HOUSEHOLD INTERNATIONAL NETHERLANDS B.V.,
AS ISSUER
AND
HOUSEHOLD INTERNATIONAL, INC.
AS GUARANTOR
AND
THE CHASE MANHATTAN BANK,
AS TRUSTEE
---------------------------------
INDENTURE
DATED AS OF SEPTEMBER 1, 1998
--------------------------------
PROVIDING FOR ISSUANCE OF UNCONDITIONALLY GUARANTEED SENIOR
NOTES IN SERIES
HOUSEHOLD INTERNATIONAL NETHERLANDS B.V.
HOUSEHOLD INTERNATIONAL, INC.
Indenture dated as of September 1, 1998
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.............................................................10
"Act" ........................................................................11
"Affiliate"; "Control"................................................................11
"Authorized Newspaper"................................................................11
"Board of Directors"..................................................................11
"Board Resolution"....................................................................11
"Business Day"........................................................................11
"Commission or SEC"...................................................................12
"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
i
"Foreign Currency"....................................................................13
"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"...............................................................14
"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".................................................................16
"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.........................................................17
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.................................................20
SECTION 1.14 Incorporation by Reference of Trust Indenture Act.......................21
SECTION 1.15 Consent to Jurisdiction.................................................21
ii
ARTICLE II - ISSUE, EXECUTION AND REGISTRATION OF SENIOR NOTES
SECTION 2.01 Issuance of Notes in Series.............................................22
SECTION 2.02 Authentication and Delivery of Notes....................................22
SECTION 2.03 Execution of Notes......................................................24
SECTION 2.04 Temporary Notes.........................................................24
SECTION 2.05 Exchanges and Transfers of Notes........................................25
SECTION 2.06 Mutilated, Destroyed, Lost or Stolen Notes..............................26
SECTION 2.07 Payment of Interest; Interest Rights Preserved..........................27
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....................30
SECTION 2.12 Benefit of Guarantee................................................... 31
SECTION 2.13 CUSIP Numbers...........................................................31
ARTICLE III - COVENANTS OF THE COMPANY
SECTION 3.01 Payment of Principal, Premium and Interest..............................32
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.................................................34
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.......................................................35
SECTION 4.04 Not Subject Property to Lien Without Securing
Notes Rateable; Waiver of Covenant......................................35
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
iii
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.............................................40
SECTION 6.06 Notes Payable on Redemption Date........................................40
SECTION 6.07 Notes Redeemed in Part..................................................40
SECTION 6.08 Sinking Funds...........................................................40
SECTION 6.09 Satisfaction of Sinking Fund Payments with Notes........................41
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..............................................43
SECTION 7.03 Satisfaction, Discharge, and Defeasance.................................43
of Notes of any Series
SECTION 7.04 Reinstatement...........................................................44
ARTICLE VIII - REMEDIES
SECTION 8.01 Events of Default.......................................................45
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...................................................................49
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............................................51
SECTION 8.12 Control by Holders......................................................51
SECTION 8.13 Waiver of Past Defaults.................................................51
SECTION 8.14 Undertaking for Costs...................................................51
SECTION 8.15 Waiver of Stay or Extension Laws........................................52
iv
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.......................55
SECTION 9.05 May Hold Notes..........................................................55
SECTION 9.06 Money Held in Trust.....................................................55
SECTION 9.07 Compensation and Reimbursement..........................................55
SECTION 9.08 Corporate Trustee Required; Eligibility;
Disqualification; Conflicting Interests.................................56
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..................................58
SECTION 9.12 Merger, Conversion, Consolidation or
Succession to Business..................................................58
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.................................................................59
SECTION 10.03 Reports by Trustee......................................................59
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.....................60
SECTION 11.03 Successor Corporation Substituted.......................................61
ARTICLE XII - SUPPLEMENTAL INDENTURES
SECTION 12.01 Supplemental Indentures Without Consent of Holders .....................61
SECTION 12.02 Supplemental Indentures With Consent of Holders.........................63
SECTION 12.03 Execution of Supplemental Indentures....................................63
SECTION 12.04 Effect of Supplemental Indentures.......................................64
SECTION 12.05 Conformity with Trust Indenture Act.....................................64
SECTION 12.06 Reference in Notes to Supplemental Indentures...........................64
v
Tie of certain provisions of Trust Indenture Act of 1939,
as amended, with Indenture, dated as of September 1, 1998,
among Household International Netherlands B.V., Household
International, Inc. and The Chase Manhattan Bank, 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
- --------
*This tie of provisions does not constitute a part of the
Indenture and is for convenience of reference only.
316(a) .......................................................................... 1.01
(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
vii
THIS INDENTURE, dated as of the 1st day of September 1998, 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 Chase Manhattan Bank, a corporation
organized and existing under the laws of the State of New York (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 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
-2-
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 the Trustee in the Borough of
Manhattan, The City of New York, New York, 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.
-3-
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 1, 1998 (herein called the "Indenture"),
duly executed and delivered by the Company, Household International, Inc., a
Delaware corporation (the "Guarantor"), and The Chase Manhattan Bank, 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]
[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
---- ---------- ---- ----------
-4-
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
- ---- ----------------- -----------------------
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 New York, New York (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 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, 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.]
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 Borough of Manhattan, The City of New York, New
York, 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
-7-
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.
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.
-8-
The Chase Manhattan Bank,
as Trustee
By
------------------------
Authorized Officer
[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 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.
-9-
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.
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]
-10-
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 the office or agency of the Trustee in the Borough of Manhattan,
The City of New York, New York (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.
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:
-11-
(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 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.
-12-
"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 Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter Company shall mean
such successor Person.
"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 New
York, New York, 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 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.
- 13 -
"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 1, 1998, and,
unless the context otherwise indicates, all indentures supplemental hereto from
time to time in effect.
"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 any other
obligor upon the Senior Notes or in any Affiliate of the Company, the Guarantor
or 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 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,
repayment at the option of the Holder or otherwise.
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 2.05.
-14-
"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 at
Maturity or upon a declaration of acceleration of the Maturity thereof pursuant
to Section 8.02.
"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,
-15-
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 a Responsible Officer of 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 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, limited liability company,
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 Board Resolution 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 Board Resolution 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 Board
Resolution authorizing such series of Senior Notes.
-16-
"Responsible Officer" when used with respect to the Trustee means an
officer of the Trustee assigned to administer the Indenture 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.
"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.
-17-
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, 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
-18-
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 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
-19-
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 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
-20-
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.
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
-21-
(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 with
respect to such payment 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.
"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.
SECTION 1.15. CONSENT TO JURISDICTION. The Company hereby irrevocably
submits to the non-exclusive jurisdiction of any State of New York or United
States federal court sitting in the State of New York over any action or
proceeding arising out of or relating to this Indenture, and hereby irrevocably
agrees that all claims in respect of such action or proceeding may be heard and
determined in such New York or federal court.
-22-
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.
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:
-23-
(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 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
-24-
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 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.
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 and related Guarantees 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 authorized 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
-25-
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 identical terms and provisions, including the Guarantee,
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 Guarantor shall execute the Senior
Notes and the Guarantee, and the Trustee shall authenticate and deliver the
Senior Notes, including such 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.
-26-
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 a new Senior Note and related Guarantee, and the Trustee
shall authenticate and deliver in exchange therefor a new Senior Note of the
same series, including such Guarantee, and of 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 mutilated, 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.
-27-
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 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.
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
-28-
Special Record Date. Notice of the proposed payment of 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, if so requested.
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
-29-
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, the 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 printed 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 Chase Manhattan Bank,
as Trustee
By_____________________________
Authenticating Agent
By_____________________________
Authorized Signature
-30-
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) Notwithstanding any other provision herein, 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 will execute the Senior Notes and the Trustee will
authenticate and deliver Senior Notes of such series, including the Guarantee 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
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 will execute the Senior Notes and the
Trustee, upon receipt of an Officers' Certificate evidencing such determination
by the Company, will authenticate and deliver Senior Notes of such series,
including the Guarantee 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
-31-
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 by manual or facsimile signature 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 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 shall state that no representation is made as to
the correctness of such "CUSIP" 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.
-32-
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 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;
-33-
(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 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
-34-
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 file with the Trustee within 15
days of such request 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. The
Company shall also comply with all reporting requirements of the TIA, including
but not limited to, Section 314(a).
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 Vice President and by the Treasurer, an Assistant
Treasurer, the Controller or an Assistant Controller of the Company, one of whom
shall be the principal executive officer, principal financial officer or
principal accounting officer 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.
-35-
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 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;
-36-
(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 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 Guarantees, 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 atsuch time and secured by mortgages not
so excepted, does not at the time exceed 10% of the Guarantor's Consolidated Net
Worth. "Consolidated Net
-37-
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 of the Company, one of whom
shall be the principal executive officer, principal financial officer or
principal accounting officer 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 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
-38-
must be received, with the form entitled "Option to Elect Repayment" on the
reverse of the Notes duly completed, by the Trustee at its Corporate Trust
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 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
-39-
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,
(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.
-40-
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 Redemption Price 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 a new Senior Note or Senior Notes of
the same series, and the related Guarantee, and the Trustee shall authenticate
and deliver to such Holder, without service charge, such new Senior Note or
Senior Notes, including such 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
-41-
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 Officers' Certificate to the Trustee any Senior Notes to
be so delivered if not theretofore delivered. Not less than 30 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
-42-
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 3.03) 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,
and the Company or the Guarantor, 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 in cash 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 or the Guarantor has paid in cash 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.
-43-
SECTION 7.02. APPLICATION OF TRUST MONEY. Subject to the provisions of
the last paragraph of Section 3.03, 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
(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
-44-
(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 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, premium if any, 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 and the
Guarantor 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 and the Guarantees 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.
-45-
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 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
instalment 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 United States
Federal Bankruptcy Code or any other applicable Federal, State or
Dutch 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, any
applicable Dutch
-46-
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 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 the Company, the Guarantor and the Trustee, may
rescind and annul such declaration and its consequences if
-47-
(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 any other amounts due the Trustee
under Section 9.07;
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 instalment 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 instalment 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 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
-48-
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
(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.
-49-
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
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;
-50-
(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 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
-51-
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 of any series 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 applicable to such series, 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. Subject to Section 8.02, 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 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
-52-
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.
ARTICLE IX
TRUSTEE
SECTION 9.01. CERTAIN DUTIES AND RESPONSIBILITIES. (a) Except
during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same
to determine 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.
-53-
(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
(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;
-54-
(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 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;
(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; and
(i) the Trustee shall not be charged with knowledge of the existence of
any change of control or sale of all, or substantially all the properties or
assets of the Company or the Guarantor unless either (i) a Responsible Officer
of the Trustee shall have actual knowledge thereof, or (ii) the Trustee shall
have received written notice thereof from the Company, the Guarantor or any
Holder of the Notes.
-55-
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 or the Guarantees. 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.
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 in writing 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, including
taxes (other than taxes based upon, or measured by, the income of the
Trustee) incurred, without negligence or bad faith on its part, arising
out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending itself against any
claim 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 and
the Guarantor under this Section 9.07 the Trustee shall have a lien prior to the
Senior Notes for any amount
-56-
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.
The provisions of this Section 9.07 shall survive the resignation or
removal of the Trustee and the termination of the Indenture.
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.
-57-
(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 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.
-58-
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 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, 1999, 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.
-59-
SECTION 10.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as 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 May 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 Person or convey, transfer, sell or lease
its properties and assets as, or substantially as, an entirety
to any Person, unless:
-60-
(1) the Person 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 Person, or any other transaction or
proceedings resulting in the amalgamation of the Company with another Person 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 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:
-61-
(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 request, 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 Person 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 Person had been named as the Company or the
Guarantor respectively herein, and thereafter, except in the case of a lease,
the predecessor Person shall be relieved of all obligations and covenants under
this Indenture, the Senior Notes or the Guarantees as applicable.
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;
-62-
(2) to evidence the succession of another Person 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, 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.
-63-
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 and the Guarantor, each
when authorized by a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of 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
(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
-64-
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 authenticated and delivered by the Trustee in
exchange for Outstanding Senior Notes.
-65-
THIS PAGE INTENTIONALLY LEFT BLANK
-66-
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.
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 /s/ Edgar Ancona
Vice President
Attest:
/s/ Patrick D. Schwartz
Assistant Secretary
HOUSEHOLD INTERNATIONAL, INC.
BY /s/ B. B. Moss, Jr.
Assistant Treasurer
Attest:
/s/ Susan E. Casey
Assistant Secretary
THE CHASE MANHATTAN BANK,
as Trustee
BY /s/ Gregory P. Shae
Senior Trust Officer
Attest:
/s/ Philbert G. Jones
Assistant Secretary