTION 1011. Waiver of Certain Covenants 71
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Redemption for Taxation Reasons 71
SECTION 1102. Redemption of Securities at the Option of the Company 72
SECTION 1103. Applicability of Article 72
SECTION 1104. Election to Redeem; Notice to Trustee; Opinion of Counsel 72
SECTION 1105. Notice of Redemption 73
SECTION 1106. Deposit of Redemption Price 74
SECTION 1107. Securities Payable on Redemption Date 74
ARTICLE TWELVE
REPAYMENT AT OPTION OF HOLDERS
SECTION 1201. Applicability of Article 74
SECTION 1202. Repayment of Securities 75
SECTION 1203. Exercise of Option 75
SECTION 1204. When Securities Presented for Repayment Become Due and Payable 75
SECTION 1205. Securities Repaid in Part 76
SECTION 1206. Notice of Repayment 76
ARTICLE THIRTEEN
CONVERSION
SECTION 1301. Conversion Right 77
SECTION 1302. Conversion Procedure 78
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SECTION 1303. Taxes and Expenses on Conversion 80
SECTION 1304. Adjustment of Conversion Price 80
SECTION 1305. General Provisions Relating to Adjustment 85
SECTION 1306. Covenants Relating to Conversion Rights 86
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INDENTURE, dated as of __________, 2000, between CHINA MOBILE (HONG KONG)
LIMITED, a corporation duly organized and existing under the laws of the Hong
Kong Special Administrative Region of the People's Republic of China (herein
called the "Company"), having its principal office at 60th Floor, The Center,
99 Queen's Road Central, Hong Kong, the People's Republic of China, and The Bank
of New York, a New York banking corporation, as trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of __% Convertible
Notes due ___________ (herein 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.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, that are required to be part of this Indenture and shall, to
the extent applicable, be governed by such provisions.
All things necessary have been done to make the Securities, when executed
by the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company and to make this Indenture a valid
agreement of the Company, in accordance with their and its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, 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:
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(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with U.S. GAAP;
(d) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture; and
(e) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Additional Amounts" has the meaning specified in Section 1001.
"ADSs" means American Depositary Shares, each representing five Ordinary
Shares, issued pursuant to the ADS Deposit Agreement.
"ADS Deposit Agreement" means the deposit agreement, dated October 23,
1997, among the Company, The Bank of New York, as the ADS depositary and holders
of ADSs from time to time, as amended and restated as of July 5, 2000.
"Adjusted EBITDA" means, for any period, an amount equal to the sum of
consolidated net profit for such period, plus (A) the following, to the extent
any of the following has reduced consolidated net profit for such period:
(i) the provision for taxes based on income or profits or utilized in
computing net loss;
(ii) Consolidated Interest Expense;
(iii) depreciation;
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(iv) amortization of intangibles;
(v) provision for diminution in value of fixed assets; and
(vi) any other non-cash items (other than any such non-cash item to
the extent that it represents an accrual of or reserve for cash
expenditures in any future period);
minus (B) all non-cash items increasing consolidated net income for such period
(other than any such non-cash item to the extent that it will result in the
receipt of cash payments in any future period).
Notwithstanding (A) above, the provisions for taxes and diminution in value
of fixed assets and the depreciation, amortization and non-cash items of a
Subdidiary of the Company shall be added to consolidated net income to compute
the Company's Adjusted EBITDA only to the extent (and in the same proportion)
that the net income of such Subsidiary was included in calculating the Company's
consolidated net incme and only if a corresponding amount would be permitted at
the date of determination to be dividended to the Company by such Subsidiary
without prior approval (that has not been obtained), pursuant to the terms of
its charter and all agreements, instruments, judgments, decrees, orders,
statutes, rules and governmental regulations applicable to such Subsidiary or
its shareholders.
"Adjustment Effective Date" has the meaning specified in Section 1304.
"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.
"Attributable Debt" means, when used in connection with a Sale and
Leaseback Transaction, at any date as of which the amount thereof is to be
determined, the product of: (i) the net proceeds from such Sale and Leaseback
Transaction multiplied by (ii) a fraction, the numerator of which is the number
of full years of the term of the lease relating to the Property involved in such
Sale and Leaseback Transaction (without regard to any options to renew or extend
the term) remaining at the date of the making of such computation, and the
denominator of which is the number of full years of the term of such lease
(without regard to any options to renew or extend the term) measured from the
first day of the term.
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"Average Market Price" has the meaning specified in Section 1304.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Company
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" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in either The City of New York
or Hong Kong are authorized or obligated by law or executive order to close.
"Capitalized Lease Obligation" means any obligation to pay rent or other
amounts under a lease of (or other agreement conveying the right to use) real or
personal property that is required to be classified and accounted for as a
capital lease or obligation in accordance with U.S. GAAP and, for the purposes
of this Indenture, the amount of such obligation at any date shall be the
capitalized amount thereof at such date, determined in accordance with U.S.
GAAP.
"Capital Stock" of any Person means any and all shares, interests
(including partnership interests), participations or other equivalents (however
designated) of capital stock of such Person whether now outstanding or issued
after the date of this Indenture, including, without limitation, all common
stock and preferred stock.
"Commission" means the United States Securities and Exchange Commission, as
from time to time constituted, created under the United States Securities
Exchange Act of 1934, or, if at any time after the execution of this Indenture
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.
"Company" means the Person named as the "Company" in the first paragraph of
this Indenture, until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman, any of its Directors or its
Controller, and delivered to the Trustee.
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"Consolidated Interest Expense" means, for any period, total interest
expense plus, to the extent not included in such total interest expense and to
the extent incurred:
(i) interest expense attributable to leases constituting part of a
Sale and Leaseback Transaction and to Capitalized Lease Obligations;
(ii) amortization of debt discount and debt issuance costs, including
commitment fees;
(iii) capitalized interest;
(iv) non-cash interest expenses;
(v) discounts, interest and other similar fees and charges owed with
respect to letters of credit and banker's acceptance financing;
(vi) net costs associated with hedging Debt obligations (including
amortization of fees);
(vii) preferred stock dividends;
(viii) interest incurred in connection with Investments in
discontinued operations, and
(ix) interest accruing on any Debt of any other Person to the extent
such Debt is guaranteed by the relevant Person.
"Consolidated Net Tangible Assets" means, as of any date of determination,
the sum of the amount that would appear on the Company's consolidated balance
sheet as the total assets (less accumulated depreciation and amortization,
allowances for doubtful receivables, other applicable provisions and other
properly deductible items), after giving effect to purchase accounting and after
deducting therefrom consolidated current liabilities and, to the extent
otherwise included, the amounts of:
(i) the excess of cost over fair market value of assets or businesses
acquired;
(ii) any revaluation or other write-up in book value of assets
subsequent to the last day of the fiscal quarter immediately preceding the
issue date as a result of a change in the method of valuation in accordance
with U.S. GAAP;
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(iii) unamortized debt discount and expenses and other unamortized
deferred charges, goodwill, patents, trademarks, service marks, trade
names, copyrights, licenses, organization or developmental expenses and
other intangible items;
(iv) minority interests in consolidated Subsidiaries held by Persons
other than the Company or its Subsidiaries;
(v) treasury stock; and
(vi) cash or securities set aside and held in a sinking or other
analogous fund established for the purpose of redemption or other
retirement of Capital Stock to the extent such obligation is not reflected
in consolidated current liabilities.
"Conversion Agent" means any Person authorized by the Company to accept the
presentation of Securities by Holders for conversion.
"Conversion Date" has the meaning specified in Section 1302.
"Conversion Period" has the meaning specified in Section 1301.
"Conversion Price" means initially US$______ per ADS, which is equivalent
to HK$______ per Ordinary Share at the Fixed Exchange Rate, in each case,
subject to adjustments from time to time as specified in Section 1304. In the
event that the share-to-ADS ratio is changed, the Conversion Price per ADS will
be adjusted accordingly based on the Conversion Price per Ordinary Share then in
effect, the Fixed Exchange Rate and such new share-to-ADS ratio.
"Corporate Trust Office" means the principal corporate trust office of the
Trustee, at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Indenture is located
at 101 Barclay Street, 21st Floor, New York, New York, 10286, except that with
respect to presentation of Securities for payment or for registration of
transfer or exchange, such term shall mean the office or agency of the Trustee
at which, at any particular time, its corporate agency business shall be
conducted.
"corporation" includes corporations, associations, companies and business
trusts.
"Debt" means, with respect to any Person on any date of determination:
(i) the principal of and premium (if any) in respect of:
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(A) debt of such Person for money borrowed;
(B) debt evidenced by notes, debentures, bonds or other similar
instruments for the payment of which such Person is responsible or
liable;
(ii) all Capitalized Lease Obligations of such Person and all
Attributable Debt in respect of Sale and Leaseback Transactions entered
into by such Person;
(iii) all obligations of such Person created or arising under
conditional sale obligations or title retention agreement or similar
agreements related to the deferred purchase price of Property (but
excluding trade accounts payable arising in the ordinary course of business
and other short-term accounts payable arising in connection with capital
expenditures incurred in the ordinary course of business);
(iv) all obligations of such Person for the reimbursement of any
obligor on any letter of credit or banker's acceptance (other than
obligations with respect to letters of credit securing obligations (other
than obligations described in (i), (ii) or (iii) above) entered into in the
ordinary course of business of such Person to the extent such letters of
credit are not drawn upon or, if and to the extent drawn upon, such drawing
is reimbursed no later than the third Business Day following receipt by
such Person of a demand for reimbursement following payment on the letter
of credit);
(v) the amount of all obligations of such Person with respect to the
repayment of any preferred stock (but excluding, in each case, any accrued
dividends);
(vi) all obligations of the type referred to in (i) through (v) above
of other Persons and all dividends of other Persons for the payment of
which, in either case, such Person is responsible or liable, directly or
indirectly, as obligor, guarantor or otherwise, including by means of any
guarantee;
(vii) all obligations of the type referred to in (i) through (vi)
above of other Persons secured by any lien on any Property of such Person
(whether or not such obligation is assumed by such Person), the amount of
such obligation being deemed to be the lesser of the value of such property
and the amount of the obligation so secured; and
(viii) to the extent not otherwise included in this definition,
obligations of such Person hedging any of the Debt obligations referred to
above.
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The amount of Debt of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above and the
maximum liability, upon the occurrence of the contingency giving rise to the
obligation, of any contingent obligations at such date.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" has the meaning specified in Section 205.
"Event of Default" has the meaning specified in Section 501.
"Extraordinary Dividend" has the meaning specified in Section 1304(d).
"Fixed Exchange Rate" means the exchange rate of US$1.00 = HK$_______.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Hong Kong" means the Hong Kong Special Administrative Region of the
People's Republic of China.
"Indenture" means this instrument as originally executed 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, including, for
all proposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Investment" means any direct or indirect advance, loan, guarantee or other
extension of credit or capital contribution to (by means of any transfer of cash
or other property to others or any payment for property or services for the
account or use of others), or any purchase or acquisition of Capital Stock,
bonds, notes, debentures or other securities issued by any other Person.
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"Material Subsidiary" means any Subsidiary of the Company whose total
assets equal at least 5% of the Company's Consolidated Net Tangible Assets.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"Officer's Certificate" means a certificate signed by the Chairman, or any
Director, and by the Controller or the Company Secretary of the Company, and
delivered to the Trustee.
"One-Year Average Closing Price" has the meaning specified in
Section 1304(d).
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, including an employee of the Company, and who shall be
acceptable to the Trustee.
"Ordinary Shares" means the ordinary shares, par value HK$0.10 per share,
of the Company as they exist on the date of this Indenture and any shares of any
class or classes of Capital Stock of the Company resulting from any
reclassification or reclassifications thereof.
"Outstanding", when used with respect to the Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
or repayment at the option of the Holder 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, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been
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presented to the Trustee proof satisfactory to it that such Securities are
held by a bona fide purchaser in whose hands the Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 313, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or 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 owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the 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 upon the Securities or any Affiliate of the Company or such other
obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"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 a mutilated
security or in lieu of a lost, destroyed or stolen Security shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Security.
"Prevailing Exchange Rate" means, for the translation of the closing price
of the Ordinary Shares on the Hong Kong Stock Exchange on a Trading Day, the
noon buying rate in New York City for cable transfers in Hong Kong dollars, as
certified for customs purposes by the Federal Reserve Bank in New York on such
Trading Day.
"Principal Properties" means any operating facilities, together with the
land upon which they are erected and fixtures comprising a part thereof, owned
by the Company or any Material Subsidiary, the gross book value (without
deduction of any reserve for depreciation) of which on the date as of which the
determination is being made is an amount which exceeds 1% of Consolidated Net
Tangible Assets, other than any such properties or any portion thereof (together
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with the land upon which they are erected and fixtures comprising a part
thereof) which, in the opinion of the Board of Directors, is not of material
importance to the total business conducted by the Company and its Subsidiaries,
taken as a whole.
"Principal Security Register" has the meaning specified in Section 305.
"Property" of any Person means all types of real, personal, tangible,
intangible or mixed property (including any related contractual rights) owned by
such Person whether or not included in the most recent consolidated balance
sheet of such Person under U.S. GAAP.
"Redemption Date", when used with respect to any Security to be redeemed,
in whole or in part, 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,
means the price at which it is to be redeemed pursuant to this Indenture.
"Reference Dividend" has the meaning specified in Section 1304(d).
"Regular Record Date" for the interest payable on any Interest Payment Date
means the __________ or ___________ (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date.
"Registration Date" has the meaning specified in Section 1302.
"Repayment Date", when used with respect to any Security to be repaid at
the option of the Holder, means the date fixed for such repayment pursuant to
this Indenture.
"Repayment Event" means the occurrence of one of the following events:
(i) the People's Republic of China at any time ceases to hold,
directly or indirectly, at least 51% of the outstanding Capital Stock of
the Company, or
(ii) at any time the Ordinary Shares are not listed on the Hong Kong
Stock Exchange (or its successor) or the ADSs are not listed or admitted to
trade on the New York Stock Exchange, the American Stock Exchange or the
Nasdaq National Market (or their respective successors).
"Repayment Price", when used with respect to any Security to be repaid at
the option of the Holder, means the price at which it is to be repaid pursuant
to this Indenture.
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"Responsible Officer" means, when used with respect to the Trustee, any
officer within the corporate trust department of the Trustee, including any vice
president, assistant vice president, assistant secretary, assistant treasurer,
trust officer or any other officer of the Trustee who customarily performs
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of such person's knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this
Indenture.
"Sale and Leaseback Transaction" means any arrangement with any Person
pursuant to which Property is sold or transferred by such Person and such
Property or substantially identical Property is, in a substantially
contemporaneous transaction, leased back from the purchaser or transferee
thereof by such Person or one of its Subsidiaries.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Interest" has the meaning specified in Section 1008.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"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 Debt or any installment of
principal thereof or interest thereon, means the date specified in the
instrument evidencing or governing such Debt as the fixed date on which the
principal amount of such Debt or such installment of principal or interest is
due and payable.
"Subsidiary" of any Person means a corporation more than 50% of the
outstanding Voting Stock of which is owned, directly or indirectly, by such
Person or by one or more other Subsidiaries of such Person, or by such Person
and one or more other Subsidiaries of such Person.
"Total Current Dividend" has the meaning specified in Section 1304(d).
"Trading Day" means, with respect to a stock exchange, a day when such
stock exchange is open for business, provided, however, that if no transaction
price or closing bid and offered prices are reported by such exchange in respect
of the relevant security for one or more
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Trading Days, such day or days will be disregarded in any relevant calculation
relating to a period of consecutive Trading Days.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 as in
force at the date as of which this Indenture was executed, except as provided in
Section 905; provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"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.
"U.S. GAAP" means generally accepted accounting principles in the United
States, consistently applied, that are in effect from time to time.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Voting Stock" means stock or share capital which ordinarily has voting
power for the election of directors, whether at all times or only so long as no
senior class of stock or share capital has such voting power by reason of any
contingency.
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 shall furnish to the
Trustee an Officer's Certificate stating that all conditions precedent, if any,
provided for in this Indenture (including any covenant compliance with which
constitutes a condition precedent) relating to the proposed action have been
complied with and an Opinion of Counsel 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 such documents 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 certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than pursuant to Section 1004)
shall include:
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(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) 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;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
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 some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
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.
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(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 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 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 authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner that the Trustee
deems sufficient.
(c) The ownership, principal amount and serial numbers of Securities
held by any Person, and the date of holding the same, shall be proved by
the Security Register.
(d) If the Company shall solicit from the Holders of Securities any
request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, by or pursuant to a Board Resolution,
fix in advance a record date for the determination of Holders entitled to
give such request, demand, authorization, direction, notice, consent,
waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall be the record
date specified in or pursuant to such Board Resolution, which shall be a
date not earlier than the date 30 days prior to the first solicitation of
Holders generally in connection therewith and not later than the date such
solicitation is completed. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may
be given before or after such record date, but only the Holders of record
at the close of business on such record date shall be deemed to be Holders
for the purposes of determining whether Holders of the requisite proportion
of Outstanding Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as
of such record date; provided that no such authorization, agreement or
consent by the Holders
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on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than
180 days after the record date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
SECTION 105. Notices, etc., to Trustee and 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,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at 101 Barclay Street, 21st Floor, New York, New
York 10286, Attention: Global Finance Unit, with a copy to The Bank of New
York, One Temasek Avenue, #02-01 Millenia Tower, Singapore 039192,
Attention: Global Trust Services, or at any other addresses previously
furnished in writing to each Holder or the Company by the Trustee, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this Indenture, or at any other address previously
furnished in writing to the Trustee by the Company.
All notices delivered to the Trustee shall be in English and shall be
deemed effective when actually received by the Trustee.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders by the
Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) 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 (if any), and
not earlier than the earliest date (if any), prescribed for the giving of such
notice. In any case
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where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice. 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.
In case, by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause, it shall be impracticable to mail
notice of any event to Holders when such notice is required to be given pursuant
to any provision of this Indenture, then any manner of giving such notice as
shall be satisfactory to the Trustee shall be deemed to be a sufficient giving
of such notice for every purpose hereunder.
In addition, the Company shall publish any notices to Holders as necessary,
including, so long as the Securities are listed on the Luxembourg Stock Exchange
and the rules of the Luxembourg Stock Exchange so require, publishing notices to
Holders in a leading newspaper having general circulation in Luxembourg, which
is expected to be the "Luxembourg Wort".
SECTION 107. 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.
SECTION 108. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 109. 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 110. Benefits of Indenture.
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Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto, any Paying Agent, the
Conversion Agent, any Securities Registrar and their successors hereunder and
the Holders, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 111. Governing Law; Conflict with Trust Indenture Act.
This Indenture and the Securities shall be governed by and construed in
accordance with the law of the State of New York, except that all matters
relating to their authorization and execution by the Company are governed by the
laws of Hong Kong. This Indenture is subject to the provisions of the Trust
Indenture Act that are required to be part of this Indenture and shall, to the
extent applicable, be governed by such provisions. If any provision hereof
limits, qualifies or conflicts with a provision of the Trust Indenture Act which
is required under such Act to be a part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture modifies or excludes
any provision of the Trust Indenture Act which may be so modified or excluded,
the latter provision shall be deemed to apply to this Indenture as so modified
or to be excluded, as the case may be.
SECTION 112. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Repayment
Date, Stated Maturity or Maturity of any Security shall not be a Business Day,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of principal or interest 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 the Interest Payment Date, Redemption Date or Repayment Date, or
at the Stated Maturity or Maturity; provided that no interest shall accrue for
the period from and after such Interest Payment Date, Redemption Date, Repayment
Date, Stated Maturity or Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities and the Trustee's certificate of authentication shall be in
substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have
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such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or the Depository therefor or as may, consistently herewith,
be determined by the officers executing such Securities, as evidenced by their
execution of the Securities. Any portion of the text of any Security may be set
forth on the reverse thereof, with an appropriate reference thereto on the face
of the Security.
The definitive Securities shall be printed, lithographed or engraved on
steel-engraved borders or may be produced in any other manner, all as determined
by the officers of the Company executing such Securities, as evidenced by their
execution of such Securities.
SECTION 202. Form of Face of Security.
CHINA MOBILE (HONG KONG) LIMITED
__% Convertible Note due _______
No. ____ US$_______________
China Mobile (Hong Kong) Limited, a corporation duly organized and existing
under the laws of the Hong Kong Special Administrative Region of the People's
Republic of China (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 registered assigns, the
principal sum of _____________ United States Dollars on _______, at the office
or agency of the Company referred to below, and to pay interest thereon
commencing ________, 2001 and semi-annually thereafter, on ________ and ________
in each year, at the rate of __% per annum accruing from ________, 2000 or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, until the principal hereof is paid or duly provided for, and (to
the extent lawful) to pay on demand interest on any overdue interest at the rate
borne by the Securities from the date on which such overdue interest becomes
payable to the date payment of such interest has been made or duly provided for.
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 one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the _______ or _______ (whether or not a Business Day),
as the case may be, next preceding such Interest Payment Date. Any such interest
not so punctually paid or duly provided for shall forthwith cease to be payable
to the Holder on such Regular Record Date, and such overdue interest, and (to
the extent lawful) interest on such overdue interest at the rate borne by the
Securities, may be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on a Special
Record Date for the
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payment of such Defaulted Interest to be fixed by the Trustee, notice whereof
shall be given to Holders of Securities not less than 10 days prior to such
Special Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture. Payment of the principal
of and interest on this Security will be made at the office or agency of the
Company maintained for that purpose in The City of New York, or at such other
office or agency of the Company as may be maintained for such purpose, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, however, that
payment of interest may be made at the option of the Company (i) by check mailed
to the address of the Person entitled thereto as such address shall appear on
the Security Register or (ii) by transfer to an account maintained by the payee
located in the United States.
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 by manual signature, this Security
shall not be entitled to any benefit under the Indenture, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
CHINA MOBILE (HONG KONG) LIMITED
By
-----------------------------
Dated:
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company designated as its __%Convertible Notes due _____ (herein called the
"Securities"), limited (except as otherwise provided in the Indenture referred
to below) in aggregate principal amount to US$________, which may be issued
under an indenture (herein called the "Indenture") dated as of _______, 2000
between the Company and The Bank of New York as trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture
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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.
This Security is redeemable at the option of the Company, as a whole but
not in part, on any date at a Redemption Price equal to 100% of the principal
amount plus any accrued and unpaid interest to the Redemption Date if the
Company determines that, as a result of any change in or amendment to the laws
or any regulations or rulings promulgated thereunder of Hong Kong or any
political subdivision or taxing authority thereof or therein, or any change in
the official application or interpretation of such laws, regulations or rulings,
or any change in the official application or interpretation of, or any execution
or amendment to, any treaty or treaties affecting taxation to which Hong Kong is
a party, which change, execution or amendment becomes effective on or after the
original issue date of the Securities, the Company has been or will be required
to pay Additional Amounts with respect to the Securities as described under
Section 1001 of the Indenture.
This Security is redeemable at the option of the Company, in whole but not
in part, at any time on or after _______, at a Redemption Price equal to 100% of
the principal amount plus any accrued and unpaid interest to the Redemption
Date; provided, however, that no such redemption may be made unless the closing
price per Ordinary Share on the Hong Kong Stock Exchange for each of the 30
consecutive Trading Days (translated into US dollars at the Prevailing Exchange
Rate on such Trading Day), the last of which occurs not more than five days
prior to the date on which notice of such redemption is given, is at least __%
of the Conversion Price per Ordinary Share as adjusted through, and effective
on, such notice date (translated into US dollars at the Fixed Exchange Rate).
Notwithstanding the foregoing, the Company may redeem all of the Securities
outstanding, including this Security, at a Redemption Price equal to 100% of the
principal amount plus any accrued and unpaid interest to the Redemption Date if
at anytime the aggregate principal amount of the Securities Outstanding is less
than 5% of the aggregate principal amount of the Securities originally issued.
This Security, or a portion thereof equal to US$1,000 or any integral
multiple thereof, is subject to repayment by the Company at the option of the
Holder hereof upon the occurrence of certain Repayment Events described in
Article Twelve of the Indenture (including events relating to change of control
of the Company or delisting of the Ordinary shares or ADSs), at a Repayment
Price equal to 100% of the principal amount, together with any accrued and
unpaid interest to the Repayment Date. In order to be repaid at the option of
the Holder, this
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Security, with the "Notice to Elect Repayment" form duly completed by the Holder
hereof (or the Holder's attorney duly authorized in writing), must be received
by the Company at its office or agency maintained for that purpose in the
Borough of Manhattan, The City of New York, not later than the date specified by
the Company in its notice of the Repayment Event in accordance with Section 1206
of the Indenture. Exercise of such option by the Holder of this Security shall
be irrevocable unless waived by the Company.
In the case of any redemption or repayment of Securities, interest
installments whose Stated Maturity is on or prior to the Redemption Date or
Repayment Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Regular Record Date referred to on the face hereof, as provided in the
Indenture. Securities (or portions thereof) for whose redemption or repayment
provision is made in accordance with the Indenture shall cease to bear interest
from and after the Redemption Date or Repayment Date (as applicable).
This Security is convertible into Ordinary Shares of the Company at any
time after 30 days from its original issuance and before the close of business
on the third Business Day preceding _____, at the Conversion Price then in
effect; provided, however, that, if this Security is called for redemption
pursuant to Article Eleven of the Indenture, such conversion right shall
terminate at the close of business on the third Business Day preceding the
Redemption Date for this Security. A Holder may convert a portion of this
Security equal to US$1,000 or any integral multiple thereof.
The number of Ordinary Shares issuable upon conversion of this Security (or
a portion hereof equal to US$1,000 or any integral multiple thereof) shall be
determined by dividing the principal amount (translated into Hong Kong dollars
at the Fixed Exchange Rate specified in the Indenture) of this Security or
portion hereof surrendered for conversion by the Conversion Price per Ordinary
Share in effect on the Conversion Date. The initial Conversion Price is
US$_____ per ADS, which is equivalent to HK$______ per Ordinary Share at the
Fixed Exchange Rate (US$1.00 = HK$ ____), in each case, subject to adjustment
for certain anti-dilution events as provided in Article Thirteen of the
Indenture. The Ordinary Shares issuable upon conversion will be duly authorized,
validly issued, fully paid and nonassessable and will rank equally with all
other Ordinary Shares.
A Holder may elect to receive Ordinary Shares upon conversion in the form
of ADSs. In such event, the Company agrees to, on behalf of such Holder, deliver
to and deposit with the ADS depositary or its custodian, in accordance with the
terms of the ADS Deposit Agreement, such number of Ordinary Shares the Holder
would have received upon conversion had he not elected to receive such Ordinary
Shares in the form of ADSs. Such Ordinary Shares
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will be registered in the name of the ADS depositary or its nominee. Subject to
compliance with the terms of the ADS Deposit Agreement, including payment of the
fees and expenses of the ADS depository by such Holder, the ADS depository will
issue such number of ADSs representing the deposited Ordinary Shares to such
Holder based on the applicable share-to-ADS ratio then in effect. For the
avoidance of doubt, such number of ADSs can also be determined by dividing the
principal amount of this Security or portions hereof surrendered for conversion
by the Conversion Price per ADS in effect on the Conversion Date.
All calculation relating to redemption and conversion, including adjustment
of the Conversion Price, will be made to the nearest 0.01 of an Ordinary Share
or ADS or other property or the nearest cent. Fractions of Ordinary Shares will
not be issued on conversion, and no cash adjustments will be made in respect of
any such fraction. Similarly, under the ADS Deposit Agreement, fractions of ADSs
will not be issuable upon conversion, and no cash adjustments will be made in
respect of any such fraction.
To convert this Security, a Holder must (a) complete and manually sign the
"Conversion Notice" form herein, including an election on whether to receive
Ordinary Shares or ADSs upon conversion, and deliver such notice to the
Conversion Agent, (b) surrender this Security to the Conversion Agent duly
endorsed or assigned to the Company or in blank, (c) furnish appropriate
endorsements and transfer documents (if any) required by the Registrar or the
Conversion Agent, and (d) pay any required transfer or similar tax and make any
other required payment. The date on which the Holder satisfies all of those
requirements is the "Conversion Date."
As soon as practicable, and in any event not later than 14 days, after the
Conversion Date (or such longer period as may be required to comply with any
applicable fiscal or other laws or regulations), the Company will register the
person or persons designated for the purpose in the Conversion Notice as
holder(s) of the relevant number of Ordinary Shares in its share register and
will cause its share registrar to mail (at the risk, and, if sent at the request
of such person otherwise than by ordinary mail, at the expense, of the person to
whom such certificate or certificates are sent) such certificate or certificates
for such Ordinary Shares to the person or persons and at the place specified in
the Conversion Notice. The person or persons specified for that purpose will
become the holder of record of the number of Ordinary Shares issuable upon
conversion with effect from the date he is or they are registered as such in the
Company's share register (the "Registration Date"). The Indenture contains
various provisions concerning circumstances where the record set for a dividend
on the Ordinary Shares or an Adjustment Effective Date for the adjustment of the
Conversion Price falls between the Conversion Date and the Registration Date.
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No payment or adjustment will be made for accrued interest on this Security
when delivered for conversion. If any Holder surrenders this Security for
conversion after the close of business on the Record Date for the payment of an
installment of interest and before the close of business on the related Interest
Payment Date, then, notwithstanding such conversion, the interest payable on
such Interest Payment Date shall be paid to the Holder of this Security on such
Regular Record Date. In such event, unless this Security has been called for
redemption, this Security, when surrendered for conversion, must be accompanied
by delivery of a check or draft payable to the Company in an amount equal to the
interest payable on such Interest Payment Date on the portion so converted. If
such payment does not accompany this Security, this Security shall not be
converted.
A conversion notice once given will be irrevocable and may not be withdrawn
without the prior written consent of the Company. The Company or the Conversion
Agent on its behalf may reject any incomplete or incorrect conversion notice.
All costs and expenses incurred by an incomplete or incorrect conversion notice
will be for the account of the relevant Holder.
As conditions precedent to conversion, the Holder must pay to the
Conversion Agent any taxes and capital, stamp, issue and registration duties
arising on conversion, other than any taxes or capital or stamp duties payable
in Hong Kong in respect of the allotment and issuance of the Ordinary Shares and
listing of the Ordinary Shares upon conversion. In addition, the Holder will be
required to pay any tax or duty relating to any disposal or any deemed disposal
relating to conversion and transfer involved in the issue or delivery of the
Ordinary Shares upon conversion in a name other than such Holder's. The Company
will pay all other expenses arising on the issue, allotment and delivery of the
Ordinary Shares issuable upon conversion.
In the event of conversion or repayment of this Security in part only, a
new Security or Securities for the unpaid 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 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 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 at any time by the
Company and the Trustee with the consent of the Holders of a majority 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
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all the Securities, to waive compliance by the Company with certain provisions
of the Indenture 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 hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities, the Holders of not less than 25% in principal amount of the
Securities at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default as Trustee
and offered the Trustee indemnity, and the Trustee shall not have received from
the Holders of a majority in principal amount of Securities at the time
Outstanding a direction inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such notice, request
and offer of indemnity. The foregoing shall not apply to any suit instituted by
the Holder of this Security for the enforcement of any payment of principal
hereof or interest hereon on or after the respective due dates expressed herein.
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, which is
absolute and unconditional, to pay the principal of and interest on this
Security at the times, place, and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable on the Principal Security
Register and the other Security Register of the Company, upon surrender of this
Security for registration of transfer at the office or agency of the Company
maintained for such purpose in Hong Kong and The City of New York, respectively,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his 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.
The Securities are issuable only in fully registered form without coupons
in denominations of US$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
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principal amount of Securities of a different authorized denomination, as
requested by the Holder surrendering the same.
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 the time of 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 be overdue, and neither
the Company, the Trustee nor any agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
FORM OF NOTICE TO ELECT REPAYMENT
The undersigned registered Holder of the within Security hereby irrevocably
requests and instructs the Company to repay this Security (or the portion
thereof specified below), pursuant to Article Twelve of the Indenture referred
to in this Security, on the "Repayment Date" specified in the Company's notice
of occurrence of the Repayment Event, at a Repayment Price equal to 100% of the
principal amount thereof, together with accrued interest to the Repayment Date,
to the undersigned at:
--------------------------------------------
(Name and Address of the Undersigned.)
For this Notice to Elect Repayment to be effective, this Security with the
Notice to Elect Repayment duly completed must be received, not later than the
day that is 10 days prior to the Repayment Date, as specified in the Company's
notice of occurrence of the Repayment Event, by the Company at its office or
agency in the Borough of Manhattan, The City of New York.
If less than the entire principal amount of the within Security is to be
repaid, specify the portion thereof (which shall be US$1,000 or an integral
multiple thereof) which is to be repaid: US$__________.
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If less than the entire principal amount of the within Security is to be
repaid, specify the denomination(s) of the Security(ies) to be issued for the
unpaid amount (US$1,000 or any integral multiple of US$1,000): US$__________.
Dated:
By:
--------------------------------
Signature of Registered Holder
FORM OF CONVERSION NOTICE
The undersigned registered Holder of the within Security hereby irrevocably
exercises the option to convert this Security (or the portion thereof specified
below) into Ordinary Shares of the Company and elects to receive such Ordinary
Shares in the form of:
- Ordinary Shares, for the principal amount of the Security of
US$__________ (which shall be an integral multiple of the Conversion
Price in effect on the Conversion Date), and/or
- ADSs, for the principal amount of the Security of US$__________ (which
shall be an integral multiple of the product of the Conversion Price
and the share-to-ADS ratio in effect on the Conversion Date),
pursuant to the terms of the Indenture referred to in this Security, and directs
that Ordinary Shares or ADSs, as the case may be, issuable upon conversion and
any Security representing any unconverted principal amount hereof, be issued and
delivered to the registered Holder hereof unless a different name has been
provided below:
-----------------------------------------------------
(Name, Address and Taxpayer Identification Number.)
If less than the entire principal amount of this Security is to be
converted, specify the denomination(s) of the Security(ies) to be issued for the
unconverted amount (US$1,000 or any integral multiple of US$1,000):
US$__________.
If Ordinary Shares or any portion of this Security not converted are to be
issued in the name of a person other than the undersigned, the undersigned will
pay all transfer taxes
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payable with respect thereto and is delivering herewith a certificate in proper
form certifying that the applicable restrictions on transfer have been complied
with.
The undersigned hereby acknowledges that fractions of Ordinary Shares or
ADSs will not be issued on conversion and no cash adjustments will be made in
respect of any such fraction. The undersigned hereby agrees that, promptly after
request of the Company or Conversion Agent, it will furnish such proof in
support of this certificate as the Company or Conversion Agent may request.
Dated:
By:
--------------------------------
Signature of Registered Holder
By:
--------------------------------
Signature Guaranty
SECTION 204. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated:
THE BANK OF NEW YORK,
as Trustee
By:
--------------------------------
Authorized Signatory
SECTION 205. Securities Issuable in Global Form.
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(a) The Securities shall be issued in the form of one or more permanent
global Securities, registered in the name of The Depository Trust Company (the
"Depository") or its nominee and delivered to the Depository or a nominee
thereof or custodian therefor, representing all the Outstanding Securities. Such
global Securities shall be substantially in the form set forth in Section 201
with such modifications as may be necessary or desirable to reflect the issuance
thereof in global form, including the legends set out in Section 205(e).
Notwithstanding the provisions of Section 302, any global Security shall
represent such of the Outstanding Securities as shall be specified therein and
may provide that it shall represent the aggregate amount of Outstanding
Securities from time to time endorsed thereon and that the aggregate amount of
Outstanding Securities represented thereby may from time to time be reduced or
increased, as the case may be, to reflect exchanges, conversions, redemptions
and repayments. Any endorsement of a global Security to reflect the amount, or
any reduction or increase in the amount, of Outstanding Securities represented
thereby shall be made in such manner and upon instructions given by such Person
or Persons as shall be specified therein or in a Company Order.
(b) Subject to the provisions of Section 205(d), Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver any Security in
permanent global form in the manner and upon instructions given by the Person or
Persons specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 303 or Section 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but need
not comply with Section 102 and need not be accompanied by an Opinion of
Counsel.
(c) Notwithstanding the provisions of Section 307, payment of principal of
and interest on any Security in permanent global form shall be made to the
Person or Persons specified therein. Notwithstanding the provisions of Section
309 and except as provided in the preceding sentence, the Company, the Trustee
and any agent of the Company and the Trustee shall treat the Holder of any
permanent global Security as the owner of such Security for the purpose of
receiving payment of principal of and (subject to Sections 305 and 307) interest
on such Security and for all other purposes whatsoever, whether or not such
Security be overdue, and none of the Company, the Trustee or any agent of the
Company or the Trustee shall be affected by notice to the contrary.
(d) Notwithstanding any other provision of this Indenture, no global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a global Security in whole or in part may be registered, in the name
of any Person other than the Depository or its nominee except as provided in
this Section 205(d). Every Security authenticated and delivered upon
registration or transfer of, or in exchange for or in lieu of, a global Security
shall be a global Security, except as provided in this Section 205(d). If at any
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time, (i) the Depository notifies the Company that it is unwilling or unable to
continue as Depository or if at any time the Depository shall no longer be
registered or in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation and a successor Depository is
not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, as the case may be, or (ii) the
Company determines that the Securities shall no longer be represented by a
global Security or Securities and that the provisions of this Section 205 shall
no longer apply to the Securities or (iii) any Event of Default shall have
occurred and be continuing, then, in such event, this Section 205 shall no
longer be applicable to the Securities and the Company will execute and the
Trustee, upon Company Request, will authenticate and deliver Securities in
definitive registered form, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the global Security or
Securities in exchange for such global Security whereupon the global Security or
Securities shall be cancelled by the Trustee. Such Securities in definitive
registered form issued in exchange for the global Security or Securities
pursuant to this Section 205(d) shall be registered in such names and issued in
such authorized denominations as the Depository, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct the Trustee.
The Trustee shall deliver such Securities to the Persons in whose names such
Securities are so registered.
(e) The certificate of the global Securities shall contain the following
legends:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY (AS
DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR 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.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE REGISTERED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER
NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
This Security is a global Security. Notwithstanding any other provisions in
this Security, payment of the principal of and interest on this Security will be
made by transfer of
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immediately available funds to a bank account in the Borough of Manhattan, The
City of New York designated by the Holder hereof.
Upon the exchange, redemption, repayment or conversion of any portion of
this global Security, the Security Registrar shall adjust the Security Register
to reflect the reduction or increase, as the case may be, in the principal
amount of this global Security by an amount equal to the aggregate principal
amount of the Securities so exchanged, redeemed, repaid or converted, whereupon
the principal amount hereof shall be reduced or increased, as the case may be,
for all purposes by the amount so exchanged, redeemed, repaid or converted and
noted.
This global Security or portion hereof may not be exchanged for definitive
Securities except in the limited circumstances provided herein and in the
Indenture. If at any time, (i) the Depository notifies the Company that it is
unwilling or unable to continue as Depository or if at any time the Depository
shall no longer be registered or in good standing under the Securities Exchange
Act of 1934, as amended, or other applicable statute or regulation and a
successor Depository is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such condition, as the case may
be, or (ii) the Company determines that the Securities shall no longer be
represented by a global Security or Securities or (iii) any Event of Default
shall have occurred and be continuing, then in such event the Company will
execute and the Trustee will authenticate and deliver Securities in definitive
registered form, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of this Security in exchange for this
Security. Such Securities in definitive registered form shall be registered in
such names and issued in such authorized denominations as the Depository,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Securities to the
Persons in whose names such Securities are so registered.
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 US$____________, except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities pursuant to Section 205, 304, 305,
306, 906 or 1205.
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The Securities will be general, unsecured and unsubordinated obligations of
the Company. The Securities will at all times have the same right of payment
without preference among themselves, will have the same right of payment as all
of the Company's other existing and future general, unsecured and unsubordinated
obligations, and will be senior in right of payment to all of the Company's
existing and future obligations that are expressly subordinated in right of
payment to the Securities.
The Company intends to cause the Securities to be listed upon the
Luxembourg Stock Exchange.
The Securities shall be known and designated as the "__% Convertible Notes
due ______" of the Company. The Stated Maturity of the principal amount of the
Securities shall be _______, and the Securities shall bear interest at the rate
of __% per annum from _______, 2000, or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, payable on _______,
2001 and semi-annually thereafter on _______ and _______ in each year and at
said Stated Maturity, until the principal thereof is paid or duly provided for.
The principal of and interest on the Securities shall be payable:
(1) so long as the Securities are in global form, by transfer of
immediately available funds to a bank account in the Borough of Manhattan,
The City of New York designated by the Holder thereof; or
(2) if such Securities have been issued as definitive Securities, at
the office or agency of the Company maintained for such purpose in The City
of New York, Luxembourg, or at such other office or agency of the Company
as may be maintained for such purpose; provided, however, that, at the
option of the Company, interest may be paid by check mailed to addresses of
the Persons entitled thereto as such addresses shall appear on the Security
Register.
The Securities shall be redeemable as provided in Article Eleven.
The Securities shall be subject to repayment at the option of the Holders
as provided in Article Twelve.
The Securities shall be convertible into Ordinary Shares or ADSs of the
Company at the option of the Holders as provided in Article Thirteen.
SECTION 302. Denominations.
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The Securities shall be issuable only in fully registered form without
coupons and only in denominations of US$1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
or any of its Directors and need not be attested. The signature of any of these
officers on the Securities may be manual or facsimile signatures of the present
or any future such authorized officer and may be imprinted or otherwise
reproduced on the Securities.
Securities bearing the manual or facsimile signatures 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 such Company
Order shall authenticate and deliver such Securities.
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 herein duly
executed by the Trustee by manual signature of an authorized signatory, 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 conclusively 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 designated for such purpose pursuant to Section 1002,
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.
The Company shall cause to be kept at the office of the Trustee in New York
a register (the register maintained in such office to be referred to as the
"Principal Security Register" and the register maintained in any other office or
agency designated pursuant to Section 1002 being herein referred to as a
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers of Securities. The Security Register shall be in written form or any
other form capable of being converted into written form within a reasonable
time. At all reasonable times, each Security Register shall be open to
inspection by the Trustee. The Trustee is hereby initially appointed as security
registrar (the "Security Registrar") for the purpose of registering Securities
and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at the office
or agency of the Company designated pursuant to Section 1002, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee, one or more new Securities of any authorized denomination
or denominations of a like aggregate principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
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Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Security 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 or redemption 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, other
than exchanges pursuant to Section 304, 906 or 1205 not involving any transfer.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If (i) any mutilated Security is surrendered to the Trustee, or (ii) the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company and the Trustee such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the absence
of notice to the Company or the Trustee that such Security has been acquired by
a bona fide purchaser, the Company shall execute and upon Company Order the
Trustee shall authenticate and deliver, in exchange for any such mutilated
Security or in lieu of any such destroyed, lost or stolen Security, a new
Security of like tenor and principal amount, bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
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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.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name such Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such overdue interest and (to the extent lawful) interest
on such overdue interest at the rate borne by the Securities (such overdue
interest and interest thereon herein collectively called "Defaulted Interest")
may 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 Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each 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 or 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 Persons 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 than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt 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 given in the manner provided for in
Section 106, 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 given, such Defaulted Interest shall be
paid to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at
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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 in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the 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 this 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. Persons Deemed Owners.
Prior to the due presentment of a 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 Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and (subject to
Sections 305 and 307) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and none of the Company,
the Trustee or any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, conversion, redemption, repayment
at the option of the Holder or registration of transfer or exchange shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. 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 may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. If the Company shall so
acquire any of the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be disposed of by
the Trustee in accordance with its customary procedures and certification of
their disposal
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delivered to the Company unless by Company Order the Company shall direct that
cancelled Securities be returned 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.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of conversion, registration of transfer or
exchange of Securities expressly provided for herein or pursuant hereto) and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture when
(1) either
(A) all Securities 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; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
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(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal and interest
to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption Date,
as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officer's 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 606 and, if money shall
have been deposited with the Trustee pursuant to subclause (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 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.
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ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein, 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):
(1) default in the payment of any interest on any Security when it
becomes due and payable, and continuance of such default for a period of
30 days; or
(2) default in the payment of the principal of any Security at its
Maturity; or
(3) default in the performance, or breach, of any covenant or
agreement of the Company in this Indenture (other than a default in the
performance, or breach, of a covenant or agreement which is specifically
dealt with elsewhere in this Section), and continuance of such default or
breach for a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(4) (A) there shall have occurred one or more defaults by the Company
or any Material Subsidiary in the payment of the principal of Debt
aggregating US$30 million or more, when the same becomes due and payable at
the Stated Maturity thereof, and such default or defaults shall have
continued after any applicable grace period and shall not have been cured
or waived or (B) Debt of the Company or any Material Subsidiary aggregating
US$30 million or more shall have been accelerated or otherwise declared due
and payable, or required to be prepaid or repurchased (other than by
regularly scheduled required prepayment), prior to the Stated Maturity
thereof; and, in each case, continuance of such default or non-annulment of
such acceleration for a period of 10 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount
of the Outstanding Securities a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
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(5) (A) the entry of a decree or order by a court having jurisdiction
in the premises adjudging the Company or any of its Material Subsidiaries a
bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company or any of its Material Subsidiaries for the benefit of its
creditors under any applicable law, or appointing a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Company
or any of its Material Subsidiaries or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a period
of 90 consecutive days; or (B) the institution by the Company or any of its
Material Subsidiaries of proceedings to be adjudicated as bankrupt or
insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief for the benefit of its
creditors under any applicable law, or the consent by it to the filing of
any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Company
or such Material Subsidiary or of any substantial part of its property, or
the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then and in every such
case the Trustee or the Holders of not less than 25% in principal amount of the
Securities Outstanding may declare the principal amount of all the Securities to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration such principal
amount shall become immediately due and payable.
At any time after a declaration of acceleration has been made and before a
judgment or decree for payment of the money due has been obtained by the Trustee
as hereinafter provided in this Article, the Holders of a majority in principal
amount of the Securities Outstanding, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay,
(A) all overdue interest on all Outstanding Securities,
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(B) all unpaid principal of any Outstanding Securities which has
become due otherwise than by such declaration of acceleration, and
interest on such unpaid principal at the rate borne by the Securities,
(C) to the extent that payment of such interest is lawful,
interest on overdue interest at the rate borne by the Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default, other than the non-payment of amounts of
principal of or interest on 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
(a) default is made in the payment of any installment of interest on
any Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the principal of any Security
at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee for the benefit
of the Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest, and interest on any overdue principal
and, to the extent that payment of such interest shall be legally enforceable,
upon any overdue installment 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 forthwith upon such demand, the
Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final
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decree and may enforce the same against the Company or any other obligor upon
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
upon the Securities, wherever situated.
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 by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
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 upon 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,
(i) to file and prove a claim for the whole amount of principal 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
(ii) 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
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 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 606.
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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.
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 the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name 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 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 606;
SECOND: To the payment of the amounts then due and unpaid for
principal of and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities for principal and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 507. Limitation on Suits.
No Holder of any Securities shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
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(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
against the costs, expenses and liabilities to be incurred in compliance
with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority or
more in principal amount of the Outstanding Securities;
it being understood and intended that no one or more 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 Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal and Interest
and to Convert.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment, as provided herein (including, if applicable, Article Thirteen) and in
such Security, of the principal of and (subject to Section 307) interest on,
such Security on the respective Stated Maturities expressed in such Security
(or, in the case of redemption, on the Redemption Date and in the case of
repayment, on the Repayment Date), to convert such Security in accordance with
Article Thirteen herein, and to institute suit for the enforcement of any such
payment or conversion, 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, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all
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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 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 principal amount of the
Outstanding Securities shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders not
consenting.
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SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive
any past default hereunder and its consequences, except a default
(1) in respect of the payment of the principal of or interest on any
Security, or any Additional Amounts payable, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
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SECTION 514. Waiver of Stay or Extension Laws.
The Company 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 wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (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.
SECTION 515. Company's Agent for Service of Process and Submission to New York
Jurisdiction.
The Company hereby irrevocably designates CT Corporation System as its
authorized agent for service of process in any legal action or proceeding
arising out of or in relation to this Indenture or the Securities brought in any
federal or state court in the Borough of Manhattan, The City of New York, New
York, and the Company hereby irrevocably submits to the non-exclusive
jurisdiction of such courts.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine
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whether or not they conform to the requirements of this Indenture (but
need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as
a prudent person would exercise or use under the circumstances in the
conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgement
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series, determined as provided in
Sections 101, 104 and 512, 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 with respect to the Securities of such series; and
(4) 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
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.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
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(e) Within 90 days after the occurrence of any Default hereunder, the
Trustee shall transmit in the manner and to the extent provided in TIA
Section 313(c), notice of such Default hereunder known to the Trustee,
unless such Default shall have been cured or waived; provided, however,
that, except in the case of a Default in the payment of the principal of or
interest on any Security, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of
the Trustee in good faith determines that the withholding of such notice is
in the interest of the Holders; and provided further that, in the case of
any Default of the character specified in Section 501(4), no such notice to
Holders shall be given until at least 10 days after the occurrence thereof.
SECTION 602. Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through 315(d):
(1) the Trustee may conclusively 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;
(2) 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;
(3) 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 conclusively part, rely upon an Officer's Certificate;
(4) the Trustee may consult with counsel of its choice and the written
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;
(5) 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
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or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) 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,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney [at the sole cost of the
Company and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation];
(7) 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;
(8) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture;
[(9) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities and this indenture;
(10) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in
each of its capacities hereunder, and to each agent, custodian and other
Person employed to act hereunder; and
(11) the Trustee may request that the Company deliver an Officer's
Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officer's Certificate may be signed by any person
authorized to sign an Officer's Certificate, including any person specified
as so authorized in any such certificate previously delivered and not
superseded.]
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The Trustee shall not be required 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.
SECTION 603. Trustee Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except for the
Trustee's certificates 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 a Statement of Eligibility on Form T-1 supplied to the Company are true
and accurate, subject to the qualifications set forth therein. The Trustee shall
not be accountable for the use or application by the Company of Securities or
the proceeds thereof.
SECTION 604. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar or any other agent of
the Company or of the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Securities and, subject to TIA Sections 310(b)
and 311, may otherwise deal with the Company with the same rights it would have
if it were not Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 606. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as the
Company and the Trustee shall from time to time agree in writing 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);
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(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify each of the Trustee and any of its agents for, and to
hold them harmless against, any and all loss, damage, liability, claims or
expense, including taxes, incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of this trust, including the costs and expenses of defending itself against
any claim (whether asserted by the Company, or any Holder, or any other
person) 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 to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. As security for the performance of such obligations
of the Company, the Trustee shall have a claim prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of or interest on particular Securities
pursuant to Section 1003.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(5), the expenses (including the
reasonable charges and expenses of its counsel) of and the compensation for such
services are intended to constitute expenses of administration under any
applicable bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of
this Indenture and the resignation or removal of the Trustee.
SECTION 607. Corporate Trustee Required; Eligibility.
There shall be at all times a Trustee hereunder which shall be eligible to
act as Trustee under TIA Section 310(a)(1) and shall have a combined capital and
surplus of at least US$50,000,000 and has its Corporate Trust Office in the City
of New York. If such corporation 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 and to the extent permitted by the Trust Indenture Act,
the combined capital and
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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, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor.
(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 609.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 609 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of
not less than a majority in principal amount 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 TIA
Section 310(b) 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 607 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 at
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 TIA Section 315(e), any Holder who has been
a bona fide Holder of a Security for
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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 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. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities delivered to the Company and the retiring Trustee,
the successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment, become the successor Trustee and supersede the successor
Trustee appointed by the Company. If no successor Trustee shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner hereinafter provided, 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.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to the Holders
of Securities in the manner provided for in Section 106. Each notice shall
include the name of the successor Trustee and the address of its Corporate
Trust Office.
SECTION 609. Acceptance of Appointment by Successor.
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; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder. 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 and trusts.
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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SECTION 610. 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, shall be the successor of the Trustee hereunder,
provided 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 any of the Securities shall not have been authenticated by such predecessor
Trustee, 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 that this
Indenture provides for the certificate of authentication of the Trustee;
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 611. Appointment of Co-Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction
in which the Company is located or doing business, the Trustee shall have
the power and may execute and deliver all instruments necessary to appoint
one or more Persons to act as a co-trustee or co-trustees, or separate
trustee or separate trustees, of all or any part of the Securities, and to
vest in such Person or Persons, in such capacity and for the benefit of the
Holders, such title to the Securities or any part thereof, and subject to
the other provisions of this Section, such powers, duties, obligations,
rights and trusts as the Trustee may consider necessary or desirable. No
co-trustee or separate trustee hereunder shall be required to meet the
terms of eligibility as a successor trustee under Section 6.07 and no
notice to Holders of the appointment of any co-trustee or separate trustee
shall be required under Section 6.07 hereof.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed
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by the Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not
authorized to act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of
title to the Securities or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Trustee;
(ii) no trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder; and
(iii) the Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture
and the conditions of this Section 611. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested
with the estates or property specified in its instrument of appointment,
either jointly with the Trustee or separately, as may be provided therein,
subject to all the provisions of this Indenture, specifically including
every provision of this Indenture relating to the conduct of, affecting the
liability of, or affording protection or rights (including the rights to
compensation, reimbursement and indemnification hereunder) to, the Trustee.
Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Trustee its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of
this Indenture on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and
be exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.]
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that none of the Company or the Trustee or any agent
of either of them shall be held accountable by reason of the disclosure of any
such information as to the names and addresses of the Holders in accordance with
TIA Section 312, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee.
Within 60 days after _________ of each year commencing with the first
__________ after the first issuance of Securities, the Trustee shall transmit to
the Holders, in the manner and to the extent provided in TIA Section 313(c), a
brief report dated as of such ___________ if required by TIA Section 313(a).
SECTION 703. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it shall file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information,
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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; and
(3) transmit by mail to all Holders, in the manner and to the extent
provided in TIA Section 313(c), within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other corporation
or, together with or through one or more of its Subsidiaries, convey, transfer
or lease all or substantially all of the properties and assets of the Company
and its Subsidiaries on a consolidated basis to any Person, unless:
(1) (A) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as
an entirety (a) shall be a corporation, partnership or trust organized and
validly existing under the laws of Hong Kong and (b) shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in a form satisfactory to the Trustee, the Company's obligation
for the due and punctual payment of the principal of and interest on all
the Securities and the performance and observance of every covenant of this
Indenture on the part of the Company to be performed or observed , and
(B) such supplemental indenture shall (a) provide that the Holder of each
Security then Outstanding will have the rights, during the Conversion
Period, to convert the Security into the kind and amount of Ordinary
Shares, other securities, cash or other assets (with the Conversion Price
appropriately allocated to such Ordinary Shares, other securities, cash or
other assets) receivable upon the consolidation, merger, sale or similar
events by a Holder of the number of Ordinary Shares into which the Security
might have been converted immediately prior to that consolidation, merger,
sale, transfer or similar events, and (b) provide for adjustments to
Conversion Price which, for events subsequent to the effective date of such
supplemental
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indenture, shall be as nearly equivalent as may be practicable to the
adjustments provided for under Section 1304;
(2) immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing; and
(3) the Company or such Person shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and such supplemental
indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
This Section shall only apply to a merger or consolidation in which the
Company is not the surviving corporation and to conveyances, leases and
transfers by the Company as transferor or lessor.
SECTION 802. Successor Person Substituted.
Upon any consolidation by the Company with or merger by the Company into
any other corporation or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety to any Person in accordance
with Section 801, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and in the event of any
such conveyance or transfer, the Company (which term shall for this purpose mean
the Person named as the "Company" in the first paragraph of this Indenture or
any successor Person which shall theretofore become such in the manner described
in Section 801), except in the case of a lease, shall be discharged of all
obligations and covenants under this Indenture and the Securities and may be
dissolved and liquidated.
SECTION 803. Securities to Be Secured in Certain Events.
If, upon any such consolidation of the Company with or merger of the
Company into any other corporation, or upon any conveyance, lease or transfer of
the property of the Company as an entirety or substantially as an
entirety to any other Person, any Property of the Company or of any Material
Subsidiary would thereupon become subject to any pledge, mortgage, lien, charge,
encumbrance or security interest, then unless such pledge, mortgage, lien,
charge, encumbrance or security interest could be created pursuant to
Section 1008 without
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equally and ratably securing the Securities, the Company, prior to or
simultaneously with such consolidation, merger, conveyance, lease or transfer,
will, as to such Property, secure the Securities Outstanding hereunder (together
with, if the Company shall so determine, any other Debt of the Company now
existing or hereafter created which is not subordinate to the Securities)
equally and ratably with (or prior to) the Debt which upon such consolidation,
merger, conveyance, lease or transfer is to become secured as to such Property
by such pledge, mortgage, lien, charge, encumbrance or security interest, or
will cause such Securities to be so secured.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, 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:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
contained herein and in the Securities in connection with a consolidation,
merger, conveyance, transfer, lease or similar events effected in
compliance with Section 801 hereof; or
(2) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default; or
(4) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee pursuant to the requirements of
Section 609; or
(5) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture; provided that such action shall not adversely affect
the interests of the Holders in any material respect; or
(6) to secure the Securities pursuant to the requirements of
Section 803 or 1008 or otherwise.
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SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of or any installment
of interest on any Security, or reduce the principal amount thereof or the
rate of interest thereon, or adversely affect any right of repayment at the
option of any Holder, or reduce the obligation of the Company to pay
Additional Amounts, or change the currency or place in which any Security
or any interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment after the Stated Maturity thereof
(or, in the case of redemption or repayment at the option of the Holder, on
or after the Redemption Date or Repayment Date, as the case may be), or
(2) adversely modify, cancel or adversely affect the Holders'
conversion right (including by increasing the Conversion Price except for
adjustments under Section 1304) or alter the redemption provisions with
respect to any Security in a manner adverse to the Holder thereof, or
(3) reduce the percentage in 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
(4) modify any of the provisions of this Section or Sections 513 and
1011, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby.
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.
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SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
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 and delivered
hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to the Article 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 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
Company, 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.
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.
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ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Interest and Additional Amounts.
The Company covenants and agrees for the benefit of the Holders that it
will duly and punctually pay the principal of and interest on the Securities in
accordance with the terms of the Securities and this Indenture.
All payments of, or in respect of, principal of and interest on the
Securities shall be made without withholding or deduction for, or on account of,
any present or future taxes, duties, assessments or governmental charges of
whatever nature imposed or levied by or on behalf of Hong Kong unless these
taxes, duties, assessments or governmental charges are required by Hong Kong to
be withheld or deducted. In that event, the Company agrees to pay by way of
additional interest such additional amounts of, or in respect of, principal and
interest ("Additional Amounts") as will result (after deduction of such taxes,
duties, assessments or governmental charges and any additional taxes, duties,
assessments or governmental charges of Hong Kong) in the payment to each Holder
of a Security of the amounts that would have been payable in respect of such
Security had no withholding or deduction been required, except that no
Additional Amounts shall be payable for or on account of:
(i) any tax, duty, assessment or other governmental charge that would
not have been imposed but for the fact that such Holder:
(A) was a resident, domiciliary or national of, or engaged in
business or maintained a permanent establishment or was physically
present in, Hong Kong or otherwise had some connection with Hong Kong
other than the mere ownership of, or receipt of payment under, such
Security; or
(B) presented such Security more than 30 days after the date on
which the payment in respect of such Security first became due and
payable or provided for, whichever is later, except to the extent that
the Holder would have been entitled to such Additional Amounts if it
had presented such Security for payment on any day within such period
of 30 days;
(ii) any estate, inheritance, gift, sale, transfer, personal property
or similar tax, assessment or other governmental charge;
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(iii) any tax, duty, assessment or other governmental charge which is
payable otherwise than by deduction or withholding from payment of
principal of or interest on the Securities;
(iv) any tax, assessment or other governmental charge that is imposed
or withheld by reason of the failure to comply by the Holder or the
beneficial owner of a Security with a request by the Company addressed to
the Holder (A) to provide information concerning the nationality, residence
or identity of the Holder or such beneficial owner or (B) to make any
declaration or other similar claim or satisfy any information or reporting
requirement, which, in the case of (A) or (B), is required or imposed by a
statute, treaty, regulation or administrative practice of the taxing
jurisdiction as a precondition to exemption from all or part of such tax,
assessment or other governmental charge; or
(v) any combination of the items listed above;
nor shall Additional Amounts be paid with respect to any payment of the
principal of or interest on any Security to any Holder who is a fiduciary or
partnership or other than the sole beneficial owner of the payment to the extent
that payment would be required by the laws of Hong Kong to be included in income
for tax purposes of the fiduciary if the beneficial owner would not otherwise
have been entitled to the Additional Amounts.
Any reference herein to the payment of the principal of or interest on any
Security shall be deemed to include the payment of Additional Amounts provided
for in this Indenture to the extent that, in such context, Additional Amounts
are, were or would be payable under this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in Luxembourg, The City of New York and Hong Kong
an office or agency where Securities may be presented or surrendered for
payment, where Securities may be presented for conversion, where Securities may
be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The office of the Trustee in The City of New York and the office
of an affiliate of the Trustee in Hong Kong shall serve as such office or agency
of the Company in The City of New York and Hong Kong, respectively. The offices
of Banque Internationale a Luxembourg S.A. in Luxembourg shall serve as the
office or agency of the Company in Luxembourg. The Company will give prompt
written notice to the Trustee of any change in the location of any such offices
or agencies. If at any time the Company shall fail to maintain any such required
offices or agencies or shall fail to furnish the Trustee with the
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addresses thereof, such presentations, surrenders, notices and demands may be
made or served at the offices of the Trustee or Banque Internationale a
Luxembourg S.A. in the relevant locations, and the Company hereby appoints the
Trustee and Banque Internationale a Luxembourg S.A. ("BIL") as its Paying Agent
to receive all such presentations, surrenders, notices and demands. The
Principal Security Register of the Securities will be kept by the Trustee in New
York. The Company also hereby appoints the Trustee as the Conversion Agent.
[Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates).]
The Company may also from time to time designate one or more other offices
or agencies (in or outside of Luxembourg or The City of New York) where the
Securities may be presented or surrendered for any or all such purposes and may
from time to time rescind any such designation; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each of Luxembourg and The City of
New York for such purposes and provided, further, that the Company shall be
required at all times to maintain such an office or agency in each place of
payment for the Securities. The Company will give prompt written notice to the
Trustee of any such designation or rescission and any change in the location of
any such other office or agency.
SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will, on
or before each due date of the principal of 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 of 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 in writing of its action or
failure so to act.
The Company shall, on or before each due date of the principal of, or
interest on, any Securities, deposit with a Paying Agent a sum sufficient to pay
the principal or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee in
writing of such action or any failure so to act.
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The Company will cause each Paying Agent (other than the Trustee and BIL)
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:
(1) hold all sums held by it for the payment of the principal of or
interest on 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;
(2) give the Trustee written notice of any default by the Company (or
any other obligor upon the Securities) in the making of any payment of
principal or interest; and
(3) 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.
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 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
sums.
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 or interest on any
Security and remaining unclaimed for two years after such principal or interest
has become due and payable shall 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, 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 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 of New York,
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,
any unclaimed balance of such money then remaining will be repaid to the
Company.
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Claims in respect of payment of principal of, and interest on, the
Securities will be prescribed unless made within a period of ten years, in the
case of principal, and five years, in the case of interest, from the date when
the relevant principal or interest becomes due and payable.
SECTION 1004. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year, a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer as to his or her
knowledge of the Company's compliance with all conditions and covenants under
this Indenture. For purposes of this Section 1004, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
SECTION 1005. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Material
Subsidiary or upon the income, profits or property of the Company or any
Material Subsidiary and (2) all material lawful claims for labor, materials and
supplies which, if unpaid, might by law become a pledge, mortgage, lien, charge,
encumbrance or security interest upon any Property of the Company or any
Material Subsidiary; provided, however, that the Company shall not be required
to pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
SECTION 1006. Maintenance of Principal Properties.
The Company will cause all Principal Properties to be maintained and kept
in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent or restrict the sale,
abandonment or other disposition of any of such Principal Properties if such
action is, in the judgment of the Company, desirable in the conduct of the
business of the Company and its Subsidiaries as a whole and not disadvantageous
in any material respect to the Holders.
SECTION 1007. Corporate Existence.
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Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the rights (charter and statutory) and franchises of the Company
and any Material Subsidiary; provided, however, that the Company shall not be
required to preserve any such right or franchise if the Company shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries as a whole.
SECTION 1008. Limitation on Security Interests.
So long as any of the Securities remains Outstanding, the Company agrees
that it will not, and will procure that its Subsidiaries will not, grant or
permit to be outstanding, any mortgage, charge, lien, pledge or any other
security interest (a "Security Interest") on any of its or its Subsidiaries'
present or future assets or revenues to secure the repayment of, or any
guarantee or indemnity in respect of, any Debt unless such Securities are
secured by a Security Interest equally and ratably with such other Debt. This
provision, however, will not apply to any:
(i) Security Interest existing prior to the date of this Indenture;
(ii) Security Interest to secure the payment of all or any part of
the purchase price or construction cost of any Property or asset
or to secure any Debt incurred prior to, or at the time of, the
acquisition or the completion of construction of the Property or
asset for the purpose of financing all or any part of that
purchase price or construction cost;
(iii) lien arising by operation of law, including but not limited to
liens of a landlord, carrier, warehouseman, mechanic or
materialman incurred in the ordinary course of business for a
sum not yet due or the payment of which is being contested in
good faith;
(iv) Security Interest existing on (A) any property or asset of any
entity at the time the entity becomes one of the Company's
Subsidiaries or (B) any property or asset at the time it is
acquired by the Company or one of the Company's Subsidiaries;
(v) Security Interests securing Debt owed by one of the Company's
Subsidiaries to the Company or another of the Company's
Subsidiaries;
(vi) liens incurred or deposits made in the ordinary course of
business in connection with social security, workers'
compensation, unemployment insurance and similar types of laws
or regulations;
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(vii) liens for taxes or assessments or other applicable governmental
charges or levies;
(viii) attachment, judgment and other similar liens arising in
connection with court proceedings which are effectively stayed
while the underlying claims are being contested in good faith by
appropriate proceedings;
(ix) rights of set-off or similar rights of a financial institution
with respect to deposits or other accounts of the Company or any
of its Subsidiaries held by such financial institution in an
amount not to exceed the aggregate amount owed to such financial
institution by the Company or such Subsidiary, as the case may
be;
(xi) liens on documents and the goods they represent in connection
with letters of credit and similar transactions entered into in
the ordinary course of business;
(xii) easements, rights of way and other similar restrictions or
encumbrances not materially interfering with the ordinary
conduct of the Company's business or the business of its
Subsidiaries;
(xiii) Security Interests securing other Debt not exceeding in
aggregate principal amount at any time of determination an
amount equal to 10% of the Company's Consolidated Net Tangible
Assets; or
(xiv) renewal, extension or replacement (in whole or in part) of any
Security Interest permitted under this Indenture.
SECTION 1009. Limitation on Sale and Leaseback Transactions.
So long as any of the Securities remains Outstanding, the Company agrees
that it will not, and will not permit any of its Subsidiaries to, enter into any
Sale and Leaseback Transaction with respect to any Property unless:
(i) the aggregate amount of Attributable Debt with respect to all
outstanding Sale and Leaseback Transactions entered into by the
Company and its Subsidiaries is less than 10% of the Company's
Consolidated Net Tangible Assets; or
(ii) the direct or indirect proceeds of the sale of the Property to
be leased are at least equal to their fair value, as determined
by the Board of Directors, and an amount equal to the net
proceeds is applied, within 180 days of the effective date of
the transaction, to:
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(A) the purchase, acquisition or commencement of the
construction, of property or assets; or
(B) the retirement of the Securities, other than at Maturity; or
(C) the repayment of funded Debt of the Company or one of the
Company's consolidated Subsidiaries that ranks on a parity with or
senior to the Securities;
subject to credits for voluntary retirement of funded Debt and
delivery of Securities to the Trustee for retirement and
cancellation.
SECTION 1010. Limitation on Subsidiary Indebtedness.
For so long as any Securities remain Outstanding, the Company agrees that
it will not permit any of its Subsidiaries to incur any additional Debt if the
aggregate Debt of its Subsidiaries following such incurrence exceeds 120% of the
Company's consolidated Adjusted EBITDA for the most recently completed
twelve-month period. This provision, however, will not apply to Debt owed by any
of the Company's Subsidiaries to the Company or any of its other Subsidiaries.
SECTION 1011. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Section 803 or Sections 1005 to 1010,
inclusive, or provided pursuant to Section 901(2) if before the time for such
compliance the Holders of not less than a majority in principal amount of the
Outstanding Securities, by Act of such Holders, waive such compliance in such
instance with such term, provision or condition, but no such waiver shall extend
to or affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Redemption for Taxation Reasons.
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The Securities are to be redeemable at the option of the Company, as a
whole but not in part, on any date at a Redemption Price equal to 100% of the
principal amount plus any accrued and unpaid interest to the Redemption Date if
the Company determines that, as a result of any change in or amendment to the
laws or any regulations or rulings promulgated thereunder of Hong Kong or any
political subdivision or taxing authority thereof or therein, or any change in
the official application or interpretation of such laws, regulations or rulings,
or any change in the official application or interpretation of, or any execution
or amendment to, any treaty or treaties affecting taxation to which Hong Kong is
a party, which change, execution or amendment becomes effective on or after the
original issue date of the Securities, the Company has been or will be required
to pay Additional Amounts with respect to the Securities as described under
Section 1001.
SECTION 1102. Redemption at the Option of the Company.
The Securities will be redeemable at the option of the Company, in whole
but not in part, at any time on or after _______, at a Redemption Price equal to
100% of the principal amount plus any accrued and unpaid interest to the
Redemption Date (subject to the right of Holders of record of the Securities on
the relevant Regular Record Date to receive interest due on an Interest Payment
Date that is on or prior to the Redemption Date); provided, however, that no
such redemption may be made unless the closing price per Ordinary Share on the
Hong Kong Stock Exchange for each of the 30 consecutive Trading Days (translated
into US dollars at the Prevailing Exchange Rate on such Trading Day), the last
of which occurs not more than five days prior to the date on which notice of
such redemption is given, is at least __% of the Conversion Price per Ordinary
Share as adjusted through, and effective on, such notice date (translated into
US dollars at the Fixed Exchange Rate).
Notwithstanding the foregoing, the Company may redeem all of the
Securities, at a Redemption Price equal to 100% of the principal amount plus
accrued and unpaid interest to the Redemption Date if at anytime the aggregate
principal amount of the Securities Outstanding is less than 5% of the aggregate
principal amount of the Securities originally issued.
SECTION 1103. 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.
SECTION 1104. Election to Redeem; Notice to Trustee; Opinion of Counsel.
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The election of the Company to redeem any Securities pursuant to Section
1101 or Section 1102 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.
Prior to any redemption pursuant to Section 1101, the Company agrees to provide
the Trustee with an Opinion of Counsel that the conditions precedent to such
redemption have occurred. Prior to any redemption pursuant to Section 1102, the
Company agrees to provide the Trustee with an Officer's Certificate setting
forth the relevant closing prices or the amount of Securities Outstanding and
the amount originally issued and its conclusion that the conditions precedent to
such redemption have occurred.
SECTION 1105. Notice of Redemption.
Notice of redemption shall be given in the manner provided for in Section
106 not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed.
All notices of redemption shall set forth:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to the
Redemption Date payable as provided in Section 1107, if any,
(3) that on the Redemption Date, the Redemption Price (and accrued
interest, if any, to the Redemption Date payable as provided in Section
1107) will become due and payable upon each such Security to be redeemed,
and that interest thereon will cease to accrue on and after said date,
(4) whether the redemption is pursuant to Section 1101 or 1102 and a
brief description of such section, and
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price and accrued interest, if any.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company, in which case the Trustee
shall provide the Company with a notice
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stating the date on which such notice of redemption was mailed to Holders and/or
proof that such notice of redemption was published, in each case in accordance
with Section 106.
SECTION 1106. Deposit of Redemption Price.
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 accrued interest on, all the
Securities which are to be redeemed on that date.
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 (together with accrued interest, if any, to
the Redemption Date), 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. 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, if any, to the
Redemption Date; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their 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 shall, until paid, bear interest from the
Redemption Date at the rate borne by the Securities.
ARTICLE TWELVE
REPAYMENT AT OPTION OF HOLDERS
SECTION 1201. Applicability of Article.
Upon the occurrence of a Repayment Event, each Holder of the Securities
shall have the right to require repayment by the Company for all (or any
portion) of such Holder's Securities in cash at 100% of the unpaid principal
amount plus accrued and unpaid interest to the Repayment Date (subject to the
right of Holders of record of the Securities on the relevant
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Regular Record Date to receive interest due on an Interest Payment Date that is
on or prior to the Repayment Date) in accordance with provisions of this
Article Twelve.
SECTION 1202. Repayment of Securities.
The Company covenants that prior to the Repayment Date it will 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 Repayment Price of and (except if the Repayment
Date shall be an Interest Payment Date) accrued and unpaid interest on, all the
Securities or portions thereof, as the case may be, to be repaid on such
Repayment Date.
SECTION 1203. Exercise of Option.
In order to be repaid at the option of the Holder, any Security so
providing for such repayment, with the "Notice to Elect Repayment" form thereon
duly completed by the Holder (or by the Holder's attorney duly authorized in
writing), must be received by the Company at its office or agency for such
purpose not later than the date specified by the Company in its notice of the
Repayment Event in accordance with Section 1206. If less than the entire
principal amount of such Security is to be repaid, the principal amount of such
Security to be repaid, in increments of US$1,000, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security may not be
repaid in part if, following such repayment, the unpaid principal amount of such
Security would be less than US$1,000. The exercise of the repayment option by
the Holder of any Security shall be irrevocable unless waived by the Company.
SECTION 1204. When Securities Presented for Repayment Become Due and Payable.
Any Securities surrendered for repayment as provided in this Article shall
become due and payable and shall be paid by the Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless the Company
shall default in the payment of such Securities on such Repayment Date) such
Securities shall cease to bear interest. Upon surrender of any such Security for
repayment in accordance with such provisions the Repayment Price of such
Security to be repaid shall be paid by the Company, together with accrued
interest, if any, to the Repayment Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Repayment Date shall be
payable to the Holders of such Securities, or one or more
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Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of
Section 307.
If the Repayment Price of any Security surrendered for repayment shall not
be so paid upon surrender thereof, such Repayment Price (together with interest,
if any, thereon accrued to such Repayment Date) shall, until paid, bear interest
from the Repayment Date at the rate of interest borne by the Securities.
SECTION 1205. Securities Repaid in Part.
Subject to Section 205 in the case of global Securities, upon surrender of
any Security which is to be repaid in part only, the Company shall execute and
the Trustee shall authenticate and deliver to the Holder of such Security,
without service charge and at the expense of the Company, a new Security or
Securities of the same series, of any authorized denomination specified by the
Holder, in an aggregate principal amount equal to and in exchange for the
portion of the principal of such Security so surrendered which is not to be
repaid.
SECTION 1206. Notice of Repayment Event.
Notice of a Repayment Event shall be given in the manner provided for in
Section 106 as soon as practicable, but in no event later than 5 days after we
become aware of the occurrence of such event, to the Trustee and each Holder of
Securities to be redeemed.
All notices of a Repayment Event shall identify such Repayment Event and
its date of occurrence and state:
(1) the Repayment Date, which shall be the date that is 45 days from
the notice day (or, if not a Business Day, the next succeeding Business Day
thereafter), and the date by which the "Notice to Elect Repayment" must be
received, which shall be the date that is 10 days prior to the Repayment
Date (or, if not a Business Day, the next succeeding Business Day
thereafter);
(2) the Repayment Price and the amount of accrued interest to the
Repayment Date payable as provided in Section 1204, if any;
(3) that on the Repayment Date, the Repayment Price (and accrued
interest, if any, to the Repayment Date payable as provided in
Section 1204) will become due and payable upon each such Security to be
repaid, and that interest thereon will cease to accrue on and after
said date; and
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(4) the place or places where such Securities are to be surrendered
for payment of the Repayment Price and accrued interest, if any.
Notice of any Repayment Event shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense of the Company,
in which case the Trustee shall provide the Company with a notice stating the
date on which such notice was mailed to Holders and/or proof that such notice
was published, in each case in accordance with Section 106.
ARTICLE THIRTEEN
CONVERSION
SECTION 1301. Conversion Right.
Subject to the further provisions of this Section 1301, a Holder of a
Security may convert such Security (or a portion thereof equal to US$1,000 or
any integral multiple thereof) into Ordinary Shares of the Company at any time
after 30 days from the original issuance of the Securities and before the close
of business on the third Business Day preceding _____, at the Conversion Price
then in effect; provided, however, that, if such Security is called for
redemption pursuant to Article Eleven, such conversion right shall terminate at
the close of business on the third Business Day preceding the Redemption Date
for such Security (unless the Company shall default in making the redemption
payment when due, in which case the conversion right shall terminate at the
close of business on the date such default is cured and such Security is
redeemed) (such period during which the Securities are convertible, the
"Conversion Period").
The number of Ordinary Shares issuable upon conversion of a Security (or a
portion thereof equal to US$1,000 or any integral multiple thereof) shall be
determined by dividing the principal amount (translated into Hong Kong dollars
at the Fixed Exchange Rate) of the Security or portion thereof surrendered for
conversion by the Conversion Price per Ordinary Share in effect on the
Conversion Date. The Ordinary Shares issuable upon conversion will be duly
authorized, validly issued, fully paid and nonassessable and will rank equally
with all other Ordinary Shares.
A Holder may elect to receive Ordinary Shares upon conversion in the form
of ADSs. In such event, the Company shall, on behalf of such Holder, deliver to
and deposit with the ADS depositary or its custodian, in accordance with the
terms of the ADS Deposit Agreement, such number of Ordinary Shares such Holder
would have received upon conversion had such Holder not elected to receive such
Ordinary Shares in the form of ADSs. Such Ordinary Shares will be
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registered in the name of the ADS depositary or its nominee. Subject to
compliance with the terms of the ADS Deposit Agreement, including payment of the
fees and expenses of the ADS depository by such Holder, the ADS depository will
issue such number of ADSs representing the deposited Ordinary Shares to such
Holder based on the applicable share-to-ADS ratio then in effect. For the
avoidance of doubt, such number of ADSs can also be determined by dividing the
principal amount of this Security or portions thereof surrendered for conversion
by the Conversion Price per ADS in effect on the Conversion Date.
A Security may not be converted if a Holder has delivered a "Notice to
Elect Repayment" form in respect of such Security pursuant to Article Twelve
exercising the option of such Holder to require repayment by the Company for
such Security.
Upon conversion, with effect from the Registration Date (as defined in
Section 1302), the Company will deem the person designated in the conversion
notice as the holder of record of the applicable number of Ordinary Shares, but
beginning on the Conversion Date (as defined in Section 1302) such converting
Holder shall cease to have any right as a Holder with respect to the Securities
surrendered for conversion.
SECTION 1302. Conversion Procedure.
To convert a Security, a Holder must (a) complete and manually sign the
Conversion Notice in substantially the form included in the form of Securities
in Section 203 and deliver such notice to the Conversion Agent at its own
expense, (b) surrender the Security to the Conversion Agent duly endorsed or
assigned to the Company or in blank, (c) furnish appropriate endorsements and
transfer documents (if any) required by the Registrar or the Conversion Agent,
and (d) pay any required transfer or similar tax and make any other required
payment. The date on which the Holder satisfies all of those requirements is the
"Conversion Date."
As soon as practicable, and in any event not later than 14 days, after the
Conversion Date (or such longer period as may be required to comply with any
applicable fiscal or other laws or regulations), the Company will register the
person or persons designated for the purpose in the Conversion Notice as
holder(s) of the relevant number of Ordinary Shares in its share register and
will cause its share registrar to mail (at the risk, and, if sent at the request
of such person otherwise than by ordinary mail, at the expense, of the person to
whom such certificate or certificates are sent) such certificate or certificates
for such Ordinary Shares to the person or persons and at the place specified in
the Conversion Notice. The person or persons specified for that purpose will
become the holder of record of the number of Ordinary Shares issuable upon
conversion with effect from the date he is or they are registered as such in the
Company's share register (the "Registration Date"). [The Ordinary Shares issued
upon conversion of the Securities will in all respects rank parti passu
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with the Ordinary Shares in issue on the relevant Registration Date.] A holder
of Ordinary Shares issued on conversion of Securities shall not be entitled to
any rights of a shareholder the record date for which precedes the relevant
Registration Date.
If the record date for the payment of any dividend or other distribution in
respect of the Ordinary Shares is on or after the Conversion Date in respect of
any Securities converted, but before the Registration Date, the Company shall
pay to the converting Holder an amount equal to any such dividend or other
distribution to which he would have been entitled had he on that record date
been such a shareholder of record of such number Ordinary Shares issued upon
conversion (taking into account any retroactive adjustment of the Conversion
Price pursuant to the fourth paragraph of Section 1305), and will make such
payment at the same time as it makes payment of the dividend or other
distribution, or as soon as practicable thereafter, but, in any event, not later
than seven days thereafter.
No payment or adjustment will be made for accrued interest on a Security
delivered for conversion. The delivery to a Holder of the fixed number of
Ordinary Shares into which the Security is convertible will be deemed to satisfy
the Company's obligation to apply the principal amount and any accrued and
unpaid interest attributable to the period from the issue date to the Conversion
Date.
If any Holder surrenders a Security for conversion after the close of
business on the Regular Record Date for the payment of an installment of
interest and before the close of business on the related Interest Payment Date,
then, notwithstanding such conversion, the interest payable on such Interest
Payment Date shall be paid to the Holder of such Security on such Regular Record
Date. In such event, unless such Security has been called for redemption on a
Redemption Date prior to such Interest Payment Date, such Security, when
surrendered for conversion, must be accompanied by delivery of a check or draft
payable to a Person designated by the Company in an amount equal to the interest
payable on such Interest Payment Date on the portion so converted. If such
payment does not accompany such Security, the Security shall not be converted.
If the Company defaults in the payment of interest payable on the Interest
Payment Date, such funds shall be repaid to the Holder.
Fractions of Ordinary Shares will not be issued on conversion, and no cash
adjustments will be made in respect of any such fraction. Similarly, under the
ADS Deposit Agreement, fractions of ADSs will not be issuable upon conversion
and deposit of the Ordinary Shares with the ADS depositary, and no cash
adjustments will be made in respect of any such fraction.
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If a Holder converts more than one Security at the same time, the number of
Ordinary Shares or ADSs issuable upon the conversion shall be based on the
aggregate principal amount of Securities converted. Upon surrender of a Security
that is converted in part, the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder, a new Security equal in principal amount
to the unconverted portion of the Security surrendered.
A conversion notice once given will be irrevocable and may not be withdrawn
without the prior written consent of the Company. The Company or the Conversion
Agent on its behalf may reject any incomplete or incorrect conversion notice.
All costs and expenses incurred by an incomplete or incorrect conversion notice
will be for the account of the relevant Holder.
SECTION 1303. Taxes and Expenses on Conversion.
As conditions precedent to conversion, the Holder must pay to the
Conversion Agent any taxes and capital, stamp, issue and registration duties
arising on conversion, other than any taxes or capital or stamp duties payable
in Hong Kong in respect of the allotment and issuance of the Ordinary Shares and
listing of the Ordinary Shares upon conversion. In addition, the Holder will be
required to pay any tax or duty relating to any disposal or any deemed disposal
relating to conversion and transfer involved in the issue or delivery of the
Ordinary Shares upon conversion in a name other than such Holder's. The Company
will pay all other expenses arising on the issue, allotment and delivery of the
Ordinary Shares issuable upon conversion.
SECTION 1304. Adjustment of Conversion Price.
The Conversion Price per Ordinary Share and per ADS shall be adjusted from
time to time by the Company as follows:
In each case, the adjusted Conversion Price is determined by multiplying
the Conversion Price before adjustment, denoted as "P", by an applicable
adjustment factor. The formulae for determining the adjustment factors are set
forth in the following subsections. In each case, the Conversion Price will be
adjusted with effect from the end of business in Hong Kong on the applicable
Adjustment Effective Date. In the event that the share-to-ADS ratio is changed,
the Conversion Price before adjustment (or P) per ADS used in each adjustment
calculation will be re-set accordingly.
(a) If the Company:
(i) pays a dividend or makes a distribution on any class of its
Capital Stock in the form of Ordinary Shares other than a cash dividend or
distribution that permits the recipient
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to elect to receive Ordinary Shares instead of cash (all reference to
"dividend" in this Section 1304 (a)(i) being a dividend other than an
Extraordinary Dividend defined below);
(ii) splits or reclassifies the outstanding Ordinary Shares into a
greater number of Ordinary Shares; or
(iii) consolidates or reclassifies the outstanding Ordinary Shares
into a lesser number of Ordinary Shares,
then the Conversion Price will be adjusted as follows:
X
Adjusted Conversion Price = P x ---
Y
where:
"X" means the number of Ordinary Shares outstanding immediately prior
to the relevant Adjustment Effective Date; and
"Y" means the number of Ordinary Shares outstanding immediately after
the relevant Adjustment Effective Date.
The Adjustment Effective Date, in the case of (a)(i) above, shall be the
record date set for the relevant dividend or distribution giving rise to the
adjustment. The Adjustment Effective Date, in the case of (a)(ii) and
(a)(iii) above, shall be the date on which the relevant split, consolidation or
reclassification giving rise to the adjustment becomes effective.
(b) If (A) the Company issues Ordinary Shares, or the Company or any
of its subsidiaries issues any securities or rights which are convertible
into or exchangeable for Ordinary Shares, or issue any warrants or rights
to purchase or subscribe for Ordinary Shares, in each case, whether or not
to holders of the Ordinary Shares; and (B) the applicable issue,
conversion, exchange, purchase or subscription price per Ordinary Share,
after taking into account any per share consideration received by the
Company in respect of such issuance, is below 95% of the Average Market
Price as of the date of announcement of details concerning such applicable
issue, conversion, exchange, purchase or subscription price,
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the Conversion Price will be adjusted as follows:
(S + f)
Adjusted Conversion Price = P x -------
(S + a)
where:
"S" means the number of Ordinary Shares outstanding at the close of
business on the date of announcement of details concerning such applicable
issue, conversion, exchange, purchase or subscription price;
"f" means the number of additional Ordinary Shares which the aggregate
issue, conversion, exchange, purchase or subscription price, reduced by any
aggregate consideration received by the Company in respect of such issuance or
distribution, would purchase at the Average Market Price as of such date of
announcement; and
"a" means the number of additional Ordinary Shares which are issued or are
initially issuable under such issuance or distribution or under the terms of the
securities or rights issued in such issuance or distribution.
The Adjustment Effective Date for an adjustment as a result of issuance or
distribution to all or substantially all holders of the Ordinary Shares in the
case of this subsection (b) shall be the record date the Company sets for such
issuance or distribution. The Adjustment Effective Date for an adjustment as a
result of other issuance in the case of this subsection (b) is the date of
completion of such issuance.
In case of any adjustment as a result of issuance of Ordinary Shares by way
of a rights offering to all or substantially all holders of Ordinary Shares, the
Company may elect to defer the effectiveness of that adjustment until the
subscription period applicable to such rights offering has expired. In that
case, the Conversion Price shall be adjusted using elements "f" and "a" in the
above formula that are calculated on the basis of the actual number of the
Ordinary Shares issued and aggregate purchase price actually paid in the rights
offering. The adjustment shall take effect retroactively from the record date
the Company sets for such rights offering.
No adjustment will be made to the Conversion Price where Ordinary Shares or
other securities, or options or rights to subscribe for or purchase Ordinary
Shares or other securities are issued to employees of the Company or any of its
Subsidiaries or associated companies
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pursuant to any stock option plans, programs or similar arrangements for
employees approved by the shareholders of the Company in accordance with
applicable laws.
(c) If the Company issues or distributes, for less than 95% of their
fair market value, to all or substantially all holders of Ordinary Shares,
(i) securities other than as described in (a) or (b) above,
(ii) assets, other than cash dividends or dividends in kind, in
each case declared and paid in the ordinary course (as defined below),
but, for the avoidance of doubt, including any dividend or portion of
such dividend which constitutes a redemption of share capital as part
of a reduction in par value of the Ordinary Shares, or
(iii) any rights to acquire those securities or assets, then the
conversion price will be adjusted as follows:
(M - d)
Adjusted Conversion Price = P x -------
M
where:
"M" means the Average Market Price per Ordinary Share as of the date
of announcement of terms of such issuance or distribution; and
"d" means the fair market value of the securities, assets or rights to
acquire such securities or assets per Ordinary Shares, minus any per share
consideration received by the Company in such issuance or distribution. The
fair market value will be as determined by the Board of Directors of the
Company, which determination will be conclusive and calculated on the last
Trading Day preceding such date of announcement.
For the purposes of this paragraph (c), "in the ordinary course" shall
mean, with respect to any fiscal year, the declaration and payment by the
Company of no more than (x) an interim dividend with respect to our interim
financial results for such fiscal year and (y) a final dividend with respect to
our full year financial results for such fiscal year.
The Adjustment Effective Date, in the case of this subsection (c), shall be
the record date set for the relevant dividend or distribution giving rise to the
adjustment.
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(d) If the Company issues or distributes an Extraordinary Dividend (as
defined below), the Conversion Price will be adjusted as follows:
(M - e)
Adjusted Conversion Price = P x -------
M
where:
"M" has the same meaning as in subsection (c) above; and
"e" means the amount of Extraordinary Dividend payable per Ordinary
Share.
For purpose of this subsection (d), with respect of a dividend on a certain
date, an Extraordinary Dividend occurs if the Total Current Dividend (as defined
below) as of such date equals or exceeds on a per share basis, and the amount of
such Extraordinary Dividend equals the excess of Total Current Dividend over:
(A) if the Company has never declared or paid any cash dividend: 2% of the
One-Year Average Closing Price (as defined below) of the Ordinary
Shares; or
(B) if the Company has declared and paid at least one cash dividend: the
lower of (1) twice the Reference Dividend (as defined below) and (2)
the Reference Dividend plus 1% of the One-Year Average Closing Price of
the Ordinary Shares.
"Total Current Dividend" means any and all cash dividends declared by
the Company on the Ordinary Shares, prior to the deduction of any
withholding tax plus any corporate tax attributable to that dividend, in
the period starting from the beginning of the fiscal year in which the
record date set for such dividend that may result in an adjustment falls
and ending on and including such record date (including such dividend that
may result in an adjustment), other than any dividend or portion thereof
which previously resulted in an adjustment under this subsection (d).
"Reference Dividend" means, at any time, the largest aggregate amount
of cash dividend(s) declared with respect to any previous fiscal year (or
any interim period of such fiscal year) on a per share basis.
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"One-Year Average Closing Price" is the arithmetic average of the
official closing price per Ordinary Share quoted on the Hong Kong Stock
Exchange for each Trading Day during the 365 consecutive day period ending
on the record date set for such dividend that may result in an adjustment.
The Adjustment Effective Date, in the case of this subsection (d),
shall be the record date set for the relevant dividend or distribution
giving rise to the adjustment.
(e) If the Company determines after consultation with the Trustee that
any other adjustment should be made to the Conversion Price, the Company
will make such adjustment which is fair and reasonable in the opinion of
its Board of Directors.
For purpose of subsection (b) to (d) above:
The "Average Market Price" as of a certain date means the arithmetic mean
of the daily closing prices quoted for the Ordinary Shares on the Hong Kong
Stock Exchange for the ten consecutive Trading Days immediately prior to such
date.
In case of an adjustment under subsection (b) or (c) that becomes effective
on the record date of an issuance or distribution giving rise to the adjustment,
if the actual amount of adjustment cannot be determined on such record date
because certain terms of issuance or distribution have not been determined, the
Company may elect to defer the effectiveness of such adjustment until it can be
determined and such adjustment will take effect retroactively from the record
date set for such issuance or distribution.
SECTION 1305. General Provisions Relating to Adjustment.
No adjustment will be made to the Conversion Price where the adjustment,
rounded to the nearest cent as provided below, if applicable, would be less than
one percent of the Conversion Price then in effect. On any adjustment, the
resulting Conversion Price will be rounded to the nearest cent (or the smaller
of the nearest cent in the case of two equally near cents). Any adjustment not
required to be made and any amount by which the Conversion Price will be rounded
will be carried forward and taken into account in any subsequent adjustment.
The Company may reduce the Conversion Price from time to time, but shall
not take any action so that, on exchange or conversion, Ordinary Shares would be
issued at a discount to their par value. Except in the case of a consolidation
or reclassification of Ordinary Shares pursuant to Section 1304 (a)(iii), the
Conversion Price will not be increased as a result of any adjustment.
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If any doubt arises as to the appropriate adjustment to the Conversion
Price, a certificate of the Company's auditors at the time will be conclusive
and binding on all concerned except in the case of manifest error.
If a Conversion Date falls prior to the Adjustment Effective Date of an
adjustment of the Conversion Price and the relevant Registration Date of the
Ordinary Shares issued upon conversion falls on or after such Adjustment
Effective Date, the Company shall issue to the relevant Holder the additional
number of Ordinary Shares to which that Holder would have been entitled had the
relevant Conversion Date fallen immediately following the Adjustment Effective
Date.
Whenever the Company plans to take action that will result in the
adjustment of the Conversion Price under Section 1304 or the Conversion Price
has been adjusted, the Company shall promptly notify Holders in a manner
prescribed by Section 106 and file with the Trustee an Officer's Certificate
briefly stating the facts requiring the adjustment and the manner of computing
it. For as long as the Securities are listed on the Luxembourg Stock Exchange,
and the rules of such stock exchange so require, the Trustee shall inform the
Luxembourg Stock Exchange of any adjustment of the Conversion Price.
The Trustee has no duty to determine when an adjustment under this
Article Thirteen should be made, how it should be made or what it should be. The
Trustee has no duty to determine whether a supplemental indenture need be
entered into or whether any provisions of any supplemental indenture are
correct. The Trustee shall not be accountable for and makes no representation as
to the validity or value of any securities or assets issued upon conversion of
the Securities. The Trustee shall not be responsible for the Company's failure
to comply with this Article Thirteen. Each Conversion Agent (other than the
Company or an Affiliate of the Company) shall have the same protection under
this Section 1305 as the Trustee.
SECTION 1306. Covenants Relating to Conversion Rights.
The Company shall, prior to issuance of any Securities hereunder, and from
time to time as it may be necessary, reserve, out of its authorized but unissued
Ordinary Shares, a sufficient number of Ordinary Shares to permit the conversion
of all outstanding Securities into Ordinary Shares. All Ordinary Shares
delivered upon conversion of the Securities shall be duly authorized, validly
issued, fully paid and nonassessable.
The Company covenants that if any Ordinary Shares to be provided for the
purpose of conversion of Securities hereunder require registration with or
approval of any governmental authority before such shares may be validly issued
upon conversion, the Company will in good faith
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and as expeditiously as practicable endeavor to secure such registration or
approval, as the case may be,
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This Indenture may be signed in any number of counterparts each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
CHINA MOBILE (HONG KONG) LIMITED
By:
-----------------------------------------
Title: Chairman of the Board of Directors
and President
THE BANK OF NEW YORK
as Trustee
By:
-----------------------------------------
Title: Vice President
Acknowledged by:
BANQU INTERNATIONALE A LUXEMBOURG S.A.
as Luxembourg Paying Agent
By:
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Title: