1
EXHIBIT 4(a)
HOUSEHOLD INTERNATIONAL NETHERLANDS B.V.,
AS ISSUER
AND
HOUSEHOLD INTERNATIONAL, INC.
AS GUARANTOR
AND
THE FIRST NATIONAL BANK OF BOSTON,
AS TRUSTEE.
INDENTURE
Dated as of September 9, 1993
Providing for issuance of Unconditionally Guaranteed Senior Notes
in Series
2
HOUSEHOLD INTERNATIONAL NETHERLANDS B.V.
HOUSEHOLD INTERNATIONAL, INC.
Indenture dated as of September 9, 1993
TABLE OF CONTENTS
PAGE
PARTIES
RECITALS:
General Form of Face of Note
General Form of Reverse of Note
Form of Trustee's Certificate of Authentication
for Notes
General Form of `Option to Elect Repayment',
if applicable, for Notes
ARTICLE I - DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
SECTION 1.01 Definitions
"Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Affiliate"; "Control" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Authorized Newspaper" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Board of Directors" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Board Resolution" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Business Day" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Commission or SEC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Company" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Company Request"; "Company Order" . . . . . . . . . . . . . . . . . . . . . . . 12
"Corporate Trust Officer" . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Depository" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Depository Note" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Dollar" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"ECU" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"European Communities" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Event of Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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"Foreign Currency" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Guarantee" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Guarantor" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Holder" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Indenture" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Independent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Interest" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Interest Payment Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Maturity" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Note Register"; "Note Registrar" . . . . . . . . . . . . . . . . . . . . . . . 13
"Officers' Certificate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Opinion of Counsel" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
"Original Issue Discount Note" . . . . . . . . . . . . . . . . . . . . . . . . . 14
"Outstanding" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
"Paying Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
"Person" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
"Predecessor Notes" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
"Redemption Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
"Redemption Price" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
"Regular Record Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
"Responsible Officer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
"Senior Notes" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Special Record Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Stated Maturity" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Trustee" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Trust Indenture Act or TIA" . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Voting Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 1.02 Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . 16
SECTION 1.03 Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . 17
SECTION 1.04 Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 1.05 Notices, etc., to Trustee and Company . . . . . . . . . . . . . . . . . 19
SECTION 1.06 Notices to Holders, Waiver . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 1.07 Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . 20
SECTION 1.08 Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . 20
SECTION 1.09 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 1.10 Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 1.11 Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 1.12 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 1.13 Payment on Business Day . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 1.14 Incorporation by Reference of Trust Indenture Act . . . . . . . . . . . 21
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ARTICLE II - ISSUE, EXECUTION AND REGISTRATION OF SENIOR NOTES
SECTION 2.01 Issuance of Notes in Series . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.02 Authentication and Delivery of Notes . . . . . . . . . . . . . . . . . . 22
SECTION 2.03 Execution of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.04 Temporary Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.05 Exchanges and Transfers of Notes . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.06 Mutilated, Destroyed, Lost or Stolen Notes . . . . . . . . . . . . . . . 25
SECTION 2.07 Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . 26
SECTION 2.08 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.09 Cancellation of Notes . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.10 Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . 28
SECTION 2.11 Securities Issuable in the Form of a Depository Note . . . . . . . . . . 29
SECTION 2.12 Benefit of Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.13 CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE III - COVENANTS OF THE COMPANY
SECTION 3.01 Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . 31
SECTION 3.02 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . 32
SECTION 3.03 Money for Note Payments to be Held in Trust . . . . . . . . . . . . . . 32
SECTION 3.04 Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 3.05 Maintenance of Accounts . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 3.06 Statement as to Compliance . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE IV - COVENANTS OF THE GUARANTOR
SECTION 4.01 Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . 34
SECTION 4.02 Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 4.03 Filing of Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 4.04 Not Subject Property to Lien Without Securing Notes Rateable;
Waiver of Covenant . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 4.05 Statement as to Compliance . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE V - REPAYMENT AT OPTION OF HOLDERS
SECTION 5.01 Optional Repayment of Notes . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 5.02 Repayment Procedure for Notes . . . . . . . . . . . . . . . . . . . . . 37
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ARTICLE VI - REDEMPTION OF NOTES; SINKING FUNDS
SECTION 6.01 Applicability of Redemption Provisions . . . . . . . . . . . . . . . . . 38
SECTION 6.02 Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . 38
SECTION 6.03 Selection by Trustee of Notes to be Redeemed . . . . . . . . . . . . . . 38
SECTION 6.04 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.05 Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.06 Notes Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.07 Notes Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 6.08 Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 6.09 Satisfaction of Sinking Fund Payments with Notes . . . . . . . . . . . . 40
SECTION 6.10 Redemption of Notes for Sinking Fund . . . . . . . . . . . . . . . . . . 41
ARTICLE VII - SATISFACTION AND DISCHARGE
SECTION 7.01 Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . 41
SECTION 7.02 Application Of Trust Money . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 7.03 Satisfaction, Discharge, and Defeasance
of Notes of any Series . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 7.04 Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE VIII - REMEDIES
SECTION 8.01 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 8.02 Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . 46
SECTION 8.03 Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.04 Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . 48
SECTION 8.05 Trustee May Enforce Claims Without Possession of
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 8.06 Application of Money Collected . . . . . . . . . . . . . . . . . . . . . 49
SECTION 8.07 Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 8.08 Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . . . . . . . . . . . . . 50
SECTION 8.09 Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . 50
SECTION 8.10 Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . 50
SECTION 8.11 Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 8.12 Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 8.13 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 8.14 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 8.15 Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . 51
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ARTICLE IX - THE TRUSTEE
SECTION 9.01 Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . 52
SECTION 9.02 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 9.03 Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 9.04 Not Responsible for Recitals or Issuance of Notes . . . . . . . . . . . 54
SECTION 9.05 May Hold Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 9.06 Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 9.07 Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . 54
SECTION 9.08 Corporate Trustee Required; Eligibility;
Disqualification; Conflicting Interests . . . . . . . . . . . . . 55
SECTION 9.09 Preferential Collection of Claims Against Company . . . . . . . . . . . 56
SECTION 9.10 Resignation and Removal; Appointment of Successor . . . . . . . . . . . 56
SECTION 9.11 Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . 57
SECTION 9.12 Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE X - HOLDERS' LIST AND REPORTS BY TRUSTEE AND COMPANY
SECTION 10.01 Company to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 10.02 Preservation of Information; Communications to
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 10.03 Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE XI - CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 11.01 Guarantor May Consolidate, etc. only on Certain
Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 11.02 Company May Consolidate, etc. only on Certain Terms . . . . . . . . . . 59
SECTION 11.03 Successor Corporation Substituted . . . . . . . . . . . . . . . . . . . 60
ARTICLE XII - SUPPLEMENTAL INDENTURES
SECTION 12.01 Supplemental Indentures Without Consent of Holders . . . . . . . . . . . 61
SECTION 12.02 Supplemental Indentures With Consent of Holders . . . . . . . . . . . . 62
SECTION 12.03 Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . 63
SECTION 12.04 Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . 63
SECTION 12.05 Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . 63
SECTION 12.06 Reference in Notes to Supplemental Indentures . . . . . . . . . . . . . 63
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Tie of certain provisions of Trust Indenture Act of 1939, as amended,
with Indenture, dated as of September 9, 1993, among Household International
Netherlands B.V., Household International, Inc. and The First National Bank of
Boston, as Trustee*
Section of
Section of Act Indenture
- -------------- ----------
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.08
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.08, 9.10
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.09
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.01
10.02(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.02(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.02(b)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.03(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.03(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.03(a)
10.03(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.03(c)
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.05,4.03
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.02
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.02
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.02
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.01(a)
9.01(c)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.02
10.03(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.01(b)
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.01(c)
(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.01(c)(1)
(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.01(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.01(c)(3)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.14
vi
316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.01
*This tie of provisions does not constitute a part of the Indenture and is for
convenience of reference only.
8
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.02
8.12
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.13
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.08
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.03
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.04
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.03
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.07
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THIS INDENTURE, dated as of the 9th day of September 1993, among
Household International Netherlands B.V., a corporation incorporated under the
laws of the Netherlands (herein called the "Company"), having its principal
place of business at Hoekenrode 6, 1102 BR Amsterdam, Netherlands, Household
International, Inc., a corporation duly organized and validly existing under
the laws of the State of Delaware (hereinafter called the "Guarantor"), having
its principal office at 2700 Sanders Road, Prospect Heights, Illinois 60070,
and The First National Bank of Boston, a national banking corporation organized
and existing under the laws of the United States (hereinafter called the
"Trustee").
WITNESSETH:
WHEREAS, the Company deems it necessary from time to time to borrow
money for its corporate purposes and to issue its senior notes therefor, and to
that end has duly authorized and directed the execution and delivery of this
Indenture to provide for one or more series of its unsecured senior notes, or
other evidences of indebtedness (hereinafter called "Senior Notes" or "Notes"),
issuable as in this Indenture provided;
WHEREAS, the Guarantor has duly authorized the execution and delivery
of this Indenture and deems it appropriate from time to time to issue its
guarantees of the Senior Notes on the terms and substantially in the form
herein provided (the "Guarantees"); and
WHEREAS, the general forms of the Senior Notes, the Trustee's
certificate of authentication to be borne by the Senior Notes, and the general
form of the `Option to Elect Repayment' (if applicable) may be as follows, with
any insertions, omissions and variations as the Board of Directors of the
Company may determine in accordance with the provisions of this Indenture, or
in such other form as shall be established by or pursuant to a Board Resolution
or in one or more indentures supplemental hereto:
[GENERAL FORM OF FACE OF SENIOR NOTE]
[If the Note is an Original Issue Discount Note, insert--For purposes
of Sections 1271-1273 of the United States Internal Revenue Code of 1986, as
amended, the issue price of this Senior Note is % of its principal amount and
the issue date is , 19 .]
No.
HOUSEHOLD INTERNATIONAL NETHERLANDS B.V.
....% Senior Note
HOUSEHOLD INTERNATIONAL NETHERLANDS B.V., a corporation incorporated
under the laws of the Netherlands (hereinafter called the "Company", which term
includes any successor corporation under
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the Indenture hereinafter referred to), for value received, hereby promises to
pay to , or registered assigns, the principal sum of on .
[If the Senior Note is to bear interest prior to Maturity, insert--, and to
pay interest thereon at the rate per annum [of %] [set forth on the
reverse of this Note]. The Company will pay interest from ,
or from the most recent Interest Payment Date to which interest has been paid
or duly provided for, [Insert frequency of interest periods.] (beginning
) on , until the principal hereof is paid or duly
provided for. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture, be paid
to the Holder of this Senior Note (or one or more Predecessor Notes) of record
at the close of business on the Regular Record Date for such interest, which
shall be [If applicable, insert--except that interest payable at
Maturity shall be paid to the same Person to whom the principal of this
Senior Note is payable.] Interest will be computed on the basis of [Insert
method of computing interest]. 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 may be paid to the Holder of this Senior Note (or
one or more Predecessor Notes) of record at the close of business on a
Special Record Date fixed by the Trustee for the payment of such defaulted
interest, notice whereof shall be given to Holders 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 Senior Notes may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.]
[If the Senior Note is not to bear interest prior to Maturity,
insert--The principal of this Senior Note shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal of this Note shall
bear interest at the rate of % per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date
of such default in payment to the date payment of such principal has been made
or duly provided for. Interest on any overdue principal shall be payable on
demand. Any such interest on any overdue principal that is not so paid on
demand shall bear interest at the rate of % per annum (to the extent that the
payment of such interest shall be legally enforceable), which shall accrue from
the date of such demand for payment to the date payment of such interest has
been made or duly provided for, and such interest shall also be payable on
demand.]
Payment of the principal of (and premium, if any) on this Senior Note
and, unless otherwise paid as hereinafter provided, the interest (if any)
thereon will be made at the office or agency of
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the Trustee in the , 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 by check or draft mailed to
the Person entitled thereto at his address appearing in the Note Register.
Additional provisions of this Senior Note are set forth on the reverse hereof.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee by manual signature, this Senior Note shall not be
entitled to any benefit under the Indenture, or be valid or obligatory for any
purpose.
This Senior Note shall be construed in accordance with and governed by
the laws of the State of Illinois.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its facsimile corporate seal.
Dated: HOUSEHOLD INTERNATIONAL NETHERLANDS B.V.
ATTEST: By ______________________________________
[GENERAL FORM OF REVERSE OF NOTE]
HOUSEHOLD INTERNATIONAL NETHERLANDS B.V.
....% Senior Note
This Senior Note is one of a duly authorized issue of Senior Notes of
the Company (herein called the "Senior Notes"), issuable in series, unlimited
in aggregate principal amount except as may be otherwise provided in respect of
the Senior Notes of a particular series, issued and to be issued under and
pursuant to an Indenture dated as of September 9, 1993 (herein called the
"Indenture"), duly executed and delivered by the Company, Household
International, Inc., a Delaware corporation (the "Guarantor"), and The First
National Bank of Boston, as Trustee, and is one of a series designated as
% Senior Notes due (herein called the " % Senior Notes"),
[Insert, as applicable-- unlimited in aggregate principal amount--or--
limited in aggregate principal amount to $ .] Reference is hereby made to
the Indenture and all indentures supplemental thereto for a description of the
rights, limitations of rights, obligations, duties and immunities thereunder of
the Trustee, the Company, the Guarantor and the Holders.
[AT THE COMPANY'S OPTION, ADDITIONAL PROVISIONS APPLICABLE
TO INTEREST RATE MAY BE INSERTED HERE]
12
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[If applicable, insert--The Senior Notes of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable,
insert--(1) on in any year commencing with the year and ending with
the year through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time
[on or after , 19 ], as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [on or before , %, and if
redeemed] during the 12-month period beginning of the years
indicated,
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption [if applicable, insert--[whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Senior
Notes, or one or more Predecessor Notes, of record at the close of business on
the relevant Record Dates referred to on the face hereof, all as provided in
the Indenture.]
[If applicable, insert--The Senior Notes of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on in any year
commencing with the year and ending with the year through operation
of the sinking fund for this series at the Redemption Prices for redemption
through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below, and (2) at any time [on or
after ], as a whole or in part, at the election of the Company, at
the Redemption Prices for redemption otherwise than through operation of the
sinking fund (expressed as percentages of the principal amount) set forth in
the table below: If redeemed during a 12-month period beginning of
the years indicated,
Redemption Price
for Redemption Redemption Price for
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ----------------- ----------------------
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and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Senior Notes, or one or more
Predecessor Notes, of record at the close of business on the relevant Regular
Record Dates referred to on the face hereof, all as provided in the Indenture].
[The sinking fund for this series provides for the redemption on
in each year beginning with the year and ending with the year of
[not less than] $ [("mandatory sinking fund") and not more than $ ]
aggregate principal amount of Senior Notes of this series. [Senior Notes of
this series acquired or redeemed by the Company otherwise than through
[mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made-in the inverse
order in which they become due.]
[In the event of redemption of this Senior Note in part only, a new
Senior Note or Senior Notes of this series for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert--The Senior Notes of this series will be
repayable on , , at the option of the holders of the Senior Notes
of this series, at 100% of their principal amount together with interest (if
any) payable to the date of repayment, except that interest, the Stated
Maturity of which is on or prior to such repayment date, shall be payable to
the Holders of Senior Notes of this series, [or one or more Predecessor Notes,]
of record on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture. In order for a Senior Note of this series to be
repaid, the Trustee must receive at its office in (or at such
other address of which the Company may from time to time notify Holders),
during the period from and including , to and including ,
(or, if such , is not a Business Day, the next succeeding Business
Day) (i) this Senior Note with the form entitled 'Option to Elect Repayment' on
the reverse of this Senior Note duly completed, or (ii) a telegram, telex,
facsimile transmission or letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a
commercial bank or a trust company in the United States of America setting
forth the name of the Holder of this Senior Note, the principal
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amount of this Senior Note, the amount of this Senior Note to be repaid, a
statement that the option to elect repayment is being exercised thereby and a
guarantee that this Senior Note to be repaid with the form entitled 'Option to
Elect Repayment' on the reverse of this Senior Note duly completed will be
received by the [Trustee] [Company] not later than five Business Days after the
date of such telegram, telex, facsimile transmission or letter and such Senior
Note and form duly completed are received by the [Trustee] [Company] by such
fifth Business Day. Any such notice received by the [Trustee] [Company] during
the period from and including , to and including ,
shall be irrevocable. The repayment option may be exercised by the Holder of
this Senior Note for less than the entire principal amount of this Senior Note
provided the principal amount which is to be repaid is equal to $ or an
integral multiple of $ . All questions as to the validity, eligibility
(including time of receipt) and acceptance of any Senior Note of this series
for repayment will be determined by the Company, whose determination will be
final and binding.]
[If the Senior Note is not an Original Issue Discount Note,--If any
Event of Default with respect to Senior Notes of this series shall occur and be
continuing, the principal of the Senior Notes of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Senior Note is an Original Issue Discount Note,--If an Event
of Default with respect to Senior Notes of this series shall occur and be
continuing, an amount of principal of the Senior Notes of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to--Insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and interest, if any, on the Senior Notes of this series shall
terminate.]
The Indenture provides that each Holder of a Senior Note is entitled
to the benefits of a Guarantee by the Guarantor of the timely payment of the
principal of, premium, if any, and interest on the Senior Note. The Guarantee
enclosed herein is an integral part of this Senior Note.
[The Indenture contains provisions for defeasance at any time of the
entire indebtedness of the Company on this Senior Note upon compliance by the
Company with certain conditions set forth therein, which provisions apply to
this Senior Note.]
15
- 7 -
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 Guarantor and the rights of the Holders under the Indenture at
any time by the Company, the Guarantor and the Trustee with the consent of the
Holders of at least a majority in aggregate principal amount of the Senior
Notes at the time Outstanding of each series which is affected by such
amendment or modification, except that certain amendments specified in the
Indenture may be made without approval of Holders of the Senior Notes. The
Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Outstanding Senior Notes of any series to
waive on behalf of the Holders of such series of Senior Notes compliance by the
Company or the Guarantor with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Senior Note shall be binding upon such Holder and
upon all future Holders of this Senior Note and any Senior Note 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 Senior
Note.
No reference herein to the Indenture and no provision of this Senior
Note or of the Indenture shall alter or impair the obligations of the Company
and the Guarantor, which are absolute and unconditional, to pay the principal
of (and premium, if any) and interest on this Senior Note 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, transfer of this Senior Note is registrable on the Note
Register, upon surrender of this Senior Note for registration of transfer at
the office or agency of the Trustee in the , duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Note Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Senior
Notes of the same series containing identical terms and provisions, of
authorized denominations and for a like aggregate principal amount, will be
issued to the designated transferee or transferees.
The % Senior Notes are issuable only as registered Senior
Notes without coupons in denominations of $100,000 or any amount in excess
thereof which is an integral multiple of [$________]. As provided in the
Indenture and subject to certain limitations therein set forth, Senior Notes
are exchangeable for a like aggregate principal amount of Senior Notes of the
same series containing identical terms and provisions and of different
authorized denominations, as requested by the Holder surrendering the same.
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- 8 -
No service charge will be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Company, the Guarantor, the Trustee and any agent of the Company,
the Guarantor or the Trustee may treat the person in whose name this Senior
Note is registered as the owner hereof for the purpose of receiving payment as
herein provided and for all other purposes whether or not this Senior Note be
overdue, and neither the Company, the Guarantor, the Trustee nor any such agent
shall be affected by notice to the contrary.
All terms used in this Senior Note which are defined in the Indenture
have the meanings assigned to them in the Indenture.
[FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION FOR SENIOR NOTES]
This is one of the Senior Notes designated herein referred to in the
within-mentioned Indenture.
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- 9 -
The First National Bank of
Boston,
as Trustee
Dated:_________________________ By_________________________
Authorized Signature
[FORM OF GUARANTEE]
GUARANTEE OF HOUSEHOLD INTERNATIONAL, INC.
FOR VALUE RECEIVED, Household International, Inc., a corporation duly
organized and existing under the laws of the State of Delaware (the
"Guarantor"), hereby unconditionally guarantees to the Holder of the Senior
Note upon which this Guarantee is endorsed the due and punctual payment of the
principal of, premium, if any, and interest on said Senior Note, when and as
the same shall become due and payable, whether at maturity or otherwise,
according to the terms thereof and of the Indenture referred to therein.
The Guarantor agrees to determine, at least one Business Day prior to
the date upon which a payment of principal of, or premium, if any, or interest
on said Senior Note is due and payable, whether the Company has available the
funds to make such payment as the same shall become due and payable. In case
of the failure of the Company punctually to pay any such principal, premium, if
any, or interest, the Guarantor hereby agrees to cause any such payment to be
made punctually when and as the same shall become due and payable, whether at
maturity or otherwise, and as if such payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrevocable, and absolute, irrespective of the validity,
regularity, or enforceability of said Senior Note or the Indenture, the absence
of any action to enforce the same, any waiver or consent by the Holder of said
Senior Note with respect to any provisions hereof, the recovery of any judgment
against the Company or any action to enforce the same, or any other
circumstances which might otherwise constitute a legal or equitable discharge
or defense of a guarantor. The Guarantor hereby waives diligence, presentment,
notice of non-payment, demand of payment, any right to require a proceeding
first against the Company, filing of claims with a court in the event of
merger, insolvency or bankruptcy of the Company, protest or notice with respect
to the Senior Note upon which this Guarantee is endorsed or indebtedness
evidenced thereby and all notices and demands to the Company or the Guarantor
whatsoever and covenants that this Guarantee will not be discharged except by
complete performance of the obligations
18
- 10 -
contained in said Senior Note and this Guarantee. In the event of a default in
the payment of principal of, premium, if any, or interest on said Senior Note,
the Holder of said Senior Note may institute legal proceedings directly against
the Guarantor to enforce this Guarantee without first proceeding against the
Company.
The Guarantor shall be subrogated to all rights of the Holder of said
Senior Note against the Company in respect of any amounts paid by the Guarantor
pursuant to the provisions of this Guarantee; provided, however, that the
Guarantor shall not, without the consent of the Holders of all of the
Outstanding Senior Notes, be entitled to enforce or to receive any payments
arising out of, or based upon, such right of subrogation until the principal
of, premium, if any, and interest on all Senior Notes shall have been paid in
full or payment thereof shall have been provided for in accordance with the
Indenture.
Notwithstanding anything to the contrary contained herein, if
following any payment of principal, premium, if any, or interest by the Company
on said Senior Note to the Holder of the Senior Note it is determined by a
final decision of a court of competent jurisdiction that such payment shall be
avoided by a trustee in bankruptcy (including any debtor-in-possession) as a
preference under 11 U.S.C. Section 547 (or any successor statute) and such
payment is paid by such Holder to such trustee in bankruptcy, then and to the
extent of such repayment the obligations of the Guarantor hereunder shall
remain in full force and effect.
This Guarantee ranks equally with all other unsecured and
unsubordinated obligations of the Guarantor. This Guarantee will remain in
full force and effect until the principal of, premium, if any, and interest on
the Senior Note have been fully paid. As provided in the Indenture, the
Guarantor may under certain circumstances assume all rights and obligations of
the Company under the Indenture with respect to the Senior Note.
This Guarantee shall not be valid or become obligatory for any purpose
with respect to the Senior Note upon which it is endorsed until the certificate
of authentication on said Senior Note shall have been signed by the Trustee or
the authenticating agent.
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- 11 -
This Guarantee shall be governed by the laws of the State of Illinois.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be duly
executed under its corporate seal.
HOUSEHOLD INTERNATIONAL, INC.
By_______________________________
Attest:
_______________________________
[GENERAL FORM OF "OPTION TO ELECT REPAYMENT",
IF APPLICABLE, FOR SENIOR NOTES]
OPTION TO ELECT REPAYMENT
The undersigned hereby requests and irrevocably instructs the Company
to repay the within Senior Note on the first occurring not less than
nor more than days after the date of receipt of the within Note by the
Trustee at
Attention:
(or at such other place of which the Company shall from
time to time notify the Holder of the within Senior Note), at a price equal to
the principal amount thereof, [together with interest to the date of
repayment], to the undersigned at
______________________________________________________________________________
______________________________________________________________________________
Please Print or Typewrite Name and Address of the Undersigned
Dated
NOTICE: The Signature to This Request and
Instruction Must Correspond With the Name as
It Appears Upon the Face of the Note in Every
Particular Without Alteration or Enlargement
or any Change Whatever.
WHEREAS, all things necessary to make this Indenture a valid agreement
of the Company and the Guarantor, in accordance with its terms, have been done.
20
- 12 -
Now, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of Senior
Notes to be issued hereunder by Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. DEFINITIONS. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as
the singular;
(2) all other terms used herein which are defined in the TIA,
either directly or by reference therein, have the meanings assigned to
them therein; and
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them, with respect to the Guarantor, in
accordance with United States generally accepted accounting
principles, and with respect to the Company, in accordance with Dutch
generally accepted accounting principles.
"Act" when used with respect to any Holder has the meaning specified
in Section 1.04.
"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.
"Authorized Newspaper" when used in connection with the name of a
particular city, means a newspaper, printed in an official language of the
country of publication, of general circulation and customarily published in
such city on each Business Day, whether or not published on Saturdays, Sundays
or holidays. Whenever successive weekly publications in an Authorized Newspaper
are required hereunder they may be made (unless otherwise expressly
21
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provided herein) on the same or different days of the week and in the same or
in different Authorized Newspapers.
"Board of Directors" means either the board of directors of the
Company or the Guarantor, as the case may be, any duly authorized committee of
that board, or any officer of the Company or the Guarantor duly authorized by
the board of directors of the Company or the Guarantor, as the case may be, or
a duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company or the Guarantor, as
applicable, to have been duly adopted by the Board of Directors of the Company
or the Guarantor, as the case may be, 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 or
Friday which is not a legal holiday for banking institutions in the particular
city with reference to which the determination as to Business Day is being
made.
"Commission" or "SEC" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or if at any time after the execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Company" means the Person named as the Company in the first paragraph
of this Indenture until a successor corporation shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter Company shall
mean such successor corporation.
"Company Request", "Company Order" and "Company Consent" mean,
respectively, a written request, order or consent signed in the name of the
Company by its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, Controller, an Assistant Controller, Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means principal office of the Trustee in
Canton, Massachusetts, at which its corporate trust business shall be
administered.
"Depository" shall mean, with respect to Senior Notes of any series
for which the Company shall determine that such Senior Notes will be issued in
the form of one or more Depository Notes, The Depository Trust Company, New
York, New York, another clearing agency or any successor registered under the
Securities Exchange
22
- 14 -
Act of 1934, or other applicable statute or regulation, which, in each case,
shall be designated by the Company pursuant to either Section 2.01 or 2.11.
"Depository Note" shall mean, with respect to any series of Senior
Notes, a Senior Note executed by the Company and authenticated and delivered by
the Trustee to the Depository or pursuant to the Depository's instruction, all
in accordance with this Indenture and pursuant to a Company Order, which (i)
shall be registered as to principal and interest in the name of the Depository
or its nominee and (ii) together with all other Depository Notes of such
series, if any, shall represent, and shall be denominated in an amount equal to
the aggregate principal amount of, all of the Outstanding Senior Notes of such
series.
"Dollar" means the coin or currency of the United States of America
which at the time of payment is legal tender for the payment of public and
private debts.
"ECU" means the European Currency Unit as defined and revised from
time to time by the council of the European Communities.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 8.01.
"Foreign Currency" means such coin or currency issued by the
government of a country other than the United States which at the time of
payment is legal tender in the country of issuance for the payment of public
and private debts or a composite coin or currency the value of which is
determined by reference to the values of the currencies of any specific group
of countries.
"Guarantee" means the agreement of the Guarantor, in substantially the
form set forth herein as provided in Section 2.12 hereof, to be endorsed on the
Senior Notes authenticated and delivered hereunder.
"Guarantor" means the party named as such in the first paragraph of
this Indenture until a successor replaces it and thereafter means such
successor.
"Holder" means a Person in whose name a Senior Note is registered in
the Note Register.
"Indenture" means this Indenture dated as of September 9, 1993, and,
unless the context otherwise indicates, all indentures supplemental hereto from
time to time in effect.
23
- 15 -
"Independent" when used with respect to any specified Person means
such a Person who (1) is in fact independent, (2) does not have any material
direct or indirect financial interest in the Company, the Guarantor or in any
other obligor upon the Senior Notes or in any Affiliate of the Company, the
Guarantor or of such other obligor, and (3) is not connected with the Company,
the Guarantor or such other obligor or any Affiliate of the Company, the
Guarantor or of such other obligor, as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar functions.
Whenever it is herein provided that any Independent Person's opinion or
certificate shall be furnished to the Trustee, such Person shall be appointed
by a Company Order, and such opinion or certificate shall state that the signer
has read this definition and that the signer is Independent within the meaning
hereof.
"Interest" when used with respect to an Original Issue Discount Note
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date" means the Stated Maturity of interest on
Senior Notes of a particular series.
"Maturity" when used with respect to Senior Notes of a particular
series means the date on which the principal or any instalment of principal of
such Senior Notes becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call for
redemption or otherwise.
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 2.05.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or
an Assistant Secretary of the Company or the Guarantor, as the case may be, and
delivered to the Trustee. Wherever this Indenture requires that an Officers'
Certificate be signed also by an accountant or other expert, such accountant or
other expert (except as otherwise expressly provided in this Indenture) may be
in the employ of the Company or the Guarantor.
"Opinion of Counsel" means written opinion of counsel, who may be any
one or more of counsel for the Company or the Guarantor, or other counsel
reasonably satisfactory to the Trustee.
"Original Issue Discount Note" means any Senior Note which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 8.02.
24
- 16 -
"Outstanding" when used with respect to Senior Notes means, as of the
date of determination, all Senior Notes theretofore authenticated and delivered
under this Indenture, except:
(i) Senior Notes theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Senior Notes or portions thereof for whose payment or
redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent, other than the Company
or the Guarantor, in trust or set aside and segregated in trust by the
Company or the Guarantor (if the Company or the Guarantor shall act as
Paying Agent) for the Holders of such Senior Notes, provided that, if
such Senior Notes or any portions thereof 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;
(iii) Senior Notes which have been paid pursuant to Section
2.06 or in exchange for or in lieu of which other Senior Notes have
been authenticated and delivered pursuant to this Indenture other than
any such Senior Notes in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Senior
Notes are held by a bona fide purchaser in whose hands such Senior
Notes are valid obligations of the Company; and
(iv) any such Senior Notes which have been defeased pursuant
to Section 7.03.
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Senior Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or for any other
purpose, (i) Senior Notes owned by the Company, the Guarantor or any other
obligor upon the Senior Notes or any Affiliate of the Company, the Guarantor or
such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Senior Notes which the Trustee knows to be so owned shall be so
disregarded, and Senior Notes 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 Senior Notes
and that the pledgee is not the Company, the Guarantor or any other obligor
upon the Senior Notes or any Affiliate of the Company, the Guarantor or such
other obligor, and (ii) the principal amount of an Original Issue Discount Note
or a Senior Note denominated in a Foreign Currency, as the case may be, that is
deemed to be Outstanding for such purposes shall be the amount of
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the principal thereof that, for an Original Issue Discount Note, would be due
and payable as of the date of such determination upon a declaration of
acceleration pursuant to Section 8.02 or, for a Senior Note denominated in a
Foreign Currency, as calculated pursuant to Section 1.04(f).
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Senior Notes 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 Notes" of any particular Senior Note means every previous
Senior Note evidencing all or a portion of the same debt as that evidenced by
such particular Senior Note; and, for purposes of this definition, any Senior
Note authenticated and delivered under Section 2.06 in exchange for or in lieu
of a mutilated, destroyed, lost, or stolen Senior Note shall be deemed to
evidence the same debt as the mutilated, destroyed, lost, or stolen Senior
Note.
"Redemption Date" when used with respect to any Senior Note to be
redeemed means the date fixed for such redemption by or pursuant to this
Indenture, any indenture supplemental hereto, or resolution of the Board of
Directors as provided in Section 2.01 of this Indenture.
"Redemption Price" when used with respect to any Senior Note to be
redeemed means the price at which it is to be redeemed pursuant to this
Indenture, any indenture supplemental hereto, or resolution of the Board of
Directors as provided in Section 2.01 of this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date means, with respect to Senior Notes of any series, the date specified as
the Regular Record Date therefor in the relevant supplemental indenture or
resolution of the Board of Directors authorizing such series of Senior Notes.
"Responsible Officer" when used with respect to the Trustee means an
officer of the Trustee assigned to the Corporate Trust Office, including any
vice president or assistant vice president, any trust officer or assistant
trust officer, or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
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"Senior Notes" and "Notes" means all debt securities issued under this
Indenture, regardless of series.
"Special Record Date" for the payment of any Defaulted Interest (as
defined in Section 2.07) means a date fixed by the Trustee pursuant to Section
2.07.
"Stated Maturity" when used with respect to any Senior Note or any
instalment of principal thereof or any instalment of interest thereon means the
date specified in such Senior Note as the fixed date on which the principal of
such Senior Note or such instalment of principal or interest is due and
payable.
"Subsidiary" means any corporation at least a majority of the shares
of the Voting Stock (or the equivalent thereof, in the case of corporations
organized outside the United States of America) of which shall at the time be
owned, directly or indirectly, by the Guarantor or by one or more Subsidiaries
thereof, or by the Company and one or more Subsidiaries thereof.
"Trustee" means the Person named as the Trustee in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter Trustee shall mean
such successor Trustee.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as it may be amended from time to time.
"Voting Stock", as applied to the stock of any corporation, means
stock of any class or classes (however designated) having ordinary voting power
for the election of a majority of the directors of such corporation, other than
stock having such power only by reason of the happening of a contingency.
SECTION 1.02 - COMPLIANCE CERTIFICATES AND OPINIONS. Upon any
application or request by the Company or the Guarantor to the Trustee to take
any action under any provision of this Indenture, the Company or the Guarantor,
as the case may be, shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in this Indenture
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.
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Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(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 1.03. 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 Person as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or the
Guarantor 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, any officer or officers of
the Company or the Guarantor, as the case may be, stating that the information
with respect to such factual matters is in the possession of the Company or the
Guarantor, as the case may be, 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,
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opinions or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 1.04. ACTS OF HOLDERS. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee, and, where it is
hereby expressly required, to the Company and the Guarantor. 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 (subject to Section. 9.01) conclusive in favor of the Trustee and
the Company and the Guarantor, if made in the manner provided in this Section
1.04.
(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 the certificate of any notary public or other officer
authorized by law to take acknowledgements of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by an officer of a corporation or a member of
a partnership, on behalf of such corporation or partnership, such certificate
or affidavit shall also constitute sufficient proof of his authority. The fact
and date of the execution of any such instrument or writing, or the authority
of the person executing the same, may also be proved in any other manner which
the Trustee deems sufficient, and the Trustee may in any instance require proof
with respect to any of the matters referred to in this Section 1.04.
(c) The ownership of Senior Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Senior Note shall bind every future
Holder of the same Senior Note and the Holder of every Senior Note issued upon
the registration of transfer thereof or in exchange therefor or in lieu
thereof, in respect of anything done or suffered to be done by the Trustee or
the Company or the Guarantor in reliance thereon, whether or not notation of
such action is made upon such Senior Note.
(e) In determining whether the Holders of the requisite principal
amount of Outstanding Senior Notes of any series have
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given any request, demand, authorization, direction, notice, consent or waiver
under this Indenture, the principal amount of an Original Issue Discount Note
that may be counted in making such determination and that shall be deemed to be
Outstanding for such purposes shall be equal to the amount of the principal
thereof that would be due and payable pursuant to the terms of such Original
Issue Discount Note upon a declaration of acceleration pursuant to Section 8.02
at the time the taking of such action by the Holders of such requisite
principal amount of Outstanding Senior Notes is evidenced to the Trustee, as
provided in Subsection (a) of this Section.
(f) For the purposes of calculating the principal amount of Senior
Notes of any series denominated in ECUs or a currency issued by the government
of any country other than the United States for any purpose under this
Indenture, the principal amount of such Senior Notes at any time outstanding
shall be deemed to be that amount of Dollars that could be obtained for such
principal amount on the basis of a spot rate of exchange specified to the
Trustee in an Officers' Certificate for ECUs or such currency into Dollars as
of the date of any such calculation.
(g) If the Company shall solicit from the Holders 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. 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 Senior Notes have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the Outstanding Senior Notes shall be computed
as of such record date; provided that no such authorization, agreement or
consent by the Holders on such record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
SECTION 1.05. 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 or the
Guarantor shall be sufficient for every purpose hereunder if
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made, given, furnished or filed in writing to or with the Trustee at
its Corporate Trust Office, or
(2) the Company or the Guarantor 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 or the Guarantor addressed
to it at the address of its principal office specified in the first
paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company or the Guarantor.
SECTION 1.06. NOTICES TO HOLDERS, WAIVER. Where this Indenture
provides for notice to Holders of any event, 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 Note Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such notice.
In any case 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 and any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given. 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 regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made that is satisfactory to the
Trustee shall constitute a sufficient notification for every purpose hereunder.
In case, by reason of the suspension of publication of any Authorized
Newspaper, or by reason of any other cause, it shall be impossible to make
publication of any notice in an Authorized Newspaper or Authorized Newspapers
as required by this Indenture, then such method of publication or notification
as shall be made with the approval of the Trustee shall constitute a sufficient
publication of such notice.
SECTION 1.07. CONFLICT WITH TRUST INDENTURE ACT. If any provision
hereof limits, qualifies or conflicts with another provision hereof which is
required to be included in this Indenture by any of the provisions of TIA, such
required provision shall control.
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SECTION 1.08. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article
headings herein and the Table of Contents are for convenience only and shall
not affect the construction hereof.
SECTION 1.09. 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 1.10. SEPARABILITY CLAUSE. In case any provision in this
Indenture or in the Senior Notes 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 1.11. BENEFITS OF INDENTURE. Nothing in this Indenture or in
the Senior Notes, expressed or implied, shall give to any Person, other than
the parties hereto and their successors hereunder and the Holders, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.12. GOVERNING LAW. This Indenture and each Senior Note
issued hereunder shall be construed in accordance with and governed by the laws
of the State of Illinois.
SECTION 1.13. PAYMENT ON BUSINESS DAY. In any case where any
Interest Payment Date, Redemption Date or Stated Maturity of any Senior Note
shall not be a Business Day, then (notwithstanding any other provision of this
Indenture) payment of interest or principal (and premium, if any), as the case
may be, 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 or Redemption Date, or at the Stated Maturity, provided that no interest
shall accrue for the period from and after such Interest Payment Date,
Redemption Date, or Stated Maturity, as the case may be.
SECTION 1.14. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a section of the TIA, that section, as in
effect on any particular date, is incorporated by reference in and made a part
of this Indenture. If the numerical designation of a section of the TIA is
changed subsequent to the date of this Indenture as a result of an amendment to
the TIA, then the reference in this Indenture to such section shall be deemed
to refer to the numerical designation of such section as amended.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Senior Notes.
"indenture security holder" means a Holder.
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"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company, the Guarantor
or any other obligor on the Senior Notes.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by the TIA or such statute or rule.
ARTICLE II
ISSUE, EXECUTION AND REGISTRATION OF SENIOR NOTES
SECTION 2.01. ISSUANCE OF NOTES IN SERIES. At the option of the
Company, the Senior Notes issued hereunder, which are unlimited in aggregate
principal amount except as may be otherwise provided in respect of the Senior
Notes of a particular series, may be issued in one or more series. The Senior
Notes of each series may be generally in the form provided in this Indenture
(with any such insertions, omissions and variations as determined by the Board
of Directors), to bear such series designation, to mature on such date, to bear
interest at such rate and payable on such dates, and to have such other terms
and provisions (including the currency of denomination, which may be Dollars,
Foreign Currency, ECU or other currency or unit specified therein,
specification as to whether Depository Note or an Original Issue Discount Note,
and including any addition to, or modification or deletion of, any Event of
Default or any covenant of the Company or the Guarantor specified herein with
respect to Senior Notes of the series), all as shall, prior to the
authentication thereof, be established, consistently with the other provisions
of this Indenture, by resolution or approval of the Board of Directors and set
forth in an Officers' Certificate, or in one or more supplemental indentures
approved by the Board of Directors.
All Senior Notes of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to (i) a Board Resolution and (subject to Section 2.02) set forth in
such Officers' Certificate or (ii) in any indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
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At or prior to the issuance of any of the Guarantees, the exact form
and terms of such Guarantees, which shall be in substantially the form set
forth herein, shall be established by or pursuant to a Board Resolution of the
Guarantor and set forth in an Officer's Certificate of the Guarantor.
SECTION 2.02. AUTHENTICATION AND DELIVERY OF NOTES. From time to
time the Company may execute and deliver to the Trustee, with the Guarantees
endorsed thereon, and, except as otherwise provided in this Article II, the
Trustee shall thereupon authenticate and deliver to or upon a Company Order,
Senior Notes of any series duly established pursuant to Section 2.01. In
authenticating such Senior Notes, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and subject to Section 8.01, shall be fully protected in
relying upon:
(a)(i) the Board Resolution of the Company and the Guarantor
authorizing the execution and requesting the authentication and delivery of the
Senior Notes applied for in the principal amount therein specified, designating
the series of such Senior Notes and specifying the officer or officers of the
Company to whom or upon whose order such Senior Notes shall be delivered; and
which, as permitted by Section 2.01, establishes the terms of such series of
Senior Notes and which, if applicable, authorizes the execution of an indenture
supplemental hereto creating such series of Senior Notes or, (ii) if an officer
of the Company and the Guarantor has been duly authorized with respect to the
foregoing, a certificate from such officer to the Trustee authorizing the above
actions and a Board Resolution evidencing such officer's authority;
(b) an Officers' Certificate pursuant to Section 2.01 or, if the
Senior Notes of such series are to be issued pursuant to a supplemental
indenture, a supplemental indenture duly executed on behalf of the Company and
the Guarantor, in form satisfactory to the Trustee, creating such series of
Senior Notes;
(c) an Officers' Certificate pursuant to Section 1.02; and
(d) an Opinion of Counsel pursuant to Section 1.02 to the effect that:
(i) the form and terms of such Senior Notes have been
established in conformity with the provisions of this Indenture;
(ii) all conditions precedent to the authentication and
delivery of such Senior Notes and the Guarantees have been complied
with and that such Senior Notes and Guarantees, when authenticated and
delivered by the Trustee and issued by the Company or endorsed by the
Guarantor, as the case may be, in
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the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of the
Company or the Guarantor, as applicable, enforceable in accordance
with their terms, subject to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting the
enforcement of creditors' rights and to general equity principles;
(iii) all laws and requirements in respect of the execution
and delivery by the Company of such Senior Notes or by the Guarantor
of the Guarantees have been complied with; and
(iv) each of the Company and the Guarantor is not in default
in any of its obligations under this Indenture, and the issuance of
such Senior Notes or the Guarantees will not result in any such
default.
If all Senior Notes of a series are not to be originally issued at one
time, it shall not be necessary to deliver the documents described in this
Section 2.02 at or prior to the time of authentication of each Senior Note of
such series if such documents are delivered at or prior to the authentication
upon original issuance of the first Senior Note of such series to be issued.
The Trustee shall have the right to decline to authenticate and
deliver any Senior Notes under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the
Trustee in good faith shall determine that such action would expose the Trustee
to personal liability to existing Holders.
SECTION 2.03. EXECUTION OF NOTES. The Senior Notes and the
Guarantees shall be executed on behalf of the Company or the Guarantor, as the
case may be, by its Chairman of the Board, President or one of its Vice
Presidents under its corporate seal reproduced thereon and attested by its
Secretary or one of its Assistant Secretaries. The signature of any of such
officers on the Senior Notes or the Guarantees may be manual or facsimile.
Senior Notes or Guarantees bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company or the
Guarantor, as the case may be, shall bind the Company or the Guarantor,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Senior Notes or did
not hold such offices at the date of such Senior Notes.
All Senior Notes shall be dated the date of their authentication.
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No Senior Note or Guarantee shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose, unless there appears
on such Senior Note a certificate of authentication substantially in the form
provided for herein executed by manual signature of the Trustee or its agent,
and such certificate upon any Senior Note shall be conclusive evidence, and the
only evidence, that such Senior Note has been duly authenticated and delivered
hereunder.
SECTION 2.04. TEMPORARY NOTES. Pending the preparation of definitive
Senior Notes of any series, the Company and the Guarantor may execute, and upon
Company Order the Trustee shall authenticate and deliver, or cause to be
delivered, temporary Senior Notes of such series having duly executed
Guarantees endorsed thereon which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any denomination, substantially of the
tenor of the definitive Senior Notes in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Senior Notes and Guarantee, may determine, as
evidenced by their signing of such Senior Notes or Guarantees.
If temporary Senior Notes of any series are issued, the Company will
cause definitive Senior Notes of such series to be prepared without
unreasonable delay. After the preparation of definitive Senior Notes, the
temporary Senior Notes shall be exchangeable for definitive Senior Notes upon
surrender of the temporary Senior Notes at the office or agency of the Company
or Trustee without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Senior Notes of any series the Company shall execute and
the Trustee shall authenticate and deliver, or cause to be delivered, in
exchange therefor a like principal amount of definitive Senior Notes of such
series, of authorized denominations. Until so exchanged the temporary Senior
Notes shall in all respects be entitled to the same benefits under this
Indenture as the definitive Senior Notes.
SECTION 2.05. EXCHANGES AND TRANSFERS OF NOTES. The Company shall
cause to be kept at the Corporate Trust Office of the Trustee a Note Register
in which, subject to such reasonable regulations as the Company may prescribe,
the Company shall, subject to Section 2.11, provide for the registration of
Senior Notes and for registrations of transfer of Senior Notes. The Trustee is
hereby appointed Note Registrar for the purpose of registering Senior Notes and
registering transfers of Senior Notes as herein provided.
Subject to the provisions of Section 2.11, upon surrender for
registration of transfer of any Senior Note the Paying Agent and the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Senior Notes of the
same series containing
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identical terms and provisions, including the Guarantees, of any authorized
denominations and for a like aggregate principal amount.
Subject to the provisions of Section 2.11, at the option of the
Holder, Senior Notes may be exchanged for other Senior Notes of the same series
containing identical terms and provisions, of any authorized denominations and
for a like aggregate principal amount, upon surrender of the Senior Notes to be
exchanged at any such office or agency. Whenever any Senior Notes are so
surrendered for exchange, the Company and the Guarantors shall execute, and the
Trustee shall authenticate and deliver, the Senior Notes and the Guarantee
which the Holder making the exchange is entitled to receive.
All Senior Notes issued upon any registration of transfer or exchange
of Senior Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, including
the Guarantee, as the Senior Notes surrendered upon such registration of
transfer or exchange.
Every Senior Note presented or surrendered for registration of
transfer or exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Note Registrar duly executed by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Senior Notes, 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 Senior Notes, other
than exchanges pursuant to Section 2.04, Section 6.07 or Section 12.06 not
involving any registration of transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Senior Note of any series during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Senior Notes of such series selected for redemption under Section
6.04 and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Senior Note so selected for redemption
in whole or in part.
SECTION 2.06. MUTILATED, DESTROYED, LOST OR STOLEN NOTES. A
mutilated Senior Note may be surrendered to the Company and thereupon the
Company and the Guarantor shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Senior Note of the same series, including
the Guarantee, and of
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like tenor and principal amount, bearing a number not contemporaneously
outstanding.
If there be delivered to the Company and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or
theft of any Senior Note of any series, and
(ii) such security or indemnity as may be required by them to
save each of them and the Guarantor harmless,
then, in the absence of notice to the Company or the Trustee that such Senior
Note has been acquired by a bona fide purchaser, the Company and the Guarantor
shall execute and upon their request the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Senior Note, a new
Senior Note of such series, including the Guarantee, and of like tenor and
principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Senior Note has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Senior Note, pay such Senior Note.
Upon the issuance of any new Senior Note under this Section 2.06, 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 Senior Note issued pursuant to this Section 2.06 in lieu of
any destroyed, lost or stolen Senior Note shall constitute an original
additional contractual obligation of the Company and the Guarantor, whether or
not the destroyed, lost or stolen Senior Note 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 Senior Notes of the same series
containing identical terms and provisions duly issued hereunder, including the
Guarantees.
The provisions of this Section 2.06 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 Senior Notes.
SECTION 2.07. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Senior Note 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 Senior Note (or one or more Predecessor Notes) is registered at the
close of business on the Regular Record Date for such interest; provided,
however, interest
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payable at Maturity may be paid to the same Person to whom principal of the
Senior Notes is payable if so stated in the Senior Note. Notwithstanding the
foregoing, however, interest that is payable on Senior Notes registered in the
name of the Company at the close of business on any Regular Record Date may be
withheld at the option of the Company; provided, however, the Senior Notes are
continuously held by the Company through the relevant Interest Payment Date.
Any interest on any Senior Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder; and
such Defaulted Interest shall be paid by the Company or the Guarantor, at their
or its election in each case, as provided in Clause (1) or Clause (2) below:
(1) The Company or the Guarantor may elect to make payment of
any Defaulted Interest to the Persons in whose names the Senior Notes
(or their respective Predecessor Notes) 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 or
the Guarantor shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Senior Note and the
date of the proposed payment, and at the same time the Company or the
Guarantor 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 (1) provided.
Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 nor 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 or the
Guarantor, as the case may be, of such Special Record Date and, in
the name and at the expense of the Company or the Guarantor, shall
cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed first class postage
prepaid, to each Holder at his address as it appears in the Note
Register, not less than 10 days prior to such Special Record Date. The
Trustee shall, upon a Company Request and in the name and at the
expense of the Company or the Guarantor, cause a similar notice to be
published at least once in an Authorized Newspaper in New York City
but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed
payment of
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such Defaulted Interest and the Special Record Date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names the Senior Notes (or their respective
Predecessor Notes) are registered on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company or the Guarantor may make payment of any
Defaulted Interest in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Notes may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company or the Guarantor to the Trustee of
the proposed payment pursuant to this Clause (2), such payment shall
be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.07, each Senior
Note delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Senior Note shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Senior Note.
SECTION 2.08. PERSONS DEEMED OWNERS. The Company, the Guarantor, the
Trustee and any agent of the Company, the Guarantor or the Trustee may treat
the Person in whose name any Senior Note is registered as the owner of such
Note for the purpose of receiving payment of principal of (and premium, if any)
and (subject to Section 2.07) interest on such Senior Note and for all other
purposes whatsoever, whether or not such Senior Note be overdue, and neither
the Company, the Guarantor, the Trustee nor any such agent shall be affected by
notice to the contrary.
SECTION 2.09. CANCELLATION OF NOTES. All Senior Notes surrendered
for payment, redemption, registration of transfer or exchange or for credit
against any sinking fund payment provided in respect of any series of Senior
Notes shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and shall be promptly cancelled by the Trustee through an
appropriate notation on the Note Register and on the face of the Senior Note.
The Company or the Guarantor may at any time deliver to the Trustee for
cancellation any Senior Notes previously authenticated and delivered hereunder
which the Company or the Guarantor may have acquired in any manner whatsoever,
and all Senior Notes so delivered shall be promptly cancelled by the Trustee.
No Senior Notes shall be authenticated in lieu of or in exchange for any Senior
Notes cancelled as provided in this Section 2.09, except as expressly permitted
by this Indenture. The Trustee may, but shall not be required to, destroy any
cancelled Senior Notes and the Trustee shall deliver to the Company and the
Guarantor a certificate of any such destruction.
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SECTION 2.10. APPOINTMENT OF AUTHENTICATING AGENT. The Trustee
shall, if requested in writing so to do by the Company, promptly appoint an
agent or agents of the Trustee who shall have authority to authenticate Senior
Notes of any series in the name and on behalf of the Trustee. Such appointment
by the Trustee shall be evidenced by a certificate executed by a Responsible
Officer of the Trustee delivered to the Company prior to the effectiveness of
such appointment designating such agent or agents and stating that all
appropriate corporate action has been taken by the Trustee in connection with
such appointment.
Any such authenticating agent shall be an agent acceptable to the
Trustee, Company and the Guarantor and shall at all times be a corporation
which is organized and doing business under the laws of the United States or of
any State, is authorized under such laws to act as authenticating agent, has a
combined capital and surplus of at least $5,000,000, and is subject to
supervision or examination by Federal or State authority.
Any authenticating agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time, and upon written request of the Company or the Guarantor to the Trustee
shall, terminate the agency of any authenticating agent by giving written
notice of termination to such authenticating agent and to the Company.
Any such authenticating agent shall have the rights and immunities of
the Trustee set forth in Sections 2.08, 9.03, 9.04 and 9.05 to the same extent
and as fully to all intents and purposes as though such authenticating agent
had been expressly named in place of the Trustee.
Notwithstanding any other provisions of the Indenture, the Trustee
shall have no obligation to pay the fees or expenses of any authenticating
agent.
If an appointment is made pursuant to this Section 2.10 with respect
to any series of Senior Notes, such Senior Notes shall have endorsed thereon,
in addition to the Trustee's Certificate of Authentication, an alternate
Trustee's Certificate of Authentication in the following form:
(ALTERNATE FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION)
This is one of the Senior Notes of the series designated herein
referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF BOSTON,
as Trustee
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Dated:__________________________ By_________________________
Authenticating Agent
By_____________________________
Authorized Signature
SECTION 2.11. SECURITIES ISSUABLE IN THE FORM OF DEPOSITORY NOTES.
(a) If the Company shall establish pursuant to Section 2.01 that the Senior
Notes of a particular series are to be issued in the form of one or more
Depository Notes, then the Company and the Guarantor shall execute and the
Trustee shall, in accordance with Sections 2.02 and 2.03 and the Company Order
delivered to the Trustee thereunder, authenticate and deliver, Depository
Notes, each including a Guarantee, which (i) shall represent, and shall be
denominated in an aggregate amount equal to the aggregate principal amount of,
all of the Outstanding Senior Notes of such series, (ii) shall be registered in
the name of the Depository or its nominee, (iii) shall be delivered by the
Trustee to the Depository or pursuant to the Depository's instruction and (iv)
shall bear a legend substantially to the following effect: "Except as
otherwise provided in Section 2.11 of the Indenture, this Senior Note may be
transferred, in whole but not in part, only to another nominee of the
Depository or to a successor Depository or to a nominee of such successor
Depository."
(b) Notwithstanding any provision of Section 2.05, the Depository
Notes of a series may be transferred, in whole but not in part and in the
manner provided in Section 2.05, only to another nominee of the Depository for
such series, or to a successor Depository for such series selected or approved
by the Company or to a nominee of such successor Depository.
(c) If at any time the Depository for a series of Senior Notes
notifies the Company that it is unwilling or unable to continue as Depository
for such series or if at any time the Depository for such series shall no
longer be registered or in good standing as a clearing agency registered under
the Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation and a successor Depository for such series 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, this Section 2.11 shall no longer be
applicable to the Senior Notes of such series and the Company and the Guarantor
will execute, and the Trustee will authenticate and deliver, Senior Notes of
such series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Depository Notes of such series then Outstanding in exchange for
such Depository Notes. In addition, the Company may at any time determine that
the Senior Notes of any
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series shall no longer be represented by Depository Notes and that the
provisions of this Section 2.11 shall no longer apply to the Senior Notes of
such series. In such event the Company and the Guarantor will execute and the
Trustee, upon receipt of an Officers' Certificate evidencing such determination
by the Company, will authenticate and deliver Senior Notes of such series in
definitive registered form without coupons, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the Depository
Notes of such series in exchange for such Depository Notes. Upon the exchange
of the Depository Notes for such Senior Notes in definitive registered form
without coupons, in authorized denominations, the Depository Notes shall be
cancelled by the Trustee. Such Senior Notes in definitive registered form
issued in exchange for the Depository Notes pursuant to this Section 2.11(c)
shall be registered in such names and in such authorized denominations as the
Depository, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee.
SECTION 2.12. BENEFIT OF GUARANTEE. (a) Each Holder of a Senior Note
shall have the benefit of the Guarantee in substantially the form set forth
herein. Such Guarantee shall be endorsed on each Senior Note authenticated and
delivered by the Trustee (or the authenticating agent) and such Guarantee shall
constitute an integral part of each such Senior Note. Each such Guarantee
shall be signed on behalf of the Guarantor prior to the authentication of the
Senior Note on which it is endorsed, and the delivery of such Senior Note by
the Trustee (or the authenticating agent), after the authentication thereof,
shall constitute due delivery of such Guarantee on behalf of the Guarantor.
(b) The Guarantor may, without the consent of any Holder of a Senior
Note, assume all of the rights and obligations of the Company hereunder with
respect to a series of Senior Notes and under the Senior Notes of such series
if, after giving effect to such assumption, no Event of Default shall have
occurred and be continuing. Upon such an assumption, the Guarantor shall
execute a supplemental indenture evidencing its assumption of all such rights
and obligations of the Company and the Company shall be released from its
liabilities hereunder and under such Senior Note as obligor thereon.
(c) The Guarantor shall assume all of the rights and obligations of
the Company hereunder with respect to a series of Senior Notes and under the
Senior Notes of such series if, upon a default by the Company in the due and
punctual payment of the principal, premium, if any, or interest on such Senior
Notes, the Guarantor is prevented by any court order or judicial proceeding
from fulfilling its obligations with respect to such series of Senior Notes.
Such assumption shall result in the Senior Notes of such series becoming the
direct obligations of the Guarantor and
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shall be effected without the consent of the Holders of the Senior Notes of any
series. Upon such an assumption, the Guarantor shall execute a supplemental
indenture evidencing its assumption, of all such rights and obligations of the
Company, and the Company shall be released from its liabilities hereunder and
under such Senior Notes as obligor on the Senior Notes of such series.
SECTION 2.13. CUSIP NUMBERS. The Company in issuing the Senior Notes
may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the Senior Notes or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Senior Notes, and any such
redemption shall not be affected by any defect in or omission of such numbers.
ARTICLE III
COVENANTS OF THE COMPANY
SECTION 3.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. The
Company will duly and punctually pay the principal of (and premium, if any) and
interest on the Senior Notes in accordance with the terms of the Senior Notes
and this Indenture.
SECTION 3.02. MAINTENANCE OF OFFICE OR AGENCY. The Company shall
appoint a Paying Agent which will maintain an office or agency at each place at
which the principal of (and premium, if any) or interest on any of the Senior
Notes is payable, where Senior Notes may be presented or surrendered for
payment, where Senior Notes may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Senior Notes and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and of any change in the
location, of each such office or agency. If at any time the Paying Agent shall
fail to maintain any such office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee its agent to receive all such
presentations, surrenders, notices and demands.
SECTION 3.03. MONEY FOR NOTE PAYMENTS TO BE HELD IN TRUST. If the
Company shall at any time also act as its own Paying Agent, it will, on or
before each due date of the principal of (and premium, if any) or interest on,
any of the Notes, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any) or
interest
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so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
The Company shall, on or before each due date of the principal of (and
premium, if any) or interest on, any of the Senior Notes, deposit with its
Paying Agent or Paying Agents, as the case may be, a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section 3.03,
that such Paying Agent will:
(1) hold all sums held by it for the payment of principal of
(and premium, if any) or interest on Senior Notes 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 notice of any default by the Company, the
Guarantor (or any other obligor upon the Senior Notes) in the making
of any such payment of principal (and premium, if any) 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 terms as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Senior Note and remaining unclaimed for three years
after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by
the
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Company) shall be discharged from such trust; and the Holder of such Senior
Note shall thereafter, as an unsecured 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 an Authorized Newspaper
in New York City, 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.
SECTION 3.04. CORPORATE EXISTENCE. Except as herein otherwise
expressly provided, the Company will carry on and conduct and will cause to be
carried on and conducted its business or businesses in a proper and efficient
manner and do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence, rights and franchises, provided
that the Company may cease to operate any business, premises, property or
operations or dispose of or allow to lapse any of its rights or franchises if
it is advisable and in the best interests of the Company to do so, but the
Company may not cease to operate or dispose of all or substantially all of its
assets except in accordance with Article XI hereof. The parties hereto
acknowledge that the Company and its Subsidiaries intend to sell, assign,
transfer or otherwise dispose of, from time to time, certain of their finance
receivables and related assets in transactions commonly known as asset
securitization transactions and agree that notwithstanding anything contained
in this Indenture or in the Senior Notes, such transactions shall not
constitute an Event of Default or be deemed to be prevented or restricted by
anything contained herein or in the Senior Notes.
SECTION 3.05. MAINTENANCE OF ACCOUNTS. The Company will keep or
cause to be kept proper books of account, and will, if and whenever required in
writing by the Trustee, file with the Trustee within 15 days copies of annual
or periodic reports and information, documents or other reports which the
Company has furnished to its shareholder or shareholders after the date hereof,
but only to the extent that such annual and periodic reports are filed with the
Netherlands Securities Board and made available to the general public, or are
required to be filed with the SEC pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934.
SECTION 3.06. STATEMENT AS TO COMPLIANCE. The Company will deliver
to the Trustee, within 120 days after the end of each fiscal year, a written
statement (which need not comply with Section 1.02) signed by the Chairman of
the Board, President or a
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Vice President and by the Treasurer, an Assistant Treasurer, the Controller or
an Assistant Controller, or the Secretary or an Assistant Secretary of the
Company, stating, as to each signer thereof, whether or not to the best of his
knowledge, the Company is in default in the performance of any of its
obligations under this Indenture, and, if there is a default in the fulfillment
of any such obligation, specifying each such default known to him and the
nature and status thereof.
ARTICLE IV
COVENANTS OF THE GUARANTOR
SECTION 4.01. PAYMENT OF TAXES AND OTHER CLAIMS. The Guarantor will
pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges levied
or imposed upon it or upon its income, profits or property, and (2) all lawful
claims for labor, materials and supplies which, if unpaid, might by law become
a lien upon its property; provided, however, that the Guarantor 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 4.02. CORPORATE EXISTENCE. Subject to Article XI, the
Guarantor will do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence, rights (charter and
statutory) and franchises; provided, however, that the Guarantor shall not be
required to preserve or cause to be preserved any right or franchise if the
Guarantor shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Guarantor and that the loss thereof is
not disadvantageous in any material respect to the Holders.
SECTION 4.03. FILING OF REPORTS. The Guarantor shall file with the
Trustee within 15 days after it files them with the SEC 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 SEC may by rules and regulations
prescribe) which the Guarantor is required to file with the SEC pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934. The Guarantor also
shall comply with all other reporting requirements of the TIA, including but
not limited to, Section 314(a).
SECTION 4.04. NOT SUBJECT PROPERTY TO LIEN WITHOUT SECURING NOTES
RATEABLY; WAIVER OF COVENANT. (a) The Guarantor will not issue, assume or
guarantee any indebtedness for borrowed money (referred to in this Section as
"indebtedness," which term shall not include any guarantee, cash deposit or
other recourse
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obligation with or for any Subsidiary or in connection with the sale,
securitization or discount by the Guarantor of finance or accounts receivables,
trade acceptances or other paper arising in the ordinary course of its
business) secured by a mortgage, security interest, pledge or lien (referred to
in this Section as "mortgage" or "mortgages") of or upon any property of the
Guarantor whether such property is owned at the date of this Indenture or
thereafter acquired, without making effective provision whereby the Guarantees
(together with, if the Guarantor shall so determine, any other indebtedness
issued, assumed or guaranteed by the Guarantor and then existing or thereafter
created) shall be secured by such mortgage equally and rateably with (or, at
the option of the Guarantor, prior to) such indebtedness, so long as such
indebtedness shall be so secured; provided that the foregoing shall not apply
to any of the following:
(1) mortgages of or upon any property acquired, constructed or
improved by, or of or upon any shares of capital stock or indebtedness
acquired by, the Guarantor after the date of this Indenture (A) to
secure the payment of all or any part of the purchase price of such
property, shares of capital stock or indebtedness upon the acquisition
thereof by the Guarantor, or (B) to secure any indebtedness issued,
assumed or guaranteed by the Guarantor prior to, at the time of, or
within 360 days after (i) in the case of property, the later of the
acquisition, completion of construction (including any improvements on
existing property) or commencement of commercial operation of such
property or (ii) in the case of shares of capital stock or
indebtedness, the acquisition of such shares of capital stock or
indebtedness, which indebtedness is issued, assumed or guaranteed for
the purpose of financing or refinancing all or any part of the
purchase price of such property, shares of capital stock or
indebtedness and, in the case of property, the cost of construction
thereof or improvements thereon, provided that in the case of any such
acquisition, construction or improvement of property, the mortgage
shall not apply to any property, shares of capital stock or
indebtedness theretofore owned by the Guarantor other than, in the
case of any such construction or improvement, any theretofore
unimproved or substantially unimproved real property on which the
property so constructed or the improvement is located;
(2) mortgages of or upon any property, shares of capital stock
or indebtedness, which mortgages exist at the time of acquisition of
such property, shares or indebtedness by the Guarantor;
(3) mortgages of or upon any property of a corporation, which
mortgages exist at the time such corporation is merged with or into or
consolidated with the Company or which
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mortgages exist at the time of a sale or transfer of the properties of
a corporation as an entirety or substantially as an entirety to the
Guarantor;
(4) mortgages to secure indebtedness of the Guarantor to any
Subsidiary or of any Subsidiary to another Subsidiary;
(5) mortgages in favor of the United States of America or any
State thereof, or any department, agency or instrumentality or
political subdivision of the United States of America or any State
thereof, or in favor of any other country or political subdivision, to
secure partial, progress, advance or other payments pursuant to any
contract or statute or to secure any indebtedness incurred or
guaranteed for the purpose of financing or refinancing all or any part
of the purchase price of the property, shares of capital stock or
indebtedness subject to such mortgages, or the cost of constructing or
improving the property subject to such mortgages (including, without
limitation, mortgages incurred in connection with pollution control,
industrial revenue or similar financings);
(6) mortgages on properties financed through tax-exempt
municipal obligations; provided that such mortgages are limited to the
property so financed;
(7) mortgages existing on the date of execution of this
Indenture; and
(8) any extension, renewal, refunding or replacement (or
successive extensions, renewals or replacements) in whole or in part
of any mortgage existing at the date of this Indenture or any mortgage
referred to in the foregoing Clauses (1) through (7), inclusive,
provided, however, that the principal amount of indebtedness secured
thereby shall not exceed the principal amount of indebtedness so
secured at the time of such extension, renewal, refunding or
replacement, and that such extension, renewal, refunding or
replacement shall be limited to all or a part of the property (plus
improvements and construction on such property), shares of capital
stock or indebtedness which was subject to the mortgage so extended,
renewed, refunded or replaced.
(b) Notwithstanding the provisions of subsection (a) of this Section,
the Guarantor may, without equally and rateably securing the Guarantee, issue,
assume or guarantee indebtedness secured by a mortgage not excepted by Clauses
(1) through (8) of such subsection (a), if the aggregate amount of such
indebtedness, together with all other indebtedness of, or indebtedness
guaranteed by, the Guarantor existing at such time and secured by mortgages not
so excepted, does not at the time exceed 10% of the Guarantor's
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Consolidated Net Worth. "Consolidated Net Worth" shall be the difference
between the Guarantor's consolidated assets and consolidated liabilities as
shown on the Guarantor's most recent audited consolidated financial statements
prepared in accordance with United States generally accepted accounting
principles.
(c) An arrangement with any Person providing for the leasing by the
Guarantor of any property, which property has been or is to be sold or
transferred by the Guarantor to such Person with the intention that such
property be leased back to the Guarantor, shall not be deemed to create any
indebtedness secured by a mortgage if the obligations in respect of such lease
would not be included as liabilities on a consolidated balance sheet of the
Guarantor.
The Guarantor may fail or omit in any particular instance to comply
with the covenant set forth in this Section 4.04 if the Company shall have
obtained and filed with the Trustee prior to the time for such compliance the
consent in writing of the Holders of at least a majority in aggregate principal
amount of all of the Senior Notes at the time Outstanding either waiving such
compliance in such instance or generally waiving compliance with such covenant,
but no such waiver shall extend to or affect any obligation not expressly
waived or impair any right consequent thereon.
SECTION 4.05. STATEMENT AS TO COMPLIANCE. The Guarantor will deliver
to the Trustee, within 120 days after the end of each fiscal year, a written
statement (which need not comply with Section 1.02) signed by the Chairman of
the Board, President or a Vice President and by the Treasurer, an Assistant
Treasurer, the Controller or an Assistant Controller, or the Secretary or an
Assistant Secretary of the Company, stating, as to each signer thereof, whether
or not to the best of his knowledge, the Guarantor is in default in the
performance of any of its obligations under this Indenture, and, if there is a
default in the fulfillment of any such obligation, specifying each such default
known to him and the nature and status thereof.
ARTICLE V
REPAYMENT AT OPTION OF HOLDERS
SECTION 5.01. OPTIONAL REPAYMENT OF NOTES. If the Board Resolution
or supplemental indenture, as the case may be, with respect to the Senior Notes
of any particular series so provides, such Senior Notes shall be subject to
repayment at the option of the Holder prior to their Stated Maturity, on such
terms as set forth in the Board Resolution or supplemental indenture pertaining
to such Senior Notes, upon the receipt by the Company of the form entitled
'Option to Elect Repayment' as specified in Section 5.02
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or such optional notification procedure as may be specified in such Senior
Notes.
SECTION 5.02. REPAYMENT PROCEDURE FOR NOTES. To be repaid at the
option of the Holder, unless additional or substitute procedures are set forth
in the Senior Notes, Senior Notes must be received, with the form entitled
"Option to Elect Repayment" on the reverse of the Notes duly completed, by the
Trustee at its designated office (or at such other place of which the Company
shall from time to time notify the Holders of the Senior Notes) within the
periods specified by the terms of the Senior Notes. Effective exercise of the
repayment option by the Holder shall be irrevocable. Upon such completion and
receipt of the applicable form, Senior Notes for which the option has been
exercised become due and payable on the repayment date at the repayment price
plus accrued interest (if any), except that interest, the Stated Maturity of
which is on or prior to such repayment date, shall be payable to the Holders of
such Senior Notes of record on the relevant Record Dates according to their
terms and the provisions of Section 2.07. From and after such repayment date
(unless the Company or Guarantor shall default in the payment of the repayment
price) such Senior Notes shall cease to bear interest.
ARTICLE VI
REDEMPTION OF NOTES; SINKING FUNDS
SECTION 6.01. APPLICABILITY OF REDEMPTION PROVISIONS. Senior Notes
of any series which are redeemable before their Stated Maturity at the option
of the Company or otherwise shall be redeemable in accordance with their terms
and in accordance with the following provisions of this Article VI.
SECTION 6.02. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election of
the Company to redeem Senior Notes of any series shall be evidenced by a Board
Resolution or, if an officer of the Company has been duly authorized with
respect to the redemption of Senior Notes, a certificate from such officer to
the Trustee authorizing such actions as are necessary or appropriate to effect
the redemption and a Board Resolution evidencing such officer's authority. In
case of any redemption at the option of the Company of less than all of the
Senior Notes of any series the Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee by Company Order of such
Redemption Date and of the principal amount of Senior Notes to be redeemed.
SECTION 6.03. SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED. If less
than all the Senior Notes of any series are to be redeemed, and unless
otherwise provided with respect to the Senior Notes of any particular series,
the particular Senior Notes to be redeemed
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shall be selected by the Trustee from the Outstanding Senior Notes of such
series not previously called for redemption, by lot or by such other method as
the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal of Senior Notes,
provided, however, that except with respect to Senior Notes being redeemed
pursuant to the operation of a sinking fund, no such partial redemption shall
reduce the portion of the principal amount of a Senior Note of such series not
redeemed to less than the minimum denomination for a Senior Note of that
series. The portions of the principal of Senior Notes so selected for partial
redemption shall be equal to the smallest authorized denomination of the Senior
Notes of such series or an integral multiple thereof.
The Trustee shall promptly notify the Company in writing of the Senior
Notes selected for redemption and, in the case of any Senior Note selected for
partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Senior Notes shall
relate, in the case of any Senior Note redeemed or to be redeemed only in part,
to the portion of the principal of such Senior Note which has been or is to be
redeemed.
SECTION 6.04. NOTICE OF REDEMPTION. Notice of redemption shall be
given not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Senior Notes to be redeemed, such notice sent by first class
mail, postage pre-paid at his address appearing in the Note Register.
All notices of redemption shall state:
(1) the series designation of the Senior Notes to be redeemed,
(2) the Redemption Date,
(3) the Redemption Price,
(4) if less than all Outstanding Senior Notes of such series
are to be redeemed, the identification (and, in the case of partial
redemption, the respective principal amounts) of the Senior Notes of
such Holder to be redeemed,
(5) that on the Redemption Date the Redemption Price will
become due and payable upon each such Senior Note, and that, if
applicable, interest thereon shall cease to accrue from and after said
date,
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(6) the place where such Senior Notes are to be surrendered
for payment of the Redemption Price, which shall be the office or
agency of the Company at any place at which the principal of such
Senior Notes is payable,
(7) if Senior Notes are to be redeemed pursuant to any
sinking or purchase fund established for any series of Senior Notes,
that the redemption is being made for the purposes of such sinking or
purchase fund, and
(8) CUSIP number, if any.
Notice of redemption of Senior Notes to be redeemed at the option 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.
SECTION 6.05. DEPOSIT OF REDEMPTION PRICE. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 3.03) an amount of money sufficient to pay the
Redemption Price plus accrued interest of all the Senior Notes which are to be
redeemed on that date.
SECTION 6.06. NOTES PAYABLE ON REDEMPTION DATE. Notice of redemption
having been given as aforesaid, the Senior Notes so to be redeemed shall, on
the Redemption Date, become due and payable at the Redemption Price therein
specified and from and after such date (unless the Company shall default in the
payment of the Redemption Price) such Senior Notes shall cease to bear
interest. Upon surrender of such Senior Notes for redemption in accordance with
such notice, such Senior Notes shall be paid by the Company at the Redemption
Price. Interest, the Stated Maturity of which is on or prior to the Redemption
Date, shall be payable to the Holders of such Senior Notes of record on the
relevant Record Dates according to their terms and the provisions of Section
2.07.
If any Senior Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Senior Note.
SECTION 6.07. NOTES REDEEMED IN PART. Any Senior Note which is to be
redeemed only in part shall be surrendered to the Trustee or Paying Agent
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing) and the Company and the Guarantor shall execute and the Trustee shall
authenticate and deliver to such Holder, without service charge, a
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new Senior Note or Senior Notes of the same series, including the Guarantee, of
any authorized denominations as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Senior Note so surrendered.
SECTION 6.08. SINKING FUNDS. The provisions of this Article VI shall
be applicable to any sinking fund for the retirement of Senior Notes of any
series except as otherwise specified in such Senior Notes.
The minimum amount of any sinking fund payment provided for by the
terms of Senior Notes of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Senior Notes of any series is herein referred to
as an "optional sinking fund payment". If provided for by the terms of Senior
Notes of any series, the cash amount of any sinking fund payment may be subject
to reduction as provided in Section 6.09. Each sinking fund payment shall be
applied to the redemption of Senior Notes of any series as provided for by the
terms of Senior Notes of such series.
SECTION 6.09. SATISFACTION OF SINKING FUND PAYMENTS WITH NOTES. The
Company (1) may deliver to the Trustee for cancellation Outstanding Senior
Notes of a series (other than any previously called for redemption) and (2) may
apply as a credit Senior Notes of a series containing identical terms and
provisions which have been redeemed either at the election of the Company
pursuant to the terms of such Senior Notes or through the application of
permitted optional sinking fund payments pursuant to the terms of such Senior
Notes, in each case in satisfaction of all or any part of any mandatory sinking
fund payment with respect to the Senior Notes of such series required to be
made pursuant to the terms of such Senior Notes as provided for by the terms of
such Senior Notes; provided that such Senior Notes shall not have been
previously so credited. Such Senior Notes shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such Senior
Notes for redemption through operation of the mandatory sinking fund and the
amount of such mandatory sinking fund payment shall be reduced accordingly.
SECTION 6.10. REDEMPTION OF NOTES FOR SINKING FUNDS Not less than-45
days prior to each sinking fund payment date for Senior Notes of any series,
the Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing mandatory sinking fund payment and optional sinking
fund payment, if any, for that series of Senior Notes pursuant to the terms
thereof, the portion thereof, if any, which is to be satisfied by payment of
cash and the portion thereof, if any, which is to be satisfied by delivering
and crediting Senior Notes of that series pursuant to Section 6.09 and will
also deliver with the said
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Officers' Certificate to the Trustee any Senior Notes to be so delivered if not
theretofore delivered. Not less than 45 days before each such sinking fund
payment date the Company shall cause to be selected the Senior Notes to be
redeemed upon such sinking fund payment in the manner specified in Section 6.03
and shall cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 6.04. The
Company or the Guarantor shall deposit the amount of cash, if any, required for
such sinking fund payment with the Trustee in the manner provided in Section
6.05. Such notice having been duly given, the redemption of such Senior Notes
shall be made upon the terms and in the manner stated in Sections 6.06 and
6.07.
ARTICLE VII
SATISFACTION AND DISCHARGE
SECTION 7.01. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture
shall cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of Senior Notes if herein or in any
supplemental indenture expressly provided for), and the Trustee, on demand of
and at the expense of the Company or the Guarantor, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Senior Notes theretofore authenticated and delivered (other
than (i) Senior Notes which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 2.06, and (ii) Senior
Notes for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 3.02) have
been delivered to the Trustee for cancellation; or
(B) all such Senior Notes 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
(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,
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and the Company, in the case of (B) (i), (ii) or (iii)
above, has deposited or caused to be deposited with the Trustee
as trust funds in trust for the purpose of discharging and
undertakes an amount sufficient to pay and discharge the entire
indebtedness on such Senior Notes not theretofore delivered to
the Trustee for cancellation, for principal (and premium, if
any) and interest to the date of such deposit (in the case of
Senior Notes which have become due and payable), or to their
Stated Maturity or Redemption Date, as the case may be; and
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company or the Guarantor; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 9.07, the obligations
of the Trustee to any authenticating agent appointed under Section 2.10 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 7.02
and the last paragraph of Section 3.03 shall survive.
SECTION 7.02. APPLICATION OF TRUST MONEY. Subject to the provisions
of the last paragraph of Section 3.02, all money deposited with the Trustee
pursuant to Section 7.01 shall be held in trust and applied by it, in
accordance with the provisions of the Senior Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for whose
payment such money has been deposited with the Trustee; but such money need not
be segregated from other funds except to the extent required by law.
SECTION 7.03. SATISFACTION, DISCHARGE, AND DEFEASANCE OF NOTES OF ANY
SERIES. Unless this Section 7.03 shall be deemed inapplicable to a series of
Senior Notes pursuant to the Board Resolution or supplemental indenture
creating such series, the Company shall be deemed to have paid and discharged
the entire indebtedness on all the Outstanding Senior Notes of any such series
and the Trustee, at the demand of and at the expense of the Company shall
execute proper instruments acknowledging satisfaction and discharge of such
indebtedness, when
(1) either
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(A) with respect to all Outstanding Senior Notes of such series,
(i) the Company has deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose of
discharging such indebtedness an amount sufficient to pay and
discharge the entire indebtedness on all Outstanding Senior
Notes of such series for principal (and premium, if any) and
interest to the Stated Maturity or any Redemption Date as
contemplated by the penultimate paragraph of this Section 7.03,
as the case may be; or
(ii) the Company has deposited or caused to be deposited
with the Trustee as obligations in trust for the purpose of
discharging such indebtedness such amount of direct obligations
of, or obligations the principal of and interest on which are
fully guaranteed by, the United States of America and which are
not callable at the option of the issuer thereof as will,
together with the income to accrue thereon without consideration
of any reinvestment thereof, be sufficient to pay and discharge
the entire indebtedness on all Outstanding Senior Notes of such
series for principal (and premium, if any) and interest to the
Stated Maturity or any Redemption Date as contemplated by the
penultimate paragraph of this Section 7.03, as the case may be;
or
(B) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified in the Board Resolution
described in Section 2.01 hereof or supplemental indenture applicable
to the Senior Notes of such series; and
(2) the Company has paid or caused to be paid all other sums payable
with respect to the Outstanding Senior Notes of such series; and
(3) the Company has delivered to the Trustee a certificate of a firm of
independent public accountants certifying as to the sufficiency of the amounts
deposited pursuant to subsections (A)(i) or (ii) of this Section for payment of
the principal (and premium, if any) and interest on the dates such payments are
due, an Officers' Certificate and an Opinion of Counsel, each such Certificate
and Opinion stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of the entire indebtedness on all Outstanding
Senior Notes of any such series have been complied with.
Any deposits with the Trustee referred to in Section 7.03(1)(A) above
shall be irrevocable and shall be made under the terms of an escrow trust
agreement in form and substance
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satisfactory to the Trustee. If any Outstanding Senior Notes of such series are
to be redeemed prior to their Stated Maturity, whether pursuant to any optional
redemption provisions or in accordance with any mandatory sinking fund
requirement, the Company shall make such arrangements as are satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company.
Upon the satisfaction of the conditions set forth in this Section 7.03
with respect to all the Outstanding Senior Notes of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company or the Guarantor, other than the provisions of
Sections 2.06 and 2.07 and other than the right of Holders of Senior Notes of
such series to receive, from the trust fund described in this Section, payment
of the principal of and the interest on such Senior Notes when such payments
are due and other than the rights, powers, duties and immunities of the Trustee
hereunder (including the obligations of the Company to the Trustee under
Section 9.07).
SECTION 7.04. REINSTATEMENT. If the Trustee is unable to apply any
money in accordance with Section 7.01 or 7.03 by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's and Guarantor's
obligations under this Indenture and the Senior Notes shall be revived and
reinstated as though no deposit had occurred pursuant to this Article Seven
until such time as the Trustee is permitted to apply all such money in
accordance with Section 7.01 or 7.03; provided, however, that if the Company
makes any payment of principal of (and premium, if any) or interest on any
Senior Notes following the reinstatement of its obligations, the Company shall
be subrogated to the rights of the Holders of such Senior Notes to receive such
payment from the money held by the Trustee.
ARTICLE VIII
REMEDIES
SECTION 8.01. EVENTS OF DEFAULT. "Event of Default", wherever used
herein with respect to Senior Notes of any series, 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 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 instalment of interest upon any
Senior Note of that series when such instalment of
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interest shall become due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on)
any Senior Note of that series at its Maturity; or
(3) default in the deposit under Section 6.10 of any installment of any
sinking fund or similar payment with respect to Senior Notes of that series
when and as payable by the terms of the Board Resolution or supplemental
indenture establishing such series, and continuance of such default for a
period of 30 days; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company or the Guarantor in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in this
Section 8.01 specifically dealt with or which has expressly been included in
the Indenture solely for the benefit of Senior Notes of a series other than
that series), and continuance of such default or breach for the period of time
and after the notice specified below;
(5) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company or the Guarantor 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 the Guarantor
under the Federal Bankruptcy Code or any other applicable Federal or State law,
or appointing a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Company or the Guarantor 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
60 consecutive days; or
(6) the institution by the Company or the Guarantor of proceedings to
be adjudicated a 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 under in the
case of the Company, all applicable Dutch bankruptcy, insolvency or analogous
law, or in the case of the Guarantor, the Federal Bankruptcy Code or any other
applicable Federal or State 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 the Guarantor or of
any substantial part of its property, or the making by it of an assignment for
the benefit
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of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate
action by the Company or the Guarantor in furtherance of any such
action; or
(7) default by the Company or the Guarantor beyond any period of
grace provided for with respect thereto in any payment of principal or
interest on any obligation for borrowed money, other than any of the
Senior Notes, under an indenture in which the Trustee is acting as the
trustee for security holders, or in the performance of any other term,
condition or covenant contained in any such indenture, which results in
the principal amount of such indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise be due and
payable, without such acceleration being rescinded or annulled within
the period and after the notice specified below, and such principal
amount exceeds $150,000,000.
A default with respect to any series of Senior Notes under clause (4)
or clause (7) is not an Event of Default until the Trustee notifies the Company
and the Guarantor, or the Holders of at least 25% in principal amount of the
outstanding Senior Notes of that series notify the Company, the Guarantor and
the Trustee, of the default and the Company and the Guarantor do not cure the
default within 60 days in the case of clause (4) and 30 days in the case of
clause (7) after receipt of the notice. The notice must specify the default,
demand that it be remedied and state that the notice is a 'Notice of Default.'
SECTION 8.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If
an Event of Default occurs with respect to Notes of any series at the time
Outstanding and is continuing, then and in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Senior
Notes of that series may declare the principal of all the Senior Notes of that
series (or, if the Senior Notes of that series are Original Issue Discount
Notes, such portion of the principal amount thereof as may be specified in the
terms of such Senior Notes) and all accrued but unpaid interest to be due and
payable immediately, by a notice in writing to the Company and the Guarantor
(and to the Trustee if given by Holders), and upon any such declaration such
principal and all accrued but unpaid interest shall become immediately due and
payable.
At any time after such 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 in this Article VIII provided, the Holders of a
majority in principal amount of the Senior Notes then Outstanding of that
series, by written notice to
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the Company, the Guarantor and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company or the Guarantor has paid or deposited with the Trustee
a sum sufficient to pay
(A) all overdue installments of interest, if any, on all Senior
Notes of that series,
(B) the principal of (and premium, if any, on) any Senior Notes of
that series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or the respective rates
borne by the Senior Notes of that series,
(C) to the extent that payment of such interest is lawful, interest
upon overdue installments of interest, if any, at the rate or the
respective rates borne by the Senior Notes of that series or at a rate
otherwise specified therein, 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 the principal
of Senior Notes of that series which have become due solely by such
acceleration, have been cured or waived as provided in Section 8.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 8.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. The Company and the Guarantor covenant that if
(1) default is made in the payment of any installment of interest on
any Senior Notes when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of (i) the principal of (or premium,
if any) or, (ii) any sinking fund installment when due and payable on any
Senior Notes at the Maturity thereof,
the Company or the Guarantor will, upon demand of the Trustee or the Holders of
not less than 25% in principal amount of such Outstanding Senior Notes, pay to
the Trustee, for the benefit of the Holders of such Senior Notes, the whole
amount then due and
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payable on such Senior Notes for principal (and premium, if any) and interest,
with interest upon the overdue principal (and premium, if any) and, to the
extent that payment of such interest shall be legally enforceable, upon overdue
installments of interest, at the rate or respective rates borne by such Senior
Notes or at the rate or respective rates specified therein; 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 and the Guarantor fail to pay such amount forthwith upon
such demand, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company and the Guarantor or any other obligor
upon the Senior Notes and collect the moneys adjudged or decreed to be payable
in the manner provided by law out of the property of the Company and the
Guarantor or any other obligor upon the Senior Notes, 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 8.04. 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, the Guarantor or any other obligor upon the
Senior Notes or the property of the Company, the Guarantor or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of the Senior Notes 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 or the Guarantor 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 premium, if any) and interest owing and unpaid in respect of the
Senior Notes 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
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(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any
receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to 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
9.07.
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 Notes or
the rights of any Holder, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
SECTION 8.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES.
All rights of action and claims under this Indenture or the Senior Notes may be
prosecuted and enforced by the Trustee without the possession of any of the
Senior Notes or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
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
rateable benefit of the Holders of the Senior Notes in respect of which such
judgment has been recovered.
SECTION 8.06. APPLICATION OF MONEY COLLECTED. Any money collected by
the Trustee pursuant to this Article VIII shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any) or
interest, upon presentation of the Senior Notes, 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
9.07;
SECOND: To the payment of the amounts then due and unpaid upon the
Senior Notes for principal (and premium, if any) and interest, in
respect of which or for the benefit of which such money has been
collected, rateably, without preference or priority of any kind,
according to the amounts due and payable on such Senior Notes for
principal (and premium, if any) and interest, respectively; and
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THIRD: To the payment of the remainder, if any, to the Company, the
Guarantor or any other Person lawfully entitled thereto.
For all purposes of this Section 8.06, the Holders of any Senior Notes
denominated in ECU, or any other composite currency or a Foreign Currency shall
be entitled to receive a rateable portion of the payment determined pursuant to
Section 1.04(f) hereof.
SECTION 8.07. LIMITATIONS ON SUITS. No Holder of any Senior Note of
any series 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 with respect to the Senior Notes of
that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Senior Notes of that series 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 reasonable
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 in principal amount of the Outstanding Senior Notes of such
series;
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 rateable benefit of all the Holders.
SECTION 8.08. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST. Notwithstanding any other provision in this Indenture,
the Holder of any Senior Note shall have the right which is absolute and
unconditional to receive payment of the principal of (and premium, if any) and
(subject to
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Section 2.07) interest on such Senior Note on the respective Stated Maturities
expressed in such Senior Note (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
right shall not be impaired without the consent of such Holder.
SECTION 8.09. 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 the Company, the Guarantor, the Trustee and the Holders
shall, subject to any determination in such proceeding, be restored severally
and respectively to their former positions hereunder, and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 8.10. RIGHTS AND REMEDIES CUMULATIVE. 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 8.11. DELAY OR OMISSION NOT WAIVER. No delay or omission of
the Trustee or of any Holder 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 VIII 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 8.12. CONTROL BY HOLDERS. The Holders of a majority in
principal amount of the Outstanding Senior Notes 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, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 8.13. WAIVER OF PAST DEFAULTS. The Holders of a majority in
principal amount of the Outstanding Senior Notes of any series affected by an
Event of Default may on behalf of the Holders
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of such series of Senior Notes waive any past default hereunder and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Senior Note of such series, or
(2) in respect of a covenant or provision hereof which under Section
12.02 cannot be modified or amended without the consent of the Holder of
each Outstanding Senior Note 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 impair any right consequent thereon.
SECTION 8.14. UNDERTAKING OF COSTS. All parties to this Indenture
agree, and each Holder of any Senior Note by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken, suffered, or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section 8.14 shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of any series of the Outstanding Senior Notes, or
to any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Senior Note on or after
the respective Stated Maturities expressed in such Senior Note for such
interest (or, in the case of redemption, on or after the Redemption Date).
SECTION 8.15. WAIVER OF STAY OR EXTENSION LAWS. Each of the Company
and the Guarantor covenant (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 of law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and each of the Company and the Guarantor
(to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
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ARTICLE IX
TRUSTEE
SECTION 9.01. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. (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 whether or not they conform to the requirements of this
Indenture.
(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 man would exercise or use under the circumstances in the conduct of his
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 wilful misconduct, except that
(1) this Subsection (c) shall not be construed to limit the effect
of Subsection (a) of this Section 9.01;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(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 Senior Notes determined as provided in Section 1.01 and
1.04 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; and
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(4) no provision of this Indenture shall require the Trustee to
expend, pay, advance 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.
SECTION 9.02. NOTICE OF DEFAULT. Within 90 days after the occurrence
of any default hereunder, the Trustee shall transmit by mail to all Holders, as
their names and addresses appear in the Note Register, 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 premium, if any) or interest on any Senior Note or in
the payment of any sinking or purchase fund instalment, 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 determine that the withholding of such
notice is in the interests of the Holders; and provided, further, that in the
case of any default of the character specified in Section 8.01(4) no such
notice to Holders shall be given until at least 60 days after the occurrence
thereof. For the purpose of this Section 9.02 the term 'default' means any
event which is, or after notice or lapse of time or both would become, an Event
of Default.
SECTION 9.03. CERTAIN RIGHTS OF TRUSTEE. Except as otherwise provided
in Section 9.01:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company or the Guarantor mentioned
herein shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action
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taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity, reasonably satisfactory to the
Trustee, against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) 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 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 or the Guarantor, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers 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; and
(h) the Trustee shall not be liable for any action taken 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.
SECTION 9.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES. The
recitals contained herein and in the Senior Notes, except the certificate of
authentication, shall be taken as the statements of the Company or the
Guarantor, as the case may be, 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 Senior Notes. The Trustee shall not be
accountable for the use or application by the Company or the Guarantor of
Senior Notes or the proceeds thereof.
SECTION 9.05. MAY HOLD NOTES. The Trustee, any Paying Agent, Note
Registrar or any other agent of the Company or the Guarantor, in its individual
or any other capacity, may become the owner or pledgee of Senior Notes and,
subject to Sections 9.08 and 9.09 may otherwise deal with the Company or the
Guarantor with the same rights it would have if it were not Trustee, Paying
Agent, Note Registrar or such other agent.
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SECTION 9.06. 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 and the
Guarantor.
SECTION 9.07. COMPENSATION AND REIMBURSEMENT. The Company and the
Guarantor, jointly and severally agree
(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);
(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 the Trustee for, and to hold it harmless against,
any loss, damage, claims, liability or expense incurred, including taxes
(other than taxes based upon, or measured by, the income of the Trustee)
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
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section 9.07 the Trustee shall have a lien prior to the Senior Notes for
any amount owing to it or to any predecessor Trustee upon all property and
funds held or collected by the Trustee as such, except funds held in trust for
the payment of principal of (and premium, if any) or interest on particular
Senior Notes.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 8.01(5) or Section 8.01(6), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
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SECTION 9.08. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY;
DISQUALIFICATION; CONFLICTING INTERESTS. (a) This Indenture shall always have
a Trustee with respect to the Senior Notes of each series which satisfies the
requirements of TIA 310(a)(1). The Trustee shall always have a combined capital
and surplus of at least $5,000,000 as set forth in its most recent annual
report of condition.
(b) The Trustee is subject to TIA 310(b), including the optional
provision permitted by the second sentence of TIA 310(b)(9); it being
understood that for the purposes of this Indenture, with respect to Senior
Notes of any series, the provisions of TIA 310(b) with respect to conflicting
interests relating to 'other securities' shall be interpreted to include Senior
Notes of each other series and with respect to 'other indentures' shall include
the provisions of this Indenture relating to the Senior Notes of such other
series.
SECTION 9.09. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The
Trustee is subject to TIA 311(a), excluding any creditor relationship listed
in TIA 311(b). A Trustee who has resigned or been removed shall be subject to
TIA 311(a) to the extent indicated.
SECTION 9.10. 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 under Section 9.11.
(b) The Trustee may resign at any time by giving written notice thereof
to the Company and the Guarantor. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of 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 a
majority in principal amount of the Outstanding Senior Notes, delivered to the
Trustee, the Company and the Guarantor.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 9.08(b)
after written request therefor by the Company, the Guarantor or by any
Holder who has been a bona fide Holder for at least six months, or
(2) the Trustee shall cease to be eligible under Section
9.08(a) and shall fail to resign after written request
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therefor by the Company or the Guarantor or by any such Holder, 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 or the Guarantor, individually and not
jointly by a Board Resolution may remove the Trustee, or (ii) subject to
Section 8.14, any Holder who has been a bona fide Holder for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor 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 Senior Notes
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 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 as
their names and addresses appear in the Note Register. Each notice shall
include the name of the successor Trustee and the address of its principal
corporate trust office.
SECTION 9.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and the Guarantor 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 and
the Guarantor or the successor Trustee, such retiring
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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, subject
nevertheless to its lien, if any, provided for in Section 9.07. Upon request of
any such successor Trustee, the Company and the Guarantor 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 IX.
SECTION 9.12. 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 IX, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Senior Notes 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 Senior Notes so authenticated with the same
effect as if such successor Trustee had itself authenticated such Senior Notes.
ARTICLE X
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 10.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS. The Company covenants and agrees that it will furnish or cause to be
furnished to the Trustee, between September 1 and September 15 and between
March 1 and March 15 in each 12 months' period beginning with March 1, 1993,
and at such other times as the Trustee may request in writing, within 30 days
after receipt by the Company of any such request, a list in such form as the
Trustee may reasonably require of the names and addresses of the Holders as of
a date not more than 15 days prior to the time such information is furnished.
So long as the Trustee is the Note Registrar no such list need be furnished.
SECTION 10.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as
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is reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 10.01 and the
names and addresses of Holders received by the Trustee in its capacity as Note
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 10.01 upon receipt of a new list so furnished.
(b) Holders of Senior Notes may communicate pursuant to TIA 312(b)
with other Holders with respect to their rights under this Indenture or the
Senior Notes. The Company, the Guarantor the Trustee, the Senior Note
Registrar, and anyone else shall have the protection of TIA 312(c).
SECTION 10.03. REPORTS BY TRUSTEE. (a) The term 'reporting date', as
used in this Section 10.03, means September 15. Within 60 days after the
reporting date in each year, the Trustee shall transmit by mail to all Holders,
as their names and addresses appear in the Note Register, a brief report dated
as of such reporting date that complies with TIA 313(a). The Trustee shall
also comply with TIA 313(b).
(b) Reports pursuant to this Section 10.03 shall be transmitted by
mail:
(1) to all Holders of Senior Notes, as the names and addresses
of such Holders appear in the Note Register;
(2) to such Holders of Senior Notes as have, within the 2 years
preceding such transmission, filed their names and addresses with the
Trustee for that purpose; and except in the case of reports pursuant to
TIA 313(b), to all Holders of Senior Notes whose names and addresses
have been furnished to or received by the Trustee pursuant to Section
10.01.
(c) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which the
Senior Notes are listed, and also with the Commission. The Company will notify
the Trustee when the Senior Notes are listed on any stock exchange.
ARTICLE XI
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 11.01. GUARANTOR MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS.
The Guarantor shall not consolidate with or merge into any other corporation or
convey, transfer, sell or lease its properties and assets as, or substantially
as, an entirety to any Person, unless:
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(1) the corporation formed by such consolidation or into which
the Guarantor is merged or the Person which acquires by conveyance,
transfer, sale or lease the properties and assets of the Guarantor as,
or substantially as, an entirety shall be a corporation organized and
existing under the laws of the United States of America or any State or
the District of Columbia, and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest on all the Senior Notes
pursuant to the Guarantee and the performance of every covenant of this
Indenture on the part of the Guarantor to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Section 11.01 and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
SECTION 11.02. COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS.
Notwithstanding anything contained in this Indenture or in the Senior Notes, a
resolution or order for winding-up the Company or any other proceedings taken
with a view to its reconstruction or its reorganization or its consolidation,
amalgamation or merger with or into another corporation, or any other
transaction or proceedings resulting in the amalgamation of the Company with
another corporation or the transfer, sale or conveyance of all or substantially
all the Company's undertaking or assets to another Person shall not constitute
an Event of Default or be deemed to be prevented or restricted by anything
contained herein or in the Senior Notes, if the Person resulting from such a
reconstruction, reorganization, consolidation, amalgamation or merger or the
Person to whom such undertaking or assets are transferred, sold or conveyed, as
the case may be, (herein referred to as the "Successor") shall, within 120 days
from the passing of the resolution or the date of the order, and at or before
the taking of such other proceedings or the transfer, sale or conveyance of the
undertaking and assets of the Company to the Successor, enter into a covenant
with the Trustee or otherwise become liable in law to pay the principal and
interest and other moneys due or which may become due under this Indenture and
the Senior Notes and to perform and observe all the obligations of the Company
under this Indenture, and shall sign and execute all such deeds and documents
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as the Trustee may be advised by counsel are necessary or advisable in the
circumstances.
Provided, however, that the Company shall not engage in any transaction
referred to in the foregoing paragraph unless the Trustee has been satisfied
that the following conditions have been complied with:
(1) the Successor is a corporation incorporated or a partnership formed
under the laws of the Netherlands or of the United States of America or
under any of the respective political subdivisions thereof;
(2) at the time of and immediately after the consummation of the transaction
no condition or event shall exist which constitutes or which would,
after the lapse of time of giving of notice or both, constitute an Event
of Default hereunder;
(3) the Successor is lawfully entitled to acquire and operate the undertaking
and assets; and
(4) in the opinion of counsel to the Trustee, the transaction is upon such
terms as substantially to preserve and not to impair any of the rights
and powers of the Trustee or of the Holders hereunder.
The Trustee may accept and rely on an opinion of counsel that
conditions prescribed in this section 11.02 have been complied with and upon
obtaining such opinion the Trustee shall join in such documents and do such
acts as may be required or thought advisable to consent to or give effect to
such reconstruction, reorganization, consolidation, amalgamation, merger,
transfer, sale or conveyance and to release and discharge the Company from
liability under this Indenture and the Senior Notes.
SECTION 11.03. SUCCESSOR CORPORATION SUBSTITUTED. Upon any
consolidation or merger, or any conveyance, transfer, sale or lease of the
properties and assets of the Company or the Guarantor, as the case may be, as,
or substantially as, an entirety in accordance with Sections 11.01 or 11.02,
the successor corporation formed by such consolidation or into which the
Company or the Guarantor is merged or to which such conveyance, transfer, sale
or lease is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company or the Guarantor, as the case may be,
under this Indenture with the same effect as if such successor corporation had
been named as the Company or the Guarantor respectively herein, and thereafter,
except in the case of a lease, the predecessor corporation shall be relieved of
all obligations and covenants under this Indenture, the Senior Notes or the
Guarantees as applicable.
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ARTICLE XII
SUPPLEMENTAL INDENTURES
SECTION 12.01. SUPPLEMENTAL INDENTURE WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holder, the Company, the Guarantor 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 create a new series of Senior Notes;
(2) to evidence the succession of another corporation to the
Company or the Guarantor, and the assumption by any such successor of
the covenants of the Company or the Guarantor herein and in the Senior
Notes contained;
(3) to add to the covenants of the Company or the Guarantor
for the benefit of the Holders of all or any series of Senior Notes
(and if such covenants are to be for the benefit of less than all series
of Senior Notes, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender any
right or power herein conferred upon the Company or the Guarantor;
(4) to mortgage, pledge, convey, assign and transfer to the
Trustee any property or assets as security for the Senior Notes and to
specify the terms and conditions upon which such property or assets are
to be held and dealt with by the Trustee and to set forth such other
provisions in respect thereof as may be required by this Indenture or as
may, consistent with the provisions of this Indenture, be deemed
appropriate by the Company or the Guarantor and the Trustee, or to
correct or amplify the description of any such property or assets at any
time so mortgaged, pledged, conveyed and transferred to the Trustee;
(5) to add any additional Events of Default with respect to
all or any series of Senior Notes;
(6) to cure any ambiguity, defect, or inconsistency or to
correct or supplement any provision contained herein or in any
supplemental indenture or in any Senior Notes issued hereunder;
(7) to provide for uncertificated Senior Notes in addition to
certificated Senior Notes;
(8) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Senior Notes in bearer form,
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registrable or not registrable as to principal, and with or without
interest coupons;
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Senior Notes of
one or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 9.11; or
(10) to make any change that does not adversely affect the
rights of any Holder of Senior Notes which are Outstanding.
SECTION 12.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
Subject to the provisions of Section 8.12 and Section 8.13, with the consent of
the Holders of not less than a majority in principal amount of the Outstanding
Senior Notes of each series which are affected, evidenced by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, the Guarantor 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 any supplemental indenture or of modifying in any manner
the rights of the Holders of the Senior Notes of such series thereof under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Senior Note affected
thereby,
(1) change the Stated Maturity of the principal of, or any
instalment of interest on, any Senior Note, or reduce the principal
amount thereof or the interest thereon or any premium payable upon the
redemption thereof, or reduce the principal amount of an Original Issue
Discount Note that would be due and payable upon a declaration of
acceleration of the Maturity thereof, or change the coin or currency in
which any Senior Note or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Senior Notes of any series, 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
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(3) modify any of the provisions of this Section 12.02 or
Section 8.13, 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 Senior Note affected thereby
provided, however, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references to 'the
Trustee' and concomitant changes in this Section and Section 3.08, or
the deletion of this proviso, in accordance with the requirements of
Sections 9.11 and 12.01(9).
It shall not be necessary for any Act of Holders under this Section
12.02 to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve substance thereof.
SECTION 12.03. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
accepting the additional trusts created by, any supplemental indenture
permitted by this Article XII or the modification thereby of the trusts created
by this Indenture, the Trustee shall be entitled to receive, and (subject to
Section 9.01) 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 and that such supplemental indenture is a valid and
binding obligation of the Company or the Guarantor in accordance with its
terms. 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 12.04. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution
of any supplemental indenture under this Article XII, 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 Senior Notes
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION 12.05. CONFORMITY WITH TRUST INDENTURE ACT. Every
supplemental indenture executed pursuant to this Article XII shall conform to
the requirements of TIA as then in effect.
SECTION 12.06. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES. Senior
Notes authenticated and delivered after the execution of any applicable
supplemental indenture pursuant to this Article XII 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 Senior Notes so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any such supplemental indenture may be
prepared and executed by the Company and
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authenticated and delivered by the Trustee in exchange for Outstanding Senior
Notes.
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TESTIMONIUM
This Indenture may be executed 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 instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
HOUSEHOLD INTERNATIONAL NETHERLANDS B.V.
By_________________________________________
Vice President
Attest:
_________________________
Assistant Secretary
(CORPORATE SEAL)
HOUSEHOLD INTERNATIONAL, INC.
BY ______________________________________
Assistant Treasurer
Attest:
______________________________
Assistant Secretary
(CORPORATE SEAL)
THE FIRST NATIONAL BANK OF BOSTON,
AS TRUSTEE
BY ______________________________________
Vice President
Attest:
______________________________
Assistant Cashier
(CORPORATE SEAL)
a:BOSTON.IND