<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 14, 1998
REGISTRATION NO. 333- AND 333- 01
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------
HOUSEHOLD INTERNATIONAL, INC.
(Exact name of registrant who is the Issuer of the Guarantees as specified in
its Charter)
<TABLE>
<S> <C> <C>
DELAWARE 36-3121988
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification
organization) No.)
</TABLE>
2700 SANDERS ROAD
PROSPECT HEIGHTS, ILLINOIS 60070
(847) 564-5000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
------------------------------
HOUSEHOLD INTERNATIONAL NETHERLANDS B.V.
(Exact name of registrant who is the Issuer of the Senior Notes and Warrants to
Purchase Senior Notes as specified in its Charter)
<TABLE>
<S> <C>
THE NETHERLANDS NOT APPLICABLE
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification
organization) No.)
</TABLE>
HOEKENRODE 6
1102 BR
AMSTERDAM, NETHERLANDS
(Address, including postal code, and telephone number, including area code, of
registrant's principal executive offices)
------------------------------
PATRICK D. SCHWARTZ, ASSOCIATE GENERAL COUNSEL
HOUSEHOLD INTERNATIONAL, INC.
2700 SANDERS ROAD
PROSPECT HEIGHTS, ILLINOIS 60070
(847) 564-6301
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------------
WITH A COPY TO:
SCOTT N. GIERKE
(UNDERWRITER'S COUNSEL)
MCDERMOTT, WILL & EMERY
227 WEST MONROE STREET
CHICAGO, ILLINOIS 60606
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement as determined by
market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / _______________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED BE REGISTERED(1) PER UNIT(2) OFFERING PRICE(2) FEE
<S> <C> <C> <C> <C>
Senior Notes and Warrants to Purchase Senior
Notes..................................... $500,000,000 100% $500,000,000 $147,500
Guarantees.................................. (3) (3) (3) (3)
</TABLE>
(1) Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
included in this Registration Statement also relates to $250,000,000 of
securities previously registered pursuant to Form S-3 (Registration No.
33-56599), as to which this Registration Statement constitutes a
Post-Effective Amendment.
(2) Estimated solely for the purpose of calculating the registration fee. Any
offering of Senior Notes or Warrants denominated in any foreign currency or
foreign currency units will be treated as the equivalent in U.S. dollars
based on the exchange rate applicable to the purchase of such Senior Notes
or Warrants from the Registrant.
(3) No separate consideration will be received for the Guarantees.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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- --------------------------------------------------------------------------------
<PAGE>
SUBJECT TO COMPLETION DATED OCTOBER 14, 1998
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO BUY THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE>
HOUSEHOLD INTERNATIONAL NETHERLANDS B.V.
ISSUER
$750,000,000
SENIOR NOTES
AND
WARRANTS TO PURCHASE SENIOR NOTES
HOUSEHOLD INTERNATIONAL, INC.
GUARANTOR
Household International Netherlands B.V. may sell at one or more times up to
$750,000,000 of its debt securities and warrants to purchase debt securities.
Household International, Inc. owns Household International Netherlands B.V. and
is guaranteeing that all scheduled payments will be made on the debt securities.
We will provide specific terms of the securities which we may offer at any time
in supplements to this prospectus. You should read this prospectus and any
supplement carefully before you invest.
------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is accurate or complete. Any representation to the contrary is a
criminal offense.
------------------------
THE DATE OF THIS PROSPECTUS IS , 1998.
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission ("SEC") utilizing a "shelf" registration
process. Under this process, we may sell any combination of the securities
described in this prospectus in one or more offerings up to a total dollar
amount of $750,000,000. This prospectus provides you with a general description
of the securities we may offer. Each time we offer to sell securities, we will
provide a supplement to this prospectus that will contain specific information
about the terms of that offering. The prospectus supplement may also add,
update, or change information contained in this prospectus. You should read both
this prospectus and any prospectus supplement together with the additional
information described under the heading WHERE YOU CAN FIND MORE INFORMATION.
WHERE YOU CAN FIND MORE INFORMATION
Household International files annual, quarterly and special reports, proxy
statements and other information with the SEC. You may read and copy any
document filed by Household International at the SEC's public reference rooms in
Washington, D.C., New York, New York and Chicago, Illinois. Please call the SEC
at 1-800-SEC-0330 for further information on the public reference rooms. SEC
filings are also available to the public on the SEC's Internet web site at
http:\\www.sec.gov.
Because Household International Netherlands B.V. is wholly owned by
Household International and exists only to issue debt securities and loan the
funds it receives from such issuances to an affiliated company, it is not
required to file such reports and information.
The SEC allows us to "incorporate by reference" the information we file with
it, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is considered
to be part of this prospectus, and information that we file with the SEC later
will automatically update and supersede this information. We incorporate by
reference the Household International documents listed below and any future
filings made by Household International or Household International Netherlands
B.V. with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended, until we sell all of the securities.
- Annual Report on Form 10-K for the year ended December 31, 1997;
- Quarterly Reports on Forms 10-Q for the quarters ended March 31 and June
30, 1998;
- Current Reports on Forms 8-K dated January 21, March 6, April 7, April 20,
June 30, August 14, and September 1, 1998.
You may request a copy of these filings, at no cost, by writing or
telephoning us at: Household International, Inc., Office of the Secretary,
Prospect Heights, Illinois 60070, Telephone (847) 564-5000.
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different or additional information. You should
not assume that the information in this prospectus or any supplement is accurate
as of any date other than the date on the front of those documents.
2
<PAGE>
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain of the matters discussed under the caption "Household International"
and elsewhere in this prospectus or in the information incorporated by reference
herein may constitute forward-looking statements within the meaning of the
Private Securities Litigation Reform Act of 1995. Such information may involve
known and unknown risks, uncertainties and other factors that may cause the
actual results, performance or achievements of Household International to be
materially different from any future results, performance or achievements
expressed or implied by such forward-looking statements.
HOUSEHOLD INTERNATIONAL
Household International, Inc. ("Household International") is a holding
company for various subsidiaries which operate in the consumer financial
services industry. Household International's principal executive office is
located at 2700 Sanders Road, Prospect Heights, Illinois 60070 (telephone:
847-564-5000).
Through subsidiaries, such as Household Finance Corporation, Household Bank,
f.s.b., Household Automotive Finance Corporation, Household Bank (Nevada),
National Association, Household Bank (SB), National Association, Household
Financial Corporation Limited, and HFC Bank plc, Household International offers
numerous consumer finance products, including home equity loans secured by first
and second mortgages, revolving and closed-end unsecured personal loans,
non-prime automobile loans, private label credit cards, MasterCard* and VISA*
credit cards and tax refund anticipation loans. Also, in conjunction with its
consumer finance business, and where applicable laws permit, Household
International offers credit life and credit accident, health and disability
insurance to its customers. This insurance is generally directly written by or
reinsured with one of its insurance subsidiaries.
Household International is principally a holding company whose primary
source of funds is cash received from its subsidiaries primarily in the form of
dividends and borrowings under intercorporate agreements. Dividend distributions
to Household International from its savings and loan, banking and insurance
subsidiaries may be restricted by federal and state laws and regulations.
Dividend distributions from its foreign subsidiaries may also be restricted by
exchange controls of the country in which the subsidiary is located. Also, as a
holding company the rights of any creditors of Household International to
participate in the assets of any subsidiary upon the latter's liquidation or
recapitalization will be subject to the prior claims of the subsidiary's
creditors, except to the extent that Household International may itself be a
creditor with recognized claims against the subsidiary. Nevertheless, there are
no restrictions that currently materially limit Household International's
ability to make payments to its creditors nor are there any restrictions which
Household International reasonably believes are likely to limit materially such
payments in the future.
HOUSEHOLD INTERNATIONAL NETHERLANDS B.V.
Household International Netherlands B.V. (the "Company") was organized under
the Dutch Civil Code on September 14, 1990. The Company is a wholly-owned
indirect subsidiary of Household International (U.K.) Limited ("U.K. Limited"),
which is an indirect subsidiary of Household International and a holding company
for all operations of Household International in the United Kingdom. The Company
was organized solely to serve as a source of financing, directly or indirectly,
for HFC Bank plc. HFC Bank plc, is also a wholly-owned subsidiary of U.K.
Limited and is the principal operating subsidiary of Household International in
the United Kingdom.
- ------------------------
* MasterCard and VISA are registered trademarks of MasterCard International
Incorporated and VISA USA, Inc., respectively.
3
<PAGE>
The registered office of the Company is at Hoekenrode 6, 1102 BR, Amsterdam,
Netherlands. The Company's telephone number is 31-20-6298033. The Company's
principal business activity has been and will be to provide funds to HFC Bank
plc for general corporate purposes.
The enforcement by investors of civil liabilities under U.S. federal
securities laws may be affected adversely by the fact that the Company is
incorporated or organized under the laws of the Netherlands, that some or all of
its officers and directors may be residents of the Netherlands and that all or a
substantial portion of the assets of the Company and of those persons may be
located outside the United States.
USE OF PROCEEDS
The Company will loan the net proceeds from the sale of the Securities to
HFC Bank plc to be used for general corporate purposes, including to fund
extensions of credit to its subsidiaries and to consumers in the United Kingdom;
to reduce other outstanding indebtedness (which may include indebtedness owed to
its affiliates, including Household International); or to fund acquisitions of
other companies or portfolios.
RATIOS OF EARNINGS TO FIXED CHARGES
The ratios of earnings to fixed charges for Household International for the
periods indicated below were as follows:
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE
30, YEAR ENDED DECEMBER 31,
---------------------- ------------------------------------------
1998 1997 1997 1996 1995 1994
----- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Household International and subsidiaries....................... .96 1.61 1.58 1.54 1.42 1.43
<CAPTION>
1993
---------
<S> <C>
Household International and subsidiaries....................... 1.42
</TABLE>
For purposes of calculating the ratio, earnings consist of income from
continuing operations to which has been added income taxes and fixed charges.
For Household International, fixed charges consist of interest on all
indebtedness (including capitalized interest) and one-third of rental expense
(approximate portion representing interest). The June 30, 1998 ratio has been
impacted by the one-time merger and integration costs associated with the merger
of Household International and Beneficial Corporation. Excluding the merger and
integration costs, the June 30, 1998 ratio would have been 1.74.
DESCRIPTION OF DEBT SECURITIES AND GUARANTEES
The Company may offer from time to time, one or more series of unsecured
senior notes ("Debt Securities") and warrants ("Warrants") to purchase Debt
Securities (the Debt Securities and Warrants being hereafter collectively called
the "Securities"). The Securities offered pursuant to this prospectus may have
an aggregate offering price up to U.S. $750,000,000, or the equivalent thereof
if any of the Securities are denominated in a foreign currency or a foreign
currency unit.
The following description of the Debt Securities sets forth certain general
terms and provisions of the Debt Securities to which any supplement to this
prospectus ("Prospectus Supplement") may relate. The particular terms of the
Debt Securities offered by any Prospectus Supplement (the "Offered Debt
Securities") and the extent to which such general terms and provisions may apply
to the Offered Debt Securities will be described in the Prospectus Supplement
relating to such Offered Debt Securities.
DEBT SECURITIES
The Offered Debt Securities will constitute unsecured senior debt of the
Company, will rank on a parity with other unsecured senior debt of the Company
and will be unconditionally guaranteed as to payment of principal, interest and
premium, if any, by Household International. The Offered Debt
4
<PAGE>
Securities will be issued under one of two indentures described herein (the
"Indentures"). Copies of the forms of the Indentures are filed as exhibits to
the Registration Statement which registers the Securities and the Guarantees
with the SEC. The following summaries do not purport to be complete and, where
particular provisions of the Indentures are referred to, such provisions,
including definitions of certain terms, are incorporated by reference as part of
such summaries, which are qualified in their entirety by such reference.
The Indentures provide that Debt Securities may be issued thereunder from
time to time in one or more series and do not limit the aggregate principal
amount of the Debt Securities, except as may be otherwise provided with respect
to any particular series of Offered Debt Securities.
Unless otherwise indicated in the Prospectus Supplement with respect to any
particular series of Offered Debt Securities, the Debt Securities will be issued
in definitive registered form without coupons, will be exchangeable for
authorized denominations and will be transferable at any time or from time to
time. No charge will be made to any Holder for any exchange or registration of
transfer except for any tax or governmental charge incident thereto. Unless
otherwise specified in the Prospectus Supplement, the Debt Securities will be
issued only in denominations of U.S. $100,000, or the equivalent thereof, or any
amount in excess thereof which is an integral multiple of U.S. $1,000. The Debt
Securities of any series may be issued in whole or in part in the form of one or
more global securities that will be deposited with, or on behalf of, a
depositary. See "Book-Entry System" below.
Reference is made to the Prospectus Supplement relating to the particular
series of Debt Securities offered thereby for the following terms and other
information to the extent applicable with respect to the Offered Debt
Securities: (1) the title of the Offered Debt Securities; (2) any limit on the
aggregate principal amount of the Offered Debt Securities; (3) the price
(expressed as a percentage of the aggregate principal amount thereof) the
Company will be paid for the Offered Debt Securities and the initial offering
price, if any, at which the Offered Debt Securities will be offered to the
public; (4) the currency, currencies or currency units for which the Offered
Debt Securities may be purchased and the currency, currencies or currency units
in which the principal of and any interest on such Offered Debt Securities may
be payable; (5) the date or dates on which the Offered Debt Securities will
mature; (6) the rate or rates (which may be fixed or variable) per annum at
which the Offered Debt Securities will bear interest, if any; (7) the date from
which such interest, if any, on the Offered Debt Securities will accrue, the
dates on which such interest, if any, will be payable, the date on which payment
of such interest, if any, will commence and the Regular Record Dates for such
Interest Payment Dates, if any; (8) the dates, if any, on which and the price or
prices at which the Offered Debt Securities will, pursuant to any mandatory
sinking fund provisions, or may, pursuant to any optional sinking fund or
purchase fund provisions, be redeemed by the Company and the other detailed
terms and provisions of such sinking and/or purchase funds; (9) the date, if
any, after which and the price or prices at which the Offered Debt Securities
may, pursuant to any optional redemption provisions, be redeemed at the option
of the Company or of the Holder thereof and the other detailed terms and
provisions of such optional redemption; (10) the denominations in which the
Offered Debt Securities are authorized to be issued; (11) the securities
exchange, if any, on which the Debt Securities will be listed; and (12)
additional provisions, if any, with respect to the Offered Debt Securities.
However, with respect to Offered Debt Securities sold through dealers acting as
agents, the maturities and interest rates of such Offered Debt Securities may be
established by the Company from time to time and, if not set forth in the
Prospectus Supplement relating thereto, will be made available through such
dealers.
If any of the Debt Securities are sold for foreign currencies or foreign
currency units or if the principal of or any interest on any series of Debt
Securities is payable in foreign currencies or foreign currency units, the
restrictions, elections, tax consequences, specific terms and other information
with respect to such issue of Debt Securities and such currencies or currency
units will be set forth in the Prospectus Supplement relating thereto.
5
<PAGE>
Debt Securities may be issued as Original Issue Discount Securities to be
offered and sold at a discount below their stated principal amount. "Original
Issue Discount Securities" means any Debt Securities that provide for an amount
less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the maturity thereof upon the occurrence of the Event of
Default and the continuance thereof. As used in the following summary of certain
terms of the Debt Securities, the term "principal amount" means, in the case of
any Original Issue Discount Security, the amount that would then be due and
payable upon acceleration of the maturity thereof, as specified in such Debt
Securities.
GUARANTEES
Household International will unconditionally guarantee the due and punctual
payment of the principal of, premium, if any, and interest on the Debt
Securities when and as the same shall become due and payable, whether at
maturity, upon redemption or otherwise. The guarantees of the Debt Securities
(the "Guarantees") are unsecured obligations of Household International and will
rank equally with all other unsecured and unsubordinated obligations of
Household International. The Guarantees provide that in the event of a default
in payment of principal, premium, if any, or interest on a Debt Security, the
Holder of the Debt Security may institute legal proceedings directly against
Household International to enforce the Guarantee without first proceeding
against the Company. The Indentures provide that Household International may,
without the consent of any Holder, under certain circumstances assume all rights
and obligations of the Company under the Indentures with respect to a series of
Debt Securities. Upon such an assumption, the Company shall be released from its
liabilities with respect to such series of Debt Securities. (Section 2.12)
Household International is principally a holding company whose primary
source of funds is dividends from its subsidiaries. Dividend distributions to
Household International from its savings and loan, banking and insurance
subsidiaries may be restricted by federal and state laws and regulations.
Dividend distributions from its foreign subsidiaries, including the Company, may
also be restricted by exchange controls of the country in which the subsidiary
is located. Also, as a holding company the rights of any creditors or
stockholders of Household International to participate in the assets of any
subsidiary upon the latter's liquidation or recapitalization will be subject to
the prior claims of the subsidiary's creditors, except to the extent that
Household International may itself be a creditor with recognized claims against
the subsidiary. Nevertheless, there are no restrictions that currently
materially limit Household International's ability to make payments to its
creditors at current levels nor are there any restrictions which Household
International reasonably believes are likely to limit materially such payments
in the future.
BOOK-ENTRY SYSTEM
If so indicated in the Prospectus Supplement with respect to any series of
Offered Debt Securities, such Offered Debt Securities will be represented by one
or more global securities (the "Global Security"). The Global Security will be
deposited with, or on behalf of, The Depository Trust Company (the "Depositary")
and registered in the name of a nominee of the Depositary. Except under
circumstances described below, such Offered Debt Securities will not be issuable
in definitive form.
The Depositary has advised the Company and any underwriters, dealers or
agents named in the applicable Prospectus Supplement as follows: the Depositary
is a limited-purpose trust company organized under the laws of the State of New
York, a member of the Federal Reserve System, a "clearing corporation" within
the meaning of the New York Uniform Commercial Code and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. The Depositary was created to hold securities of its participants
and to facilitate the clearance and settlement of securities transactions among
its participants in such securities through electronic book-entry changes in
accounts of the participants, thereby eliminating the need for physical movement
of securities certificates. The Depositary's participants include securities
brokers and dealers, banks, trust companies, clearing corporations and certain
other organizations, some of which (and/or their representatives) own the
6
<PAGE>
Depositary. Access to the Depositary's book-entry system is also available to
others, such as banks, brokers, dealers and trust companies, that clear through
or maintain a custodial relationship with a participant, either directly or
indirectly.
Upon the issuance of the Global Security, the Depositary will credit on its
book-entry registration and transfer system the accounts of participants with
the respective principal amounts of the Offered Debt Securities represented by
the Global Security. Ownership of beneficial interests in the Global Security
will be limited to persons that have accounts with the Depositary or its nominee
("participants") or persons that may hold interests through participants.
Ownership of beneficial interests in the Global Security will be shown on, and
the transfer of that ownership will be effected only through, records maintained
by the Depositary or its nominee (with respect to interests of participants) and
on the records of participants (with respect to interests of persons other than
participants). The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
the Global Security.
So long as the Depositary or its nominee is the registered owner of the
Global Security, the Depositary or such nominee, as the case may be, will be
considered the sole owner or holder of the Offered Debt Securities represented
by the Global Security for all purposes under the Indenture. Except as provided
below, owners of beneficial interests in the Global Security will not be
entitled to have Offered Debt Securities represented by the Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of Offered Debt Securities in definitive form and will not be
considered the owners or holders thereof under the Indenture.
Principal and interest payments on Offered Debt Securities registered in the
name of the Depositary or its nominee will be made to the Depositary or its
nominee, as the case may be, as the registered owner of the Global Security.
None of the Company, the Trustee, any paying agent or the registrar for the
Offered Debt Securities will have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial interests
in the Global Security or for maintaining, supervising or reviewing any records
relating to such beneficial interests.
The Company expects that the Depositary for the Offered Debt Securities or
its nominee, upon receipt of any payment of principal or interest, will
immediately credit participants' accounts with payments in amounts proportionate
to their respective beneficial interests in the principal amount of the Global
Security as shown on the records of the Depositary or its nominee. The Company
also expects that payments by participants to owners of beneficial interests in
the Global Security held through such participants will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers in bearer form or registered in "street name", and
will be the responsibility of such participants.
If the Depositary is at any time unwilling or unable to continue as
Depositary and a successor Depositary is not appointed by the Company within 90
days, the Company will issue Offered Debt Securities in definitive form in
exchange for the entire Global Security. In addition, the Company may at any
time and in its sole discretion determine not to have the Offered Debt
Securities represented by the Global Security and, in such event, will issue
Offered Debt Securities in definitive form in exchange for the entire Global
Security. In any such instance, an owner of a beneficial interest in the Global
Security will be entitled to physical delivery in definitive form of Offered
Debt Securities represented by the Global Security equal in principal amount to
such beneficial interest and to have such Offered Debt Securities registered in
its name. Offered Debt Securities so issued in definitive form will be issued as
registered Offered Debt Securities in denominations of $1,000 and integral
multiples thereof, unless otherwise specified by the Company.
7
<PAGE>
INDENTURES
Offered Debt Securities and the related Guarantees will be issued under (i)
an Indenture dated as of September 1, 1998, among the Company, Household
International and The First National Bank of Chicago, as Trustee, or (ii) an
Indenture dated as of September 1, 1998, among the Company, Household
International and The Chase Manhattan Bank, as Trustee.
Unless a different place is specified in the Prospectus Supplement with
respect to any particular series of Debt Securities, principal of and interest,
if any, on Debt Securities will be payable at the office or agency of the
respective Trustee or Paying Agent, if any, in New York, New York, 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.
COVENANT OF HOUSEHOLD INTERNATIONAL AGAINST CREATION OF PLEDGES OR LIENS
Household International covenants in the Indentures that, with the
exceptions listed below, it will not issue, assume or guarantee any indebtedness
for borrowed money secured by a mortgage, security interest, pledge or lien
("security interest") of or upon any of its property, now owned or hereafter
acquired, unless the Guarantees, by supplemental indenture, are effectively
secured by such security interest equally and ratably with all other
indebtedness secured thereby. The term "indebtedness for borrowed money" does
not include any guarantee or other recourse obligation in connection with the
sale or discount by Household International or any of its subsidiaries of
finance or accounts receivable, trade acceptances, or other paper arising in the
ordinary course of its business.
The foregoing covenant does not apply to (a) security interest to secure the
payment of the purchase price on property, shares of capital stock, or
indebtedness acquired by Household International or the cost of construction or
improvement of such property or the refinancing of all or any part of such
secured indebtedness, provided that such security interests do not apply to any
other property, shares of capital stock, or indebtedness of Household
International; (b) security interests on property, shares of capital stock, or
indebtedness existing at the time of acquisition by Household International; (c)
security interests on property of a corporation which security interest
interests exist at the time such corporation merges or consolidates with or into
Household International or which security interests exist at the time of the
sale or transfer of all or substantially all of the assets of such corporation
to Household International; (d) security interests of Household International to
secure any of its indebtedness to a subsidiary; (e) security interests in
property of Household International in favor of the United States of America or
any state or agency or instrumentality thereof, or in favor of any other country
or political subdivision, to secure partial, progress, advance, or other
payments pursuant to any contact or statute or to secure any indebtedness
incurred for the purpose of financing all or any part of the purchase price or
the cost of construction of the property subject to such security interest; (f)
security interests on properties financed through tax exempt municipal
obligations, provided that such security interests are limited to the property
so financed; (g) security interests existing on September 1, 1998; and (h) any
extension, renewal, refunding, or replacement (or successive extensions,
renewals, refundings, or replacements), in whole or in part, of any security
interest referred to in the foregoing clauses (a) through (g) inclusive,
provided, however, that the principal amount of indebtedness secured in such
extension, renewal, refunding, or replacement does not exceed the principal
amount of indebtedness secured at the time by such security interest, and
provided further, that such extension, renewal, refunding, or replacement of
such security interest is limited to all or part of the property subject to such
security interest so extended, renewed, refunded, or replaced.
Notwithstanding the foregoing, Household International may, without equally
and ratably securing the Guarantees, issue, assume, or guarantee indebtedness
secured by a security interest not excepted pursuant to clauses (a) through (h)
above, if the aggregate amount of such indebtedness, together with all other
indebtedness of, or guaranteed by, Household International existing at such time
and secured by security interests not so excepted, does not at the time exceed
10% of Household International's
8
<PAGE>
Consolidated Net Worth. As used herein, "Consolidated Net Worth" shall mean the
difference between Household International's consolidated assets and
consolidated liabilities as shown on Household International's most recent
audited consolidated financial statements prepared in accordance with United
States generally accepted accounting principles. In addition, an arrangement
with any person providing for the leasing by Household International of any
property, which property has been or is to be sold or transferred by Household
International to such person with the intention that such property be leased
back to Household International, shall not be deemed to create any indebtedness
secured by a security interest if the obligation with respect to such lease
would not be included as liabilities on a consolidated balance sheet of
Household International. The Holders of not less than a majority in principal
amount of the Debt Securities at the time outstanding under an Indenture, on
behalf of the Holders of all of the Debt Securities issued under such Indenture,
may waive compliance with the foregoing covenants. (Section 4.04)
SATISFACTION, DISCHARGE AND DEFEASANCE OF THE INDENTURES AND DEBT SECURITIES
If there is deposited irrevocably with the Trustee as trust funds for the
benefit of the Holders of Debt Securities of a particular series, for the
purpose hereinafter stated, an amount, in money or the equivalent in securities
of the United States or securities the principal of and interest on which is
fully guaranteed by the United States, sufficient to pay the principal, premium,
if any, and interest, if any, on such series of Debt Securities on the dates
such payments are due in accordance with the terms of such series of Debt
Securities through their maturity, and if the Company has paid or caused to be
paid all other sums payable by it under the applicable Indenture with respect to
such series, then the Company will be deemed to have satisfied and discharged
the entire indebtedness represented by such series of Debt Securities and all
the obligations of the Company and Household International under such Indenture
with respect to such series, except as otherwise provided in such Indenture. In
the event of any such defeasance, Holders of such Debt Securities will be able
to look only to such trust funds for payment of principal, premium, if any, and
interest, if any, on their Debt Securities. (Section 7.03)
For federal income tax purposes, any such defeasance may be treated as a
taxable exchange of the related Debt Securities for an issue of obligations of
the trust or a direct interest in the cash and securities held in the trust. In
that case, Holders of such Debt Securities may recognize a gain or loss as if
the trust obligations or the cash or securities deposited, as the case may be,
had actually been received by them in exchange for their Debt Securities. Such
Holders thereafter would be required to include in income a share of the income,
gain or loss of the trust. The amount so required to be included in income could
be a different amount than would be includable in the absence of defeasance.
Prospectus investors are urged to consult their own tax advisors as to the
specific consequences to them of defeasance.
THE TRUSTEES
Household International and its subsidiaries maintain banking relationships
with The First National Bank of Chicago and The Chase Manhattan Bank in the
normal course of business. The First National Bank of Chicago and The Chase
Manhattan Bank also act as trustees under other indentures of Household
International or its subsidiaries under which debt securities have been issued
and are outstanding.
MODIFICATION OF INDENTURES
Each Indenture provides that the Holders of not less than a majority in
principal amount of each series of Debt Securities at the time outstanding under
such Indenture may enter into supplemental indentures for the purpose of
amending or modifying, in any manner, provisions of the Indenture or of any
supplemental indenture modifying the rights of Holders of such series of Debt
Securities. However, no such supplemental indenture, without the consent of the
Holder of each outstanding Debt Security affected thereby, shall, among other
things, (i) change the maturity of the principal of, or any installment of
interest on any Debt Security, or reduce the principal amount thereof or the
interest thereon
9
<PAGE>
or any premium payable upon the redemption thereof, or (ii) reduce the aforesaid
percentage of the Debt Securities, the consent of the Holders of which is
required for the execution of any such supplemental indenture or for any waiver
of compliance with any covenant or condition in such Indenture. (Section 12.02)
Each Indenture may be amended or supplemented without the consent of any
Holder of Debt Securities under certain circumstances, including (i) to cure any
ambiguity, defect or inconsistency in the Indenture, any supplemental indenture,
or in the Debt Securities of any series; (ii) to evidence the succession of
another corporation to the Company or Household International and to provide for
the assumption of all the obligations of the Company or Household International
under the Indenture by such corporation; (iii) to provide for uncertificated
debt securities in addition to certificated debt securities; (iv) to make any
change that does not adversely affect the rights of Holders of Debt Securities
issued thereunder; (v) to provide for a new series of Debt Securities; or (vi)
to add to rights to Holders of Debt Securities or add additional Events of
Default. (Section 12.01)
SUCCESSOR ENTITY
Household International may not consolidate with or merge into, or transfer,
sell or lease its properties and assets as, or substantially as, an entirety to
another entity unless the successor entity is a corporation incorporated within
the United States and, after giving effect thereto, no default under the
Indenture shall have occurred and be continuing. Thereafter, except in the case
of a lease, all obligations of Household International under the Indenture
terminate. (Sections 11.01 and 11.02)
The Indentures do not contain any covenants specifically designed to protect
Holders of Debt Securities against a reduction in the creditworthiness of
Household International or the Company in the event of a highly leveraged
transaction.
EVENTS OF DEFAULT
Each Indenture defines the following as Events of Default with respect to
any series of Debt Securities: default for 30 days in the payment of any
interest upon any Debt Security of such series issued under such Indenture;
default in the payment of any principal of or premium on any such Debt Security;
default for 30 days in the deposit of any sinking fund or similar payment for
such series of Debt Securities; default for 60 days after notice in the
performance of any other covenant in the Indenture; certain defaults for 30 days
after notice in the payment of principal or interest, or in the performance of
other covenants, with respect to borrowed money under another indenture in which
the Trustee for such Debt Securities is trustee which results in the principal
amount of such indebtedness becoming due and payable, prior to maturity, which
acceleration has not been rescinded or annulled; and certain events of
bankruptcy, insolvency or reorganization. The Company and Household
International are required to file with each Trustee annually an Officers'
Certificate as to the absence of certain defaults under the Indenture. (Sections
8.01, 3.06 and 4.05)
If an Event of Default with respect to Debt Securities of any series at the
time outstanding occurs and is continuing, either the Trustee or the Holders of
not less than 25% in principal amount of the outstanding Debt Securities of such
series by notice as provided in the Indenture may declare the principal amount
of all the Debt Securities of any such series to be due and payable immediately.
At any time after a declaration of acceleration with respect to Debt Securities
of any series has been made, but before a judgment or decree for payment of
money has been obtained by the Trustee, the Holders of not less than a majority
in principal amount of outstanding Debt Securities of such series may, under
certain circumstances, rescind or annul such declaration of acceleration.
(Section 8.02)
The Holders of not less than a majority in principal amount of the
outstanding Debt Securities of each series may, on behalf of all Holders of Debt
Securities of such series, waive any past default under the Indenture and its
consequences with respect to Debt Securities of such series, except a default
(a) in the
10
<PAGE>
payment of principal of or premium, if any, or interest, if any, on any Debt
Securities of such series, or (b) in respect of a covenant or provision of the
Indenture which cannot be modified or amended without the consent of the Holder
of each outstanding Debt Security of such series affected. (Section 8.13)
Each Indenture provides that the Trustee thereunder may withhold notice to
Holders of Debt Securities of any default (except in payment of the principal of
(or premium, if any) or interest on any Debt Security issued under such
Indenture or in the payment of any sinking fund or similar payment) if it
considers it in the interest of Holders of Debt Securities to do so. (Section
9.02)
Holders of Debt Securities may not enforce an Indenture except as provided
therein. (Section 8.07) Each Indenture provides that the Holders of a majority
in principal amount of the outstanding Debt Securities issued under such
Indenture 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. (Section 8.12) The Trustee will not be required
to comply with any request or direction of Holders of Debt Securities pursuant
to the Indenture unless offered indemnity against costs and liabilities which
might be incurred by the Trustee as a result of such compliance. (Section
9.03(e))
DESCRIPTION OF WARRANTS
The Company may issue, together with any Debt Securities offered by any
Prospectus Supplement or separately, Warrants for the purchase of other Debt
Securities. The Warrants are to be issued under warrant agreements (each a
"Warrant Agreement") to be entered into among the Company, Household
International and a bank or trust company, as warrant agent ("Warrant Agent"),
all as set forth in the Prospectus Supplement relating to the particular issue
of Warrants ("Offered Warrants"). A copy of the forms of Warrant Agreement,
including the form of warrant certificates representing the Warrants ("Warrant
Certificates"), reflecting the alternative provisions to be included in the
Warrant Agreements that will be entered into with respect to particular
offerings of Warrants, is filed as an exhibit to the Registration Statement. The
following summaries of certain provisions of the Warrant Agreement and the
Warrant Certificates do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all the provisions of the Warrant
Agreement and the Warrant Certificates, respectively, including the definitions
therein of certain terms.
GENERAL
The Prospectus Supplement will describe the terms of the Offered Warrants,
the Warrant Agreement relating to the Offered Warrants and the Warrant
Certificates representing the Offered Warrants, including the following: (1) the
designation, aggregate principal amount, and terms of the Debt Securities
purchasable upon exercise of the Offered Warrants; (2) the designation and terms
of any related Debt Securities with which the Offered Warrants are issued and
the number of Offered Warrants issued with each such Debt Security; (3) the
date, if any, on and after which the Offered Warrants and the related Offered
Debt Securities will be separately transferable; (4) the principal amount of
Debt Securities purchasable upon exercise of one Offered Warrant and the price
at which such principal amount of Debt Securities may be purchased upon such
exercise; (5) the date on which the right to exercise the Offered Warrants shall
commence and the date ("Expiration Date") on which such right shall expire; (6)
whether the Warrants represented by the Warrant Certificates will be issued in
registered or bearer form, and if registered, where they may be transferred and
registered; and (7) any other terms of the Offered Warrants.
Warrant Certificates will be exchangeable on the terms specified in the
Prospectus Supplement for new Warrant Certificates of different denominations,
and Warrants may be exercised at the corporate trust office of the Warrant Agent
or any other office indicated in the Prospectus Supplement. Prior to the
exercise of their Warrants, holders of Warrants will not have any of the rights
of holders of the Debt Securities purchasable upon such exercise and will not be
entitled to payments of principal of, premium, if any, or interest, if any, on
the Debt Securities purchasable upon such exercise.
11
<PAGE>
EXERCISE OF WARRANTS
Each Offered Warrant will entitle the holder to purchase such principal
amount of Debt Securities at such exercise price as shall in each case be set
forth in, or be determinable as set forth in, the Prospectus Supplement relating
to the Offered Warrants by payment of such exercise price in full in the manner
specified in the Prospectus Supplement. Offered Warrants may be exercised at any
time up to the close of business on the Expiration Date set forth in the
Prospectus Supplement relating to the Offered Warrants. After the close of
business on the Expiration Date, unexercised Warrants will become void.
Upon receipt of payment of the exercise price and the Warrant Certificate
properly completed and duly executed at the corporate trust office of the
Warrant Agent or any other office indicated in the Prospectus Supplement, the
Company will, as soon as practicable, forward the Debt Securities purchasable
upon such exercise. If less than all of the Warrants represented by such Warrant
Certificate are exercised, a new Warrant Certificate will be issued for the
remaining amount of Warrants.
12
<PAGE>
PLAN OF DISTRIBUTION
The Company may sell the Securities in any of three ways: (i) through
underwriters or dealers; (ii) directly to a limited number or purchasers or to a
single purchaser; or (iii) through agents. The Prospectus Supplement will set
forth the terms of the offering of the Offered Debt Securities and any Offered
Warrants (collectively, the "Offered Securities"), including the name or names
of any underwriters, dealers or agents, the purchase price of the Offered
Securities and the proceeds to the Company from such sale, any underwriting
discounts and other items constituting underwriters' compensation, and any
discounts and commissions allowed or paid to dealers. Any initial public
offering price and any discounts or concessions allowed or reallowed or paid to
dealers may be changed from time to time.
If the Offered Securities are sold through underwriters, the Prospectus
Supplement relating thereto will describe the nature of the obligation of the
underwriters to take the Offered Securities. The Offered Securities may be
offered to the public either through underwriting syndicates represented by one
or more managing underwriters or directly by one or more underwriting firms
acting alone. The underwriter or underwriters with respect to a particular
underwritten offering of Offered Securities will be named in the Prospectus
Supplement relating to such offering, and, if an underwriting syndicate is used,
the managing underwriter or underwriters will be set forth on the cover of such
Prospectus Supplement. Unless otherwise set forth in the Prospectus Supplement,
the obligations of the underwriters to purchase the Offered Securities will be
subject to certain conditions precedent, and the underwriters will be obligated
to purchase all the Offered Securities if any are purchased.
The Offered Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offer or
sale of the Offered Securities in respect of which this Prospectus is delivered
will be named, and any commissions payable by the Company to such agent will be
set forth, in the Prospectus Supplement relating thereto.
Underwriters and agents who participate in the distribution of the Offered
Securities may be entitled under agreements which may be entered into by the
Company or Household International to indemnification by the Company and
Household International against certain liabilities, including liabilities under
the Securities Act of 1933, or to contribution with respect to payments which
the underwriters or agents may be required to make in respect thereof.
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters, dealers or other persons acting as the Company's agents to solicit
offers by certain institutions to purchase Offered Securities from the Company
pursuant to contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
institutions must be approved by the Company. The obligations of any purchaser
under any such contract will not be subject to any conditions except that (i)
the purchase of the Offered Securities shall not at the time of delivery be
prohibited under the laws of the jurisdiction to which such purchaser is
subject, and (ii) if the Offered Securities are also being sold to underwriters,
the Company shall have sold to such underwriters the Offered Securities not sold
for delayed delivery. The underwriters, dealers and such other persons will not
have any responsibility in respect to the validity or performance of such
contracts.
There can be no assurance that a secondary market will be created for the
Offered Securities or, if it is created, that it will continue.
13
<PAGE>
ERISA MATTERS
The Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
imposes certain restrictions on employee benefit plans ("Plans") that are
subject to ERISA and on persons who are fiduciaries with respect to such Plans.
In accordance with the ERISA's general fiduciary requirements, a fiduciary with
respect to any such Plan who is considering the purchase of Securities on behalf
of such Plan should determine whether such purchase is permitted under the
governing Plan documents and is prudent and appropriate for the Plan in view of
its overall investment policy and the composition and diversification of its
portfolio. Other provisions of ERISA and Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code"), prohibit certain transactions between a
Plan and persons who have certain specified relationships to the Plan ("parties
in interest" within the meaning of ERISA or "disqualified persons" within the
meaning of Section 4975 of the Code). Thus, a Plan fiduciary considering the
purchase of Securities should consider whether such purchase might constitute or
result in a prohibited transaction under ERISA or Section 4975 of the Code.
The Company or Household International may be considered a "party in
interest" or a "disqualified person" with respect to many Plans that are subject
to ERISA. The purchase of Securities by a Plan that is subject to the fiduciary
responsibility provisions of ERISA or the prohibited transaction provisions of
Section 4975 of the Code (including individual retirement accounts and other
plans described in Section 4975 (c)(1) of the Code) and with respect to which
the Company or Household International is a party in interest or a disqualified
person may constitute or result in a prohibited transaction under ERISA or
Section 4975 of the Code, unless such Securities are acquired pursuant to and in
accordance with an applicable exemption, such as Prohibited Transaction Class
Exemption ("PTCE") 84-14 (an exemption for certain transactions determined by an
independent qualified professional asset manager), PTCE 80-51 (an exemption for
certain transactions involving bank collective investment funds) or PTCE 90-1
(an exemption for certain transactions involving insurance company pooled
separate accounts). Any pension or other employee benefit plan proposing to
acquire any Securities should consult with its counsel.
14
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Estimated Expenses:
<TABLE>
<CAPTION>
<S> <C>
Printing & Engraving.............................................................. $ 75,000
Fees of Trustees.................................................................. 40,000
Accountant's Fees................................................................. 40,000
Blue Sky Qualification Fees....................................................... 10,000
SEC Filing Fee.................................................................... 147,500*
Rating Service Fees............................................................... 500,000
Legal Fees........................................................................ 20,000
Miscellaneous..................................................................... 2,500
----------
Total........................................................................... $ 835,000
----------
----------
</TABLE>
- ------------------------
* Actual
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The General Corporation Law of Delaware (Section 102) allows a corporation
to eliminate the personal liability of directors of a corporation to the
corporation or to any of its stockholders for monetary damage for a breach of
his/her fiduciary duty as a director, except in the case where the director
breached his/her duty of loyalty, failed to act in good faith, engaged in
intentional misconduct or knowingly violated a law, authorized the payment of a
dividend or approved a stock repurchase in violation of Delaware corporate law
or obtained an improper personal benefit. The Restated Certificate of
Incorporation, as amended, of Household International, Inc. ("Household
International"), contains a provision which eliminates directors' personal
liability as set forth above.
The General Corporation Law of Delaware (Section 145) gives Delaware
corporations broad powers to indemnify their present and former directors and
officers and those of affiliated corporations against expenses incurred in the
defense of any lawsuit to which they are made parties by reason of being or
having been such directors or officers, subject to specified conditions and
exclusions; gives a director or officer who successfully defends an action the
right to be so indemnified; and authorizes Household International to buy
directors' and officers' liability insurance. Such indemnification is not
exclusive of any other right to which those indemnified may be entitled under
any bylaw, agreement, vote of stockholders or otherwise.
Household International's Restated Certificate of Incorporation, as amended,
provides for indemnification to the fullest extent as expressly authorized by
Section 145 of the General Corporation Law of Delaware for directors, officers
and employees of Household International and also to persons who are serving at
the request of Household International as directors, officers or employees of
other corporations (including subsidiaries such as Household International
Netherlands B.V.). This right of indemnification is not exclusive of any other
right which any person may acquire under any statute, bylaw, agreement,
contract, vote of stockholders or otherwise.
An agreement has been entered by ABN AMRO Trust Company (Nederland) B.V.
("ABN AMRO") and Household International Netherlands B.V. (the "Company") under
which the Company has agreed to indemnify ABN AMRO from liability arising from
its actions as Managing Director of the Company under a management agreement
between the Company and ABN AMRO. Under the management agreement, ABN AMRO will
provide certain services to the Company including: (i) maintenance of the
register of the Company, (ii) preparation and filing of records and returns as
required by Dutch law and (iii) maintenance
II-1
<PAGE>
of the registered office for service of process. The indemnity provided by the
Company is limited to instances in which a claim or action against ABN AMRO does
not arise out of willful misconduct or gross negligence on the part of ABN AMRO.
Household International has entered an agreement to guarantee the obligations of
the Company under the indemnification agreement with ABN AMRO.
Household International has purchased liability policies which indemnify its
officers and directors, including those of the Company, against loss arising
from claims by reason of their legal liability for acts as officers, subject to
limitations and conditions as set forth in the policies.
Pursuant to agreements which Household International and the Company may
enter into with underwriters or agents (the form of which is included as an
exhibit to this Registration Statement), officers and directors of Household
International and the Company may be entitled to indemnification by such
underwriters or agents against certain liabilities, including liabilities under
the Securities Act of 1933, as amended, arising from information appearing in
the Registration Statement or any Prospectus or Prospectus Supplement which has
been furnished to Household International and the Company by such underwriters
or agents.
ITEM 16. EXHIBIT.
<TABLE>
<S> <C>
1 Form of Underwriting Agreement.
4.1 Indenture dated as of September 1, 1998, among the Company, Household International
and the The First National Bank of Chicago, as Trustee.
4.2 Indenture dated as of September 1, 1998, among the Company, Household International
and The Chase Manhattan Bank, as Trustee.
4.3 Forms of Warrant Agreement, including form of Warrant Certificate.
5 Opinion and Consent of Mr. John W. Blenke, Vice President-Corporate Law and Assistant
Secretary of Household International.
12.1* Statement on the Computation of Ratio of Earnings to Fixed Charges of Household
International.
23.1 Consent of Arthur Andersen LLP, Certified Public Accountants, for Household
International and the Company.
23.2 Consent of Mr. John W. Blenke, Vice President-Corporate Law and Assistant Secretary
of Household International, is contained in his opinion (Exhibit 5).
24 Powers of Attorney (included on Pages II-4 and II-6 hereof).
25.1 Statement of eligibility and qualification of The First National Bank of Chicago.
25.2 Statement of eligibility and qualification of The Chase Manhattan Bank.
</TABLE>
- ------------------------
* Incorporated by reference herein from Exhibit 12 to (i) the Current Report
on Form 8-K dated September 1, 1998 and (ii) the Quarterly Report on Form
10-Q for the quarter ended June 30, 1998, of Household International (File
No. 1-8198).
II-2
<PAGE>
ITEM 17. UNDERTAKINGS.
The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made of
the Securities registered hereby, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by Household International pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
Securities offered herein, and the offering of such Securities at that time
shall be deemed to be the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the Securities being registered which remain unsold at the termination of the
offering.
(4) The undersigned Registrants hereby further undertake that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the Securities offered herein, and the offering of such Securities
at that time shall be deemed to be the initial BONA FIDE offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
or 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions set forth or described in Item 15 of this
Registration Statement, or otherwise, the Registrants have been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrants of expenses incurred or paid by a director,
officer or controlling person in the successful defense of any action, suit or
proceeding) is asserted against the Registrants by such director, officer or
controlling person, in connection with the Securities registered hereby, the
Registrants will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF PROSPECT HEIGHTS, AND STATE OF ILLINOIS, ON THE 14TH
DAY OF OCTOBER, 1998.
<TABLE>
<S> <C> <C>
HOUSEHOLD INTERNATIONAL, INC.
By: /s/ WILLIAM F. ALDINGER
-----------------------------------------
William F. Aldinger
CHAIRMAN AND
CHIEF EXECUTIVE OFFICER
</TABLE>
Each person whose signature appears below constitutes and appoints J.W.
Blenke, L.S. Mattenson, and P.D. Schwartz and each or any of them (with full
power to act alone), as his/her true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him/her in his/her name,
place and stead, in any and all capacities, to sign and file, with the
Securities and Exchange Commission, any and all amendments (including
post-effective amendments) to the Registration Statement, granting unto each
such attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he/she might or could do in person, hereby ratifying and
confirming all that such attorney-in-fact and agent or their substitute may
lawfully do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED AND ON THE 14TH DAY OF OCTOBER, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------ --------------------------
<C> <S>
Chairman, Chief Executive
/s/ WILLIAM F. ALDINGER Officer and Director
- ------------------------------ (as Principal Executive
(William F. Aldinger) Officer)
/s/ ROBERT C. CLARK
- ------------------------------ Director
(Robert C. Clark)
/s/ ROBERT J. DARNALL
- ------------------------------ Director
(Robert J. Darnall)
/s/ GARY G. DILLON
- ------------------------------ Director
(Gary G. Dillon)
/s/ JOHN A. EDWARDSON
- ------------------------------ Director
John A. Edwardson
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------ --------------------------
<C> <S>
/s/ MARY J. EVANS
- ------------------------------ Director
(Mary J. Evans)
/s/ DAVID J. FARRIS
- ------------------------------ Director
David J. Farris
/s/ DUDLEY FISHBURN
- ------------------------------ Director
Dudley Fishburn
/s/ CYRUS F. FREIDHEIM, JR.
- ------------------------------ Director
(Cyrus F. Freidheim, Jr.)
/s/ JAMES H. GILLIAM, JR.
- ------------------------------ Director
James H. Gilliam, Jr.
/s/ LOUIS E. LEVY
- ------------------------------ Director
(Louis E. Levy)
/s/ GEORGE A. LORCH
- ------------------------------ Director
(George A. Lorch)
/s/ JOHN D. NICHOLS
- ------------------------------ Director
(John D. Nichols)
/s/ JAMES B. PITBLADO
- ------------------------------ Director
(James B. Pitblado)
/s/ S. JAY STEWART
- ------------------------------ Director
(S. Jay Stewart)
/s/ LOUIS W. SULLIVAN
- ------------------------------ Director
(Louis W. Sullivan)
Executive Vice
/s/ DAVID A. SCHOENHOLZ President-Chief
- ------------------------------ Financial Officer (as
(David A. Schoenholz) Principal Accounting and
Financial Officer)
</TABLE>
The Registrant reasonably believes that the security rating to be assigned
to the Securities registered hereunder will make the Securities "investment
grade securities" pursuant to Transaction Requirement B.2 of Form S-3.
II-5
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF PROSPECT HEIGHTS, AND STATE OF ILLINOIS, ON THE 14TH
DAY OF OCTOBER, 1998.
<TABLE>
<S> <C> <C>
HOUSEHOLD INTERNATIONAL NETHERLANDS B.V.
By: /s/ JOHN W. BLENKE
-----------------------------------------
John W. Blenke
CHAIRMAN OF THE BOARD,
CHIEF EXECUTIVE OFFICER AND PRESIDENT
</TABLE>
Each person whose signature appears below constitutes and appoints J.W.
Blenke, L.S. Mattenson, and P.D. Schwartz, and each or any of them (with full
power to act alone), as his/her true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him/her in his/her name,
place and stead, in any and all capacities, to sign and file, with the
Securities and Exchange Commission, any and all amendments (including
post-effective amendments) to the Registration Statement, granting unto each
such attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he/she might or could do in person, hereby ratifying and
confirming all that such attorney-in-fact and agent or their substitutes may
lawfully do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED AND ON THE 14TH DAY OF OCTOBER, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------ --------------------------
<C> <S>
Chairman of the Board,
/s/ JOHN W. BLENKE Chief Executive Officer,
- ------------------------------ President and Director
(John W. Blenke) (as Principal Executive
Officer)
/s/ EDGAR ANCONA Vice President, Treasurer
- ------------------------------ (as Principal Financial
(Edgar Ancona) Officer) and Director
/s/ P.J. SCHMITZ
- ------------------------------
(P.J. Schmitz)
(Authorized Officer of
ABN AMRO Trust Company
(Nederland) B.V.)
Managing Director
/s/ P. DEEGE
- ------------------------------
(P. Deege)
(Authorized Officer of
ABN AMRO Trust Company
(Nederland) B.V.)
Vice President and
/s/ STEVEN L. MCDONALD Controller
- ------------------------------ (as Chief Accounting
(Steven L. McDonald) Officer)
</TABLE>
The Registrant reasonably believes that the security rating to be assigned
to the Securities registered hereunder will make the Securities "investment
grade securities" pursuant to Transaction Requirement B.2 of Form S-3.
II-6
<PAGE>
HOUSEHOLD INTERNATIONAL NETHERLANDS B.V.
Debt Securities and Warrants to Purchase Debt Securities
HOUSEHOLD INTERNATIONAL, INC.
Guarantor
Underwriting Agreement
----------------------
[Name(s) of Representative(s)]
[Address]
[Date]
Dear Sirs:
From time to time, Household International Netherlands B.V. (the
"Company") proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement" and together the "Pricing Agreements") in the form of
Annex I hereto, with such additions and deletions as the parties thereto may
determine, and, subject to the terms and conditions stated herein and
therein, to issue and sell to the underwriters named in Schedule I to the
applicable Pricing Agreement (with respect to each such Pricing Agreement,
the "Underwriters") certain of its debt securities (the "Debt Securities")
and, if applicable, warrants to purchase Debt Securities (the "Warrants")
specified in Schedule II to such Pricing Agreement (with respect to each such
Pricing Agreement, the "Designated Debt Securities" and the "Designated
Warrants"). The Debt Securities will be unconditionally guaranteed (the
"Guarantees") as to the payment of principal, premium, if any, and interest
by Household International, Inc. (the "Guarantor").
The terms and rights of any particular issuance of Designated Debt
Securities shall be as specified in the applicable Pricing Agreement and in
the indenture, as it may be supplemented from time to time (the "Indenture"),
identified in such Pricing Agreement. The terms and rights of any particular
issuance of Designated Warrants shall be as specified in the applicable
Pricing Agreement and in the warrant agreement (the "Warrant Agreement")
identified in such Pricing Agreement. Each Pricing Agreement shall
constitute an agreement by the Company, the Guarantor and the Underwriters to
be bound by all of the provisions of this Underwriting Agreement.
1. Particular sales of Designated Debt Securities and Designated
Warrants may be made from time to time to the Underwriters of such Debt
Securities and Warrants for whom the firms designated as representatives of
the Underwriters of such Debt Securities and Warrants in the Pricing
Agreement relating thereto will act as representatives (the
"Representatives"). The
<PAGE>
term "Representatives" also refers to a single firm acting as sole
representative of the Underwriters and to Underwriters who act without any
firm being designated as their representative. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the
Debt Securities or Warrants or as an obligation of any of the Underwriters to
purchase any of the Debt Securities or Warrants. The obligation of the
Company to issue and sell any of the Debt Securities or Warrants shall be
evidenced by the Pricing Agreement with respect to the Designated Debt
Securities and Designated Warrants specified therein. Each Pricing Agreement
shall specify the aggregate principal amount of such Designated Debt
Securities and the number of Designated Warrants, the public offering price
of such Designated Debt Securities, the purchase price to the Underwriters of
such Designated Debt Securities, the names of the Underwriters of such
Designated Debt Securities, the names of the Representatives of such
Underwriters and the principal amount of such Designated Debt Securities and
the number of Designated Warrants to be purchased by each Underwriter,
whether any of such Designated Debt Securities and Designated Warrants are to
be purchased from the Company pursuant to delayed delivery contracts on terms
to be specified in the Pricing Agreement and such contracts ("Delayed
Delivery Contracts") and shall set forth the date, time and manner of
delivery of such Designated Debt Securities and Designated Warrants and
payment for such Designated Debt Securities and Designated Warrants. The
Pricing Agreement shall also specify (to the extent not set forth in the
registration statement and prospectus with respect thereto) the terms of such
Designated Debt Securities and Designated Warrants. A Pricing Agreement
shall be in the form of an executed writing (which may be in counterparts),
and may be evidenced by an exchange of telegraphic communications or any
other rapid transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters under this
Agreement and each Pricing Agreement shall be several and not joint.
2. The Company and the Guarantor jointly and severally represent
and warrant to, and agree with, each of the Underwriters that:
(a) A registration statement (Registration Nos. 333-______ and
333-______-01) in respect of the Debt Securities, the Warrants and the
Guarantees has been filed with the Securities and Exchange Commission
(the "Commission") in the form heretofore delivered or to be delivered
to the Representatives and, excluding exhibits to such registration
statement, but including all documents incorporated by reference
therein, to the Representatives for each of the other Underwriters and
such registration statement in such form has been declared effective
by the Commission and no stop order suspending the effectiveness of
such registration statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in such registration statement being
hereinafter called a "Preliminary Prospectus"; such registration
statement, including all exhibits thereto but excluding each Form T-1,
as amended at the time such registration statement or any part thereof
became effective, being hereinafter called the "Registration
-2-
<PAGE>
Statement"; the prospectus included in the Registration Statement, in
the form in which it has most recently been filed with, or transmitted
for filing to, the Commission pursuant to Rule 424 of Regulation C on
or prior to the date of this Agreement being hereinafter called the
"Prospectus"); any reference herein to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents,
if any, incorporated by reference therein pursuant to the applicable
form under the Securities Act of 1933, as amended (the "Act"), as of
the date of such Preliminary Prospectus or Prospectus, as the case may
be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and so incorporated by
reference; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated Debt Securities
and Designated Warrants in the form in which it is filed with the
Commission pursuant to Rule 424 under the Act in accordance with
Section 5(a) hereof including any documents incorporated by reference
therein as of the date of such filing or transmission;
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with Commission, as the case
may be, conformed in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder, and none of such documents contained an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus and in the Prospectus as
amended or supplemented, when they become effective or are filed with
the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company or the Guarantor by an Underwriter
of Designated Debt Securities and Designated Warrants through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Debt Securities and Warrants;
(c) The Registration Statement and the Prospectus conform, and
any amendments or supplements thereto will conform, in all material
respects to the requirements of the Act and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the rules and
regulations of the Commission
-3-
<PAGE>
thereunder; the Registration Statement and any amendment thereof
(including the filing of any annual report on Form 10-K) at the time it
became effective, did not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and the
Prospectus, at the time the Registration Statement became effective did
not, as of the date hereof does not and as of the Time of Delivery (as
hereinafter defined) will not, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company or the Guarantor by an Underwriter
of Designated Debt Securities and Designated Warrants through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Debt Securities and Warrants;
(d) The financial statements of the Guarantor included or
incorporated by reference in the Registration Statement present fairly
the financial position of the Guarantor and subsidiaries as of the
dates indicated and the results of operations and changes in financial
position for the periods specified, and said financial statements have
been prepared in conformity with generally accepted accounting
principles applied on a basis which is consistent in all material
respects during the periods involved;
(e) Since the date of the latest audited financial statements in
the Prospectus there has not been any material change in the capital
stock or long-term debt of the Guarantor (except for changes resulting
from the purchase by the Guarantor of its outstanding securities for
sinking fund purposes) or any material adverse change in the general
affairs or management or the consolidated financial position,
shareholders' equity or results of operations of the Guarantor and its
subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus;
(f) The Guarantor and its significant subsidiaries, within the
meaning of Rule 1-02 of Regulation S-X under the Act (the "Significant
Subsidiaries") are validly organized and existing corporations under
the laws of their respective jurisdictions of incorporation; and the
Guarantor and its Significant Subsidiaries are duly authorized to
conduct in the various jurisdictions in which they do business the
respective businesses therein conducted by them as described in the
Prospectus, except where failure to be so authorized or permitted will
not have a material adverse effect on the business or consolidated
financial condition of the Guarantor and its subsidiaries taken as a
whole;
-4-
<PAGE>
(g) There are no legal or governmental proceedings pending,
other than those referred to in the Prospectus, to which the Guarantor
or any of its subsidiaries is a party or of which any property of the
Guarantor or any of its subsidiaries is the subject, other than
proceedings which are not reasonably expected, individually or in the
aggregate, to have a material adverse effect on the consolidated
financial position, shareholders' equity or results of operations of
the Guarantor and its subsidiaries taken as a whole; and, to the best
of the Company's and the Guarantor's respective knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(h) The Debt Securities and the Warrants have been duly
authorized, and, when issued and delivered pursuant to this Agreement,
the Pricing Agreement and any Delayed Delivery Contracts will have
been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture and the Warrant
Agreement under which such Debt Securities and Warrants are to be
issued, the Indenture and the Warrant Agreement to be substantially in
the forms filed as exhibits to the Registration Statement; the
Guarantees of the Debt Securities have been duly authorized by the
necessary corporate action and, upon the execution, authentication,
issuance and delivery of the Debt Securities and payment therefor, the
Guarantees will be valid and binding obligations of the Guarantor; the
Indenture has been duly authorized and, when executed and delivered by
the Company, the Guarantor and the Trustee thereunder, the Indenture
will constitute a valid and legally binding instrument enforceable in
accordance with its terms except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other laws relating to or
affecting the enforcement of creditors' rights or by general
principles of equity; and the Debt Securities, the Warrants, the
Guarantees, the Indenture and the Warrant Agreement conform to the
descriptions thereof in the Prospectus as originally filed with the
Commission, and will conform to the descriptions thereof in the
Prospectus as amended or supplemented;
(i) The issue and sale of the Debt Securities and the Warrants
and compliance by the Company with all of the provisions of the Debt
Securities, the Warrants, the Indenture, the Warrant Agreement, this
Agreement, any Pricing Agreement and any Delayed Delivery Contracts
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any of
the property or assets of the Company or any of its subsidiaries
pursuant to the terms of any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any
of its subsidiaries is
-5-
<PAGE>
a party or by which the Company or any of its subsidiaries may be bound
or to which any of the property or assets of the Company or any of its
subsidiaries is subject (except for conflicts, breaches and defaults
which would not, individually or in the aggregate, be materially adverse
to the Company and its subsidiaries taken as a whole or materially
adverse to the transactions contemplated by this Agreement), nor will
such action result in any violation of the provisions of the Certificate
or Articles of Incorporation, as amended, or the By-Laws of the Company
or any of its subsidiaries or any statute or any order, rule or
regulation applicable to the Company or any of its subsidiaries of any
court or of any regulatory authority or other governmental body having
jurisdiction over the Company or any of its subsidiaries; and no
consent, approval, authorization, order, registration or qualification
of or with any court or any such regulatory authority or other
governmental body is required for the issue and sale of the Debt
Securities and the Warrants or the consummation of the other
transactions contemplated in this Agreement, any Pricing Agreement, or
any Delayed Delivery Contracts except the registration under the Act of
the Debt Securities, the Warrants and the Guarantees, the qualification
of the Indenture under the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under State securities or Blue Sky laws in connection with the
purchase and distribution of the Debt Securities, the Warrants and the
Guarantees by the Underwriters; and
(j) The issue of the Guarantees and compliance by the Guarantor
with all of the provisions of the Guarantees, the Indenture, this
Agreement, any Pricing Agreement and any Delayed Delivery Contracts
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any of
the property or assets of the Guarantor or any of its subsidiaries
pursuant to the terms of any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Guarantor or
any of its subsidiaries is a party or by which the Guarantor or any of
its subsidiaries may be bound or to which any of the property or
assets of the Guarantor or any of its subsidiaries is subject (except
for conflicts, breaches and defaults which would not, individually or
in the aggregate, be materially adverse to the Guarantor and its
subsidiaries taken as a whole or materially adverse to the
transactions contemplated by this Agreement), nor will such action
result in any violation of the provisions of the Certificate or
Articles of Incorporation, as amended, or the By-Laws of the Guarantor
or any of its subsidiaries or any statute or any order, rule or
regulation applicable to the Guarantor or any of its subsidiaries of
any court or of any Federal, State or other regulatory authority or
other governmental body having jurisdiction over the Guarantor or any
of its subsidiaries; and no consent, approval, authorization, order,
registration or qualification of or with any court or any such
regulatory authority or other governmental body is required for the
issue of the Guarantees or the consummation of the other transactions
contemplated in this Agreement, any Pricing Agreement, or any Delayed
Delivery Contracts
-6-
<PAGE>
except the registration under the Act of the Debt Securities, the
Warrants and the Guarantees, the qualification of the Indenture under
the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under State
securities or Blue Sky laws in connection with the purchase and
distribution of the Debt Securities, the Warrants and the Guarantees by
the Underwriters; and
(k) Arthur Andersen LLP, who have certified certain financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus, are independent public accountants as
required by the Act and the rules and regulations of the Commission
thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Debt Securities and Designated Warrants and authorization by the
Representatives of the release of such Designated Debt Securities and
Designated Warrants, the several Underwriters propose to offer such
Designated Debt Securities and Designated Warrants for sale upon the terms
and conditions set forth in the Prospectus and any amendment or supplement
thereto relating to such Designated Debt Securities and Designated Warrants.
4. Designated Debt Securities and Designated Warrants to be
purchased by each Underwriter pursuant to the Pricing Agreement relating
thereto, in book-entry form, and in such authorized denominations and
registered in the name of the nominee of The Depository Trust Company, shall
be delivered by or on behalf of the Company through the facilities of The
Depository Trust Company to the Representatives for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by wire transfer of same-day funds to the Company,
all at the place and time and date specified in such Pricing Agreement or at
such other place and time and date as the Representatives and the Company may
agree upon in writing, such time and date being herein called the "Time of
Delivery" for such Designated Debt Securities and Designated Warrants.
5. The Company and the Guarantor hereby agree with each of the
Underwriters of any Designated Debt Securities and Designated Warrants:
(a) To make no further amendment or any supplement to the
Registration Statement or Prospectus as amended or supplemented after
the date of the Pricing Agreement relating to such Debt Securities and
Warrants and prior to the Time of Delivery for such Debt Securities
and Warrants which shall be disapproved by the Representatives
promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after
such Time of Delivery and furnish the Representatives with copies
thereof and to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company or the
Guarantor with the Commission pursuant to Section 13, 14 or 15(d) of
the Exchange Act for so long as the delivery of a
-7-
<PAGE>
prospectus is required in connection with the offering or sale of such
Debt Securities and Warrants, and during such same period to advise the
Representatives, promptly after receipt of notice thereof, of the time
when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed or transmitted for filing, of the issuance by
the Commission of any stop order or of any order preventing or
suspending the use of any Prospectus, of the suspension of the
qualification of such Debt Securities and Warrants or the Guarantees for
offering or sale in any jurisdiction, of the initiation or threatening
of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and in the event
of the issuance of any such stop order or of any such order preventing
or suspending the use of any Prospectus or suspending any such
qualification, to use promptly their best efforts to obtain its
withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Debt
Securities, Warrants and Guarantees for offering and sale under the
securities laws of such jurisdictions within the United States as the
Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Debt Securities, Warrants and Guarantees,
provided that in connection therewith neither the Company nor the
Guarantor shall be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may
from time to time reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or
sale of such Debt Securities and Warrants and if at such time any
event shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus or to file
under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify the Representatives and upon their
request to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time reasonably request
of an amended Prospectus or a supplement to the
-8-
<PAGE>
Prospectus which will orrect such statement or omission or effect such
compliance;
(d) To make generally available to the Guarantor's security
holders as soon as practicable, but in any event not later than ninety
days after the close of the period covered thereby, an earnings
statement of the Guarantor and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and covering a period
of at least twelve consecutive months beginning not later than the
first day of the fiscal quarter following the Time of Delivery; and
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Debt Securities and Designated Warrants
and continuing to and including the later of (i) the termination of
trading restrictions on such Designated Debt Securities and Designated
Warrants, as notified to the Company or the Guarantor by the
Representatives and (ii) the Time of Delivery for such Designated Debt
Securities and Designated Warrants, not to offer, sell, contract to
sell or otherwise dispose of any debt securities of the Company or the
Guarantor (except for Debt Securities issued upon exercise of warrants
and except for debt securities of the Company which may be issued in
Canada) which mature more than nine months after such Time of Delivery
and which are substantially similar to such Designated Debt
Securities, without the prior written consent of the Representatives,
provided, however, that in no event shall the foregoing period extend
more than fifteen calendar days from the date of the Pricing
Agreement.
6. The Company and the Guarantor covenant and agree with the several
Underwriters that the Company or the Guarantor will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's and the
Guarantor's respective counsel and accountants in connection with the
registration of the Debt Securities, the Warrants and the Guarantees under the
Act and all other expenses in connection with the preparation, printing and
filing of the Registration Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriters and dealers; (ii) the cost of printing or
reproducing this Agreement, any Pricing Agreement, any Delayed Delivery
Contract, any Indenture and supplements thereto, any Warrant Agreement and
amendments thereto, and any Blue Sky Memorandum; (iii) all expenses in
connection with any qualification of the Debt Securities, the Warrants and the
Guarantees for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky Memorandum; (iv) any fees charged by securities rating services for
rating the Debt Securities; (v) any filing fees incident to any required review
by the National Association of Securities Dealers, Inc. of the terms of the sale
of the Debt Securities and the Warrants; (vi) the cost of preparing the Debt
Securities and the Warrants; (vii) the fees and expenses of any Trustee and any
agent of any Trustee, the fees and expenses of any warrant agent, and the fees
and disbursements of counsel for any Trustee or any warrant agent in
-9-
<PAGE>
connection with any Indenture, Warrant Agreement, the Debt Securities and the
Warrants; and (viii) all other costs and expenses incident to the performance
of their respective obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, Section 8 and Section 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees
of their counsel, transfer taxes on resale of any of the Debt Securities or
Warrants by them, and any advertising expenses connected with any offers they
may make.
7. The obligations of the Underwriters of any Designated Debt
Securities and any Designated Warrants hereunder shall be subject, in their
discretion, to the condition that all representations and warranties and
other statements of the Company herein are, at and as of the Time of Delivery
for such Designated Debt Securities and Designated Warrants, true and
correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of
the Commission shall have been complied with to the Representatives'
reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated the Time of Delivery
for such Designated Debt Securities and Designated Warrants, with
respect to the existence and good standing of the Guarantor, the
validity of the Indenture, the Designated Debt Securities, the
Designated Warrants, the Guarantees, the Warrant Agreement, the
Registration Statement, the Prospectus as amended or supplemented and
other related matters as the Representatives may reasonably request
and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters;
(c) Counsel for the Company shall have furnished to you such
counsel's written opinion, dated the Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation;
(ii) The Company and its subsidiaries are duly
authorized to conduct in the various jurisdictions in which
they do business the respective businesses therein conducted
by them as described in the Prospectus, except where failure
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to be so permitted or failure to be so authorized will not
have a material adverse effect on the business or
consolidated financial condition of the Company and its
subsidiaries taken as a whole;
(iii) This Agreement and the Pricing Agreement with
respect to the Designated Debt Securities and the Designated
Warrants have been duly authorized, executed and delivered
by the Company;
(iv) Each Delayed Delivery Contract has been duly
authorized, executed and delivered by the Company and is a
valid and legally binding agreement of the Company in
accordance with its terms;
(v) The Indenture and the Warrant Agreement have been
duly authorized, executed and delivered by the Company, and
constitute valid and legally binding instruments of the
Company enforceable in accordance with their respective
terms except as enforcement of the provisions thereof may be
limited by bankruptcy, insolvency, reorganization or other
laws relating to or affecting the enforcement of creditors'
rights or by general principles of equity;
(vi) The Designated Debt Securities and the Designated
Warrants have been duly authorized and executed and, when
the Designated Debt Securities and the Designated Warrants
have been duly authenticated, issued and delivered against
payment of the agreed consideration therefor, the Designated
Debt Securities and the Designated Warrants will constitute
valid and legally binding obligations of the Company and,
with like exception as noted in subdivision (vi) above, will
be entitled to the benefits provided by the Indenture and
the Warrant Agreement; and the Designated Debt Securities,
the Designated Warrants, the Indenture and the Warrant
Agreement conform to the descriptions thereof in the
Prospectus as amended or supplemented; and
(vii) The issue and sale of the Designated Debt
Securities and the Designated Warrants, and the compliance
of the Company with all of the provisions of the Designated
Debt Securities, the Designated Warrants, the Indenture, the
Warrant Agreement and this Agreement, will not conflict with
or result in a breach of any of the terms or provisions of,
or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance
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<PAGE>
upon any of the property or assets of the Company or any of its
subsidiaries pursuant to the terms of, any indenture, mortgage,
deed of trust, loan agreement, or other agreement or instrument,
known to such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries may be bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject (except for
conflicts, breaches and defaults which would not, individually or
in the aggregate, be materially adverse to the Company and its
subsidiaries taken as a whole or materially adverse to the
transactions contemplated by this Agreement), nor will such action
result in any violation of the provisions of the Certificate or
Articles of Incorporation, as amended, or the By-Laws of the
Company or any of its subsidiaries or, to the best of such
counsel's knowledge, any statute or any order, rule or regulation
applicable to the Company or any of its subsidiaries of any court
or of any regulatory authority or other governmental body having
jurisdiction over the Company or any of its subsidiaries; and no
consent, approval, authorization, order, registration or
qualification of or with any court or any such regulatory authority
or other governmental body is required for the issue and sale of
the Designated Debt Securities and Designated Warrants or the
consummation of the other transactions contemplated in this
Agreement and the Pricing Agreement, except the registration under
the Act of the Designated Debt Securities, the Designated Warrants
and the Guarantees, the qualification of the Indenture under the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under State
securities or Blue Sky laws in connection with the public offering
of the Designated Debt Securities, the Designated Warrants and the
Guarantees by the Underwriters;
(d) Counsel for the Guarantor shall have furnished to you such
counsel's written opinion, dated the Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) The Guarantor has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware;
(ii) The Significant Subsidiaries of the Guarantor are
validly organized and existing corporations under the laws
of their respective jurisdictions of incorporation; and all
of the issued
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<PAGE>
shares of capital stock of each Significant Subsidiary have been
duly and validly authorized and issued, are fully paid and
non-assessable and (other then certain preferred shares issued by
Household Finance Corporation and Household Global Funding, Inc.)
are owned directly or indirectly by the Guarantor, free and clear
of all liens, encumbrances, equities or claims;
(iii) The Guarantor and its Significant Subsidiaries
are duly authorized to conduct in the various jurisdictions
in which they do business the respective businesses therein
conducted by them as described in the Prospectus, except
where failure to be so permitted or failure to be so
authorized will not have a material adverse effect on the
business or consolidated financial condition of the
Guarantor and its subsidiaries taken as a whole;
(iv) The Guarantor has an authorized capitalization as
set forth in the Prospectus as amended or supplemented and
all of the outstanding shares of its common and preferred
stock have been duly and validly authorized and issued and
are fully paid and nonassessable;
(v) To the best of such counsel's knowledge, there are
no legal or governmental proceedings pending, other than
those referred to in the Prospectus or the documents
incorporated therein by reference, to which the Guarantor or
any of its subsidiaries is a party or of which any property
of the Guarantor or any of its subsidiaries is the subject
which individually or in the aggregate is material, and, to
the best of such counsel's knowledge, no such proceedings
are threatened or contemplated by governmental authorities
or threatened by others;
(vi) This Agreement and the Pricing Agreement with
respect to the Designated Debt Securities and the Designated
Warrants have been duly authorized, executed and delivered
by the Guarantor;
(vii) The Indenture has been duly authorized, executed
and delivered by the Guarantor, and constitutes a valid and
legally binding instrument of the Guarantor enforceable in
accordance with its terms except as enforcement of the
provisions thereof may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting the
enforcement of creditors' rights or by general principles of
equity; the Indenture has been duly qualified
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<PAGE>
under the Trust Indenture Act; and all taxes and fees required to
be paid with respect to the execution of the Indenture and the
issuance of the Designated Debt Securities, and the related
Guarantees have been paid;
(viii) The Guarantees with respect to the Designated
Debt Securities have been duly authorized and, when the
Designated Debt Securities to which they relate have been
duly authenticated, issued and delivered against payment of
the agreed consideration therefor, the Guarantees will
constitute valid and legally binding obligations of the
Guarantor and, with like exception as noted in subdivision
(vii) above, will be entitled to the benefits provided by
the Indenture; and the Guarantees and the Indenture conform
to the descriptions thereof in the Prospectus as amended or
supplemented;
(ix) The issue of the Guarantees and the compliance of
the Guarantor with all of the provisions of the Guarantees,
the Indenture and this Agreement, will not conflict with or
result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of
the property or assets of the Guarantor or any of its
subsidiaries pursuant to the terms of, any indenture,
mortgage, deed of trust, loan agreement, or other agreement
or instrument, known to such counsel to which the Guarantor
or any of its subsidiaries is a party or by which the
Guarantor or any of its subsidiaries may be bound or to
which any of the property or assets of the Guarantor or any
of its subsidiaries is subject (except for conflicts,
breaches and defaults which would not, individually or in
the aggregate, be materially adverse to the Guarantor and
its subsidiaries taken as a whole or materially adverse to
the transactions contemplated by this Agreement), nor will
such action result in any violation of the provisions of the
Certificate or Articles of Incorporation, as amended, or the
By-Laws of the Guarantor or any of its subsidiaries or, to
the best of such counsel's knowledge, any statute or any
order, rule or regulation applicable to the Guarantor or any
of its subsidiaries of any court or of any Federal, State or
other regulatory authority or other governmental body having
jurisdiction over the Guarantor or any of its subsidiaries;
and no consent, approval, authorization, order, registration
or qualification of or with any court or any such regulatory
authority or other governmental body is required for the
issue of the Guarantee or the consummation of the other
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<PAGE>
transactions contemplated in this Agreement and the Pricing
Agreement, except the registration under the Act of the
Designated Debt Securities and the Guarantees, the
qualification of the Indenture under the Trust Indenture Act
and such consents, approvals, authorizations, registrations
or qualifications as may be required under State securities
or Blue Sky laws in connection with the public offering of
the Designated Debt Securities and the Guarantees by the
Underwriters;
(x) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion), when they
became effective or were filed with the Commission, as the
case may be, complied as to form in all material respects
with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and such counsel has no reason to believe that
any of such documents, when they became effective or were so
filed, as the case may be, contained, in the case of
documents which became effective under the Act, an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, and, in the case of
documents which were filed under the Exchange Act with the
Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made when such documents were so
filed, not misleading;
(xi) The Registration Statement has become and is now
effective under the Act and, to the best of such counsel's
knowledge, no proceedings for a stop order in respect of the
Registration Statement are pending or threatened under
Section 8(d) or 8(e) of the Act; and
(xii) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and
supplements thereto made by the Company or the Guarantor
prior to the Time of Delivery for the Designated Debt
Securities (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the
rules and regulations thereunder; such
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<PAGE>
counsel has no reason to believe that either the Registration
Statement or any amendment thereof (including the filing of any
annual report on Form 10-K) at the time it became effective
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus
as amended or supplemented at the time it was filed or transmitted
for filing pursuant to Rule 424 under the Act contained or as
amended or supplemented at the Time of Delivery contains an untrue
statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; and such counsel does not know of any contracts
required to be filed with the Registration Statement which are not
so filed;
(e) At the Time of Delivery for the Designated Debt Securities
and the Designated Warrants, the independent accountants of the
Guarantor who have certified the financial statements of the Guarantor
and its subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to the Representatives a
letter or letters, dated such Time of Delivery, in form and substance
satisfactory to the Representatives, and as to such matters as the
Representatives may reasonably request;
(f)(i) The Guarantor and its subsidiaries taken as a whole shall
not have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as
amended or supplemented any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree and (ii) since the respective
dates as of which information is given in the Prospectus as amended or
supplemented there shall not have been any material change in the
general affairs or management, or the consolidated financial position,
stockholders' equity or results of operations of the Guarantor and its
subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented, the effect
of which in any such case described in clause (i) or (ii) is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Designated Debt Securities and the Designated
Warrants on the terms and in the manner contemplated in the Prospectus
as amended or supplemented;
(g) Subsequent to the date of the Pricing Agreement relating to
the Designated Debt Securities and the Designated Warrants no
downgrading shall have occurred in any of the respective ratings
accorded the Company's or the
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<PAGE>
Guarantor's senior debt securities by any "nationally recognized
statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g) of the Act;
(h) Subsequent to the date of the Pricing Agreement relating to
the Designated Debt Securities and the Designated Warrants there shall
not have occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the New York Stock
Exchange; (ii) a general moratorium on commercial banking activities
in New York declared by either Federal or New York State authorities;
or (iii) the outbreak or material escalation of hostilities or the
declaration of a national emergency or war, if the effect of any such
event specified in this clause (iii) in the reasonable judgment of the
Representatives makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Designated Debt Securities
and the Designated Warrants on the terms and in the manner
contemplated in the Prospectus as amended or supplemented; and
(i) The Company and the Guarantor shall have furnished or caused
to be furnished to the Representatives at the Time of Delivery for the
Designated Debt Securities and the Designated Warrants certificates of
officers of the Company and the Guarantor, respectively, satisfactory
to the Representatives as to the accuracy of the representations and
warranties of the Company and the Guarantor herein at and as of such
Time of Delivery (provided that, each representation and warranty
which refers to the Prospectus in Section 2 hereof shall be in
relation to the Prospectus as amended or supplemented relating to the
Designated Debt Securities and the Designated Warrants), as to the
performance by the Company or the Guarantor, as applicable, of all of
its obligations hereunder to be performed at or prior to such Time of
Delivery, and as to such other matters as the Representatives may
reasonably request.
8. (a) The Company and the Guarantor jointly and severally will
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, Preliminary Prospectus Supplement, the Registration
Statement, the Prospectus or the Prospectus as amended or supplemented, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim, as such expenses are incurred; provided, however, that the
Company and the Guarantor shall not be liable in any such case to the extent
that any such loss, claim, damage or liability
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<PAGE>
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary Prospectus,
Preliminary Prospectus Supplement, the Registration Statement, the Prospectus
or the Prospectus as amended or supplemented or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company or the Guarantor by any Underwriter of Designated
Debt Securities and Designated Warrants through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities.
(b) Each Underwriter will indemnify and hold harmless the Company
and the Guarantor against any losses, claims, damages or liabilities to which
the Company or the Guarantor may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, any
Preliminary Prospectus Supplement, the Registration Statement, the Prospectus
or the Prospectus as amended or supplemented, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, any Preliminary Prospectus Supplement, the Registration
Statement, the Prospectus or the Prospectus as amended or supplemented, or
any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company or the Guarantor by such
Underwriter through the Representatives expressly for use therein; and will
reimburse the Company and the Guarantor for any legal or other expenses
reasonably incurred by such entity in connection with investigating or
defending any such action or claim, as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have
to any indemnified party otherwise than under such subsection. In case any
such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation.
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<PAGE>
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under subsection (a) or (b) above in
respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in respect thereof) in
such proportion as is appropriate to reflect the relative benefits received
by the Company and the Guarantor on the one hand and the Underwriters of the
Designated Debt Securities and the Designated Warrants on the other from the
offering of the Designated Debt Securities and the Designated Warrants to
which such loss, claim, damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party
failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company and the
Guarantor on the one hand and the Underwriters of the Designated Debt
Securities and the Designated Warrants on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company and
the Guarantor on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by such Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statements of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company and the Guarantor or such Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Guarantor
and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or action in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the applicable Designated Debt Securities and the Designated Warrants
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of
Designated Debt Securities and Designated Warrants in this subsection (d) to
contribute are several in proportion to their
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<PAGE>
respective underwriting obligations with respect to such Debt Securities and
Warrants and not joint.
(e) The obligations of the Company and the Guarantor under this
Section 8 shall be in addition to any liability which the Company and the
Guarantor may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this
Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company or the Guarantor and
to each person, if any, who controls the Company or the Guarantor within the
meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Debt Securities and the Designated Warrants which it
has agreed to purchase under the Pricing Agreement relating to such
Designated Debt Securities and Designated Warrants, the Representatives may
in their discretion arrange for themselves or another party or other parties
to purchase such Designated Debt Securities and Designated Warrants on the
terms contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Designated Debt Securities and Designated Warrants, then the Company shall be
entitled to a further period of thirty-six hours within which to procure
another party or other parties satisfactory to the Representatives to
purchase such Designated Debt Securities and Designated Warrants on such
terms. In the event that, within the respective prescribed period, the
Representatives notify the Company that they have so arranged for the
purchase of such Designated Debt Securities and Designated Warrants, or the
Company notifies the Representatives that it has so arranged for the purchase
of such Designated Debt Securities and Designated Warrants, the
Representatives or the Company shall have the right to postpone the Time of
Delivery for such Designated Debt Securities and Designated Warrants for a
period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus as
amended or supplemented, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as
used in this Agreement shall include any person substituted under this
Section with like effect as if such person had originally been a party to the
Pricing Agreement with respect to such Designated Debt Securities and
Designated Warrants.
(b) If, after giving effect to any arrangements for the purchase
of the Designated Debt Securities and the Designated Warrants of a defaulting
Underwriter or Underwriters by the Representatives and the Company as
provided in subsection (a) above, the aggregate principal amount of such
Designated Debt Securities which remains unpurchased does not exceed
one-eleventh of the aggregate principal amount of the Designated Debt
Securities to be purchased at the Time of Delivery for such Designated Debt
Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of
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Designated Debt Securities and the number of Designated Warrants which such
Underwriter agreed to purchase under the Pricing Agreement relating to such
Designated Debt Securities and Designated Warrants and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share (based
on the principal amount of Designated Debt Securities and the number of
Designated Warrants which such Underwriter agreed to purchase under such
Pricing Agreement) of the Designated Debt Securities and the Designated
Warrants of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Designated Debt Securities and the Designated Warrants of a defaulting
Underwriter or Underwriters by the Representatives and the Company as
provided in subsection (a) above, the aggregate principal amount of
Designated Debt Securities and the number of Designated Warrants which remain
unpurchased exceeds one-eleventh of the aggregate principal amount of the
Designated Debt Securities to be purchased at the Time of Delivery for such
Designated Debt Securities, as referred to in subsection (b) above, or if the
Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Designated Debt Securities
and Designated Warrants of a defaulting Underwriter or Underwriters, then the
Pricing Agreement relating to such Designated Debt Securities and Designated
Warrants shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be
borne by the Company and the Underwriters as provided in Section 6 hereof and
the indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Guarantor and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Company or the Guarantor, or any officer or director
or controlling person of the Company or the Guarantor, and shall survive
delivery of and payment for the Designated Debt Securities and the Designated
Warrants.
11. If any Pricing Agreement shall be terminated pursuant to
Section 9 hereof, neither the Company nor the Guarantor shall then be under
any liability to any Underwriter with respect to the Designated Debt
Securities and the Designated Warrants covered by such Pricing Agreement
except as provided in Section 6 and Section 8 hereof; but, if for any other
reason Designated Debt Securities and Designated Warrants are not delivered
by or on behalf of the Company as provided herein, the Company or the
Guarantor will reimburse the Underwriters through the Representatives for all
out-of-pocket expenses approved in writing by the Representatives, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of such Designated
Debt Securities and Designated Warrants, but neither the Company nor the
Guarantor shall then be
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under any further liability to any Underwriter with respect to such
Designated Debt Securities and Designated Warrants except as provided in
Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Debt Securities and Designated Warrants shall act
on behalf of each of such Underwriters, and the parties hereto shall be
entitled to act and rely upon any statement, request, notice or agreement on
behalf of any Underwriter made or given by such Representatives.
All statements, requests, notices and agreements hereunder shall be
in writing or by telegram or telecopy if promptly confirmed in writing and if
to the Underwriters shall be sufficient in all respects, if delivered or sent
by registered mail to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company or the Guarantor shall be sufficient
in all respects if delivered or sent by registered mail to the address of the
Company or the Guarantor, as the case may be, set forth in the Registration
Statement, in each case: Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered
or sent by registered mail to such Underwriter at its address set forth in
the Pricing Agreement.
13. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Company and
the Guarantor and, to the extent provided in Section 8 and Section 10 hereof,
the officers and directors of the Company and the Guarantor and each person
who controls the Company or the Guarantor or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Debt
Securities or Warrants from any Underwriter shall be deemed a successor or
assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement.
15. This Agreement and each Pricing Agreement shall be construed
in accordance with the laws of the State of Illinois.
16. This Agreement and each Pricing Agreement may be executed by
any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please
sign and return to us _______ counterparts hereof.
Very truly yours,
-22-
<PAGE>
HOUSEHOLD INTERNATIONAL
NETHERLANDS B.V.
By:
---------------------
Title:
HOUSEHOLD INTERNATIONAL, INC.
By:
------------------------
Title:
Accepted as of the date hereof:
[Name(s) of Representative(s)]
By [Name of Lead Representative]
By:
----------------------------
Title:
-23-
<PAGE>
ANNEX I
PRICING AGREEMENT
-----------------
[Names of Representative(s)]
As Representatives of the several
Underwriters named in Schedule I hereto,
[Address]
____________, ____
Dear Sirs:
Household International Netherlands B.V. (the "Company") proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement dated , (the "Underwriting Agreement"), between
the Company and Household International, Inc. (the "Guarantor") on the one
hand and [names of representative[s] named therein] on the other hand, to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Designated Debt Securities and the Designated Warrants
specified in Schedule II hereto less the principal amount of Designated Debt
Securities and the number of Designated Warrants covered by Delayed Delivery
Contracts ("Delayed Delivery Contracts") as provided below (such Designated
Debt Securities and Designated Warrants covered by Delayed Delivery Contracts
being hereinafter referred to collectively as Contract Securities). Each of
the provisions of the Underwriting Agreement is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this Agreement
to the same extent as if such provision had been set forth in full herein;
and each of the representations and warranties set forth therein shall be
deemed to have been made at and as of the date of this Pricing Agreement,
except that each of the representations and warranties set forth in Section 2
of the Underwriting Agreement with respect to the Prospectus or the
information contained in the Prospectus shall constitute a representation or
warranty thereof (a) as of the date of the Underwriting Agreement with
respect to the Prospectus, and also (b) as of the date of this Pricing
Agreement with respect to the Prospectus as amended or supplemented. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer
to you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with, or in the
case of a supplement transmitted for filing to, the Commission.
-24-
<PAGE>
The Company hereby authorizes the Underwriters to solicit offers to
purchase Designated Debt Securities and Designated Warrants from the Company
pursuant to Delayed Delivery Contracts, substantially in the form of Schedule
III attached hereto but with such changes therein as you and the Company may
authorize or approve. The Underwriters will endeavor to make such
arrangements, and as compensation therefor the Company will pay to you, for
the accounts of the Underwriters, at the Time of Delivery, a commission of
% of the principal amount of Designated Debt Securities for which Delayed
Delivery Contracts have been made. Delayed Delivery Contracts are to be with
institutional investors of the types mentioned in the last paragraph under
the caption "Plan of Distribution" in the Prospectus and subject to other
conditions therein set forth. The Company will enter into a Delayed Delivery
Contract in each case arranged by the Underwriters where the Company has
advised you of its approval of the proposed sale of Contract Securities to
the purchaser thereunder; provided, however, that the minimum principal
amount of Designated Debt Securities covered by any Delayed Delivery Contract
with any purchaser or any Delayed Delivery Contract with affiliated
purchasers shall be $ and the aggregate principal amount of
Designated Debt Securities covered by Delayed Delivery Contracts shall not
exceed $ , unless the Company shall otherwise agree in writing.
However, if the aggregate principal amount of Designated Debt Securities
requested for delayed delivery is less than $ , the Company will have
the right to reject all requests. The Underwriters will not have any
responsibility in respect of the validity or performance of Delayed Delivery
Contracts.
The amount of Contract Securities to be deducted from the principal
amount of Designated Debt Securities and the number of Designated Warrants to
be purchased by each Underwriter as set forth in Schedule I hereto shall be,
in each case, the amount of Contract Securities which the Company has been
advised by you have been attributed to such Underwriter, provided that if the
Company has not been so advised, the amount of Contract Securities to be so
deducted shall be, in each case, that proportion of Contract Securities which
the principal amount of Designated Debt Securities and the number of
Designated Warrants to be purchased by such Underwriter under this Agreement
bears to the total principal amount of the Designated Debt Securities
(rounded as you may determine to the nearest $1,000 principal amount) and the
total number of Designated Warrants. The total principal amount of
Designated Debt Securities to be purchased by all the Underwriters shall be
$ less the principal amount of the Designated Debt Securities
covered by Delayed Delivery Contracts and the total number of Designated
Warrants so purchased shall be less the number of Designated Warrants
covered by such Contracts. The Company will deliver to you not later than
3:30 p.m., Chicago time, on the business day preceding the Time of Delivery
(or such other time and date as you and the Company may agree upon in
writing) a written notice setting forth the principal amount of Designated
Debt Securities and the number of Designated Warrants covered by Delayed
Delivery Contracts.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at a purchase
-25-
<PAGE>
price to the Underwriters set forth in Schedule II hereto, the principal
amount of Designated Debt Securities and number of Designated Warrants set
forth opposite the name of such Underwriter in Schedule I hereto less such
Underwriter's portion of Contract Securities determined as provided in the
preceding paragraph.
If the foregoing is in accordance with your understanding, please
sign and return to us six counterparts hereof, and upon acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of the
Underwriters, the Company and the Guarantor. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is or will be
pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be supplied to the Company upon request.
Very truly yours,
HOUSEHOLD INTERNATIONAL NETHERLANDS B.V.
By
---------------------------------------
[Title]
HOUSEHOLD INTERNATIONAL, INC.
By
----------------------------------------
[Title]
Accepted as of the date hereof:
[Name(s) of Representative(s)]
By
--------------------------------------
(Title)
- ----------------------------------------
On behalf of each of the Underwriters
-26-
<PAGE>
SCHEDULE I
Principal
Amount of
Designated Number of
Debt Designated
Securities Warrants
to be to be
Underwriter Purchased Purchased
- ----------- ----------- ----------
$
[Name(s) of Representative(s)] ....
[Names of other Underwriters] .....
----------- ----------
Total.................. $ $
----------- ----------
----------- ----------
<PAGE>
SCHEDULE II
Designated Debt Securities
Title of Designated Debt Securities:
[ %] [Floating Rate] [Zero Coupon] Notes due
Aggregate principal amount:
$
Price to Public:
% of the principal amount of the Designated Debt Securities, plus
accrued interest from to the Time of Delivery
[and accrued amortization, if any, from to the Time of Delivery]
Purchase Price by Underwriters:
% of the principal amount of the Designated Debt Securities, plus
accrued interest from to the Time of Delivery [and accrued
amortization, if any, from to the Time of Delivery]
Indenture:
Indenture, dated , ___ , between the Company, the Guarantor
and , as Trustee
Maturity:
Interest Rate:
[ %] [Zero Coupon]
Interest Payment Dates:
[months and dates]
<PAGE>
Redemption Provisions:
[No provisions for redemption]
[The Designated Debt Securities may be redeemed in whole or in part at the
option of the Company, in the amount of $ or an integral multiple
thereof,
[on or after , at the following redemption prices
(expressed in percentages of principal amount). If redeemed during the 12-month
period beginning
Year Redemption Price
---- ----------------
And thereafter at 100% of their principal amount, together in each case with
accrued interest to the redemption date.]
[on any interest payment date falling on or after , , at the
election of the Company, at a redemption price equal to the principal amount
thereof, plus accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Debt Securities are entitled to the benefit of a sinking
fund to retire $ principal amount of Designated Debt Securities on
in each of the years through at 100% of their principal amount
plus accrued interest], [together with [cumulative] [non-cumulative] redemptions
at the option of the Company to retire an additional $ principal amount
of Designated Debt Securities in the years through at 100% of their
principal amount plus accrued interest].
Designated Warrants
Warrant Exercise Price:
<PAGE>
Principal Amount of Designated Debt Securities Issuable on Exercise of One
Warrant:
Date after which Warrants are Exercisable:
Expiration Date:
Detachable Date:
Bearer or Registered
Miscellaneous
Time of Delivery:
Closing Location:
Type of Funds:
[Other Terms]*:
* A description of particular tax, accounting or other unusual features
of the Securities should be set forth, or referenced to an attached
and accompanying description, if necessary to the issuer's
understanding of the transaction contemplated. Such a description
might appropriately be in the form in which such features will be
described in the Prospectus Supplement for the offering.
<PAGE>
SCHEDULE III
DELAYED DELIVERY CONTRACT
-------------------------
HOUSEHOLD INTERNATIONAL NETHERLANDS B.V.
[Name and address of Representative(s)]
____________ , ____
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from HOUSEHOLD INTERNATIONAL
NETHERLANDS B.V. (hereinafter called the "Company"), and the Company agrees to
sell to the undersigned, $ principal amount of the Company's [full
title of Debt Securities] and [full title of Warrants] (hereinafter
collectively called the "Securities"), offered by the Company's Prospectus dated
, as supplemented by a supplement dated , , receipt
of a copy of which is hereby acknowledged, at a purchase price of % of the
principal amount of the Debt Securities, plus accrued interest from the date
from which interest accrues as set forth below, and on the further terms and
conditions set forth in this contract.
The undersigned will purchase the Securities from the Company on
, (the "Delivery Date"), and interest on the Securities so purchased
will accrue from , .
Payment for the Securities which the undersigned has agreed to
purchase on the Delivery Date shall be made to the Company or its order by
certified or official bank check in Federal funds at the office of the Company
on the Delivery Date upon delivery to the undersigned of the Securities then to
be purchased by the undersigned in definitive fully registered form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Securities on the Delivery Date shall be subject to the
conditions that (1) the purchase of
<PAGE>
Securities to be made by the undersigned shall not on the Delivery Date be
prohibited under the laws of the jurisdiction to which the undersigned is
subject and (2) the Company, on or before , , shall have
sold to the several Underwriters, pursuant to the Underwriting Agreement and
Pricing Agreement each dated , , with the Company, an
aggregate principal amount of Debt Securities equal to $ , and an
aggregate number of Warrants equal to , minus the aggregate principal
amount of Debt Securities and aggregate number of Warrants covered by this
contract and other contracts similar to this contract. The obligation of the
undersigned to take delivery of and make payment for Securities shall not be
affected by the failure of any purchaser to take delivery of and make payment
for Securities pursuant to other contracts similar to this contract.
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the Opinion of Counsel for the Company
delivered to the Underwriters in connection therewith.
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Securities
hereby agreed to be purchased by it under the laws of the jurisdiction to which
the undersigned is subject.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
This contract shall be construed in accordance with and governed by
the laws of the State of Illinois.
It is understood that the acceptance by the Company of any Delayed
Delivery Contract (including this contract) is in the Company's sole discretion
and that, without limiting the foregoing, acceptances of such contracts need not
be on a first-come, first-served basis. If this contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and
the
<PAGE>
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
--------------------------------
By
------------------------------
(Signature)
------------------------------
(Name and Title)
------------------------------
(Address)
Accepted, , .
Household International Netherlands B.V.
By
---------------------------------------
<PAGE>
HOUSEHOLD INTERNATIONAL NETHERLANDS B.V.,
AS ISSUER
AND
HOUSEHOLD INTERNATIONAL, INC.
AS GUARANTOR
AND
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
----------------
INDENTURE
DATED AS OF SEPTEMBER 1, 1998
----------------
PROVIDING FOR ISSUANCE OF UNCONDITIONALLY GUARANTEED SENIOR
NOTES IN SERIES
<PAGE>
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
<PAGE>
"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........................................ 18
SECTION 1.05 Notices, etc., to Trustee and Company.................. 19
SECTION 1.06 Notices to Holders, Waiver............................. 19
SECTION 1.07 Conflict with Trust Indenture Act...................... 20
SECTION 1.08 Effect of Headings and Table of Contents............... 20
SECTION 1.09 Successors and Assigns................................. 20
SECTION 1.10 Separability Clause.................................... 20
SECTION 1.11 Benefits of Indenture.................................. 20
SECTION 1.12 Governing Law.......................................... 21
SECTION 1.13 Payment on Business Day................................ 21
SECTION 1.14 Incorporation by Reference of Trust Indenture Act ..... 21
ii
<PAGE>
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
ARTICLE IV - COVENANTS OF THE GUARANTOR
SECTION 4.01 Payment of Taxes and Other Claims...................... 34
SECTION 4.02 Corporate Existence.................................... 34
SECTION 4.03 Filing of Reports...................................... 34
SECTION 4.04 Not Subject Property to Lien Without Securing
Notes Rateable; Waiver of Covenant..................... 35
ARTICLE V - REPAYMENT AT OPTION OF HOLDERS
SECTION 5.01 Optional Repayment of Notes............................ 37
SECTION 5.02 Repayment Procedure for Notes.......................... 37
iii
<PAGE>
ARTICLE VI - REDEMPTION OF NOTES; SINKING FUNDS
SECTION 6.01 Applicability of Redemption Provisions................. 37
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................................... 38
SECTION 6.05 Deposit of Redemption Price............................ 39
SECTION 6.06 Notes Payable on Redemption Date....................... 39
SECTION 6.07 Notes Redeemed in Part................................. 40
SECTION 6.08 Sinking Funds.......................................... 40
SECTION 6.09 Satisfaction of Sinking Fund Payments with Notes ...... 40
SECTION 6.10 Redemption of Notes for Sinking Fund................... 40
ARTICLE VII - SATISFACTION AND DISCHARGE
SECTION 7.01 Satisfaction and Discharge of Indenture................ 41
SECTION 7.02 Application Of Trust Money............................. 42
SECTION 7.03 Satisfaction, Discharge, and Defeasance................ 42
of Notes of any Series
SECTION 7.04 Reinstatement.......................................... 44
ARTICLE VIII - REMEDIES
SECTION 8.01 Events of Default...................................... 44
SECTION 8.02 Acceleration of Maturity; Rescission and Annulment .... 46
SECTION 8.03 Collection of Indebtedness and Suits for
Enforcement by Trustee................................. 47
SECTION 8.04 Trustee May File Proofs of Claim....................... 47
SECTION 8.05 Trustee May Enforce Claims Without Possession of
Notes.................................................. 48
SECTION 8.06 Application of Money Collected......................... 48
SECTION 8.07 Limitation on Suits.................................... 49
SECTION 8.08 Unconditional Right of Holders to Receive
Principal, Premium and Interest........................ 49
SECTION 8.09 Restoration of Rights and Remedies..................... 50
SECTION 8.10 Rights and Remedies Cumulative......................... 50
SECTION 8.11 Delay or Omission Not Waiver........................... 50
SECTION 8.12 Control by Holders..................................... 50
SECTION 8.13 Waiver of Past Defaults................................ 50
SECTION 8.14 Undertaking for Costs.................................. 51
SECTION 8.15 Waiver of Stay or Extension Laws....................... 51
iv
<PAGE>
ARTICLE IX - THE TRUSTEE
SECTION 9.01 Certain Duties and Responsibilities.................... 51
SECTION 9.02 Notice of Defaults..................................... 52
SECTION 9.03 Certain Rights of Trustee.............................. 53
SECTION 9.04 Not Responsible for Recitals or Issuance of Notes ..... 54
SECTION 9.05 May Hold Notes......................................... 54
SECTION 9.06 Money Held in Trust.................................... 54
SECTION 9.07 Compensation and Reimbursement......................... 54
SECTION 9.08 Corporate Trustee Required; Eligibility;
Disqualification; Conflicting Interests................ 55
SECTION 9.09 Preferential Collection of Claims Against Company ..... 55
SECTION 9.10 Resignation and Removal; Appointment of Successor ..... 55
SECTION 9.11 Acceptance of Appointment by Successor................. 57
SECTION 9.12 Merger, Conversion, Consolidation or
Succession to Business................................. 57
ARTICLE X - HOLDERS' LIST AND REPORTS BY TRUSTEE AND COMPANY
SECTION 10.01 Company to Furnish Trustee Names and
Addresses of Holders................................... 58
SECTION 10.02 Preservation of Information; Communications to
Holders................................................ 58
SECTION 10.03 Reports by Trustee..................................... 58
ARTICLE XI - CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 11.01 Guarantor May Consolidate, etc. only on Certain
Terms.................................................. 59
SECTION 11.02 Company May Consolidate, etc. only on Certain Terms ... 59
SECTION 11.03 Successor Corporation Substituted...................... 60
ARTICLE XII - SUPPLEMENTAL INDENTURES
SECTION 12.01 Supplemental Indentures Without Consent of Holders .... 61
SECTION 12.02 Supplemental Indentures With Consent of Holders ....... 62
SECTION 12.03 Execution of Supplemental Indentures................... 63
SECTION 12.04 Effect of Supplemental Indentures...................... 63
SECTION 12.05 Conformity with Trust Indenture Act.................... 63
SECTION 12.06 Reference in Notes to Supplemental Indentures ......... 63
v
<PAGE>
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 First
National Bank of Chicago, as Trustee*
<TABLE>
<CAPTION>
Section of
Section of Act Indenture
- -------------- ----------
<S> <C>
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.
<PAGE>
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
</TABLE>
vii
<PAGE>
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 First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America (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
<PAGE>
- 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 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.
<PAGE>
- 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 First National Bank of Chicago,
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,
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
<S> <C> <C> <C>
</TABLE>
<PAGE>
- 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,
<TABLE>
<CAPTION>
Redemption Price
for Redemption Redemption Price for
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ----------------- -----------------------
<S> <C> <C>
</TABLE>
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
<PAGE>
- 5 -
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
<PAGE>
- 6 -
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 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
Notes of the same series
<PAGE>
- 7 -
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.
<PAGE>
- 8 -
The First National Bank of Chicago,
as Trustee
Dated:_________________________ By ______________________________
Authorized Signature
[FORM OF GUARANTEE]
GUARANTEE OF HOUSEHOLD INTERNATIONAL, INC.
FOR VALUE RECEIVED, Household International, Inc., a corporation
duly organized and existing under the laws of the State of Delaware (the
"Guarantor"), hereby unconditionally guarantees to the Holder of the Senior
Note upon which this Guarantee is endorsed the due and punctual payment of
the principal of, premium, if any, and interest on said Senior Note, when and
as the same shall become due and payable, whether at maturity or otherwise,
according to the terms thereof and of the Indenture referred to therein.
The Guarantor agrees to determine, at least one Business Day prior
to the date upon which a payment of principal of, or premium, if any, or
interest on said Senior Note is due and payable, whether the Company has
available the funds to make such payment as the same shall become due and
payable. In case of the failure of the Company punctually to pay any such
principal, premium, if any, or interest, the Guarantor hereby agrees to cause
any such payment to be made punctually when and as the same shall become due
and payable, whether at maturity or otherwise, and as if such payment were
made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrevocable, and absolute, irrespective of the validity,
regularity, or enforceability of said Senior Note or the Indenture, the
absence of any action to enforce the same, any waiver or consent by the
Holder of said Senior Note with respect to any provisions hereof, the
recovery of any judgment against the Company or any action to enforce the
same, or any other circumstances which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. The Guarantor hereby waives
diligence, presentment, notice of non-payment, demand of payment, any right
to require a proceeding first against the Company, filing of claims with a
court in the event of merger, insolvency or bankruptcy of the Company,
protest or notice with respect to the Senior Note upon which this Guarantee
is endorsed or indebtedness evidenced thereby and all notices and demands to
the Company or the Guarantor whatsoever and covenants that this Guarantee
will not be discharged except by complete performance of the obligations
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.
<PAGE>
- 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]
<PAGE>
- 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 One First National Plaza, Chicago, Illinois 60670, Attention:
Corporate Trust Administration (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:
<PAGE>
- 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.
<PAGE>
- 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
Chicago, Illinois, 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.
<PAGE>
- 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, the terms of the Senior Notes and 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 in any
other obligor upon the Senior Notes or in any Affiliate of the Company, the
Guarantor or of such other obligor, and (3) is not connected with the
Company, the Guarantor or such other obligor or any Affiliate of the Company,
the Guarantor or of such other obligor, as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar
functions. Whenever it is herein provided that any Independent Person's
opinion or certificate shall be furnished to the Trustee, such Person shall
be appointed by a Company Order, and such opinion or certificate shall state
that the signer has read this definition
and that the signer is Independent within the meaning hereof.
"Interest" when used with respect to an Original Issue Discount Note
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date" means the Stated Maturity of interest on
Senior Notes of a particular series.
"Maturity" when used with respect to Senior Notes of a particular
series means the date on which the principal or any instalment of principal
of such Senior Notes becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call for
redemption, repayment at the option of the Holder, or otherwise.
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 2.05.
<PAGE>
- 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,
<PAGE>
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consent or waiver hereunder, or for any other purpose, (i) Senior Notes owned
by the Company, the Guarantor or any other obligor upon the Senior Notes or
any Affiliate of the Company, the Guarantor or such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Senior
Notes which the Trustee knows to be so owned shall be so disregarded, and
Senior Notes so owned which have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the Trustee
the pledgee's right so to act with respect to such Senior Notes and that the
pledgee is not the Company, the Guarantor or any other obligor upon the
Senior Notes or any Affiliate of the Company, the Guarantor or such other
obligor, and (ii) the principal amount of an Original Issue Discount Note or
a Senior Note denominated in a Foreign Currency, as the case may be, that is
deemed to be Outstanding for such purposes shall be the amount of 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.
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"Responsible Officer" when used with respect to the Trustee means an
officer of the Trustee assigned to the Corporate Trust Office, including any
vice president or assistant vice president, any trust officer or assistant
trust officer, or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"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 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
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in the opinion of such counsel all such conditions precedent, if any,
have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture 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.
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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 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
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acceleration pursuant to Section 8.02 at the time the taking of such action
by the Holders of such requisite principal amount of Outstanding Senior Notes
is evidenced to the Trustee, as provided in Subsection (a) of this Section.
(f) For the purposes of calculating the principal amount of Senior
Notes of any series denominated in ECUs or a currency issued by the
government of any country other than the United States for any purpose under
this Indenture, the principal amount of such Senior Notes at any time
outstanding shall be deemed to be that amount of Dollars that could be
obtained for such principal amount on the basis of a spot rate of exchange
specified to the Trustee in an Officers' Certificate for ECUs or such
currency into Dollars as of the date of any such calculation.
(g) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other
Act, but the Company shall have no obligation to do so. If such a record date
is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record date, but only
the Holders of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Senior Notes have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Senior Notes shall
be computed as of such record date; provided that no such authorization,
agreement or consent by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
SECTION 1.05. NOTICES, ETC., TO TRUSTEE AND COMPANY. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders
or other document provided or permitted by this Indenture to be made upon,
given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or the
Guarantor shall be sufficient for every purpose hereunder if 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.
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SECTION 1.06. NOTICES TO HOLDERS, WAIVER. Where this Indenture
provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder affected by such
event, at his address as it appears in the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders and any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given. Where
this Indenture provides for notice in any manner, such notice may be waived
in writing by the Person entitled to receive such notice, either before or
after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made that is satisfactory to the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
In case, by reason of the suspension of publication of any
Authorized Newspaper, or by reason of any other cause, it shall be impossible
to make publication of any notice in an Authorized Newspaper or Authorized
Newspapers as required by this Indenture, then such method of publication or
notification as shall be made with the approval of the Trustee shall
constitute a sufficient publication of such notice.
SECTION 1.07. CONFLICT WITH TRUST INDENTURE ACT. If any provision
hereof limits, qualifies or conflicts with another provision hereof which is
required to be included in this Indenture by any of the provisions of TIA,
such required provision shall control.
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
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successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 1.12. GOVERNING LAW. This Indenture and each Senior Note
issued hereunder shall be construed in accordance with and governed by the
laws of the State of Illinois.
SECTION 1.13. PAYMENT ON BUSINESS DAY. In any case where any
Interest Payment Date, Redemption Date or Stated Maturity of any Senior Note
shall not be a Business Day, then (notwithstanding any other provision of
this Indenture) payment of interest or principal (and premium, if any), as
the case may be, need not be made on such date but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity, provided
that no interest shall accrue 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.
<PAGE>
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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 Officers' 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:
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(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
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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 of any series, the Company and the Guarantor may execute, and
upon Company Order the Trustee shall authenticate and deliver, or cause to be
delivered, temporary Senior Notes of such series having duly executed
Guarantees endorsed thereon which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any denomination, substantially of the
tenor of the definitive Senior Notes in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Senior Notes and Guarantee, may
determine, as evidenced by their signing of such Senior Notes or Guarantees.
If temporary Senior Notes of any series are issued, the Company will
cause definitive Senior Notes of such series to be prepared without
unreasonable delay. After the preparation of definitive Senior Notes, the
temporary Senior Notes shall be exchangeable for definitive Senior Notes upon
surrender of the temporary Senior Notes at the office or agency of the
Company or Trustee without charge to the Holder. Upon surrender for
cancellation of any one
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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
Guarantees, of any authorized denominations and for a like aggregate
principal amount.
Subject to the provisions of Section 2.11, at the option of the
Holder, Senior Notes may be exchanged for other Senior Notes of the same
series containing identical terms and provisions, of any authorized
denominations and for a like aggregate principal amount, upon surrender of
the Senior Notes to be exchanged at any such office or agency. Whenever any
Senior Notes are so surrendered for exchange, the Company and the Guarantors
shall execute 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.
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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.
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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; provided, however, the Senior Notes are continuously held by the
Company through the relevant Interest Payment Date.
Any interest on any Senior Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such
Holder; and such Defaulted Interest shall be paid by the Company or the
Guarantor, at their or its election in each case, as provided in Clause (1)
or Clause (2) below:
(1) The Company or the Guarantor may elect to make payment
of any Defaulted Interest to the Persons in whose names the Senior
Notes (or their respective Predecessor Notes) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner.
The Company or the Guarantor shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Senior
Note and the date of the proposed payment, and at the same time the
Company or the Guarantor shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in
this Clause (1) provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall
be not more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company or the Guarantor, as the case may be, of
such Special Record Date and, in the name and at the expense of the
Company or the Guarantor, shall cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor to
be mailed first class postage prepaid, to each Holder at his address
as it appears in the Note Register, not less than 10 days prior to
such Special Record Date. The Trustee shall, upon a Company Request
and in the name and at the expense of the Company or the Guarantor,
cause a similar notice to be published at least once in an
Authorized Newspaper in New York
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City but such publication shall not be a condition precedent to the
establishment of such 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
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Trustee who shall have authority to authenticate Senior Notes of any series
in the name and on behalf of the Trustee. Such appointment by the Trustee
shall be evidenced by a certificate executed by a Responsible Officer of the
Trustee delivered to the Company prior to the effectiveness of such
appointment designating such agent or agents and stating that all appropriate
corporate action has been taken by the Trustee in connection with such
appointment.
Any such authenticating agent shall be an agent acceptable to the
Trustee, 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 First National Bank of Chicago,
as Trustee
Dated:__________________________ By_____________________________
Authenticating Agent
By_____________________________
Authorized Signature
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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 and the Guarantor will execute
the Senior Notes and the Guarantee, and the Trustee will authenticate and
deliver Senior Notes of such series, including such 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 and the Guarantor will execute the
Senior Notes and the Guarantee, 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 such 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
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authorized denominations as the Depository, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee.
SECTION 2.12. BENEFIT OF GUARANTEE. (a) Each Holder of a Senior Note
shall have the benefit of the Guarantee in substantially the form set forth
herein. Such Guarantee shall be endorsed on each Senior Note authenticated
and delivered by the Trustee (or the authenticating agent) and such Guarantee
shall constitute an integral part of each such Senior Note. Each such
Guarantee shall be signed on behalf of the Guarantor 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 may state that no representation is
made as to the correctness of such numbers either as printed on the Senior
Notes or as contained in any notice of a redemption and that reliance may be
placed only on the other identification numbers printed on the Senior Notes,
and any such redemption shall not be affected by any defect in or omission of
such numbers.
<PAGE>
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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;
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(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
<PAGE>
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shall not constitute an Event of Default or be deemed to be prevented or
restricted by anything contained herein or in the Senior Notes.
SECTION 3.05. MAINTENANCE OF ACCOUNTS. The Company will keep or
cause to be kept proper books of account, and will, if and whenever requested
in writing by the Trustee, 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).
ARTICLE IV
COVENANTS OF THE GUARANTOR
SECTION 4.01. PAYMENT OF TAXES AND OTHER CLAIMS. The Guarantor will
pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges levied
or imposed upon it or upon its income, profits or property, and (2) all
lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon its property; provided, however, that the Guarantor
shall not be required to pay or discharge or cause to be paid or discharged
any such tax, assessment, charge or claim whose amount, applicability or
validity is being contested in good faith by appropriate proceedings.
SECTION 4.02. CORPORATE EXISTENCE. Subject to Article XI, the
Guarantor will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence, rights (charter and
statutory) and franchises; provided, however, that the Guarantor shall not be
required to preserve or cause to be preserved any right or franchise if the
Guarantor shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Guarantor and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 4.03. FILING OF REPORTS. The Guarantor shall file with the
Trustee within 15 days after it files them with the SEC copies of the annual
reports and of the information, documents, and other reports (or copies of
such portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Guarantor is required to file with the SEC pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934. The Guarantor
also shall comply with all other reporting requirements of the TIA, including
but not limited to, Section 314(a).
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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;
(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;
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(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 at such time and secured
by mortgages not so excepted, does not at the time exceed 10% of the
Guarantor's Consolidated Net Worth. "Consolidated Net Worth" shall be the
difference between the Guarantor's consolidated assets and consolidated
liabilities as shown on the Guarantor's most recent audited consolidated
financial statements prepared in accordance with United States generally
accepted accounting principles.
(c) An arrangement with any Person providing for the leasing by the
Guarantor of any property, which property has been or is to be sold or
transferred by the Guarantor to such Person with the intention that such
property be leased back to the Guarantor, shall not be deemed to create any
indebtedness secured by a mortgage if the obligations in respect of such
lease would not be included as liabilities on a consolidated balance sheet of
the Guarantor.
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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.
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 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.
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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 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,
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(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.
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.
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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 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
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the portion thereof, if any, which is to be satisfied by delivering and
crediting Senior Notes of that series pursuant to Section 6.09, or which were
previously cancelled and delivered 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 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,
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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.
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
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sufficient to pay and discharge the entire indebtedness on
all Outstanding Senior Notes of such series for principal
(and premium, if any) and interest to the Stated Maturity
or any Redemption Date as contemplated by the penultimate
paragraph of this Section 7.03, as the case may be; or
(ii) the Company has deposited or caused to be
deposited with the Trustee as obligations in trust for the
purpose of discharging such indebtedness such amount of direct
obligations of, or obligations the principal of and interest
on which are fully guaranteed by, the United States of America
and which are not callable at the option of the issuer thereof
as will, together with the income to accrue thereon without
consideration of any reinvestment thereof, be sufficient to
pay and discharge the entire indebtedness on all Outstanding
Senior Notes of such series for principal (and premium, if
any) and interest to the Stated Maturity or any Redemption
Date as contemplated by the penultimate paragraph of this
Section 7.03, as the case may be; or
(B) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified in the Board Resolution
described in Section 2.01 hereof or supplemental indenture applicable
to the Senior Notes of such series; and
(2) the Company has paid or caused to be paid all other sums payable
with respect to the Outstanding Senior Notes of such series; and
(3) the Company has delivered to the Trustee a certificate of a firm
of independent public accountants certifying as to the sufficiency of the
amounts deposited pursuant to subsections (A)(i) or (ii) of this Section for
payment of the principal (and premium, if any) and interest on the dates such
payments are due, an Officers' Certificate and an Opinion of Counsel, each
such Certificate and Opinion stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of the entire
indebtedness on all Outstanding Senior Notes of any such series have been
complied with.
Any deposits with the Trustee referred to in Section 7.03(1)(A)
above shall be irrevocable and shall be made under the terms of an escrow
trust agreement in form and substance 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
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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 Guarantee shall
be revived and reinstated as though no deposit had occurred pursuant to this
Article Seven until such time as the Trustee is permitted to apply all such
money in accordance with Section 7.01 or 7.03; provided, however, that if the
Company makes any payment of principal of (and premium, if any) or interest
on any Senior Notes following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Senior Notes
to receive such payment from the money held by the Trustee.
ARTICLE VIII
REMEDIES
SECTION 8.01. EVENTS OF DEFAULT. "Event of Default", wherever used
herein with respect to Senior Notes of any series, means any one of the
following events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any instalment of interest upon
any Senior Note of that series when such instalment of 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 mandatory 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
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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 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
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(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
(1) the Company or the Guarantor has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue installments of interest, if any, on all
Senior Notes of that series,
(B) the principal of (and premium, if any, on) any Senior
Notes of that series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or the
respective rates borne by the Senior Notes of that series,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest, if any, at the rate or
the respective rates borne by the Senior Notes of that series or at a
rate otherwise specified therein, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the
principal of Senior Notes of that series which have become due solely by such
acceleration, have been cured or waived as provided in Section 8.13.
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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 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
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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.
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
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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;
(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
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respective Stated Maturities expressed in such Senior Note (or, in the case
of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such right shall not be impaired without
the consent of such Holder.
SECTION 8.09. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder,
then and in every such case the Company, the Guarantor, the Trustee and the
Holders shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
SECTION 8.10. RIGHTS AND REMEDIES CUMULATIVE. No right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter existing
at law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 8.11. DELAY OR OMISSION NOT WAIVER. No delay or omission of
the Trustee or of any Holder to exercise any right or remedy accruing upon
any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right
and remedy given by this Article VIII or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 8.12. CONTROL BY HOLDERS. The Holders of a majority in
principal amount of the Outstanding Senior Notes 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 for 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
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(1) in the payment of the principal of (or premium, if any) or
interest on any Senior Note of such series, or
(2) in respect of a covenant or provision hereof which under
Section 12.02 cannot be modified or amended without the consent of the
Holder of each Outstanding Senior Note affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 8.14. UNDERTAKING OF COSTS. All parties to this Indenture
agree, and each Holder of any Senior Note by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken, suffered, or omitted by it
as Trustee, the filing by any party litigant in such suit of an undertaking
to pay the costs of such suit, and that such court may in its discretion
assess reasonable costs, including reasonable attorneys' fees, against any
party litigant in such suit, having due regard to the merits and good faith
of the claims or defenses made by such party litigant; but the provisions of
this Section 8.14 shall not apply to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% in principal amount of any series of the Outstanding
Senior Notes, or to any suit instituted by any Holder for the enforcement of
the payment of the principal of (or premium, if any) or interest on any
Senior Note on or after the respective Stated Maturities expressed in such
Senior Note for such interest (or, in the case of redemption, on or after the
Redemption Date).
SECTION 8.15. WAIVER OF STAY OR EXTENSION LAWS. Each of the Company
and the Guarantor covenant (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension of law wherever
enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and each of the Company and
the Guarantor (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it will
not hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE IX
TRUSTEE
SECTION 9.01. CERTAIN DUTIES AND RESPONSIBILITIES. (a) Except
during the continuance of an Event of Default:
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(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct, except that
(1) this Subsection (c) shall not be construed to limit the
effect of Subsection (a) of this Section 9.01;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Senior Notes determined as provided in Section 1.01 and
1.04 relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture; and
(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
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payment of the principal of (or premium, if any) or interest on any Senior
Note or in the payment of any sinking or purchase fund instalment, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders; and provided,
further, that in the case of any default of the character specified in
Section 8.01(4) no such notice to Holders shall be given until at least 60
days after the occurrence thereof. For the purpose of this Section 9.02 the
term 'default' means any event which is, or after notice or lapse of time or
both would become, an Event of Default.
SECTION 9.03. CERTAIN RIGHTS OF TRUSTEE. Except as otherwise
provided in Section 9.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company or the Guarantor
mentioned herein shall be sufficiently evidenced by a Company Request or
Company Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action 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
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be entitled to examine the books, records and premises of the Company or the
Guarantor, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers or perform
any duties hereunder either directly or by or through agents or attorneys and
the Trustee shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder; and
(h) the Trustee shall not be liable for any action taken by it in
good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture.
SECTION 9.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES. The
recitals contained herein and in the Senior Notes, except the certificate of
authentication, shall be taken as the statements of the Company or the
Guarantor, as the case may be, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Senior Notes 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 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
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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 Guarantor under this Section 9.07 the Trustee shall have a lien prior to
the Senior Notes for any amount owing to it or to any predecessor Trustee
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of (and premium, if any) or
interest on particular Senior Notes.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 8.01(5) or Section 8.01(6), the
expenses (including the reasonable charges and expenses of its counsel) and
the compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency
or other similar law.
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
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Article shall become effective until the acceptance of appointment by the
successor Trustee under Section 9.11.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company and the Guarantor. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of
a majority in principal amount of the Outstanding Senior Notes, delivered to
the Trustee, the Company and the Guarantor.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 9.08(b)
after written request therefor by the Company, the Guarantor or by any
Holder who has been a bona fide Holder for at least six months, or
(2) the Trustee shall cease to be eligible under Section
9.08(a) and shall fail to resign after written request 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
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Holder who has been a bona fide Holder for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to the
Holders as their names and addresses appear in the Note Register. Each notice
shall include the name of the successor Trustee and the address of its
principal corporate trust office.
SECTION 9.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver
to the Company and the Guarantor and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on request of the
Company and the Guarantor or the successor Trustee, such retiring 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.
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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.
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 September 15. Within 60 days after the
reporting date in each year, the Trustee shall transmit by mail to all
Holders, as their names and addresses appear in the Note Register, a brief
report dated as of such reporting date that complies with TIA 313(a). The
Trustee shall also comply with TIA 313(b).
(b) Reports pursuant to this Section 10.03 shall be transmitted by
mail:
(1) to all Holders of Senior Notes, as the names and addresses
of such Holders appear in the Note Register;
(2) to such Holders of Senior Notes as have, within the 2
years preceding such transmission, filed their names and addresses with
the Trustee for that purpose; and except in the case of reports
pursuant to TIA 313(b), to all Holders of Senior Notes whose names and
addresses have been furnished to or received by the Trustee pursuant to
Section 10.01.
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(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:
(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
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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:
(1) the Successor is a corporation incorporated or a partnership
formed under the laws of the Netherlands or of the United
States of America or under any of the
respective political subdivisions thereof;
(2) at the time of and immediately after the consummation of the
transaction no condition or event shall exist which
constitutes or which would, after the lapse of time of giving
of notice or both, constitute an Event of Default hereunder;
(3) the Successor is lawfully entitled to acquire and
operate the undertaking and assets; and
(4) in the opinion of counsel to the Trustee, the transaction is
upon such terms as substantially to preserve and not to impair
any of the rights and powers of the Trustee or of the Holders
hereunder.
The Trustee may accept and rely on an Opinion of Counsel
that conditions prescribed in this section 11.02 have been complied with and
upon obtaining such opinion the Trustee shall join in such documents and do
such acts as may be required or thought advisable to consent to or give
effect to such reconstruction, reorganization, consolidation, amalgamation,
merger, transfer, sale or conveyance and to release and discharge the Company
from liability under this Indenture and the Senior Notes.
SECTION 11.03. SUCCESSOR CORPORATION SUBSTITUTED. Upon any
consolidation or merger, or any conveyance, transfer, sale or lease of the
properties and assets of the Company or the Guarantor, as the case may be,
as, or substantially as, an entirety in accordance with Sections 11.01 or
11.02, the successor 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,
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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;
(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;
<PAGE>
- 62 -
(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.
SECTION 12.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
Subject to the provisions of Section 8.12 and Section 8.13, with the consent
of the Holders of not less than a majority in principal amount of the
Outstanding Senior Notes of each series which are affected, evidenced by Act
of said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, the Guarantor and the Trustee may enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of modifying
in any manner the rights of the Holders of the Senior Notes of such series
thereof under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Senior
Note affected thereby,
(1) change the Stated Maturity of the principal of, or any
instalment of interest on, any Senior Note, or reduce the principal
amount thereof or the interest thereon or any
premium payable upon the redemption thereof, or reduce the principal
amount of an Original Issue Discount Note that would be due and payable
upon a declaration of acceleration of the Maturity thereof, or change
the coin or currency in which any Senior Note or the interest thereon
is payable, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Senior Notes of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(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
<PAGE>
- 63 -
affected thereby provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes
in the references to 'the Trustee' and concomitant changes in this
Section and Section 3.08, or the deletion of this proviso, in
accordance with the requirements of Sections 9.11 and 12.01(9).
It shall not be necessary for any Act of Holders under this Section
12.02 to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve substance thereof.
SECTION 12.03. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing,
or accepting the additional trusts created by, any supplemental indenture
permitted by this Article XII or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 9.01) shall be fully protected in relying upon, an
Opinion of Counsel, stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture and that such
supplemental indenture is a valid and binding obligation of the Company or
the Guarantor in accordance with its terms. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 12.04. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution
of any supplemental indenture under this Article XII, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Senior Notes
theretofore or thereafter authenticated and delivered hereunder shall be
bound thereby.
SECTION 12.05. CONFORMITY WITH TRUST INDENTURE ACT. Every
supplemental indenture executed pursuant to this Article XII shall conform to
the requirements of TIA as then in effect.
SECTION 12.06. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES. Senior
Notes authenticated and delivered after the execution of any applicable
supplemental indenture pursuant to this Article XII may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Senior Notes so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Senior Notes.
<PAGE>
- 64 -
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 Edgar Ancona
Vice President
Attest:
Partick D. Schwartz_
Assistant Secretary
HOUSEHOLD INTERNATIONAL, INC.
BY B. B. Moss, Jr.
Assistant Treasurer
Attest:
Susan E. Casey
Assistant Secretary
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
BY Steven M. Wagner
First Vice President
Attest:
Mark J. Frye
Assistant Vice President
<PAGE>
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
<PAGE>
HOUSEHOLD INTERNATIONAL NETHERLANDS B.V.
HOUSEHOLD INTERNATIONAL, INC.
Indenture dated as of September 1, 1998
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
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
<PAGE>
"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
<PAGE>
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
<PAGE>
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
<PAGE>
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
</TABLE>
<PAGE>
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*
<TABLE>
<CAPTION>
SECTION OF
SECTION OF ACT INDENTURE
<S> <C>
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.
<PAGE>
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
</TABLE>
<PAGE>
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
<PAGE>
-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.
<PAGE>
-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
---- ---------- ---- ----------
<PAGE>
-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
<PAGE>
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
<PAGE>
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
<PAGE>
-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.
<PAGE>
-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.
<PAGE>
-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]
<PAGE>
-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:
<PAGE>
-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.
<PAGE>
-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.
<PAGE>
- 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.
<PAGE>
-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,
<PAGE>
-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.
<PAGE>
-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.
<PAGE>
-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
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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
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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
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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
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(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.
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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:
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(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
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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
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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.
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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.
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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
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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
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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
<PAGE>
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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
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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.
<PAGE>
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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;
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(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
<PAGE>
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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.
<PAGE>
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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;
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(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
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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
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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
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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.
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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
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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
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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.
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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
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(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.
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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
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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
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(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
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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.
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Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the 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;
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(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
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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
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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.
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(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;
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(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.
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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
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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.
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(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.
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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.
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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:
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(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:
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(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;
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(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.
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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
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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.
<PAGE>
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<PAGE>
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TESTIMONIUM
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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
<PAGE>
Exhibit 4.3
HOUSEHOLD INTERNATIONAL NETHERLANDS B.V.
Form of Warrant Agreement
(for warrants sold alone)
THIS WARRANT AGREEMENT dated as of __________________________ between
Household International Netherlands B.V. a corporation organized under the
laws of the Netherlands (the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to) and
________________________ as Warrant Agent (the "Warrant Agent").
WHEREAS, the Company has entered into an Indenture dated as of
____________________________ (the "Indenture"), with _____________________,
as Trustee (the "Trustee"), providing for the issuance from time to time of
its unsecured debt securities (the "Debt Securities"), to be issued in one or
more series as provided in the Indenture; and
WHEREAS, the Company proposes to sell warrant certificates evidencing
one or more warrants (the "Warrants" or, individually a "Warrant)
representing the right to purchase [title of debt securities purchasable
through exercise of Warrants] (the "Warrant Debt Securities"), such warrant
certificates and other warrant certificates issued pursuant to this Agreement
hereinafter referred to as the "Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the issuance, exchange, exercise and replacement
of the Warrant Certificates, and in this Agreement wishes to set forth, among
other things, the form and provisions of the Warrant Certificates and the
terms and conditions on which they may be issued, exchanged, exercised and
replaced;
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
Issuance of Warrants and Execution
and Delivery of Warrant Certificates
Section 1.01. ISSUANCE OF WARRANTS. Each Warrant Certificate shall
evidence one or more Warrants. Each Warrant evidenced thereby shall represent
the right, subject to the provisions contained herein and therein, to
purchase a Warrant Debt Security in the principal amount of $_______________.
<PAGE>
Section 1.02. EXECUTION AND DELIVERY OF WARRANT CERTIFICATES. Each
Warrant Certificate, whenever issued, shall be in [bearer] [registered] form
substantially in the form set forth in Exhibit A hereto, shall be dated and
may have such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or
engraved thereon as the officers of the Company executing the same may
approve (execution thereof to be conclusive evidence of such approval) and as
are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Warrant Certificates may be listed, or to conform to usage. The Warrant
Certificates shall be signed on behalf of the Company by either its
President, one of its Vice Presidents or one of its Assistant Treasurers
under its corporate seal and attested by its Secretary or any of its
Assistant Secretaries. Such signatures may be manual or facsimile signatures
of such authorized officers and may be imprinted or otherwise reproduced on
the Warrant Certificates. The seal of the Company may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has
been countersigned by the manual signature of the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence that the Warrant Certificate so
countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to
be such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant Certificates
may be countersigned and delivered notwithstanding that the person who signed
such Warrant Certificates has ceased to be such officer of the Company; and
any Warrant Certificate may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Warrant Certificate,
shall be the proper officers of the Company, although at the date of the
execution of this Agreement any such person was not such officer.
[IF BEARER WARRANTS -- The term "holder" or "holder of a Warrant
Certificate" as used herein shall mean the bearer of such Warrant
Certificate.]
[IF REGISTERED WARRANTS -- The term "holder" or "holder of a Warrant
Certificate" as used herein shall mean any person in whose name at the time
any Warrant Certificate shall be registered
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upon the books to be maintained by the Warrant Agent for that purpose.]
Section 1.03. ISSUANCE OF WARRANT CERTIFICATES. Warrant Certificates
evidencing the right to purchase an aggregate principal amount not exceeding
$____________ = aggregate principal amount of Warrant Debt Securities (except
as provided in Sections 2.03(c), 3.02 and 4.01) may be executed by the
Company and delivered to the Warrant Agent upon the execution of this Warrant
Agreement or from time to time thereafter. The Warrant Agent shall, upon
receipt of Warrant Certificates duly executed on behalf of the Company,
countersign Warrant Certificates evidencing Warrants representing the right
to purchase up to $__________ aggregate principal amount of Warrant Debt
Securities and shall deliver such Warrant Certificates to or upon the order
of the Company. Subsequent to such original issuance of the Warrant
Certificates, the Warrant Agent shall countersign a Warrant Certificate only
if the Warrant Certificate is issued in exchange or substitution for one or
more previously countersigned Warrant Certificates, [IF REGISTERED WARRANTS --
or in connection with their transfer], as hereinafter provided or as provided
in Section 2.03(c).
ARTICLE II
Warrant Price, Duration and Exercise of Warrants
Section 2.01. WARRANT PRICE*. [On _____________, 19__ the exercise
price of each Warrant is $_____________. During the period from _________,
19__ through and including _____________, 19__ the exercise price of each
Warrant will be $___________ plus [accrued amortization of the original issue
discount] [accrued interest] from _________________, 19__. On ______________,
19__ the exercise price of each Warrant will be $___________. During the
period from _____________, 19__, through and including _____________, 19__,
the exercise price of each Warrant will be $___________ plus [accrued
amortization of the original issue discount] [accrued interest] from
_____________, 19__, [in each case, the original issue discount will be
amortized at a _____% annual rate, computed on an annual basis using a
360-day year consisting of twelve 30-day months]. Such purchase price of
Warrant Debt Securities is referred to in this Agreement as the "Warrant
Price". [The original issue discount for each $1,000 principal amount of
Warrant Debt Securities is $____________].
Section 2.02. DURATION OF WARRANTS. Each Warrant evidenced by a
Warrant Certificate may be exercised in whole at any time, as
- -------------------
* COMPLETE AND MODIFY THE PROVISIONS OF THIS SECTION AS APPROPRIATE TO
REFLECT THE EXACT TERMS OF THE OFFERED WARRANTS AND THE WARRANT DEBT
SECURITIES.
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<PAGE>
specified herein, on or after [the date thereof] [________________, 19__] and
at or before 5 p.m. _________ time on _______________, 19__ (the "Expiration
Date"). Each Warrant not exercised at or before 5 p.m. ___________ time on
the Expiration Date shall become void, and all rights of the holder of the
Warrant Certificate evidencing such Warrant under this Agreement shall cease.
Section 2.03. EXERCISE OF WARRANTS. (a) During the period specified
in Section 2.02 any whole number of Warrants may be exercised by providing
certain information set forth on the reverse side of the Warrant Certificate
and by paying in full, in lawful money of the United States of America,
[in cash or by certified check or official bank check or by bank wire transfer,
in each case] [by bank wire transfer] in immediately available funds, the
Warrant Price for each Warrant exercised, to the Warrant Agent at its
corporate trust office [or at _______________], provided that such exercise
is subject to receipt within five business days of such [payment] [wire
transfer] by the Warrant Agent of the Warrant Certificate with the form of
election to purchase Warrant Debt Securities set forth on the reverse side of
the Warrant Certificate properly completed and duly executed. The date on
which payment in full of the Warrant Price is received by the Warrant Agent
shall, subject to receipt of the Warrant Certificate as aforesaid, be deemed
to be the date on which the Warrant is exercised. The Warrant Agent shall
deposit all funds received by it in payment of the Warrant Price in an account
of the Company maintained with it and shall advise the Company by telephone
at the end of each day on which a [payment] [wire transfer] for the exercise
of Warrants is received of the amount so deposited to its account. The Warrant
Agent shall promptly confirm such telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company and the Trustee under the Indenture of (i)
the number of Warrants exercised in accordance with the terms and conditions
of this Agreement and the Warrant Certificates; (ii) the instructions of each
holder of the Warrant Certificates evidencing such Warrants with respect to
delivery of the Warrant Debt Securities to which such holder is entitled upon
such exercise; (iii) delivery of Warrant Certificates evidencing the balance,
if any, of the Warrants remaining after such exercise; and (iv) such other
information as the Company or the Trustee shall reasonably require.
(c) As soon as practicable after the exercise of any Warrant, the
Company shall issue, pursuant to the Indenture, in authorized denominations
to or upon the order of the holder of the Warrant Certificate evidencing such
Warrant, the Warrant Debt Securities to which such holder is entitled
[in fully registered form, registered in such name or names] [in bearer form]
as may be
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<PAGE>
directed by such holder*; [provided, however, the Company shall not be
required to deliver any unregistered Warrant Debt Securities in the United
States]. If fewer than all of the Warrants evidenced by such Warrant
Certificate were exercised, the Company shall execute, and an authorized
officer of the Warrant Agent shall manually countersign and deliver, a new
Warrant Certificate evidencing the number of such Warrants remaining
unexercised.
(d) The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Debt Securities; and in the event that
any such transfer is involved, the Company shall not be required to issue or
deliver any Warrant Debt Securities until such tax or other charge shall have
been paid or it has been established to the Company's satisfaction that no
such tax or other charge is due.
[(e) Issuance of unregistered Warrant Debt Securities upon
exercise of Warrants shall be subject to such arrangements and procedures as
shall be provided pursuant to Section ___ of the Indenture.]
ARTICLE III
Other Provisions Relating to Rights
of Holders of Warrant Certificates
Section 3.01. NO RIGHTS AS WARRANT DEBT SECURITY HOLDER CONFERRED BY
WARRANTS OR WARRANT CERTIFICATES. No Warrant Certificate or Warrant
evidenced thereby shall entitle the holder thereof to any of the rights of a
holder of Warrant Debt Securities, including, without limitation, the right
to receive the payment of principal of, premium (if any) or interest on
Warrant Debt Securities or to enforce any of the covenants in the Indenture.
Section 3.02. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT
CERTIFICATES. Upon receipt by the Company and the Warrant Agent of evidence
reasonably satisfactory to them of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity
reasonably satisfactory to them and, in the case of mutilation, upon
surrender thereof to the Warrant Agent for cancellation, then, in the absence
of notice to the Company or the Warrant Agent that such Warrant Certificate
has been acquired by a bona fide purchaser, the Company shall execute, and an
authorized officer of the Warrant Agent shall manually countersign and
deliver, in exchange for or in lieu of the lost,
- -------------------
* SUBJECT TO CHANGE IN ACCORDANCE WITH CHANGES IN TAX LAWS AND REGULATIONS.
5
<PAGE>
stolen, destroyed or mutilated Warrant Certificate, a new Warrant Certificate
of the same tenor and evidencing the same number of Warrants. Upon the
issuance of any new Warrant Certificate under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Warrant Agent) in connection
therewith. Every substitute Warrant Certificate executed and delivered
pursuant to this Section in lieu of any lost, stolen or destroyed Warrant
Certificate shall represent an additional contractual obligation of the
Company, whether or not the lost, stolen or destroyed Warrant Certificate
shall be at any time enforceable by anyone, and shall be entitled to the
benefits of this Agreement equally and proportionately with any and all other
Warrant Certificates duly executed and delivered hereunder. The provisions of
this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement of mutilated, lost,
stolen or destroyed Warrant Certificates.
Section 3.03. HOLDER OF WARRANT CERTIFICATE MAY ENFORCE RIGHTS.
Notwithstanding any of the provisions of this Agreement, any holder of a
Warrant Certificate, without the consent of the Warrant Agent, the Trustee,
the holder of any Warrant Debt Securities or the holder of any other Warrant
Certificate, may, in his own behalf and for his own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce or otherwise in respect of, his right to exercise the
Warrants evidenced by his Warrant Certificate in the manner provided in his
Warrant Certificate and in this Agreement.
ARTICLE IV
Exchange and Transfer of Warrant Certificates
Section 4.01. EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES. Upon
surrender at the corporate trust office of the Warrant Agent [or ___________],
Warrant Certificates evidencing Warrants may be exchanged for Warrant
Certificates in other denominations evidencing such Warrants [IF REGISTERED
WARRANTS -- or may be transferred in whole or in part]; provided that such
other Warrant Certificates evidence the same aggregate number of Warrants as
the Warrant Certificates so surrendered. [IF REGISTERED WARRANTS -- The
Warrant Agent shall keep, at its corporate trust office [and at ____________],
books in which, subject to such reasonable regulations as it may prescribe,
it shall register Warrant Certificates and exchanges and transfers of
outstanding Warrant Certificates, upon surrender of the Warrant Certificates
to the Warrant Agent at its corporate trust office [or ________] for exchange
[or transfer], properly endorsed or accompanied by appropriate instruments of
transfer and written instructions for transfer, all in form satisfactory to
the Company
6
<PAGE>
and the Warrant Agent.] No service charge shall be made for any exchange
[or transfer] of Warrant Certificates, but the Company may require
payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such exchange
[or transfer]. Whenever any Warrant Certificates are so surrendered for
exchange [or transfer] an authorized officer of the Warrant Agent shall
manually countersign and deliver to the person or persons entitled thereto a
Warrant Certificate or Warrant Certificates duly authorized and executed by
the Company, as so requested. The Warrant Agent shall not be required to
effect any exchange [or transfer] which will result in the issuance of a
Warrant Certificate evidencing a fraction of a Warrant or a number of full
Warrants and a fraction of a Warrant. All Warrant Certificates issued upon
any exchange [or transfer] of Warrant Certificates shall be the valid
obligations of the Company, evidencing the same obligations, and entitled to
the same benefits under this Agreement, as the Warrant Certificates
surrendered for such exchange [or transfer].
Section 4.02. TREATMENT OF HOLDERS OF WARRANT CERTIFICATES.
[BEARER WARRANTS -- Each Warrant Certificate shall be transferable by delivery
and shall be deemed negotiable and the bearer of each Warrant Certificate may
be treated by the Company, the Warrant Agent and all other persons dealing
with such bearer as the absolute owner thereof for any purpose and as the
person entitled to exercise the rights represented by the Warrants evidenced
thereby, any notice to the contrary notwithstanding.] [REGISTERED WARRANTS --
The Company and the Warrant Agent may treat the registered holder as the
absolute owner thereof for any purpose and as the person entitled to exercise
the rights represented by the Warrants evidenced thereby, any notice to the
contrary notwithstanding.]
Section 4.03. CANCELLATION OF WARRANT CERTIFICATES. Any Warrant
Certificate surrendered for exchange [transfer] or exercise of the Warrants
evidenced thereby shall, if surrendered to the Company, be delivered to the
Warrant Agent and all Warrant Certificates surrendered or so delivered to the
Warrant Agent shall be promptly cancelled by the Warrant Agent and shall not
be reissued and, except as expressly permitted by this Agreement, no Warrant
Certificate shall be issued hereunder in exchange or in lieu thereof. The
Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of cancelled Warrant Certificates in a manner satisfactory to the
Company.
ARTICLE V
Concerning the Warrant Agent
Section 5.01. WARRANT AGENT. The Company hereby appoints
______________________ as Warrant Agent of the Company in respect of the
Warrants and the Warrant Certificates, upon the
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terms and subject to the conditions herein set forth; and
________________________ hereby accepts such appointment. The Warrant Agent
shall have the powers and authority granted to and conferred upon it in the
Warrant Certificates and hereby and such further powers and authority to act
on behalf of the Company as the Company may hereafter grant to or confer upon
it. All of the terms and provisions with respect to such powers and authority
contained in the Warrant Certificates are subject to and governed by the
terms and provisions hereof.
Section 5.02. CONDITIONS OF WARRANT AGENT'S OBLIGATIONS. The Warrant
Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following, to all of which the Company agrees and to
all of which the rights hereunder of the holders from time to time of the
Warrant Certificates shall be subject:
(a) COMPENSATION AND INDEMNIFICATION. The Company agrees promptly to
pay the Warrant Agent the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent
for reasonable out-of-pocket expenses (including counsel fees) incurred by
the Warrant Agent in connection with the services rendered hereunder by the
Warrant Agent. The Company also agrees to indemnify the Warrant Agent for,
and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Warrant Agent, arising
out of or in connection with its acting as Warrant Agent hereunder, as well
as the costs and expenses of defending against any claim of such liability.
(b) AGENT FOR THE COMPANY. In acting under this Warrant Agreement and
in connection with the Warrant Certificates, the Warrant Agent is acting
solely as agent of the Company and does not assume any obligation or
relationship of agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(c) COUNSEL. The Warrant Agent may consult with counsel satisfactory
to it, and the advise of such 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 accordance with the advice of
such counsel.
(d) DOCUMENTS. The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or thing suffered by it in
reliance upon any Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the
proper parties.
(e) CERTAIN TRANSACTIONS. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or
8
<PAGE>
acquire any interest in, Warrants, with the same rights that it or they would
have if it were not the Warrant Agent hereunder, and, to the extent permitted
by applicable law, it or they may engage or be interested in any financial or
other transaction with the Company and may act on, or as depositary, trustee
or agent for, any committee or body of holders of Warrant Debt Securities or
other obligations of the Company as freely as if it were not the Warrant
Agent hereunder. Nothing in this Warrant Agreement shall be deemed to prevent
the Warrant Agent from acting as Trustee under the Indenture.
(f) NO LIABILITY FOR INTEREST. The Warrant Agent shall have no
liability for interest on any monies at any time received by it pursuant to
any of the provisions of this Agreement or of the Warrant Certificates.
(g) NO LIABILITY FOR INVALIDITY. The Warrant Agent shall have no
liability with respect to any invalidity of this Agreement or any of the
Warrant Certificates.
(h) NO RESPONSIBILITY FOR REPRESENTATIONS. The Warrant Agent shall not
be responsible for any of the recitals or representations herein or in the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(i) NO IMPLIED OBLIGATIONS. The Warrant Agent shall be obligated to
perform only such duties as are herein and in the Warrant Certificates
specifically set forth, and no implied duties or obligations shall be read
into this Agreement or the Warrant Certificates against the Warrant Agent.
The Warrant Agent shall not be under any obligations to take any action
hereunder which may tend to subject it to any expense or liability,
reimbursement for which within a reasonable time is not, in its reasonable
opinion, assured to it. The Warrant Agent shall not be accountable or
responsible for the use by the Company of any of the Warrant Certificates
authenticated by the Warrant Agent and delivered by it to the Company
pursuant to this Agreement or for the application by the Company of the
proceeds of the Warrant Certificates. The Warrant Agent shall have no duty or
responsibility in case of any default by the Company in the performance of
its covenants or agreements contained herein or in the Warrant Certificates
or in the case of the receipt of any written demand from a holder of a
Warrant Certificate with respect to such default, including, without limiting
the generality of the foregoing, any duty or responsibility to initiate or
attempt to initiate any proceedings at law or otherwise or, except as
provided in Section 6.02 hereof, to make any demand upon the Company.
Section 5.03. RESIGNATION AND APPOINTMENT OF SUCCESSOR. (a) The
Company agrees, for the benefit of the holders from time to time of the
Warrant Certificates, that there shall at all times be
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a Warrant Agent hereunder until all the Warrant Certificates are no longer
exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the
date on which its desired resignation shall become effective; provided that
such date shall be not less than three months after the date on which such
notice is given, unless the Company otherwise agrees. The Warrant Agent
hereunder may be removed at any time by the filing with it of an instrument
in writing signed by or on behalf of the Company and specifying such removal
and the date when it shall become effective. Such resignation or removal
shall take effect upon the appointment by the Company, as hereinafter
provided, of a successor Warrant Agent (which shall be a bank or trust
company authorized under the laws of the jurisdiction of its organization to
exercise corporate trust powers) and the acceptance of such appointment by
such successor Warrant Agent. The obligation of the Company under Section
5.02(a) shall continue to the extent set forth therein, notwithstanding the
resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or shall file a petition seeking relief under Title II of the
United States Code, as now constituted or hereafter amended, or under any
other applicable Federal or State bankruptcy law or similar law or make an
assignment for the benefit of its creditors or consent to the appointment of
a receiver or custodian of all or any substantial part of its property, or
shall admit in writing its inability to pay or meet its debts as they mature,
or if a receiver or custodian of it or of all or any substantial part of its
property shall be appointed, or if an order of any court shall be entered for
relief against it under the provisions of Title II of the United States Code,
as now constituted or hereafter amended, or under any other applicable
Federal or State bankruptcy or similar law, or if any public officer shall
have taken charge or control of the Warrant Agent or of its property or
affairs, for the purpose of rehabilitation, conservation or liquidation, a
successor Warrant Agent, qualified as set forth in subsection (b) above,
shall be appointed by the Company by an instrument in writing, filed with the
successor Warrant Agent. Upon the appointment as aforesaid of a successor
Warrant Agent and acceptance by the successor Warrant Agent of such
appointment, the Warrant Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with
all the authority, rights, powers, trusts, immunities, duties and obligations
of such
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predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay
over, and such successor Warrant Agent shall be entitled to receive, all
monies, securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any
corporation to which the Warrant Agent shall sell or otherwise transfer all
or substantially all the assets and business of the Warrant Agent shall be
the successor Warrant Agent under this Agreement without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, provided that it shall be qualified as set forth above in subsection
(b).
ARTICLE VI
Miscellaneous
Section 6.01 AMENDMENT. This Agreement may be amended by the parties
hereto, without the consent of the holder of any Warrant Certificate, for the
purpose of curing any ambiguity, or of curing, correcting or supplementing
any defective provision contained herein, or making any other provisions with
respect to matters or questions arising under this Agreement as the Company
and the Warrant Agent may deem necessary or desirable; provided that such
action shall not adversely affect the interests of the holders of the Warrant
Certificates.
Section 6.02. NOTICES AND DEMANDS TO THE COMPANY AND WARRANT AGENT. If
the Warrant Agent shall receive any notice or demand addressed to the Company
by the holder of a Warrant Certificate pursuant to the provisions of the
Warrant Certificates, the Warrant Agent shall promptly forward such notice or
demand to the Company.
Section 6.03. ADDRESSES. Any communications from the Company to the
Warrant Agent with respect to this Agreement shall be addressed to
___________________, attention: ___________________, and any communications
from the Warrant Agent to the Company with respect to this Agreement shall be
addressed to Household International, Inc., 2700 Sanders Road, Prospect
Heights, Illinois 60070, attention: Treasurer (or such other address as shall
be specified in writing by the Warrant Agent or by the Company).
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Section 6.04. APPLICABLE LAW. The validity, interpretation
and performance of this Agreement and each Warrant Certificate issued
hereunder and of the respective terms and provisions thereof shall be
governed by, and construed in accordance with, the laws of the
State of ______________________.
Section 6.05. DELIVERY OF PROSPECTUS. The Company
will furnish to the Warrant Agent sufficient copies of a
prospectus relating to the Warrant Debt Securities deliverable
upon exercise of Warrants (the "Prospectus"), and the Warrant
Agent agrees that upon the exercise of any Warrant, the Warrant Agent will
deliver to the holder of the Warrant Certificate evidencing such Warrant, prior
to or concurrently with the delivery of the Warrant Debt Securities issued upon
such exercise, a Prospectus.
Section 6.06. OBTAINING OF GOVERNMENTAL APPROVALS. The Company will from
time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under United States
Federal and State laws (including without limitation a registration statement
in respect of the Warrants and Warrant Debt Securities under the Securities
Act of 1933), which may be or become requisite in connection with the
issuance, sale, transfer, and delivery of the Warrant Certificates, the
exercise of the Warrants, the issuance, sale, transfer and delivery of the
Warrant Debt Securities issued upon exercise of the Warrants or upon the
expiration of the period during which the Warrants are exercisable.
Section 6.07. PERSONS HAVING RIGHTS UNDER WARRANT AGREEMENT. Nothing in
this Agreement expressed or implied and nothing that may be inferred from any
of the provisions hereof is intended, or shall be construed, to confer upon,
or give to, any person or corporation other than the Company, the Warrant
Agent and the holders of the Warrant Certificates any right, remedy or claim
under or by reason of this Agreement or of any covenant, condition,
stipulation, promise or agreement hereof; and all covenants, conditions,
stipulations, promises and agreements in this Agreement contained shall be
for the sole and exclusive benefit of the Company and the Warrant Agent and
their successors and of the holders of the Warrant Certificates.
Section 6.08. HEADINGS. The descriptive headings of
the several Articles and Sections of this Agreement are inserted
for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
Section 6.09. COUNTERPARTS. This Agreement may be
executed in any number of counterparts, each of which as so
executed shall be deemed to be an original, but such
counterparts shall together constitute but one and the same
instrument.
12
<PAGE>
Section 6.10. INSPECTION OF AGREEMENT. A copy of this Agreement
shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
IN WITNESS WHEREOF, Household International Netherlands B.V. has caused
this Agreement to be signed by one of its duly authorized officers, and its
corporate seal to be affixed hereunto, and the same to be attested by its
Secretary or one of its Assistant Secretaries; and has caused this Agreement
to be signed by one of its duly authorized officers, and its corporate seal
to be affixed hereunto, and the same to be attested by its Secretary or one
of its Assistant Secretaries, all as of the day and year first above written.
HOUSEHOLD INTERNATIONAL NETHERLANDS B.V.
By
----------------------------------------
Attest:
- ----------------------------
By
----------------------------------------
as Warrant Agent
Attest:
- ----------------------------
13
<PAGE>
EXHIBIT A
(FORM OF WARRANT CERTIFICATE)
[Face of Warrant Certificate]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
Warrant Certificates representing
Warrants to purchase
[Title of Warrant Debt Securities]
as described herein.
HOUSEHOLD INTERNATIONAL NETHERLANDS B.V.
WARRANTS TO PURCHASE
[Title of Warrant Debt Securities]
VOID AFTER 5 P.M.__________________TIME ON________________, 19__
[No.] Warrants
This certifies that [the bearer is the] [___________ or registered assigns
is the registered] owner of the above indicated number of Warrants, each
Warrant entitling such [bearer] [owner] to purchase, at any time [after
5 p.m. time on , 19____ and] on or before 5 p.m. __________________________
time on _________________, 19__ , $_________ principal amount of [Title of
Warrant Debt Securities] (the "Warrant Debt Securities"), of HOUSEHOLD
INTERNATIONAL NETHERLANDS B.V. (the "Company"), issued and to be issued under
the Indenture (as hereinafter defined), on the following basis:*
[on _____________________, 19__ the exercise price of each Warrant is
$__________ ; during the period from __________________, 19__ through and
including ____________________, 19__ , the exercise price of each Warrant will
be $__________ plus [accrued amortization of the original issue discount]
[accrued interest] from ____________________, 19__ ; on ____________________,
19__ the exercise price of each Warrant will be $__________ ; during the
period from ____________________, 19__ , through and including
____________________, 19__ , the exercise price of each Warrant will be
$__________ plus [accrued amortization of the original issue discount]
- ----------------------
* Complete and modify the following provisions as appropriate
to reflect the exact terms of the Offered Warrants and the
Warrant Debt Securities.
<PAGE>
[accrued interest] from ____________________, 19__ ; [in each case, the
original issue discount will be amortized at a ____% annual rate, computed on
an annual basis, using a 360-day year consisting of twelve 30-day months]
(the "Warrant Price"). [The original issue discount for each $1,000 principal
amount of Warrant Debt Securities is $____________ .] The holder may exercise
the Warrants evidenced hereby by providing certain information set forth on
the back hereof and by paying in full in lawful money of the United States of
America, [in cash or by certified check or official bank check or by bank wire
transfer, in each case,] [by bank wire transfer] in immediately available
funds, the Warrant Price for each Warrant exercised to the Warrant Agent
[as hereinafter defined] and by surrendering this Warrant Certificate,
with the purchase form on the back hereof duly executed at the corporate
trust office of [name of Warrant Agent], or its successor as warrant agent
(the "Warrant Agent"), [or _____________________] at the address specified
on the reverse hereof and upon compliance with and subject to the conditions
set forth herein and in theWarrant Agreement [as hereinafter defined].
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Debt Securities in registered form in
denominations of $__________ and any integral multiples thereof. Upon any
exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the holder hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement, dated as of __________________, 19__ (the "Warrant
Agreement"), between the Company and the Warrant Agent and is subject to
the terms and provisions contained in the Warrant Agreement, to all of which
terms and provisions the holder of this Warrant Certificate consents by
acceptance hereof. Copies of the Warrant Agreement are on file at the
above-mentioned office of the Warrant Agent [and at __________________].
The Warrant Debt Securities to be issued and delivered upon the exercise
of the Warrants evidenced by this Warrant Certificate will be issued under and
in accordance with an Indenture dated as of ________________ (the "Indenture"),
between the Company and __________________, a __________________ organized and
existing under the laws of __________________, as Trustee, (_________________
and any successor to such Trustee being hereinafter referred to as the
"Trustee") and will be subject to the terms and provisions contained in the
Indenture. [In particular, issuance of unregistered Warrant Debt Securities
upon exercise of Warrants shall be subject to such arrangements and procedures
as shall be provided pursuant to Section ______ of the Indenture.] Copies of
the Indenture and the form of the Warrant Debt Securities are on file at the
corporate trust office of the Trustee [and at __________________].
2
<PAGE>
[If Bearer Warrants -- This Warrant Certificate, and all rights
hereunder, may be transferred by delivery and the Company and the Warrant
Agent may treat the bearer hereof as the owner for all purposes.]
[If Registered Warrants -- This Warrant Certificate may be
transferred when surrendered at the corporate trust office of the Warrant
Agent [or __________________] by the registered owner or his assigns, in
person or by an attorney duly authorized in writing, in the manner and subject
to the limitations provided in the Warrant Agreement.]
After countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent for Warrant
Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof
to any of the rights of a holder of the Warrant Debt Securities, including,
without limitation, the right to receive payments of principal of (premium, if
any) or interest, if any, on the Warrant Debt Securities or to enforce any of
the covenants of the Indenture.
This Warrant Certificate shall not be valid or obligatory for
any purpose until countersigned by the Warrant Agent.
Dated as of __________________, 19__.
HOUSEHOLD INTERNATIONAL NETHERLANDS B.V.
By
--------------------------------------
Attest:
- ----------------------------
Countersigned:
- ----------------------------
As Warrant Agent
By
--------------------------
Authorized Signature
3
<PAGE>
[Reverse of Warrant Certificate]
(Instructions for Exercise of Warrant)
To exercise the Warrants evidenced hereby, the holder must pay
[in cash or by certified check or official bank check or by bank wire transfer]
[by bank wire transfer] in immediately available funds the Warrant Price in
full for Warrants exercised to [insert name of Warrant Agent] Corporate Trust
Department, [insert address of Warrant Agent], Attn: _________________________
[or __________________], which [payment] [wire transfer] must specify the name
of the holder and the number of Warrants exercised by such holder. In addition,
the holder must complete the information required below and present this
Warrant Certificate in person or by mail (registered mail is recommended) to
the Warrant Agent at the addresses set forth below. This Warrant Certificate,
completed and duly executed, must be received by the Warrant Agent within
five business days of the [payment] [wire transfer].
[FORM OF ELECTION TO PURCHASE]
(To be executed upon exercise of Warrant.)
The undersigned hereby irrevocably elects to exercise Warrants,
evidenced by this Warrant Certificate, to purchase $__________ principal
amount of the [Title of Debt Securities] (the "Warrant Debt Securities") of
Household International, Inc. and represents that he has tendered payment for
such Warrant Debt Securities [in cash or by certified check or official bank
check or by bank wire transfer, in each case] [by bank wire transfer] in
immediately available funds to the order of Household International
Netherlands B.V. c/o [insert name and address of Warrant Agent], in the
amount of $__________ in accordance with the terms hereof. The undersigned
requests that said principal amount of Warrant Debt Securities be in [bearer
form in the authorized denominations] [fully registered form in the
authorized denominations, registered in such names and delivered]
all as specified in accordance with the instructions set forth below.
If the number of Warrants exercised is less than all of the
Warrants evidenced hereby, the undersigned requests that a new Warrant
Certificate representing the remaining Warrants evidenced hereby be issued and
delivered to the undersigned unless otherwise specified in the instructions
below.
Dated:
- ---------------------------------
- --------------------------------- Name---------------------------------
(Insert Social Security (Please Print)
or Other Identifying Number
of Holder)
Address-----------------------------
-----------------------------
Signature---------------------------
<PAGE>
The Warrants evidenced hereby may be exercised at the following addresses:
By hand at -------------------------------------------------
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
$______________
By mail at -------------------------------------------------
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
(Instructions as to form and delivery of Warrant Debt Securities and, if
applicable, Warrant Certificates evidencing unexercised Warrants.)
2
<PAGE>
Reverse of Warrant Certificate
*[CERTIFICATE FOR DELIVERY OF BEARER BONDS]
HOUSEHOLD INTERNATIONAL NETHERLANDS B.V.
Warrant Debt Securities
TO: HOUSEHOLD INTERNATIONAL NETHERLANDS B.V.
[Name of Trustee],
as Trustee
This certificate is submitted in connection with our request that you
deliver to us $__________ principal amount of Warrant Debt Securities in
bearer form upon exercise of Warrants. We hereby certify that either (a) none
of such Warrant Debt Securities will be held by or on behalf of a United
States Person, or (b) if a United States Person will have a beneficial
interest in such Warrant Debt Securities, such person is described in Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1954,
as amended, and the regulations thereunder. As used herein, "United States
Person" means a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any political subdivision thereof or an estate or trust
whose income from sources without the United States is includible in gross
income for United States Federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
We understand that this certificate is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such
proceedings.
Dated:
-----------------------------------
(Please print name)
- ----------------------
* Subject to changes in accordance with changes in tax laws and regulations.
<PAGE>
[If registered Warrant]
ASSIGNMENT
[FORM OF ASSIGNMENT TO BE EXECUTED IF HOLDER DESIRES
TO TRANSFER WARRANTS EVIDENCED HEREBY]
FOR VALUE RECEIVED _______________________________ hereby
sells, assigns and transfers unto
Please insert social security
or other identifying number
_____________________________
- -------------------------------
(Please print name and address
including zip code)
______________________________________________________________________________
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _________________________________________
Attorney, to transfer said Warrant Certificate on the books of the Warrant
Agent with full power of substitution in the premises.
Dated:
------------------------------
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Warrant Certificate and must
bear a signature guarantee by a
bank, trust company or member
broker of the New York or
Midwest Stock Exchange.)
Signature Guaranteed:
- ---------------------------------
<PAGE>
HOUSEHOLD INTERNATIONAL NETHERLANDS B.V.
Form of Warrant Agreement
(for warrants sold attached to debt securities)
THIS WARRANT AGREEMENT dated as of _____________________________________
between Household International Netherlands B.V. a Dutch corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to) and _________________________________ as Warrant Agent
(the "Warrant Agent").
WHEREAS, the Company has entered into an Indenture dated as
of _________________________ (the "Indenture"), with _______________________,
as Trustee (the "Trustee"), providing for the issuance from time to time of
its unsecured debt securities ("Debt Securities"), to be issued in one or
more series as provided in the Indenture; and
WHEREAS, the Company proposes to sell [title of Debt Securities being
offered] (the "Offered Debt Securities"), with warrant certificates evidencing
one or more warrants (the "Warrants" or, individually a "Warrant")
representing the right to purchase [title of Debt Securities purchasable
through exercise of Warrants] (the "Warrant Debt Securities"), such warrant
certificates and other warrant certificates issued pursuant to this Agreement
hereinafter referred to as the "Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the issuance, exchange, exercise and replacement
of the Warrant Certificates, and in this Agreement wishes to set forth, among
other things, the form and provisions of the Warrant Certificates and the
terms and conditions on which they may be issued, exchanged, exercised and
replaced;
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
Issuance of Warrants and Execution
and Delivery of Warrant Certificates
SECTION 1.01. ISSUANCE OF WARRANTS. Warrants shall be initially issued
in connection with the issuance of the Offered Debt Securities [but shall be
separately transferable on and after __________________, 19__ (the "Detachable
Date")] [shall not be separately transferable] and each Warrant Certificate
shall evidence one or more Warrants. Each Warrant evidenced thereby shall
represent the right, subject to the provisions contained herein and therein,
to purchase a Warrant Debt Security in the principal amount of
$___________________.
<PAGE>
Warrant Certificates shall be initially issued in units with the Offered
Debt Securities and each Warrant Certificate included in such unit shall
evidence ____________ Warrants for each $ ____________ principal amount of
Offered Debt Securities included in such unit.
SECTION 1.02. EXECUTION AND DELIVERY OF WARRANT CERTIFICATES. Each
Warrant Certificate, whenever issued, shall be in [bearer] [registered] form
substantially in the form set forth in Exhibit A hereto, shall be dated
____________ and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such
approval) and as are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any law or with any rule or regulation
made pursuant thereto or with any rule or regulation of any stock exchange on
which the Warrant Certificates may be listed, or to conform to usage. The
Warrant Certificates shall be signed on behalf of the Company by either its
President, one of its Vice Presidents or one of its Assistant Treasurers
under its corporate seal and attested by its Secretary or any of its
Assistant Secretaries. Such signatures may be manual or facsimile signatures
of such authorized officers and may be imprinted or otherwise reproduced on
the Warrant Certificates. The seal of the Company may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has
been countersigned by the manual signature of the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence that the Warrant Certificate so
countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to
be such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant Certificates
may be countersigned and delivered notwithstanding that the person who signed
such Warrant Certificates has ceased to be such officer of the Company; and
any Warrant Certificate may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Warrant Certificate,
shall be the proper officers of the Company, although at the date of the
execution of this Agreement any such person was not such officer.
[If bearer Warrants -- The term "holder" or "holder of a Warrant
Certificate" as used herein shall mean [If Offered Debt Securities with
Warrants which are not immediately detachable,
2
<PAGE>
prior to the Detachable Date, the registered owner of the Offered Debt
Security to which such Warrant Certificate was initially attached (or the
bearer if the Offered Debt Security is a bearer Debt Security), and after
such Detachable Date] the bearer of such Warrant Certificate.]
[If registered Warrants -- The term "holder" or "holder of a Warrant
Certificate" as used herein shall mean any person in whose name at the time
any Warrant Certificate shall be registered upon the books to be maintained by
the Warrant Agent for that purpose. [If Offered Debt Securities with Warrants
which are not immediately detachable, or upon the register of the Offered Debt
Securities prior to the Detachable Date. The Company will, or will cause the
registrar of the Offered Debt Securities to make available at all times to the
Warrant Agent such information as to holders of the Offered Debt Securities
with Warrants as may be necessary to keep the Warrant Agent's records up
to date.]]
SECTION 1.03. ISSUANCE OF WARRANT CERTIFICATES. Warrant Certificates
evidencing the right to purchase an aggregate principal amount not exceeding
$ ____________ aggregate principal amount of Warrant Debt Securities (except
as provided in Sections 2.03(c), 3.02 and 4.01) may be executed by the
Company and delivered to the Warrant Agent upon the execution of this Warrant
Agreement or from time to time thereafter. The Warrant Agent shall, upon
receipt of Warrant Certificates duly executed on behalf of the Company,
countersign Warrant Certificates evidencing Warrants representing the right
to purchase up to $ ____________ aggregate principal amount of Warrant Debt
Securities and shall deliver such Warrant Certificates to or upon the order
of the Company. Subsequent to such original issuance of the Warrant
Certificates, the Warrant Agent shall countersign a Warrant Certificate only
if the Warrant Certificate is issued in exchange or substitution for one or
more previously countersigned Warrant Certificates, [If registered Warrants
- -- or in connection with their transfer], as hereinafter provided or as
provided in Section 2.03(c).
ARTICLE II
Warrant Price, Duration and Exercise of Warrants
SECTION 2.01. WARRANT PRICE.* [On ____________ , 19__ the exercise price
of each Warrant is $ ____________ . During the period from ____________, 19__
through and including ____________, 19__ the exercise price of each Warrant
will be $ ____________ plus [accrued amortization of the original issue
discount] [accrued interest].
- --------------------
* Complete and modify the provisions of this Section as appropriate to
reflect the exact terms of the Offered Warrants and the Warrant Debt
Securities.
3
<PAGE>
from ____________, 19__ . On ____________, 19__ the exercise price of each
Warrant will be $____________. During the period from ____________, 19__,
through and including ____________, 19__, the exercise price of each Warrant
will be $ ____________ plus [accrued amortization of the original issue
discount] [accrued interest] from ____________, 19__, [in each case, the
original issue discount will be amortized at a __% annual rate, computed on an
annual basis using a 360-day year consisting of twelve 30-day months]. Such
purchase price of Warrant Debt Securities is referred to in this Agreement as
the "Warrant Price." [The original issue discount for each $1,000 principal
amount of Warrant Debt Securities is $____________].
SECTION 2.02. DURATION OF WARRANTS. Each Warrant evidenced by a Warrant
Certificate may be exercised in whole at any time, as specified herein, on or
after [the date thereof] [____________, 19__] and at or before 5 p.m.
____________time on ____________, 19__ (the "Expiration Date"). Each Warrant
not exercised at or before the close of business on the Expiration Date shall
become void, and all rights of the holder of the Warrant Certificate
evidencing such Warrant under this Agreement shall cease.
SECTION 2.03. EXERCISE OF WARRANTS. (a) During the period specified in
Section 2.02 any whole number of Warrants may be exercised by providing
certain information set forth on the reverse side of the Warrant Certificate
and by paying in full, in lawful money of the United States of America,
[in cash or by certified check or official bank check or by bank wire
transfer, in each case,] [by bank wire transfer] in immediately available
funds the Warrant Price for each Warrant exercised to the Warrant Agent at its
corporate trust office [or at ____________], provided that such exercise is
subject to receipt within five business days of such [payment] [wire transfer]
by the Warrant Agent of the Warrant Certificate with the form of election to
purchase Warrant Debt Securities set forth on the reverse side of the Warrant
Certificate properly completed and duly executed. The date on which payment in
full of the Warrant Price is received by the Warrant Agent shall, subject to
receipt of the Warrant Certificate as aforesaid, be deemed to be the date on
which the Warrant is exercised. The Warrant Agent shall deposit all funds
received by it in payment of the Warrant Price in an account of the Company
maintained with it and shall advise the Company by telephone at the end of
each day on which a [payment] [wire transfer] for the exercise of Warrants is
received of the amount so deposited to its account. The Warrant Agent shall
promptly confirm such telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company and the Trustee under the Indenture of (i) the
number of Warrants exercised in accordance with the terms and conditions of
this Agreement and the Warrant Certificates, (ii) the instructions of each
holder of the Warrant Certificates evidencing such Warrants with respect to
delivery of
4
<PAGE>
the Warrant Debt Securities to which such holder is entitled upon
such exercise, (iii) delivery of Warrant Certificates evidencing the balance,
if any, of the Warrants remaining after such exercise, and (iv) such other
information as the Company or the Trustee shall reasonably require.
(c) As soon as practicable after the exercise of any Warrant,
the Company shall issue, pursuant to the Indenture, in authorized
denominations to or upon the order of the holder of the Warrant Certificate
evidencing such Warrant, the Warrant Debt Securities to which such holder is
entitled, [in fully registered form, registered in such name or names]
[in bearer form] as may be directed by such holder* [; provided, however, the
Company shall not be required to deliver any unregistered Warrant Debt
Securities in the United States]. If fewer than all of the Warrants evidenced
by such Warrant Certificate were exercised, the Company shall execute, and an
authorized officer of the Warrant Agent shall manually countersign and
deliver, a new Warrant Certificate evidencing the number of such Warrants
remaining unexecuted.
(d) The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Debt Securities; and in the event that
any such transfer is involved, the Company shall not be required to issue or
deliver any Warrant Debt Security until such tax or other charge shall have
been paid or it has been established to the Company's satisfaction that no
such tax or other charge is due.
[(e) Issuance of unregistered Warrant Debt Securities upon exercise of
Warrants shall be subject to such arrangements and procedures as shall be
provided pursuant to Section ____________ of the Indenture.]
ARTICLE III
Other Provisions Relating to Rights
of Holders of Warrant Certificates
SECTION 3.01. NO RIGHTS AS WARRANT DEBT SECURITY HOLDER CONFERRED BY
WARRANTS OR WARRANT CERTIFICATES. No Warrant Certificate or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of
Warrant Debt Securities, including, without limitation, the right to receive
the payment of principal of, premium (if any) or interest on Warrant Debt
Securities or to enforce any of the covenants in the Indenture.
- --------------------
* Subject to change in accordance with changes in tax laws and regulations.
5
<PAGE>
SECTION 3.02. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT CERTIFICATES.
Upon receipt by the Company and the Warrant Agent of evidence reasonably
satisfactory to them of the ownership of and the loss, theft, destruction or
mutilation of any Warrant Certificate and of indemnity reasonably
satisfactory to them and, in the case of mutilation, upon surrender thereof
to the Warrant Agent for cancellation, then, in the absence of notice to the
Company or the Warrant Agent that such Warrant Certificate has been acquired
by a bona fide purchaser, the Company shall execute, and an authorized
officer of the Warrant Agent shall manually countersign and deliver, in
exchange for or in lieu of the lost, stolen, destroyed or mutilated Warrant
Certificate, a new Warrant Certificate of the same tenor and evidencing the
same number of Warrants. Upon the issuance of any new Warrant Certificate
under this Section, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the
Warrant Agent) in connection therewith. Every substitute Warrant Certificate
executed and delivered pursuant to this Section in lieu of any lost, stolen
or destroyed Warrant Certificate shall represent an additional contractual
obligation of the Company, whether or not the lost, stolen or destroyed
Warrant Certificate shall be at any time enforceable by anyone, and shall be
entitled to the benefits of this Agreement equally and proportionately with
any and all other Warrant Certificates duly executed and delivered hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement
of mutilated, lost, stolen or destroyed Warrant Certificates.
SECTION 3.03. HOLDER OF WARRANT CERTIFICATE MAY ENFORCE RIGHTS.
Notwithstanding any of the provisions of this Agreement, any holder of a
Warrant Certificate, without the consent of the Warrant Agent, the Trustee,
the holder of any Warrant Debt Securities or the holder of any other Warrant
Certificate, may, in his own behalf and for his own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce or otherwise in respect of, his right to exercise the
Warrants evidenced by his Warrant Certificate in the manner provided in his
Warrant Certificate and in this Agreement.
ARTICLE IV
Exchange and Transfer of Warrant Certificates
SECTION 4.01. EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES. [If Offered
Debt Securities with Warrants which are immediately detachable -- Upon]
[If Offered Debt Securities with Warrants which are not immediately detachable
- -- Prior to the Detachable Date a Warrant Certificate may be exchanged or
transferred only together with the Offered Debt Security to which
6
<PAGE>
the Warrant Certificate was initially attached, and only for the purpose of
effecting or in conjunction with an exchange or transfer of such Offered Debt
Security. Prior to the Detachable Date, each transfer of the Offered Debt
Security [on the register of the Offered Debt Securities] shall operate also
to transfer the related Warrant Certificates. After the Detachable Date
upon] surrender at the corporate trust office of the Warrant Agent
[or ____________], Warrant Certificates evidencing Warrants may be exchanged
for Warrant Certificates in other denominations evidencing such Warrants
[If registered Warrants -- or may be transferred in whole or in part],
provided that such other Warrant Certificates evidence the same aggregate
number of Warrants as the Warrant Certificates so surrendered.
[If registered Warrants -- The Warrant Agent shall keep, at its corporate
trust office [and at ____________], books in which, subject to such reasonable
regulations as it may prescribe, it shall register Warrant Certificates and
exchanges and transfers of outstanding Warrant Certificates, upon the
surrender of the Warrant Certificates to the Warrant Agent at its corporate
trust office [or ____________] for exchange [or transfer], properly endorsed
or accompanied by appropriate instruments of transfer and written instructions
for transfer, all in form satisfactory to the Company and the Warrant Agent].
No service charge shall be made for any exchange [or transfer] of Warrant
Certificates, but the Company may require payment of a sum sufficient to cover
any stamp or other tax or other governmental charge that may be imposed in
connection with any such exchange [or transfer]. Whenever any Warrant
Certificates are so surrendered for exchange [or transfer] an authorized
officer of the Warrant Agent shall manually countersign and deliver to the
person or persons entitled thereto a Warrant Certificate or Warrant
Certificates duly authorized and executed by the Company, as so requested. The
Warrant Agent shall not be required to effect any exchange [or transfer] which
will result in the issuance of a Warrant Certificate evidencing a fraction of
a Warrant or a number of full Warrants and a fraction of a Warrant. All
Warrant Certificates issued upon any exchange [or transfer] of Warrant
Certificates shall be the valid obligations of the Company, evidencing the
same obligations, and entitled to the same benefits under this Agreement, as
the Warrant Certificates surrendered for such exchange [or transfer].
SECTION 4.02. TREATMENT OF HOLDERS OF WARRANT CERTIFICATES. [If Offered
Debt Securities with bearer Warrants which are not immediately detachable --
Subject to Section 4.01, each] [If Offered Debt Securities with bearer
Warrants which are immediately detachable -- Each] Warrant Certificate shall
be transferable by delivery and shall be deemed negotiable and the bearer of
each Warrant Certificate may be treated by the Company, the Warrant Agent and
all other persons dealing with such bearer as the absolute owner thereof for
any purpose and as the person entitled to exercise the rights represented by
the Warrants evidenced thereby, any notice to the contrary notwithstanding.]
[If registered Warrants which are not immediately detachable --
7
<PAGE>
Every holder of a Warrant Certificate, by accepting the same, consents and
agrees with the Company, the Warrant Agent and with every subsequent holder
of such Warrant Certificate that until the Warrant Certificate is transferred
on the books of the Warrant Agent [or the register of the Offered Debt
Securities prior to the Detachable Date], the Company and the Warrant Agent
may treat the registered holder as the absolute owner thereof for any purpose
and as the person entitled to exercise the rights represented by the Warrants
evidenced thereby, any notice to the contrary notwithstanding.]
SECTION 4.03. CANCELLATION OF WARRANT CERTIFICATES. Any Warrant
Certificate surrendered for exchange [transfer] or exercise of the Warrants
evidenced thereby shall, if surrendered to the Company, be delivered to the
Warrant Agent and all Warrant Certificates surrendered or so delivered to the
Warrant Agent shall be promptly cancelled by the Warrant Agent and shall not
be reissued and, except as expressly permitted by this Agreement, no Warrant
Certificate shall be issued hereunder in exchange or in lieu thereof. The
Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of cancelled Warrant Certificates in a manner satisfactory to
the Company.
ARTICLE V
Concerning the Warrant Agent
SECTION 5.01. WARRANT AGENT. The Company hereby appoints ____________ as
Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates, upon the terms and subject to the conditions herein set forth,
and ____________ hereby accepts such appointment. The Warrant Agent shall have
the powers and authority granted to and conferred upon it in the Warrant
Certificates and hereby and such further powers and authority to act on behalf
of the Company as the Company may hereafter grant to or confer upon it. All of
the terms and provisions with respect to such powers and authority contained
in the Warrant Certificates are subject to and governed by the terms and
provisions hereof.
SECTION 5.02. CONDITIONS OF WARRANT AGENT'S OBLIGATIONS. The Warrant
Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following, to all of which the Company agrees and to
all of which the rights hereunder of the holders from time to time of the
Warrant Certificates shall be subject:
(a) COMPENSATION AND INDEMNIFICATION. The Company agrees promptly to pay
the Warrant Agent the compensation to be agreed upon with the Company for all
services rendered by the Warrant Agent and to reimburse the Warrant Agent for
reasonable out-of-pocket expenses (including counsel fees) incurred by the
8
<PAGE>
Warrant Agent in connection with the services rendered hereunder by the
Warrant Agent. The Company also agrees to indemnify the Warrant Agent for,
and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Warrant Agent, arising
out of or in connection with its acting as Warrant Agent hereunder, as well
as the costs and expenses of defending against any claim of such liability.
(b) AGENT FOR THE COMPANY. In acting under this Warrant Agreement and in
connection with the Warrant Certificates, the Warrant Agent is acting solely
as agent of the Company and does not assume any obligation or relationship of
agency or trust for or with any of the holders of Warrant Certificates or
beneficial owners of Warrants.
(c) COUNSEL. The Warrant Agent may consult with counsel satisfactory to
it, and the advise of such 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 accordance with the advice of such counsel.
(d) DOCUMENTS. The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or thing suffered by it in
reliance upon any Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the
proper parties.
(e) CERTAIN TRANSACTIONS. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that it or they would have if it were not the
Warrant Agent hereunder, and, to the extent permitted by applicable law, it
or they may engage or be interested in any financial or other transaction
with the Company and may act on, or as depositary, trustee or agent for, any
committee or body of holders of Warrant Debt Securities or other obligations
of the Company as freely as if it were not the Warrant Agent hereunder.
Nothing in this Warrant Agreement shall be deemed to prevent the Warrant
Agent from acting as Trustee under the Indenture.
(f) NO LIABILITY FOR INTEREST. The Warrant Agent shall have no liability
for interest on any monies at any time received by it pursuant to any of the
provisions of this Agreement or of the Warrant Certificates.
(g) NO LIABILITY FOR INVALIDITY. The Warrant Agent shall have no
liability with respect to any invalidity of this Agreement or any of the
Warrant Certificates.
(h) NO RESPONSIBILITY FOR REPRESENTATIONS. The Warrant Agent
shall not be responsible for any of the recitals or
9
<PAGE>
representations herein or in the Warrant Certificates (except as to the
Warrant Agent's countersignature thereon), all of which are made solely by
the Company.
(i) NO IMPLIED OBLIGATIONS. The Warrant Agent shall be obligated to
perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read
into this Agreement or the Warrant Certificates against the Warrant Agent.
The Warrant Agent shall not be under any obligations to take any action
hereunder which may tend to subject it to any expense or liability,
reimbursement for which within a reasonable time is not, in its reasonable
opinion, assured to it. The Warrant Agent shall not be accountable or
responsible for the use by the Company of any of the Warrant Certificates
authenticated by the Warrant Agent and delivered by it to the Company
pursuant to this Agreement or for the application by the Company of the
proceeds of the Warrant Certificates. The Warrant Agent shall have no duty or
responsibility in case of any default by the Company in the performance of
its covenants or agreements contained herein or in the Warrant Certificates
or in the case of the receipt of any written demand from a holder of a
Warrant Certificate with respect to such default, including, without limiting
the generality of the foregoing, any duty or responsibility to initiate or
attempt to initiate any proceedings at law or otherwise or, except as
provided in Section 6.02 hereof, to make any demand upon the Company.
SECTION 5.03. RESIGNATION AND APPOINTMENT OF SUCCESSOR. (a) The Company
agrees, for the benefit of the holders from time to time of the Warrant
Certificates, that there shall at all times be a Warrant Agent hereunder
until all the Warrant Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the
date on which its desired resignation shall become effective; provided that
such date shall be not less than three months after the date on which such
notice is given unless the Company otherwise agrees. The Warrant Agent
hereunder may be removed at any time by the filing with it of an instrument
in writing signed by or on behalf of the Company and specifying such removal
and the date when it shall become effective. Such resignation or removal
shall take effect upon the appointment by the Company, as hereinafter
provided, of a successor Warrant Agent (which shall be a bank or trust
company authorized under the laws of the jurisdiction of its organization to
exercise corporate trust powers) and the acceptance of such appointment by
such successor Warrant Agent. The obligation of the Company under Section
5.02(a) shall continue to the extent set forth therein, notwithstanding the
resignation or removal of the Warrant Agent.
10
<PAGE>
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or shall file a petition seeking relief under Title II of the
United States Code, as now constituted or hereafter amended, or under any
other applicable Federal or State bankruptcy law or similar law or make an
assignment for the benefit of its creditors or shall consent to the
appointment of a receiver or custodian of all or any substantial part of its
property, or shall admit in writing its inability to pay or meet its debts as
they mature, or if a receiver or custodian of it or of all or any substantial
part of its property shall be appointed, or if an order of any court shall be
entered for relief against it under the provisions of Title II of the United
States Code, as now constituted or hereafter amended, or under any other
applicable Federal or State bankruptcy or similar law, or if any public
officer shall have taken charge or control of the Warrant Agent or of its
property or affairs, for the purpose of rehabilitation, conservation or
liquidation, a successor Warrant Agent, qualified as set forth in subsection
(b) above, shall be appointed by the Company by an instrument in writing,
filed with the successor Warrant Agent. Upon the appointment of a successor
Warrant Agent and acceptance by the successor Warrant Agent of such
appointment, the Warrant Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with
all the authority, rights, powers, trusts, immunities, duties and obligations
of such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer,
deliver and pay over, and such successor Warrant Agent shall be entitled to
receive, all monies, securities and other property on deposit with or held by
such predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be merged
or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation to which the Warrant Agent shall sell or
otherwise transfer all or substantially all the assets and business of the
Warrant Agent shall be the successor Warrant Agent under this Agreement
without the execution or filing of any paper or any further act on the part
of any of the parties hereto, provided that it shall be qualified as set
forth above in subsection (b).
11
<PAGE>
ARTICLE VI
Miscellaneous
SECTION 6.01 AMENDMENT. This Agreement may be amended by the parties
hereto, without the consent of the holder of any Warrant Certificate, for the
purpose of curing any ambiguity, or of curing, correcting or supplementing
any defective provision contained herein, or making any other provisions with
respect to matters or questions arising under this Agreement as the Company
and the Warrant Agent may deem necessary or desirable; provided that such
action shall not adversely affect the interests of the holders of the Warrant
Certificates.
SECTION 6.02. NOTICES AND DEMANDS TO THE COMPANY AND WARRANT AGENT.
If the Warrant Agent shall receive any notice or demand addressed to the
Company by the holder of a Warrant Certificate pursuant to the provisions of
the Warrant Certificates, the Warrant Agent shall promptly forward such
notice or demand to the Company.
SECTION 6.03. ADDRESSES. Any communications from the Company to the
Warrant Agent with respect to this Agreement shall be addressed to
______________________, Attention: ______________________, and any
communications from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to ______________________, Attention:
______________________ (or such other address as shall be specified in
writing by the Warrant Agent or by the Company).
SECTION 6.04. APPLICABLE LAW. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder
and of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the State of _______________.
SECTION 6.05. DELIVERY OF PROSPECTUS. The Company will furnish to the
Warrant Agent sufficient copies of a prospectus relating to the Warrant Debt
Securities deliverable upon exercise of Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the holder of the Warrant Certificate evidencing such
Warrant, prior to or concurrently with the delivery of the Warrant Debt
Securities issued upon such exercise, a Prospectus.
SECTION 6.06. OBTAINING OF GOVERNMENTAL APPROVALS. The Company will
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under United States
Federal and State laws (including without limitation a registration statement
in respect
12
<PAGE>
of the Warrants and Warrant Debt Securities under the Securities Act of
1933), which may be or become requisite in connection with the issuance,
sale, transfer and delivery of the Warrant Certificates, the exercise of the
Warrants, the issuance, sale, transfer and delivery of the Warrant Debt
Securities issued upon exercise of the Warrants or upon the expiration of the
period during which the Warrants are exercisable.
SECTION 6.07. PERSONS HAVING RIGHTS UNDER WARRANT AGREEMENT. Nothing
in this Agreement expressed or implied and nothing that may be inferred from
any of the provisions hereof is intended, or shall be construed, to confer
upon, or give to, any person or corporation other than the Company, the
Warrant Agent and the holders of the Warrant Certificates any right, remedy
or claim under or by reason of this Agreement or of any covenant, condition,
stipulation, promise or agreement hereof; and all covenants, conditions,
stipulations, promises and agreements in this Agreement contained shall be
for the sole and exclusive benefit of the Company and the Warrant Agent and
their successors and of the holders of the Warrant Certificates.
SECTION 6.08. HEADINGS. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only
and shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 6.09. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the
same instrument.
SECTION 6.10. INSPECTION OF AGREEMENT. A copy of this Agreement shall
be available at all reasonable times at the principal corporate trust office
of the Warrant Agent for inspection by the holder of any Warrant Certificate.
The Warrant Agent may require such holder to submit his Warrant Certificate
for inspection by it.
IN WITNESS WHEREOF, Household International Netherlands B.V. has caused
this Agreement to be signed by one of its duly authorized officers, and its
corporate seal to be affixed hereunto, and the same to be attested by its
Secretary or one of its
13
<PAGE>
Assistant Secretaries, all as of the day and year first above written.
HOUSEHOLD INTERNATIONAL NETHERLANDS B.V.
By
-------------------------------------
Attest:
- --------------------------
By
-------------------------------------
as Warrant Agent
Attest:
- --------------------------
14
<PAGE>
EXHIBIT A
(FORM OF WARRANT CERTIFICATE)
[Face of Warrant Certificate]
[FORM OF LEGEND IF Prior to ____________ this
DEBT SECURITIES WITH Warrant Certificate cannot
WARRANTS WHICH ARE NOT be transferred or exchanged
IMMEDIATELY DETACHABLE: unless attached to a [Title
of Offered Debt Securities]
Exercisable Only if Countersigned By the Warrant
Agent as Provided Herein
Warrant Certificates representing
Warrants to purchase
[Title of Warrant Debt Securities]
as described herein.
HOUSEHOLD INTERNATIONAL NETHERLANDS B.V.
Warrants to Purchase
[Title of Warrant Debt Securities]
Void After 5 P.M. ___________________________ Time on
___________________________, 19__
[No.] ____________________________________________________________ Warrants
This certifies that [the bearer is the] [____________ or registered
assigns is the registered] owner of the above-indicated number of Warrants,
each Warrant entitling such [bearer] [owner] to purchase, at any time
[after 5 P.M. ____________ time on ____________, 19__ and] on or before 5 P.M.
____________ time on ____________, 19__, $____________ principal amount
of [Title of Warrant Debt Securities] (the "Warrant Debt Securities"), of
Household International Netherlands B.V. (the "Company"), issued and to be
issued under the Indenture (as hereinafter defined), on the following basis:*
[on ____________, 19__ the exercise price of each Warrant is $____________;
during the period from ____________, 19__,
- -------------------------
* COMPLETE AND MODIFY THE FOLLOWING PROVISION AS APPROPRIATE TO
REFLECT THE EXACT TERMS OF THE OFFERED WARRANTS AND THE WARRANT DEBT
SECURITIES.
<PAGE>
through and including ____________, 19__, the exercise price of each Warrant
will be $____________ plus [accrued amortization of the original issue
discount] [accrued interest] from ____________, 19__: on ____________, 19__
the exercise price of each Warrant will be $____________; during the period
from ____________, 19__, through and including ____________, 19__ the
exercise price of each Warrant will be $____________ plus [accrued
amortization of the original issue discount] [accrued interest] from
__________, 19__; [in each case, the original issue discount will be
amortized at a ____________ % annual rate, computed on an annual basis, using
a 360-day year consisting of twelve 30-day months] (the "Warrant Price").
[The original issue discount for each $1,000 principal amount of Warrant Debt
Securities is $____________.] The holder may exercise the Warrants evidenced
hereby by providing certain information set forth on the back hereof and by
paying in full in lawful money of the United States of America, [in cash or
by certified check or official bank check or by bank wire transfer, in each
case,] [by bank wire transfer] in immediately available funds, the Warrant
Price for each Warrant exercised to the Warrant Agent (as hereinafter defined)
and by surrendering this Warrant Certificate, with the purchase form on the
back hereof duly executed at the corporate trust office of [name of Warrant
Agent], or its successor as warrant agent (the "Warrant Agent"), [or
____________ ] at the address specified on the reverse hereof and upon
compliance with and subject to the conditions set forth herein and in the
Warrant Agreement (as hereinafter defined).
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Debt Securities in registered form in
denominations of $____________ and any integral multiples thereof. Upon any
exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the holder hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement, dated as of ____________, 19__ (the "Warrant Agreement"),
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance
hereof. Copies of the Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent [and at ____________].
The Warrant Debt Securities to be issued and delivered upon the
exercise of the Warrants evidenced by this Warrant Certificate will be issued
under and in accordance with an Indenture dated as of ____________ (the
"Indenture"), between the Company and ____________, a ____________ organized
and existing under the laws of ____________, as Trustee, (____________ and
any successor to such Trustee being hereinafter referred to as the "Trustee")
and will be
2
<PAGE>
subject to the terms and provisions contained in the Indenture. [In
particular, issuance of unregistered Warrant Debt Securities upon exercise of
Warrants shall be subject to such arrangements and procedures as shall be
provided pursuant to Section ____________ of the Indenture.] Copies of the
Indenture and the form of the Warrant Debt Securities are on file at the
corporate office of the Trustee [and at __________________].
[IF OFFERED DEBT SECURITIES WITH BEARER WARRANTS WHICH ARE NOT
IMMEDIATELY DETACHABLE -- Prior to ____________, 19__ this Warrant
Certificate may be exchanged or transferred only together with the [Title
of Offered Debt Securities] ("Offered Debt Securities") to which this Warrant
Certificate was initially attached, and only for the purpose of effecting, or
in conjunction with, an exchange or transfer of such Offered Debt Security.
After such date, this [IF OFFERED DEBT SECURITIES WITH BEARER WARRANTS WHICH
ARE IMMEDIATELY DETACHABLE -- This] Warrant Certificate, and all rights
hereunder, may be transferred by delivery, and the Company and the Warrant
Agent may treat the bearer hereof as the owner for all purposes.]
[IF OFFERED DEBT SECURITIES WITH REGISTERED WARRANTS WHICH ARE NOT
IMMEDIATELY DETACHABLE -- Prior to ______________, 19__ this Warrant
Certificate may be exchanged or transferred only together with the [Title of
Offered Debt Securities] ("Offered Debt Securities") to which this Warrant
Certificate was initially attached, and only for the purpose of effecting, or
in conjunction with, an exchange or transfer of such Offered Debt Security.
After such date, this [IF OFFERED DEBT SECURITIES WITH REGISTERED WARRANTS
WHICH ARE IMMEDIATELY DETACHABLE -- This] Warrant Certificate may be
transferred when surrendered at the corporate trust office of the Warrant
Agent [or ____________] by the registered owner or his assigns, in person or
by an attorney duly authorized in writing, in the manner and subject to the
limitations provided in the Warrant Agreement.]
[IF OFFERED DEBT SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY
DETACHABLE -- Except as provided in the immediately preceding paragraph,
after] [IF OFFERED DEBT SECURITIES WITH WARRANTS WHICH ARE IMMEDIATELY
DETACHABLE -- After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent for Warrant
Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof to any of
the rights of a holder of the Warrant Debt Securities, including, without
limitation, the right to receive payments of principal of (premium, if any)
or interest, if any, on the Warrant Debt Securities or to enforce any of the
covenants of the Indenture.
3
<PAGE>
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of ____________, 19__.
HOUSEHOLD INTERNATIONAL NETHERLANDS B.V.
By
-------------------------------------
Attest:
- -----------------------------------
Countersigned:
- -----------------------------------
As Warrant Agent
By
---------------------------------
Authorized Signature
4
<PAGE>
[Reverse of Warrant Certificate]
(Instructions for Exercise of Warrant)
To exercise the Warrants evidenced hereby, the holder must pay [in cash
or by certified check or official bank check or by bank wire transfer] [by
bank wire transfer] in immediately available funds the Warrant Price in full
for Warrants exercised to [insert name of Warrant Agent] Corporate Trust
Department [insert address of Warrant Agent], Attn. __________________
[or ____________ ], which [payment] [wire transfer] must specify the name of
the holder and the number of Warrants exercised by such holder. In addition,
the holder must complete the information required below and present this
Warrant Certificate in person or by mail (registered mail is recommended) to
the Warrant Agent at the addresses set forth below. This Warrant Certificate,
completed and duly executed, must be received by the Warrant Agent within
five business days of the [payment] [wire transfer].
[Form of Election to Purchase]
(to be executed upon exercise of Warrant)
The undersigned hereby irrevocably elects to exercise ____________
Warrants, evidenced by this Warrant Certificate, to purchase $____________
principal amount of the [Title of Debt Securities] (the "Warrant Debt
Securities") of ____________ and represents that he has tendered payment for
such Warrant Debt Securities [in cash or by certified check or official bank
check or by bank wire transfer, in each case,] [by bank wire transfer] in
immediately available funds to the order of Household International, Inc.
c/o [insert name and address of Warrant Agent] in the amount of $____________
in accordance with the terms hereof. The undersigned requests that said
principal amount of Warrant Debt Securities be in [bearer form in the
authorized denominations] [fully registered form in the authorized
denominations, registered in such names and delivered] all as specified in
accordance with the instructions set forth below.
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered
to the undersigned unless otherwise specified in the instructions below.
Dated:
- -------------------------------------
Name
- ------------------------------------- --------------------------------
(Insert Social Security (Please Print)
or Other Identifying Number
of Holder) Address
------------------------------
------------------------------
Signature
----------------------------
<PAGE>
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
By mail at
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
(Instructions as to form and delivery of Warrant Debt Securities and,
if applicable, Warrant Certificates evidencing unexercised Warrants.)
2
<PAGE>
Reverse of Warrant Certificate
*[Certificate for Delivery of Bearer Bonds]
HOUSEHOLD INTERNATIONAL NETHERLANDS B.V.
Warrant Debt Securities
TO: HOUSEHOLD INTERNATIONAL NETHERLANDS B.V.
----------------------------------------
This certificate is submitted in connection with our request that you
deliver to us $____________ principal amount of Warrant Debt Securities in
bearer form upon exercise of Warrants. We hereby certify that either (a) none
of such Warrant Debt Securities will be held by or on behalf of a United
States Person, or (b) if a United States Person will have a beneficial
interest in such Warrant Debt Securities, such person is described in Section
165 (j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1954,
as amended, and the regulations thereunder. As used herein, "United States
Person" means a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any political subdivision thereof or an estate or trust
whose income from sources without the United States is includible in gross
income for United States Federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
We understand that this certificate is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such
proceedings.
Dated:
-------------------------------------
(Please print name)
- ----------------------
* SUBJECT TO CHANGES IN ACCORDANCE WITH CHANGES IN TAX LAWS AND REGULATIONS.
<PAGE>
[If registered Warrant]
ASSIGNMENT
(Form of Assignment to be Executed if Holder Desires
to Transfer Warrants Evidenced Hereby)
For Value Received ______________________ hereby sells, assigns and
transfers unto
Please insert social security
or other identifying number
-----------------------------
- -------------------------------------------
(Please print name and address
including zip code)
- -----------------------------------------------------------------------------
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint ______________________ Attorney, to
transfer said Warrant Certificate on the books of the Warrant Agent with full
power of substitution in the premises.
Dated:
-----------------------------
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Warrant Certificate and must
bear a signature guarantee by
a bank, trust company or
member broker of the New York
or Midwest Stock Exchange.)
Signature Guaranteed:
- -------------------------------------------
<PAGE>
October 14, 1998
Board of Directors
Household International, Inc.
2700 Sanders Road
Prospect Heights, Illinois 60070
Re: Household International, Inc. and Household International Netherlands
B.V. Registration Statement on Form S-3, for the Senior Notes and
Warrants to Purchase Senior Notes and unconditional guarantees as to
repayment of up to $500 million of Senior Notes
Gentlemen:
As Vice President-Corporate Law and Assistant Secretary of Household
International, Inc., a Delaware corporation ("Household"), I am generally
familiar with the proceedings in connection with the Registration Statement
on Form S-3 in which Senior Notes and Warrants to Purchase Senior Notes of up
to $500,000,000 aggregate principal amount (the "Senior Notes") of Household
International Netherlands B.V. ("HINBV"), a subsidiary of Household, and
unconditional guarantees (the "Guarantees") of Household are being
registered. The Senior Notes and Guarantees will be issuable under an
Indenture dated as of September 1, 1998, among Household, HINBV and The First
National Bank of Chicago, as Trustee (the "FNBC Indenture"), or an Indenture
dated as of September 1, 1998, among Household, HINBV and The Chase Manhattan
Bank, as Trustee (the "Chase Indenture"). The foregoing indentures, or forms
thereof, have been filed with the Securities and Exchange Commission (the
"Commission") as exhibits to the Registration Statement.
Based upon my review of the records and documents of Household, I am of the
opinion that:
1. Household is a corporation duly incorporated and validly existing
under the laws of the State of Delaware.
<PAGE>
Household International, Inc.
October 14, 1998
Page 2
2. HINBV is a corporation duly incorporated and validly existing under
the laws of the Netherlands.
3. The FNBC and Chase Indentures have been duly authorized, executed and
delivered by Household and HINBV, and constitute valid and legally
binding instruments of Household and HINBV, enforceable in accordance
with their terms against each respective corporation, except as
enforcement of the provisions thereof may be limited by bankruptcy,
insolvency, reorganization or other laws relating to or affecting the
enforcement of creditors' rights or by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
4. When the issuance of Senior Notes and Warrants to Purchase Senior
Notes has been duly authorized by the appropriate corporate action of
HINBV, and such Senior Notes and Warrants to Purchase Senior Notes
have been duly executed, authenticated, issued and delivered against
payment of the agreed consideration therefor in accordance with the
appropriate Indenture or Warrant Agreement and as described in the
Registration Statement, including the Prospectus and any Prospectus
Supplement relating to such Senior Notes and Warrants to Purchase
Senior Notes, the Senior Notes, Warrants to Purchase Senior Notes and
Guarantees will each be legally and validly issued and will be the
legal and binding obligations of HINBV and Household, respectively,
enforceable in accordance with their terms, except as enforcement of
the provisions thereof may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting the enforcement
of creditors' rights or by general principles of equity (regardless
of whether such enforceability is considered in a proceeding in
equity or at law).
I hereby consent to the use of my name and my opinion in the Prospectus,
Preliminary Prospectus and any Prospectus Supplement filed pursuant to Rule
424 or 430A of Regulation C of the Securities Act of 1933, as amended
("Act"), in connection with the above referenced Registration Statement filed
with the Commission on or about October 14, 1998,
<PAGE>
Household International, Inc.
October 14, 1998
Page 3
including any references to my opinions set forth in the documents
incorporated by reference therein, and to the filing of this opinion as an
exhibit to said Registration Statement. In giving such consent I do not
admit that I am in the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the Commission
thereunder.
Very truly yours,
John W. Blenke
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
Household International, Inc.
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-3 relating to the offering
by Household International Netherlands B.V. of up to $500,000,000 of Senior
Notes and Warrants to Purchase Senior Notes, and the guarantee thereof by
Household International, Inc., to be filed with the Securities and Exchange
Commission on or about October 14, 1998, of our report dated June 30, 1998,
included in Household International, Inc.'s Form 8-K dated September 1, 1998,
and to all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Chicago, Illinois
October 14, 1998
<PAGE>
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
--------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
---------------------------
HOUSEHOLD INTERNATIONAL, INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 36-3121988
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
2700 SANDERS ROAD
PROSPECT HEIGHTS, ILLINOIS 60070
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
GUARANTEES OF SENIOR NOTES OF HOUSEHOLD INTERNATIONAL NETHERLANDS, B.V.
(TITLE OF INDENTURE SECURITIES)
<PAGE>
HOUSEHOLD INTERNATIONAL NETHERLANDS, B.V.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
NETHERLANDS N/A
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
HOEKENRODE 6, 1102 BR
AMSTERDAM, NETHERLANDS N/A
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
SENIOR NOTES
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of the Currency, Washington, D.C.;
Federal Deposit Insurance Corporation,
Washington, D.C.; The Board of Governors of
the Federal Reserve System, Washington D.C..
(b) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
3
<PAGE>
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the
United States of America, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Chicago and State of Illinois, on
the 5th day of October, 1998.
The First National Bank of Chicago,
Trustee
By /s/ Steven M. Wagner
Steven M. Wagner
First Vice President
* Exhibits 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National Bank
of Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of U S
WEST Capital Funding, Inc. filed with the Securities and Exchange Commission on
May 6, 1998 (Registration No. 333-51907-01).
4
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
October 5, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture among Household
International Netherlands, B.V., Household International, Inc. and The First
National Bank of Chicago, as trustee, the undersigned, in accordance with
Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents
that the reports of examinations of the undersigned, made by Federal or State
authorities authorized to make such examinations, may be furnished by such
authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ Steven M. Wagner
Steven M. Wagner
First Vice President
<PAGE>
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago
Call Date: 06/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount
outstanding of the last business day of the quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS C400
-----
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule. . . . . .
RC-A):. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD
----
a. Noninterest-bearing balances and currency and coin(1). . . . . . . . . . . 0081 4,490,272 1.a
b. Interest-bearing balances(2) . . . . . . . . . . . . . . . . . . . . . . . 0071 5,586,990 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A). . . . . . . . . 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D) . . . . . . . 1773 8,974,952 2.b
3. Federal funds sold and securities purchased under agreements to
resell. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1350 5,558,583 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule. . . . . . . . . . RCFD
----
RC-C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2122 28,257,868 4.a
b. LESS: Allowance for loan and lease losses. . . . . . . . . . . . . . . . . 3123 413,742 4.b
c. LESS: Allocated transfer risk reserve. . . . . . . . . . . . . . . . . . . 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and . . . . . . . . . RCFD
----
reserve (item 4.a minus 4.b and 4.c) . . . . . . . . . . . . . . . . . . . 2125 27,844,126 4.d
5. Trading assets (from Schedule RD-D). . . . . . . . . . . . . . . . . . . . . 3545 6,073,169 5.
6. Premises and fixed assets (including capitalized leases) . . . . . . . . . . 2145 721,430 6.
7. Other real estate owned (from Schedule RC-M) . . . . . . . . . . . . . . . . 2150 6,827 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) . . . . . . . . . . . . . . . . . . . . . . . 2130 184,515 8.
9. Customers' liability to this bank on acceptances outstanding . . . . . . . . 2155 310,026 9.
10. Intangible assets (from Schedule RC-M) . . . . . . . . . . . . . . . . . . . 2143 302,859 10.
11. Other assets (from Schedule RC-F). . . . . . . . . . . . . . . . . . . . . . 2160 2,137,491 11.
12. Total assets (sum of items 1 through 11) . . . . . . . . . . . . . . . . . . 2170 62,191,240 12.
</TABLE>
- ---------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
6
<PAGE>
Legal Title of Bank: The First National Bank of Chicago
Call Date: 06/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1) . . . . . . . . . . . . . . . . . . . . 2200 21,810,607 13.a
(1) Noninterest-bearing(1). . . . . . . . . . . . . . . . . . . . . 6631 9,864,956 13.a1
(2) Interest-bearing. . . . . . . . . . . . . . . . . . . . . . . . 6636 11,945,651 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and. . . . . . RCFN
IBFs (from Schedule RC-E, part II). . . . . . . . . . . . . . . . . 2200 15,794,963 13.b
(1) Noninterest bearing . . . . . . . . . . . . . . . . . . . . . . 6631 482,528 13.b1
(2) Interest-bearing. . . . . . . . . . . . . . . . . . . . . . . . 6636 15,312,435 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2800 3.858,711 14
15. a. Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . RCON 2840 1,444,748 15.a
b. Trading Liabilities(from Schedule RC-D) . . . . . . . . . . . . . . RCFD 3548 5,661,633 15.b
16. Other borrowed money:. . . . . . . . . . . . . . . . . . . . . . . . . RCFD
a. With original maturity of one year or less. . . . . . . . . . . . . 2332 4,356,061 16.a
b. With original maturity of more than one year . . . . . . . . . . . A547 385,550 16.b
c. With original maturity of more than three years. . . . . . . . . . A548 320,386 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding. . . . . . . . 2920 310,026 18.
19. Subordinated notes and debentures. . . . . . . . . . . . . . . . . . . 3200 2,200,000 19.
20. Other liabilities (from Schedule RC-G) . . . . . . . . . . . . . . . . 2930 1,176,564 20.
21. Total liabilities (sum of items 13 through 20) . . . . . . . . . . . . 2948 57,319,249 21.
22. Not applicable . . . . . . . . . . . . . . . . . . . . . . . . . . . .
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus. . . . . . . . . . . . . 3838 0 23.
24. Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) . . . . . . . 3839 3,188,187 25.
26. a. Undivided profits and capital reserves. . . . . . . . . . . . . . . 3632 1,467,324 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8434 18,040 26.b
27. Cumulative foreign currency translation adjustments. . . . . . . . . . 3284 (2,418) 27.
28. Total equity capital (sum of items 23 through 27). . . . . . . . . . . 3210 4,871,991 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28). . . . . . . . . . . . . . . . . 3300 62,191,240 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
<TABLE>
<CAPTION>
<S> <C>
1. Indicate in the box at the right the number of the statement
below that best describes the most comprehensive level of
auditing work performed for the bank by independent external Number
auditors as of any date during 1996............................. RCFD 6724 . ....|N/A | M.1.
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
- ---------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
7
<PAGE>
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
HOUSEHOLD INTERNATIONAL NETHERLANDS, B.V.
(Exact name of obligor as specified in its charter)
NETHERLANDS N.A.
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
HOEKENRODE 6
1102 BR
Netherlands N.A.
(Address of principal executive offices) (Zip Code)
HOUSEHOLD INTERNATIONAL, INC. (GUARANTOR)
(Exact name of obligor as specified in its charter)
-----------------------------
DELAWARE 36-1239445
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
2700 SANDERS ROAD 60070
PROSPECT HEIGHTS, ILLINOIS (Zip Code)
-----------
UNCONDITIONALLY GUARANTEED SENIOR NOTES IN SERIES
(Title of the indenture securities)
-------------------------------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligors.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33-
50010, which is incorporated by reference. On July 14, 1996, in connection with
the merger of Chemical Bank and The Chase Manhattan Bank (National Association),
Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 14th day of October, 1998.
THE CHASE MANHATTAN BANK
By /s/ Gregory P. Shea
--------------------------------
/s/ Gregory P. Shea
Senior Trust Officer
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1998, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ........ $ 12,037
Interest-bearing balances.................................. 4,054
Securities:
Held to maturity securities..................................... 2,340
Available for sale securities................................... 50,134
Federal funds sold and securities purchased under
agreements to resell ...................................... 24,982
Loans and lease financing receivables:
Loans and leases, net of unearned income....... $127,958
Less: Allowance for loan and lease losses...... 2,797
Less: Allocated transfer risk reserve.......... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ................................... 125,161
Trading Assets................................................. 61,820
Premises and fixed assets (including capitalized leases)....... 2,961
Other real estate owned ....................................... 347
Investments in unconsolidated subsidiaries and
associated companies...................................... 242
Customers' liability to this bank on acceptances outstanding... 1,380
Intangible assets.............................................. 1,549
Other assets .................................................. 11,727
--------
TOTAL ASSETS................................................... $298,734
--------
--------
</TABLE>
- 4 -
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices ...................................... $ 96,682
Noninterest-bearing ............................ $ 38,074
Interest-bearing ............................... 58,608
--------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's.................................... 72,630
Noninterest-bearing ............................ $ 3,289
Interest-bearing ............................... 69,341
Federal funds purchased and securities sold under agree-
ments to repurchase............................................ 42,735
Demand notes issued to the U.S. Treasury ...................... 872
Trading liabilities............................................ 45,545
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ............ 4,454
With a remaining maturity of more than one year
through three years................................ 231
With a remaining maturity of more than three years....... 106
Bank's liability on acceptances executed and outstanding....... 1,380
Subordinated notes and debentures ............................. 5,708
Other liabilities.............................................. 11,295
TOTAL LIABILITIES.............................................. 281,638
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus.................. 0
Common stock................................................... 1,211
Surplus (exclude all surplus related to preferred stock)...... 10,291
Undivided profits and capital reserves ........................ 5,579
Net unrealized holding gains (losses)
on available-for-sale securities .............................. (1)
Cumulative foreign currency translation adjustments ........... 16
TOTAL EQUITY CAPITAL .......................................... 17,096
--------
TOTAL LIABILITIES AND EQUITY CAPITAL .......................... $298,734
--------
--------
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
- 5 -
