Registration No. 33-52685
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
-------------------
AMENDMENT NO. 1
to
FORM S-3
REGISTRATION STATEMENT
and
POST-EFFECTIVE AMENDMENT NO. 2
and
POST-EFFECTIVE AMENDMENT NO. 4
and
POST-EFFECTIVE AMENDMENT NO. 5
Under
THE SECURITIES ACT OF 1933
-------------------
The CIT Group Holdings, Inc.
(Exact name of registrant as specified in its charter)
Delaware 13-2994534
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1211 Avenue of the Americas
New York, New York 10036
(212) 536-1950
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
-------------------
ERNEST D. STEIN
Executive Vice President, General Counsel & Secretary
The CIT Group Holdings, Inc.
650 CIT Drive
Livingston, New Jersey 07039
(201) 740-5013
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
-------------------
Please send copies of all communications to:
JANET C. WALDEN
Schulte Roth & Zabel
900 Third Avenue
New York, New York 10022
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Approximate date of commencement of proposed sale to the public:
When market conditions warrant after the effective date of this
Registration Statement.
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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]
(continued on following page)
<PAGE>
(continued from previous page)
Pursuant to Rule 429 under the Securities Act of 1933, this Registration
Statement contains a combined prospectus that also relates to (a) $97,000,000
principal amount of Debt Securities registered on Form S-3, Registration No.
33-42529, which was declared effective on September 10, 1991, as amended by
Post-Effective Amendment No. 1, which was declared effective on August 28, 1992,
as further amended by Post-Effective Amendment No. 2, which was filed on
February 16, 1993, as further amended by Post-Effective Amendment No.3, which
was declared effective on March 15, 1993, as further amended by Post-Effective
Amendment No. 4, which was filed on March 15,1994,(b) $450,000,000 principal
amount of Debt Securities registered on Form S-3, Registration No. 33-50666,
which was declared effective on August 28, 1993, as amended by Post-Effective
Amendment No. 1, which was filed on February 16, 1993, as further amended by
Post-Effective Amendment No. 2, which was declared effective on March 15, 1993,
as further amended by Post-Effective Amendment No. 3, which was filed on March
15, 1994, and (c) $944,000,000 principal amount of Debt Securities registered on
Form S-3, Registration No. 33-58418, which was declared effective on March 15,
1993, as amended by Post-Effective Amendment No. 1, which was filed on March 15,
1994. This Registration Statement, which is a new registration statement, also
constitutes Post-Effective Amendment No. 5 to the Registrant's Registration
Statement on Form S-3, Registration No. 33-42529, Post-Effective Amendment No. 4
to the Registrant's Registration Statement on Form S-3, Registration No.
33-50666, and Post-Effective Amendment No. 2 to the Registrant's Registration
Statement on Form S-3, Registration No. 33-58418, and each such Post-Effective
Amendment shall hereafter become effective concurrently with the effectiveness
of this Registration Statement and in accordance with Section 8(c) of the
Securities Act of 1933.
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<PAGE>
SUBJECT TO COMPLETION, DATED MAY 3, 1994
The CIT Group Holdings, Inc.
Debt Securities
---------------
The CIT Group Holdings, Inc. (the "Corporation") intends to issue from time
to time, in one or more series, debt securities (the "Debt Securities"), which
may be either senior ("Senior Securities") or senior subordinated (the "Senior
Subordinated Securities") in priority of payment, with an aggregate initial
offering price not to exceed $5,491,000,000 (or (i) if the principal of the Debt
Securities is denominated in a foreign currency, the equivalent thereof at the
time of offering, or (ii) if the Debt Securities are issued at an original issue
discount, such greater principal amount as shall result in an aggregate initial
offering price of $5,491,000,000). Each Debt Security will be a direct,
unsecured obligation of the Corporation and will be offered to the public on
terms determined by market conditions at the time of sale. The Corporation may
sell its Debt Securities (i) directly to purchasers, (ii) through agents
designated from time to time, (iii) to dealers, or (iv) through an underwriter
or a group of underwriters. The Debt Securities may be issued in one or more
series with the same or various terms. The specific designation, aggregate
principal amount, currency of payment, authorized denominations, purchase price,
maturity, rate and time of payment of any interest, any redemption terms, the
designation of each Trustee acting under the applicable Indenture, any listing
on a securities exchange, or other specific terms of the Debt Securities in
respect of which this Prospectus is being delivered (the "Offered Debt
Securities") will be set forth in the accompanying supplement to the Prospectus
(the "Prospectus Supplement"), together with the terms of offering of the
Offered Debt Securities. The Corporation reserves the sole right to accept and
either in its sole discretion or together with its agents from time to time to
reject, in whole or in part, any proposed purchase of Offered Debt Securities.
If any agents of the Corporation or any dealers or underwriters are
involved in the sale of the Offered Debt Securities in respect of which this
Prospectus is being delivered, the names of such agents, dealers, or
underwriters and any applicable agent's commission, dealer's purchase price, or
underwriter's discount will be set forth in or may be calculated from the
Prospectus Supplement. The net proceeds to the Corporation from such sale will
be (i) the purchase price of such Offered Debt Securities less such commission
in the case of an agent, (ii) the purchase price of such Offered Debt Securities
in the case of a dealer, or (iii) the public offering price less such discount
in the case of an underwriter and less, in each case, other applicable issuance
expenses. See "Plan of Distribution" for possible indemnification arrangements
with agents, dealers, and underwriters.
---------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is May , 1994.
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
<PAGE>
No salesman or any other person has been authorized by the Corporation or
any dealer, agent, or underwriter to give any information or to make any
representation, other than as contained in this Prospectus, the Prospectus
Supplement or the documents incorporated by reference, in connection with the
offer contained in this Prospectus and the Prospectus Supplement and, if given
or made, such information or representation must not be relied upon. This
Prospectus and the Prospectus Supplement do not constitute any offer by any
dealer, agent or underwriter to sell, or a solicitation of an offer to buy,
securities in any state to any person to whom it is unlawful for such dealer,
agent or underwriter to make such offer or solicitation in such state. Neither
the delivery of this Prospectus and the Prospectus Supplement nor any sale made
hereunder shall, under any circumstances, create any implication that there has
been no change in the affairs of the Corporation and its subsidiaries since the
date of the information contained herein.
--------------------
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith, files reports and other information with the Securities
and Exchange Commission (the "Commission"). Such reports and other information
can be inspected and copied at the offices of the Commission, Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549; Northwestern
Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661; and
Seven World Trade Center, 13th Floor, New York, New York 10048. Copies of such
material can be obtained from the Public Reference Section of the Commission, at
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. Certain of the Corporation's securities are listed on the New York Stock
Exchange and reports and other information concerning the Corporation can also
be inspected at the offices of the New York Stock Exchange, Inc., 20 Broad
Street, New York, New York 10005.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed with the Commission by the Corporation are
incorporated by reference in this Prospectus:
(a) The Corporation's Annual Report on Form 10-K for the year
ended December 31, 1993;
(b) The Corporation's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1994; and
(c) The Corporation's Current Reports on Form 8-K dated
January 14, 1994, February 28, 1994 and April 12, 1994.
All documents filed by the Corporation pursuant to Sections 13(a) and (c),
14, or 15(d) of the Exchange Act after the date hereof and prior to the
termination of the offering of the securities offered hereby shall be deemed to
be incorporated by reference herein and to be a part hereof from the date of
filing of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus.
The Corporation will provide without charge to each person to whom this
Prospectus is delivered, upon request, a copy of any or all of the foregoing
documents described above which have been or may be incorporated by reference in
this Prospectus other than exhibits to such documents (unless such exhibits are
specifically incorporated by reference into such documents). Such request should
be directed to:
Corporate Secretary
The CIT Group Holdings, Inc.
1211 Avenue of the Americas
New York, New York 10036
(212) 536-1950
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THE CORPORATION
The CIT Group Holdings, Inc. (the "Corporation"), a Delaware corporation,
is a successor to a company founded in St. Louis, Missouri on February 11, 1908.
It has its principal executive offices at 1211 Avenue of the Americas, New York,
New York 10036, and its telephone number is (212) 536-1950. The Corporation,
operating directly or through its subsidiaries primarily in the United States,
engages in financial services activities through a nationwide distribution
network. The Corporation provides financing primarily on a secured basis to
commercial borrowers, ranging from middle-market to larger companies. While
these secured lending activities reduce the risk of losses from extending
credit, the Corporation's results of operations can also be affected by other
factors, including general economic conditions, competitive conditions, the
level and volatility of interest rates, concentrations of credit risk, and
government regulation and supervision. The Corporation does not finance the
development or construction of commercial real estate. The Corporation has eight
strategic business units, seven of which offer corporate financing, dealer and
manufacturer financing, and factoring products and services to clients, and an
eighth strategic business unit which commenced operations in the last quarter of
1992 offering consumer second mortgage financing and which is planning to offer
home equity lines of credit to consumers in early 1994.
Effective at year-end 1989, The Dai-Ichi Kangyo Bank, Limited ("DKB")
purchased sixty percent (60%) of the issued and outstanding shares of common
stock of the Corporation from Manufacturers Hanover Corporation ("MHC"). MHC
retained a forty percent (40%) common stock interest in the Corporation.
Effective March 29, 1990, MHC transferred its forty percent (40%) common stock
interest in the Corporation to MHC Holdings (Delaware) Inc., a wholly-owned
subsidiary of MHC ("MHC Holdings"). On December 31, 1991, MHC and Chemical
Banking Corporation merged in a stock-for-stock transaction. The merged
corporation is called Chemical Banking Corporation ("CBC"). CBC retains a forty
percent (40%) common stock interest in the Corporation through MHC Holdings.
In accordance with a stockholders agreement among DKB, CBC, as successor to
MHC, and the Corporation (the "Stockholders Agreement"), the Corporation amended
its Certificate of Incorporation and its By-Laws in conformity therewith.
Pursuant to the Stockholders Agreement, immediately after MHC sold the sixty
percent (60%) interest in the Corporation to DKB, the stockholders elected a new
Board of Directors comprised of the President and Chief Executive Officer and
the Vice Chairman of the Corporation, six nominees designated by DKB, and two
nominees designated by MHC. The Stockholders Agreement also contains provisions
for the management of the Corporation, majority voting by DKB on the
Corporation's Executive Committee, consent of MHC Holdings with respect to major
corporate and business changes, and restrictions with respect to the transfer of
the stock of the Corporation to third parties.
Corporate Finance Group
The Corporation's Corporate Finance Group is comprised of Business Credit,
Capital Equipment Financing and Credit Finance.
The CIT Group/Business Credit offers revolving and term loans secured by
accounts receivable, inventories and fixed assets to medium and larger-sized
companies. Such loans are used by clients primarily for acquisitions and
refinancings. It also offers specialty financing for companies in the paper,
printing and chemical industries and debtor-in-possession and workout financing
for turnaround situations. The CIT Group/Business Credit sells participation
interests in such loans to other lenders and will occasionally purchase
participation interests in such loans originated by other lenders. Business is
developed through direct calling efforts and through other sources originated by
individual new business development officers. The CIT Group/Business Credit is
headquartered in New York City, with sales offices in New York, Chicago, Dallas,
Los Angeles, and Atlanta.
The CIT Group/Capital Equipment Financing specializes in customized secured
financing and leasing of equipment in larger transactions, including single
investor leases and the debt and equity portions of leveraged leases for major
capital equipment such as aircraft, rail cars, maritime shipping, and containers
and chassis, for its own account and for syndications. Such business is
developed directly with large companies and through third parties. The CIT
Group/Capital Equipment Financing also provides secured financing and leasing
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<PAGE>
products to middle-market and larger companies seeking medium and longer term
financings. Such transactions are developed through direct calling efforts and
financial intermediaries. Financing products include direct secured loans, sale
and leaseback arrangements, and project financings. Two business groups within
The CIT Group/Capital Equipment Financing augment its marketing efforts and
provide services relating to its areas of expertise. The first group, The CIT
Group/Capital Investments, acts as an agent, broker, and advisor in financing
and leasing transactions. The CIT Group/Capital Investments is a registered
broker-dealer and a member of the National Association of Securities Dealers,
Inc. The second group, The CIT Group/Asset Management, received approval in
December 1992 from the Board of Governors of the Federal Reserve System (the
"Federal Reserve Board") to provide asset management services to financial
institutions and certain non-financial institutions for equipment financing
transactions and portfolios. The CIT Group/Capital Equipment Financing is
headquartered in New York City, with sales offices in eight cities, including
New York, Chicago and Los Angeles.
The CIT Group/Credit Finance offers revolving and term loans to small and
medium-sized companies secured by accounts receivable, inventories, and fixed
assets. Such loans are used by clients for working capital and in refinancings,
acquisitions, and leveraged buyouts. The CIT Group/Credit Finance also offers
financing for reorganizations, restructurings, and Chapter 11 situations.
Business is developed through direct calling efforts and through other sources
developed by individual new business development officers. The CIT Group/Credit
Finance is headquartered in New York City, with sales offices in ten cities,
including New York, Chicago and Los Angeles.
Dealer and Manufacturer Financing Group
The Corporation's Dealer and Manufacturer Financing Group is comprised of
Industrial Financing, Sales Financing, and Consumer Finance.
The CIT Group/Industrial Financing offers secured equipment financing
products, including direct secured loans, leases, secured lines of credit, sale
and leaseback arrangements, vendor financing for manufacturers, wholesale and
retail financing for dealers/distributors, acquisition of chattel paper and
other installment receivables, and acquisition of portfolios originated by
others. It has a nationwide network of local offices and business aircraft,
intermediary and national accounts financing units. The CIT Group/Industrial
Financing is headquartered in Livingston, New Jersey, with sales offices in
twenty cities, including Berwyn, Pennsylvania, Tempe, Arizona, Atlanta, Georgia
and Irving, Texas, which also serve as regional offices.
The CIT Group/Sales Financing, working through dealers and manufacturers,
provides retail secured financing on a nationwide basis for the purchase of
recreational vehicles, recreational boats and manufactured housing. The CIT
Group/Sales Financing also purchases portfolios of these assets from banks,
savings and loans, investment banks and others and provides servicing for
portfolios owned by other financial institutions and securitization trusts. The
CIT Group/Sales Financing is headquartered in Livingston, New Jersey with an
asset service center in Oklahoma City, Oklahoma, and covers the United States
from sales offices in 13 cities (which are in the process of being consolidated
into five regional sales centers located in Atlanta, Boston, Kansas City,
Sacramento and Seattle).
In December 1992, The CIT Group/Consumer Finance, a newly formed strategic
business unit, began offering loans secured primarily by a first or second
mortgage on residential real estate. The CIT Group/Consumer Finance generates
business through direct marketing efforts and, to a lesser extent, through
brokers. It also acquires "home equity" portfolios originated by others. In
early 1994, The CIT Group/Consumer Finance plans to introduce home equity lines
of credit to consumers. This strategic business unit is headquartered in
Livingston, New Jersey with 35 sales offices serving 23 states, two of which
originate mortgage loans for resale to third parties in addition to originating
mortgage loans for the business unit's own portfolio. Administrative support is
provided by the Sales Financing asset service center located in Oklahoma City,
Oklahoma.
Factoring
The CIT Group/Commercial Services (formerly The CIT Group/Factoring) offers
a full range of factoring services providing for the purchase of accounts
receivable, including credit protection, bookkeeping, and collection activities.
Financing is also provided in the form of revolving and term loans, and letter
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<PAGE>
of credit support. The CIT Group/Commercial Services is headquartered in New
York City, with sales offices in New York, Los Angeles, Charlotte, Atlanta and
Hong Kong. Bookkeeping and collection functions are located in a service center
in Danville, Virginia.
On February 28, 1994, the Corporation acquired Barclays Commercial
Corporation ("BCC"), a company of The Barclays Group. BCC had total assets of
approximately $700.0 million at December 31, 1993 and total factoring volume of
approximately $5.00 billion for the year then ended. The business and acquired
assets of BCC were transferred to The CIT Group/BCC, Inc., a wholly-owned
subsidiary of The CIT Group/Commercial Services, Inc., a wholly-owned subsidiary
of the Corporation. BCC is engaged in the same lines of business as The CIT
Group/Commercial Services, with BCC adding a significant geographical presence
in the Southeastern United States. BCC is headquartered in Charlotte, with five
sales offices in Charlotte, New York, Dallas, Louisville and Los Angeles.
Equity Investments
The CIT Group/Equity Investments provides capital to medium-sized companies
and emerging growth companies through the purchase of private issuances of
common stock, preferred stock, and subordinated debt. Capital is used by clients
to make acquisitions and to finance growth. Business is developed through
referrals from the Corporation's other business units and from venture capital
and regional investment banking firms. In June 1992, The CIT Group/Venture
Capital, a wholly-owned subsidiary of The CIT Group/Equity Investments, received
approval from the U.S. Small Business Administration for a license as a small
business investment company. The CIT Group/Equity Investments is headquartered
in Livingston, New Jersey.
Multi-National Marketing
Supplementing the Corporation's marketing efforts, the Corporation's
Multi-National Marketing Group promotes the services of the Corporation's
various business units to the U.S. subsidiaries of foreign corporations in need
of asset-based financing. Business is developed through referrals from DKB and
through direct calling efforts. The Multi-National Marketing Group is located in
the Corporation's offices in New York City.
Regulation
Both DKB and CBC are bank holding companies within the meaning of the Bank
Holding Company Act of 1956 (the "Act"), and each is registered as such with the
Federal Reserve Board. As a result, the Corporation is subject to certain
provisions of the Act. In general, the Act limits the activities in which a bank
holding company and its subsidiaries may engage to those of banking or managing
or controlling banks or performing services for their subsidiaries and to
continuing activities which the Federal Reserve Board has determined to be "so
closely related to banking or managing or controlling banks as to be a proper
incident thereto." The Corporation's current principal business activities
constitute permissible activities for a subsidiary of a bank holding company.
The operations of the Corporation and its subsidiaries are subject, in
certain instances, to supervision and regulation by governmental authorities and
may be subject to various laws and judicial and administrative decisions
imposing various requirements and restrictions, including among other things,
regulating credit granting activities, establishing maximum interest rates and
finance charges, regulating customers' insurance coverages, requiring
disclosures to customers, governing secured transactions, and setting
collection, repossession, and claims handling procedures and other trade
practices. In most states the consumer sales finance and loan business and the
consumer second mortgage and home equity line of credit businesses are subject
to licensing or regulation. In some states the industrial finance business is
subject to similar licensing or regulation. The consumer second mortgage, home
equity line of credit, sales finance, and loan businesses, including those
conducted by the Corporation, are also subject to a number of Federal statutes,
including the Federal Consumer Credit Protection Act, which requires, among
other things, disclosure of the finance charge in terms of an annual percentage
rate, as well as the total dollar cost.
In the judgment of management, existing statutes and regulations have not
had a materially adverse effect on the business conducted by the Corporation and
its subsidiaries. However, it is not possible to forecast the nature of future
legislation, regulations, judicial decisions, orders, or interpretations, nor
their impact upon the future business, earnings, or otherwise, of the
Corporation and its subsidiaries.
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<PAGE>
SUMMARY OF FINANCIAL INFORMATION
The following is a summary of certain financial information of the
Corporation and its subsidiaries. The data for the years ended December 31,
1993, 1992 and 1991 were obtained from the Corporation's audited consolidated
financial statements contained in the Corporation's 1993 Annual Report on Form
10-K. The data for the years ended December 31, 1990 and 1989 were obtained from
audited consolidated financial statements of the Corporation that are not
incorporated by reference in this Prospectus. This summary should be read in
conjunction with the financial information of the Corporation included in the
reports referred to under "Documents Incorporated By Reference."
<TABLE>
<CAPTION>
Year Ended December 31,
---------------------------------------------------------
1993 1992 1991 1990 1989
---- ---- ---- ---- ----
(Dollar Amounts in Thousands)
<S> <C> <C> <C> <C> <C>
Interest and fees earned.......................... $1,181,914 $1,174,796 $1,278,617 $1,196,000 $1,135,147
Interest expense.................................. 508,006 552,017 709,373 711,645 694,280
---------- ---------- ---------- --------- ----------
Net interest revenue............................ 673,908 622,779 569,244 484,355 440,867
---------- ---------- ---------- --------- ----------
Gains on asset sales.............................. 23,945 13,883 25,626 25,675 20,112
Salaries and employee benefits.................... 152,139 137,914 127,060 113,612 110,856
Other operating expenses.......................... 130,043 123,721 119,273 101,615 90,188
Provision for restructuring costs................. -- -- -- -- 10,600
---------- ---------- ---------- --------- ---------
Operating expenses before provision for
credit losses .................................. 282,182 261,635 246,333 215,227 211,644
---------- ---------- ---------- --------- ---------
Provision for credit losses....................... 104,874 103,175 97,052 98,099 50,457
---------- ---------- ---------- --------- ---------
Total operating expenses...................... 387,056 364,810 343,385 313,326 262,101
---------- ---------- ---------- --------- ---------
Income before provision for income taxes,
extraordinary item and cumulative
effect of a change in accounting
for income taxes................................ 310,797 271,852 251,485 196,704 198,878
Provision for income taxes........................ 128,489 105,311 100,032 76,995 72,722
---------- ---------- ---------- --------- ---------
Income before extraordinary item and cumulative
effect of a change in accounting for income taxes 182,308 166,541 151,453 119,709 126,156
Extraordinary item--loss on early extinguishment
of debt, net of income tax benefit.............. -- (4,241) (1,325) (5,937) --
Cumulative effect of a change in accounting for
income taxes.................................... -- -- -- 20,350 --
---------- ---------- ---------- --------- ---------
Net income........................................ $ 182,308 $ 162,300 $ 150,128 $ 134,122 $ 126,156
========== ========== ========== ========== ==========
</TABLE>
The following table sets forth the ratio of earnings to fixed charges for
each of the periods indicated.
<TABLE>
<CAPTION>
Ratios of Earnings to Fixed Charges
Year Ended December 31,
------------------------------------------------------
1993 1992 1991 1990 1989
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges ................. 1.60 1.49 1.35 1.27 1.28
</TABLE>
The ratios of earnings to fixed charges have been computed in accordance
with requirements of the Commission's Regulation S-K. Earnings consist of income
from continuing operations before income taxes; fixed charges consist of
interest on indebtedness and the portion of rentals considered representative of
an appropriate interest factor.
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<PAGE>
USE OF PROCEEDS
The net proceeds from the sale of the Debt Securities offered hereby will
provide additional working funds for the Corporation and its subsidiaries and
will be used initially to reduce short-term borrowings (presently represented by
commercial paper) incurred primarily for the purpose of originating and
purchasing receivables in the ordinary course of business. The amounts which the
Corporation itself may use in connection with its business and which the
Corporation may furnish to particular subsidiaries are not now determinable.
From time to time the Corporation may also use the proceeds to finance the bulk
purchase of receivables and/or the acquisition of other finance-related
businesses.
DESCRIPTION OF DEBT SECURITIES
General
The Debt Securities will constitute either Superior Indebtedness (as
defined below) or Senior Subordinated Indebtedness (as defined below) of the
Corporation. Senior Securities may be issued from time to time in one or more
separate, unlimited series under one or more separate indentures, each
substantially in the form of a global indenture (each such indenture and
indentures supplemental thereto are hereinafter referred to as a "Senior
Indenture", and collectively as the "Senior Indentures"), in each case between
the Corporation and a banking institution organized under the laws of the United
States or one of the states thereof (each such banking institution is
hereinafter referred to as a "Senior Trustee", and collectively as the "Senior
Trustees"). The Senior Subordinated Securities may be issued from time to time
as either (i) one or more separate, unlimited series of Debt Securities
constituting senior subordinated indebtedness under one or more separate
indentures, each substantially in the form of a global indenture (each such
indenture and indentures supplemental thereto are hereinafter referred to as a
"Senior Subordinated Indenture", and collectively, as the "Senior Subordinated
Indentures"), in each case between the Corporation and a banking institution
organized under the laws of the United States or one of the states thereof (each
such banking institution is hereinafter referred to as a "Senior Subordinated
Trustee", and collectively as the "Senior Subordinated Trustees"), or (ii) one
or more separate, unlimited series of Debt Securities constituting senior
subordinated indebtedness under the Senior Subordinated Indentures which is
intended to qualify as "Tier II Capital" under the rules and regulations of the
Ministry of Finance of Japan and the risk-based capital guidelines of the
Federal Reserve Board, if such series have the limited rights of acceleration
described under "Description of Debt Securities--Senior Subordinated Securities"
and "Description of Debt Securities--Events of Default". The Senior Indentures
and the Senior Subordinated Indentures are sometimes herein referred to as the
"Indentures", and the Senior Trustees and the Senior Subordinated Trustees are
sometimes herein referred to as the "Trustees".
The statements under this heading are subject to the detailed provisions of
each Indenture. A form of global Senior Indenture and a form of global Senior
Subordinated Indenture are filed as exhibits to the Registration Statement of
which this Prospectus is a part. Wherever particular provisions of an Indenture
or terms defined therein are referred to, such provisions or definitions are
incorporated by reference as a part of the statements made and the statements
are qualified in their entirety by such reference.
The Debt Securities to be issued pursuant to this Prospectus, comprised of
the Senior Securities and the Senior Subordinated Securities, are limited to an
aggregate initial offering price of $5,491,000,000 (or (i) if the principal of
the Debt Securities is denominated in a foreign currency, the equivalent thereof
at the time of offering, or (ii) if the Debt Securities are issued at an
original issue discount, such greater principal amount as shall result in an
aggregate initial offering price of $5,491,000,000). The Senior Subordinated
Securities to be offered pursuant to this Prospectus are limited to an aggregate
initial offering price of $5,394,000,000 (or (a) if the principal of the Debt
Securities is denominated in a foreign currency, the equivalent thereof at the
time of the offering, or (b) if the Debt Securities are issued at an original
issue discount, such greater principal amount as shall result in an aggregate
initial offering price of $5,394,000,000). The Senior Indentures do not limit
the amount of Debt Securities or other unsecured Superior Indebtedness which may
be issued thereunder or limit the amount of subordinated debt, secured or
unsecured, which may be issued by the Corporation. Except as described herein
under "Description of Debt Securities--Certain Restrictive Provisions", the
Senior Subordinated Indentures do not limit the amount of Debt Securities or
other unsecured Senior Subordinated Indebtedness which may be issued thereunder
or limit the amount of Junior Subordinated Indebtedness, secured or unsecured,
which may be issued by the Corporation. Certain other agreements by which the
Corporation is bound relating to outstanding debt limit the amount of Senior
Subordinated Indebtedness the Corporation may issue. At March 31, 1994, under
the most restrictive of such provisions in any such agreement, the Corporation
7
<PAGE>
could issue up to approximately $1.72 billion of Senior Subordinated
Indebtedness, of which approximately $300.0 million was issued and outstanding
as of March 31, 1994. The Debt Securities will be issued in fully registered
form and, with regard to each issue of Offered Debt Securities in respect of
which this Prospectus is being delivered, in the manner and in the denominations
set forth in the accompanying Prospectus Supplement.
The Debt Securities may be issued in one or more series of Senior
Securities and/or one or more separate series of Senior Subordinated Securities,
in each case with the same or various maturities at par or at a discount.
Offered Debt Securities bearing no interest or interest at a rate which at the
time of issuance is below market rates ("Original Issue Discount Securities")
will be sold at a discount (which may be substantial) below their stated
principal amount. Federal income tax consequences and other special
considerations applicable to any such Original Issue Discount Securities will be
described in the Prospectus Supplement relating thereto.
Reference is made to the Prospectus Supplement for the following terms of
the Offered Debt Securities: (i) the designation, aggregate principal amount,
and authorized denominations of the Offered Debt Securities; (ii) the percentage
of their principal amount at which such Offered Debt Securities will be issued;
(iii) the date or dates on which the Offered Debt Securities will mature; (iv)
the rate or rates (which may be fixed or variable) per annum, if any, at which
the Offered Debt Securities will bear interest, or the method of determining
such rate or rates, or the original issue discount, if applicable; (v) the times
at which any such interest will be payable and the date from which any such
interest shall accrue; (vi) provisions for a sinking, purchase, or other
analogous fund, if any; (vii) any redemption terms; (viii) the designation of
the office or agency of the Corporation in the Borough of Manhattan, The City of
New York, where the Offered Debt Securities may be presented for payment and may
be transferred or exchanged by the registered holders thereof or by their
attorneys duly authorized in writing; (ix) if other than U.S. dollars, the
currency (including composite currencies) in which the principal of, premium, if
any, and/or interest on the Offered Debt Securities will be payable; (x) any
currency (including composite currencies) other than the stated currency of the
Offered Debt Securities in which the principal of, premium, if any, and/or
interest on the Offered Debt Securities may, at the election of the Corporation
or the holders, be payable, and the periods within which, and terms and
conditions upon which, such election may be made; (xi) if the amount of payments
of principal of, premium, if any, and/or interest on the Offered Debt Securities
may be determined with reference to an index, the manner in which such amounts
will be determined; (xii) whether the Offered Debt Securities are Senior
Securities or Senior Subordinated Securities, or include both; and (xiii) other
specific terms.
Principal, premium, if any, and interest, if any, less applicable
withholding taxes, if any, will be payable at the office or agency of the
Corporation maintained for such purpose in the Borough of Manhattan, The City of
New York, provided that payment of interest, if any, less applicable withholding
taxes, if any, may be made at the option of the Corporation by check mailed to
the address of the person entitled thereto as it appears on the register of the
Corporation. (Section 2.04.)
The Indentures provide that the Debt Securities will be transferable by the
registered holders thereof, or by their attorneys duly authorized in writing, at
the office or agency of the Corporation maintained for such purpose in such
cities as will be designated in the Prospectus Supplement, in the manner and
subject to the limitations provided in the Indentures, and upon surrender of the
Debt Securities. No service charge will be made for any registration of transfer
or exchange of the Debt Securities, but the Corporation may require payment of a
sum sufficient to cover any tax or other governmental charge in connection
therewith. (Section 2.06.)
"Indebtedness", when used in the definition of the terms "Superior
Indebtedness", "Senior Subordinated Indebtedness", and "Junior Subordinated
Indebtedness", means all obligations which in accordance with generally accepted
accounting principles should be classified as liabilities upon a balance sheet
and in any event includes all debt and other similar monetary obligations,
whether direct or guaranteed.
"Superior Indebtedness" means all Indebtedness of the Corporation that is
not by its terms subordinate or junior to any other indebtedness of the
Corporation. As discussed below, the Senior Securities constitute Superior
Indebtedness.
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"Senior Subordinated Indebtedness" means all Indebtedness of the
Corporation that is subordinate only to Superior Indebtedness. As discussed
below, the Senior Subordinated Securities constitute Senior Subordinated
Indebtedness.
"Junior Subordinated Indebtedness" means all Indebtedness of the
Corporation that is subordinate to both Superior Indebtedness and Senior
Subordinated Indebtedness.
Senior Securities
The Senior Securities will be direct, unsecured obligations of the
Corporation, and will constitute Superior Indebtedness issued on a parity with
the other Superior Indebtedness of the Corporation. At March 31, 1994,
approximately $12.8 billion of outstanding Superior Indebtedness was reflected
in the Corporation's consolidated audited balance sheet. The Senior Securities
will be senior to all Senior Subordinated Indebtedness, including the Senior
Subordinated Securities, which at March 31, 1994 totaled $300.0 million
outstanding, and Junior Subordinated Indebtedness, none of which was outstanding
at March 31, 1994. The subordination provisions applicable to the Senior
Subordinated Securities are discussed below under "Description of Debt
Securities--Senior Subordinated Securities".
Senior Subordinated Securities
The Senior Subordinated Securities will be direct, unsecured obligations of
the Corporation subordinated as to principal, premium, if any, and interest to
the prior payment in full of all Superior Indebtedness of the Corporation,
including the Senior Securities. In the event of any insolvency, bankruptcy,
receivership, liquidation, reorganization, or similar proceedings or proceedings
for voluntary liquidation, dissolution, or other winding up of the Corporation,
whether or not involving insolvency or bankruptcy proceedings, the holders of
Superior Indebtedness will first be paid in full before any payment on account
of principal, premium, if any, or interest is made on the Senior Subordinated
Securities. An event of default under and/or acceleration of Superior
Indebtedness does not in itself result in the suspension of payments on Senior
Subordinated Securities. However, in the event the Senior Subordinated
Securities are declared due and payable before their expressed maturity because
of the occurrence of one of the events of default specified in the Senior
Subordinated Indentures, holders of the Senior Subordinated Securities will be
entitled to payment only after payment in full of Superior Indebtedness or
provision for such payment is made.
By reason of the foregoing subordination, in the event of insolvency,
holders of Superior Indebtedness may recover more, ratably, than the holders of
the Senior Subordinated Securities. The Senior Subordinated Securities are
intended to rank in all respects on a parity with all other Senior Subordinated
Indebtedness, including the Corporation's outstanding Senior Subordinated
Securities, and superior in right of payment to all Junior Subordinated
Indebtedness and all outstanding capital stock.
Senior Subordinated Securities of certain series may meet the requirements
necessary for such series to be considered "Tier II Capital" under the rules and
regulations of the Ministry of Finance of Japan and the risk-based capital
guidelines of the Federal Reserve Board. If it is intended that any series be
considered Tier II Capital, such series of the Senior Subordinated Securities
may provide that the maturity date of any such series so designated by the
Corporation in a supplement hereto will be subject to acceleration only in the
event of certain circumstances related to the insolvency of the Corporation.
Certain Restrictive Provisions
Except as set forth in the next sentence, no Indenture limits the amount of
other securities which may be issued by the Corporation or its subsidiaries, but
each contains a covenant that neither the Corporation nor any subsidiary will
create or incur any mortgage, pledge, or other lien on any of its properties,
except intercompany pledges from a subsidiary to the Corporation or to another
wholly-owned subsidiary of the Corporation; purchase money liens or liens
existing on properties hereafter acquired; liens on properties of subsidiaries
existing at the time of acquisition of the subsidiary; liens created in the
ordinary course of business by subsidiaries for money borrowed, if such
subsidiaries prior to becoming such had borrowed on a secured basis; liens
created in the ordinary course of business by subsidiaries operating outside the
territorial limits of the United States, if in the countries in which such liens
are created it is necessary or appropriate to borrow on a secured basis or to
9
<PAGE>
deposit collateral to secure all or any of its obligations; renewals or
refundings of any of the foregoing; consensual liens in the ordinary course of
business that secure indebtedness which would not be included in total
liabilities as shown on the Corporation's consolidated balance sheet; sales of
securitized assets or property of the Corporation or its subsidiaries; liens
that secure certain other indebtedness which, in an aggregate principal amount
then outstanding, does not exceed 10% of the Corporation's consolidated tangible
net worth; and certain other minor exceptions. (Section 6.04.) In addition, the
Senior Subordinated Indentures provide that the Corporation will not permit (i)
the aggregate amount of Senior Subordinated Indebtedness outstanding at any time
to exceed 100% of the aggregate amount of the par value of the capital stock
plus the surplus (including retained earnings) of the Corporation and its
consolidated subsidiaries or (ii) the aggregate amount of Senior Subordinated
Indebtedness and Junior Subordinated Indebtedness outstanding at any time to
exceed 150% of the aggregate amount of the par value of the capital stock plus
the surplus (including retained earnings) of the Corporation and its
consolidated subsidiaries. (Senior Subordinated Indenture Section 6.05.) Under
the more restrictive of such tests in the Senior Subordinated Indentures, as of
March 31, 1994, the Corporation could issue up to approximately $1.42 billion of
additional Senior Subordinated Indebtedness. For information as to restrictions
in other agreements on the Corporation's ability to issue Senior Subordinated
Indebtedness, see "Description of Debt Securities--General" above.
The holders of at least a majority in principal amount of the outstanding
Debt Securities of any series may, on behalf of the holders of all Debt
Securities of that series, waive, insofar as that series is concerned,
compliance by the Corporation with the foregoing restrictions. (Senior
Indenture Section 6.06, Senior Subordinated Indenture Section 6.07.)
Each Indenture provides that, subject to the restrictions described in the
first sentence of the first paragraph under this caption, nothing contained in
such Indenture will prevent the consolidation or merger of the Corporation with
or into any other corporation, or the merger into the Corporation of any other
corporation, or the sale by the Corporation of its property and assets as, or
substantially as, an entirety, or otherwise. Notwithstanding the foregoing: (i)
in the event of any such consolidation or merger in which the Corporation is not
the surviving corporation, the surviving corporation must succeed to and be
substituted for the Corporation and must expressly assume by an indenture
executed and delivered to the applicable Trustee, the due and punctual payment
of the principal of (and premium, if any) and interest, if any, on all Debt
Securities then outstanding and the performance and observance of every covenant
and condition of such Indenture which is required to be performed or observed by
the Corporation, and (ii) as a condition to any sale of the property and assets
of the Corporation as, or substantially as, an entirety, the corporation to
which such property and assets will be sold must (a) expressly assume, as part
of the purchase price thereof, the due and punctual payment of the principal of
(and premium, if any) and interest, if any, on all Debt Securities and the
performance and observance of every covenant and condition of such Indenture
which is required to be performed or observed by the Corporation, and (b)
simultaneously with the delivery to it of the conveyances or instruments of
transfer of such property and assets, execute and deliver to the applicable
Trustee a proper indenture in form satisfactory to such Trustee, pursuant to
which such purchasing corporation will assume the due and punctual payment of
the principal of (and premium, if any) and interest, if any, on all Debt
Securities then outstanding and the performance and observance of every covenant
and condition of such Indenture which is required to be performed or observed by
the Corporation, to the same extent that the Corporation is bound and liable.
(Senior Indenture Section 15.01, Senior Subordinated Indenture Section 16.01.)
Compliance by the Corporation with the foregoing restrictions may be waived by
or on behalf of the holders of the outstanding Debt Securities. For information
as to the modification of each Indenture, see "Description of Debt
Securities--Modification of Indenture" below.
Other than the foregoing restrictions, no Indenture contains covenants of
the Corporation or provisions which afford additional protection to holders of
outstanding Debt Securities in the event of a highly leveraged transaction
involving the Corporation.
Modification of Indenture
Each Indenture contains provisions permitting the Corporation and the
Trustee thereunder to add any provisions to or change in any manner or eliminate
any of the provisions of such Indenture or any indenture supplemental thereto or
to modify in any manner the rights of the holders of any series of Debt
Securities with the consent of the holders of not less than 66 2/3% in aggregate
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<PAGE>
principal amount of such series of Debt Securities at the time outstanding,
except that no such amendment or modification may (i) extend the fixed maturity
of any Debt Security, reduce the rate or extend the time of payment of interest
thereon, reduce the amount of the principal thereof, or premium, if any, payable
with respect thereto, or reduce the amount of an Original Issue Discount
Security payable upon the acceleration of the stated maturity thereof, without
the consent of the holder of such Debt Security, or (ii) reduce the aforesaid
percentage of any series of Debt Securities, the holders of which are required
to consent to any such amendment or modification, without the consent of the
holders of all the Debt Securities of such series then outstanding. (Section
14.02.)
Outstanding Debt Securities
In determining whether the holders of the requisite principal amount of
outstanding Debt Securities have given any request, demand, authorization,
direction, notice, consent, or waiver under any Indenture, (i) the principal
amount of an Original Issue Discount Security that will be deemed to be
outstanding for such purposes will be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof upon an event of default and (ii) the
principal amount of a Debt Security denominated in a foreign currency or
currencies will be the U.S. dollar equivalent, determined on the date of
original issuance of such Debt Security, of the principal amount. (Section
1.02.)
Events of Default
Each Indenture defines an "event of default" with respect to any series of
Debt Securities as being any one of the following events and such other events
as may be established for the Debt Securities of a particular series: (i)
default for thirty days in any payment of interest on such series; (ii) default
in any payment of principal of, and premium, if any, on such series when due;
(iii) default in the payment of any sinking fund installment of such series when
due; (iv) default for thirty days after appropriate notice in performance of any
other covenant in such Indenture (other than a covenant included in the
Indenture solely for the benefit of another series of Debt Securities); (v)
certain events in bankruptcy, insolvency, or reorganization; or (vi) default in
the payment of any installment of interest on any evidence of indebtedness of,
or assumed or guaranteed by, the Corporation (other than indebtedness
subordinated to such series), or in the payment of any principal of any such
evidence of indebtedness, and with respect to which any period of grace shall
have expired, after appropriate notice. (Section 7.01.) Each Indenture provides
that the Trustee may withhold notice of any default (except in the payment of
principal of, premium, if any, or interest, if any, on any series of Debt
Securities) if it considers such withholding in the interests of the holders of
such series of Debt Securities issued thereunder. (Section 11.03.)
Except as set forth below, each Indenture provides that the Trustee
thereunder or the holders of not less than 25% in principal amount of any series
of Debt Securities then outstanding may declare the principal of all Debt
Securities of such series to be due and payable on an event of default. (Section
7.02.) Notwithstanding the foregoing, any series of Senior Subordinated
Securities which will be considered "Tier II" may provide that the Senior
Subordinated Trustee or the holders of at least 25% in aggregate principal
amount of the Senior Subordinated Securities of that series which are then
outstanding may declare the principal of all Senior Subordinated Securities of
that series to be due and payable immediately only if an event of default
pursuant to (v) above shall have occurred and be continuing. Any such series
will be designated by the Corporation in a supplement hereto.
Reference is made to the Prospectus Supplement relating to any series of
Offered Debt Securities which are Original Issue Discount Securities for the
particular provisions relating to acceleration of the maturity of a portion of
the principal amount of such Original Issue Discount Securities upon the
occurrence of an event of default and the continuation thereof.
Within 120 days after the close of each fiscal year, the Corporation must
file with each Trustee a statement, signed by specified officers, stating
whether or not such officers have knowledge of any default, and, if so,
specifying each such default, the nature thereof and what action, if any, has
been taken to cure such default. (Senior Indenture Section 6.05, Senior
Subordinated Indenture Section 6.06.)
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Subject to provisions relating to its duties in case of default, no Trustee
is under any obligation to exercise any of its rights or powers thereunder at
the request, order, or direction of any holders of any series of Debt
Securities, unless such holders shall have offered to such Trustee reasonable
indemnity. (Section 11.01.) Subject to such provisions for indemnification, the
holders of a majority in principal amount of any series of Debt Securities
outstanding may direct the time, method, and place of conducting any proceeding
for any remedy available to the Trustee thereunder, or of exercising any trust
or power conferred upon such Trustee.(Section 7.08.)
Defeasance of the Indenture and Debt Securities
The Corporation at any time may satisfy its obligations with respect to
payments of principal of, premium, if any, and interest, if any, on the Debt
Securities of any series by irrevocably depositing in trust with the Trustee
money or U.S. Government Obligations (as defined in the Indenture) or a
combination thereof sufficient to make such payments when due. If such deposit
is sufficient, as verified by a written report of a nationally recognized,
independent public accounting firm, to make all payments of (i) interest, if
any, on the Debt Securities of such series prior to and on their redemption or
maturity, as the case may be, and (ii) principal of, and premium, if any, on the
Debt Securities of such series when due upon redemption or at the designated
maturity date, as the case may be, then all the obligations of the Corporation
with respect to the Debt Securities of such series and the Indenture insofar as
it relates to the Debt Securities of such series will be satisfied and
discharged (except as otherwise provided in the Indenture). In the event of any
such defeasance, holders of the Debt Securities of such series would be able to
look only to such trust fund for payment of principal of, premium, if any, and
interest, if any, on the Debt Securities of such series until the designated
maturity date or redemption. (Sections 12.01, 12.02 and 12.03)
Such a trust may only be established if, among other things, (i) the
Corporation has obtained an opinion of legal counsel (which may be based on a
ruling from, or published by, the Internal Revenue Service) to the effect that
holders of the Debt Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to federal income tax on the same amounts and in
the same manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred and (ii) at that time, with
respect to any series of Debt Securities then listed on The New York Stock
Exchange, the rules of The New York Stock Exchange do not prohibit such deposit
with the Trustee.
Information Concerning the Trustees
The Corporation from time to time may borrow from each of the Trustees, and
the Corporation and certain of its subsidiaries maintain deposit accounts and
conduct other banking transactions with some of the Trustees. A Trustee under a
Senior Indenture or a Senior Subordinated Indenture may act as trustee under any
of the Corporation's other indentures.
PLAN OF DISTRIBUTION
The Corporation may sell the Debt Securities being offered hereby (i)
directly to purchasers, (ii) through agents, (iii) to dealers, or (iv) through
an underwriter or a group of underwriters.
Offers to purchase Offered Debt Securities may be solicited directly by the
Corporation or by agents designated by the Corporation from time to time. Unless
otherwise indicated in the Prospectus Supplement, any such agent will be acting
on a best efforts basis for the period of its appointment (ordinarily five
business days or less). Agents may be entitled under agreements which may be
entered into with the Corporation to indemnification by the Corporation against
certain civil liabilities, including liabilities under the Securities Act of
1933, as amended (the "Securities Act").
If a dealer is utilized in the sale of the Offered Debt Securities in
respect of which this Prospectus is delivered, the Corporation will sell such
Offered Debt Securities to the dealer, as principal. The dealer may then resell
such Offered Debt Securities to the public at varying prices to be determined by
such dealer at the time of resale. Dealers may be entitled under agreements
which may be entered into with the Corporation to indemnification by the
Corporation against certain civil liabilities, including liabilities under the
Securities Act.
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If an underwriter or underwriters are utilized in the sale, the Corporation
may enter into an arrangement with such underwriters at the time of sale to them
providing for their indemnification against certain liabilities, including
liabilities under the Securities Act. The names of the underwriters and the
terms of the transaction will be set forth in the Prospectus Supplement which is
intended for use by the underwriters to make resales of the Offered Debt
Securities in respect of which this Prospectus is delivered to the public.
If an affiliate or subsidiary of the Corporation participates in the offer
and sale of the Debt Securities, such participation will comply with the
requirements of Schedule E of the By-Laws of the National Association of
Securities Dealers, Inc. regarding the underwriting of securities of an
affiliate.
The underwriters, dealers, and agents may be deemed to be underwriters and
any discounts, commissions, or concessions received by them from the Corporation
or any profit on the resale of Offered Debt Securities by them may be deemed to
be underwriting discounts and commissions under the Securities Act. Any such
person who may be deemed to be an underwriter and any such compensation received
from the Corporation will be described in the Prospectus Supplement.
Underwriters, dealers, and agents may be customers of, engage in transactions
with, or perform services for the Corporation in the ordinary course of
business.
If so indicated in the Prospectus Supplement, the Corporation will
authorize underwriters and agents to solicit offers by certain institutions to
purchase Offered Debt Securities from the Corporation at the public offering
price set forth in the Prospectus Supplement pursuant to Delayed Delivery
Contracts ("Contracts") providing for payment and delivery on the date stated in
the Prospectus Supplement. Each Contract will be for an amount not less than,
and unless the Corporation otherwise agrees the aggregate principal amount of
Offered Debt Securities sold pursuant to Contracts will be not less nor more
than, the respective amounts stated in the Prospectus Supplement. Institutions
with whom Contracts, when authorized, may be made include commercial and savings
banks, insurance companies, pension funds, investment companies, educational and
charitable institutions, and other institutions, but shall in all cases be
subject to the approval of the Corporation. Contracts will not be subject to any
conditions except that the purchase by an institution of the Offered Debt
Securities covered by its Contract must not at the time of delivery be
prohibited under the laws of any jurisdiction in the United States to which such
institution is subject. A commission indicated in the Prospectus Supplement will
be granted to underwriters and agents soliciting purchases of Offered Debt
Securities pursuant to Contracts accepted by the Corporation. Underwriters and
agents will have no responsibility in respect of the delivery or performance of
Contracts.
The place and time of delivery for the Offered Debt Securities in respect
of which this Prospectus is delivered will be set forth in the Prospectus
Supplement.
EXPERTS
The financial statements and schedule listed under the heading "Exhibits,
Annual Report on Form 10-K incorporated by reference herein have been
incorporated by reference herein in reliance upon the reports of KPMG Peat
Marwick, independent certified public accountants, also incorporated by
reference herein, and upon the authority of said firm as experts in accounting
and auditing. The report of KPMG Peat Marwick covering the December 31, 1993
consolidated financial statements refers to a change in the method of accounting
for post-retirement benefits other than pensions in 1993.
LEGAL OPINIONS
The legality of the Debt Securities to which this Prospectus relates has
been passed upon for the Corporation by Schulte Roth & Zabel, 900 Third Avenue,
New York, New York 10022. Paul N. Roth, a director of the Corporation, is a
partner of Schulte Roth & Zabel.
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PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS.
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth all expenses payable by the Registrant in
connection with the issuance and distribution of the securities being
registered. All the amounts shown are estimates, except for the registration
fee.
<TABLE>
<S> <C>
Registration fee............................................................. $1,379,310
Fees and expenses of accountants............................................. 60,000
Fees and expenses of counsel................................................. 300,000
Fees and expenses of Trustees and paying and authenticating agents........... 150,000
Printing and engraving expenses.............................................. 100,000
Rating Agencies.............................................................. 400,000
Blue Sky fees and expenses................................................... 15,000
Miscellaneous................................................................ 7,500
----------
Total.............................................................. $2,411,810
==========
</TABLE>
Item 15. Indemnification of Directors and Officers.
Subsection (a) of Section 145 of the General Corporation Law of Delaware
empowers a corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative, or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee, or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise, against expenses (including attorneys'
fees), judgments, fines, and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit, or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending, or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation except that no indemnification may be made in
respect of any claim, issue, or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine that despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
Section 145 further provides that to the extent a director, officer,
employee, or agent of a corporation has been successful in the defense of any
action, suit, or proceeding referred to in subsections (a) and (b) or in the
defense of any claim, issue, or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith; that indemnification provided for by Section 145 shall not
be deemed exclusive of any other rights to which the indemnified party may be
entitled; and empowers the corporation to purchase and maintain insurance on
behalf of any person acting in any of the capacities set forth in the second
preceding paragraph against any liability asserted against him or incurred by
him in any such capacity or arising out of his status as such whether or not the
corporation would have the power to indemnify him against such liabilities under
Section 145.
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Article X of the By-laws of the Registrant provides, in effect, that, in
addition to any rights afforded to an officer, director or employee of the
Registrant by contract or operation of law, the Registrant may indemnify any
person who is or was a director, officer, employee, or agent of the Registrant,
or of any other corporation which he served at the request of the Registrant,
against any and all liability and reasonable expense incurred by him in
connection with or resulting from any claim, action, suit, or proceeding
(whether brought by or in the right of the Registrant or such other corporation
or otherwise), civil or criminal, in which he may have become involved, as a
party or otherwise, by reason of his being or having been such director,
officer, employee, or agent of the Registrant or such other corporation, whether
or not he continues to be such at the time such liability or expense is
incurred, provided that such person acted in good faith and in what he
reasonably believed to be the best interests of the Registrant or such other
corporation, and, in connection with any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
Article X further provides that any person who is or was a director,
officer, employee, or agent of the Corporation or any direct or indirect
wholly-owned subsidiary of the Registrant shall be entitled to indemnification
as a matter of right if he has been wholly successful, on the merits or
otherwise, with respect to any claim, action, suit, or proceeding of the type
described in the foregoing paragraph.
In addition, the Registrant maintains directors' and officers'
reimbursement and liability insurance pursuant to standard form policies with
aggregate limits of $65,000,000. The risks covered by such policies do not
exclude liabilities under the Securities Act of 1933.
Item 16. Exhibits.
d1.1 --Form of Underwriting Agreement.
f1.2 --Form of Selling Agency Agreement.
b4.1a --Proposed form of Debt Securities (Note).
b4.1b --Proposed form of Debt Securities (Debenture).
b4.1c --Proposed form of Debt Securities (Deep Discount Debenture).
b4.1d --Proposed form of Debt Securities (Zero Coupon Debenture).
b4.1e --Proposed form of Debt Securities (Extendible Note).
c4.1f --Proposed form of Debt Securities (Floating Rate
Renewable Note).
c4.1g --Proposed form of Debt Securities (Floating Rate Note).
e4.1h --Proposed form of Debt Securities (Medium-Term Senior Fixed
Rate Note).
e4.1i --Proposed form of Debt Securities (Medium-Term Senior
Floating Rate Note).
e4.1j --Proposed form of Debt Securities (Medium-Term Senior
Subordinated Fixed Rate Note).
e4.1k --Proposed form of Debt Securities (Medium-Term Senior
Subordinated Floating Rate Note).
g4.2a --Form of Global Indenture between the Registrant and each
Senior Trustee.
g4.2b --Form of Global Indenture between the Registrant and each
Senior Subordinated Trustee.
g4.2c --Standard Multiple-Series Indenture Provisions Dated as of
May 1, 1994.
a5 --Opinion of Schulte Roth & Zabel in respect of the
legality of the Debt Securities registered hereunder,
containing the consent of such counsel.
II-2
<PAGE>
Item 16. Exhibits (continued)
a12 --Computation of Ratios of Earnings to Fixed Charges.
g24.1 --Consent of KPMG Peat Marwick.
a24.2 --Consent of Counsel. The consent of Schulte Roth & Zabel
is included in its opinion filed herewith as Exhibit 5 to
this Registration Statement.
a25.1 --Powers of Attorney.
a25.2 --Board Resolutions.
a26.1 --Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of Continental Bank, National Association.
a26.2 --Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Bank of New York.
a26.3 --Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Chase Manhattan Bank (National
Association).
a26.4 --Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The First National Bank of Chicago.
a26.5 --Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of Harris Trust and Savings Bank.
a26.6 --Form T-1 Statement of Eligibility under the Trust
Indenture Act of 1939 of BankAmerica National
Trust Company.
a26.7 --Form T-1 Statement of Eligibility under the Trust
Indenture Act of 1939 of The First National Bank
of Boston.
a26.8 --Form T-1 Statement of Eligibility under the Trust
Indenture Act of 1939 of PNC Bank, National Association.
a26.9 --Form T-1 Statement of Eligibility under the Trust
Indenture Act of 1939 of Citibank, N.A.
a26.10 --Form T-1 Statement of Eligibility under the TrustIndenture
Act of 1939 of Society National Bank.
- -------------
a Previously filed.
b Incorporated by reference to Registration Statement No. 2-93960 on Form S-3
filed October 25, 1984.
c Incorporated by reference to Registration Statement No. 33-30047 on Form
S-3 filed July 24, 1989.
d Incorporated by reference to Registration Statement No. 33-37189 on Form
S-3 filed October 5, 1990.
e Incorporated by reference to the Registrant's Current Report on Form 8-K
dated July 21, 1992.
f Incorporated by reference to Registration Statement No. 33-58418 on Form
S-3 filed February 16, 1993.
g Filed herewith.
II-3
<PAGE>
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, 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 (the "Securities Act");
(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 the registration statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) 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 the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, 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) That, for purposes of determining any liability under the
Securities Act, 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 the registration statement shall be deemed
to be a new registration statement relating to the securities offered
therein, 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
may be permitted to directors, officers, and controlling persons of the
registrant pursuant to the provisions described under Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim of indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer, or
controlling person of the Registrant in the successful defense of any action,
suit, or proceeding) is asserted by such director, officer, or controlling
person in connection with the securities being registered, the Registrant 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
Securities Act and will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes (1) to use its best efforts to
distribute prior to the opening of bids, to prospective bidders, underwriters,
and dealers, a reasonable number of copies of a prospectus which at the time
meets the requirements of Section 10(a) of the Securities Act, and relating to
the securities offered at competitive bidding, as contained in the registration
statement, together with any supplements thereto, and (2) to file an amendment
to the registration statement reflecting the results of bidding, the terms of
the reoffering and related matters to the extent required by the applicable
form, not later than the first use, authorized by the issuer after the opening
of bids, of a prospectus relating to the securities offered at competitive
bidding, unless no further public offering of such securities by the issuer and
no reoffering of such securities by the purchasers is proposed to be made.
II-4
<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 Livingston and State of New Jersey, on the 3rd day of
May, 1994.
THE CIT GROUP HOLDINGS, INC.
By William Baronoff
------------------------
William Baronoff
Executive Vice President and
Special Counsel
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
Signature and Title Date
------------------- ----
Albert R. Gamper, Jr.*
...........................
Albert R. Gamper, Jr.
President, Chief Executive Officer,
and Director
(principal executive officer)
Hisao Kobayashi*
...........................
Hisao Kobayashi
Director
Michio Murata*
...........................
Michio Murata
Director
Joseph A. Pollicino*
...........................
Joseph A. Pollicino
Director
Paul N. Roth*
...........................
Paul N. Roth *By William Baronoff May 3, 1994
Director ------------------
William Baronoff
Attorney-in-fact
Tomoaki Tanaka*
...........................
Tomoaki Tanaka
Director
Peter J. Tobin*
...........................
Peter J. Tobin
Director
Toshiji Tokiwa*
...........................
Toshiji Tokiwa
Director
Keiji Torii*
...........................
Keiji Torii
Director
William H. Turner*
...........................
William H. Turner
Director
Joseph J. Carroll
...........................
Joseph J. Carroll
Executive Vice President and Chief May 3, 1994
Financial Officer
(principal financial and accounting
officer)
Original powers of attorney authorizing Albert R. Gamper, Jr., William
Baronoff, and Donald J. Rapson and each of them to sign the Registration
Statement and amendments thereto on behalf of the directors and officers of the
Registrant indicated above are held by the Corporation and available for
examination pursuant to Item 302(b) of Registration S-T.
II-5
<PAGE>
EXHIBIT 4.2a
===============================================================================
THE CIT GROUP HOLDINGS, INC.
AND
[NAME OF TRUSTEE],
Trustee
----------------
Indenture
Dated as of [DATE]
----------------
DEBT SECURITIES
===============================================================================
<PAGE>
INDENTURE dated as of [date] between The CIT Group Holdings, Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(the "Corporation"), and [name of trustee], a banking corporation/association
duly organized and existing under the laws of the [jurisdiction of organization]
(the "Trustee").
RECITALS OF THE CORPORATION
The Corporation is authorized to borrow money for its corporate purposes
and to issue debentures, notes or other evidences of indebtedness therefor; and
for its corporate purposes, the Corporation has determined to make and issue its
debentures, notes or other evidences of indebtedness in one or more series (the
"Debt Securities"), as hereinafter provided, up to such principal amount or
amounts as may from time to time be authorized by or pursuant to the authority
granted in one or more resolutions of the Board of Directors.
All things necessary to make this Indenture a valid agreement of the
Corporation, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, in consideration of the premises and of the mutual covenants herein
contained and for other valuable consideration, the receipt whereof is hereby
acknowledged, and in order to declare the terms and conditions upon which the
Debt Securities are to be issued, IT IS HEREBY COVENANTED, DECLARED AND AGREED,
by and between the parties hereto, that all the Debt Securities are to be
executed, authenticated and delivered subject to the further covenants and
conditions hereinafter set forth; and the Corporation, for itself and its
successors, does hereby covenant and agree to and with the Trustee and its
successors in said trust, for the benefit of those who shall hold the Debt
Securities, or any of them, as follows:
PARAGRAPH A. INCORPORATION BY REFERENCE
Except as otherwise provided below, Articles One through Fifteen of The CIT
Group Holdings, Inc. Standard Multiple-Series Indenture Provisions dated as of
May 1, 1994 (the "Standard Provisions"), are hereby incorporated herein by
reference with the same force and effect as though fully set forth herein.
PARAGRAPH B. ADDITIONAL PROVISIONS
The following provision hereby modifies the applicable definition set forth
in Section 1.02 of the Standard Provisions:
Corporate trust office:
The term "corporate trust office" shall mean the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office is presently located at [address]; notices shall be
so addressed and directed to the attention of [department and/or officer].
<PAGE>
2
IN WITNESS WHEREOF, The CIT Group Holdings, Inc. has caused this Indenture
to be executed in its corporate name by its Chairman, Vice Chairman, President,
or one of its Vice Presidents, and its corporate seal to be hereunto affixed and
to be attested by its Secretary or one of its Assistant Secretaries, and [name
of trustee], in evidence of its acceptance of the trust hereby created, has
caused this Indenture to be executed in its corporate name by one of its
[title], and its seal to be hereunto affixed and to be attested by one of its
[title], all as of the date first above written.
THE CIT GROUP HOLDINGS, INC.
By
[Title]
[Corporate Seal]
Attest:
[Title]
[NAME OF TRUSTEE], as Trustee
By
[Title]
[Corporate Seal]
Attest:
[Title]
<PAGE>
3
State of [State] )
) SS.:
County of [County] )
On the [date] day of [month], in the year [year], before me personally came
[name], to me known, who, being by me duly sworn, did depose and say that he/she
resides at [address]; that he/she is a/an [title] of THE CIT GROUP HOLDINGS,
INC., one of the organizations described in and which executed the foregoing
instrument; that he/she knows the seal of said corporation; that the seal
affixed to said instrument bearing the corporate name of said corporation is
such corporate seal; that it was so affixed by order of the Board of Directors
of said corporation; and that he/she signed his/her name thereto by like order.
Notary Public
[Notarial Seal]
State of [State] )
) SS.:
County of [County] )
On the [date] day of [month], in the year [year], before me personally came
[name], to me known, who, being by me duly sworn, did depose and say that he/she
resides at [address] that he/she is a/an [title] of [name of trustee], one of
the organizations described in and which executed the foregoing instrument; that
he/she knows the seal of said corporation/association; that the seal affixed to
said instrument bearing the name of said corporation/association is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation/association; and that he/she signed his/her name thereto by
like authority.
Notary Public
[Notarial Seal]
<PAGE>
EXHIBIT 4.2b
================================================================================
THE CIT GROUP HOLDINGS, INC.
AND
[NAME OF TRUSTEE],
Trustee
________________
Indenture
Dated as of [DATE]
________________
DEBT SECURITIES
(Senior Subordinated)
================================================================================
<PAGE>
<PAGE>
INDENTURE dated as of [date] between The CIT Group Holdings, Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(the "Corporation"), and [name of trustee], a banking corporation/association
duly organized and existing under the laws of the [jurisdiction of organization]
(the "Trustee").
RECITALS OF THE CORPORATION
The Corporation is authorized to borrow money for its corporate purposes
and to issue debentures, notes or other evidences of indebtedness therefor; and
for its corporate purposes, the Corporation has determined to make and issue its
debentures, notes or other evidences of indebtedness in one or more series (the
"Debt Securities"), as hereinafter provided, up to such principal amount or
amounts as may from time to time be authorized by or pursuant to the authority
granted in one or more resolutions of the Board of Directors.
All things necessary to make this Indenture a valid agreement of the
Corporation, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, in consideration of the premises and of the mutual covenants herein
contained and for other valuable consideration, the receipt whereof is hereby
acknowledged, and in order to declare the terms and conditions upon which the
Debt Securities are to be issued, IT IS HEREBY COVENANTED, DECLARED AND AGREED,
by and between the parties hereto, that all the Debt Securities are to be
executed, authenticated and delivered subject to the further covenants and
conditions hereinafter set forth; and the Corporation, for itself and its
successors, does hereby covenant and agree to and with the Trustee and its
successors in said trust, for the benefit of those who shall hold the Debt
Securities, or any of them, as follows:
PARAGRAPH A. INCORPORATION BY REFERENCE
Except as otherwise provided below, Articles One through Fourteen of The
CIT Group Holdings, Inc. Standard Multiple-Series Indenture Provisions dated as
of May 1, 1994 (the "Standard Provisions"), are hereby incorporated herein by
reference with the same force and effect as though fully set forth herein.
Article Fifteen of the Standard Provisions is hereby re- designated as Article
Sixteen and is hereby incorporated herein by reference with the same force and
effect as though fully set forth herein. All references to Article Fifteen of
the Standard Provisions and the Sections thereof in Articles One through Fifteen
of the Standard Provisions shall hereby be deemed to refer to Article Sixteen
and the Sections thereof as hereby re-designated.
PARAGRAPH B. ADDITIONAL PROVISIONS
1. The following provisions hereby modify or supplement the definitions set
forth in Section 1.02 of the Standard Provisions:
Corporate trust office:
The term "corporate trust office" shall mean the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office is presently located at [address]; notices shall be
so addressed and directed to the attention of [department and/or officer].
Indebtedness:
The term "Indebtedness", when used in the definition of the terms "Junior
Subordinated Indebtedness", "Senior Subordinated Indebtedness" and "Superior
Indebtedness", shall mean all obligations which in accordance with generally
accepted accounting principles should be classified as liabilities upon a
balance sheet, and in any event shall include all debt and other similar
monetary obligations, whether direct or guaranteed.
<PAGE>
2
Junior Subordinated Indebtedness:
The term "Junior Subordinated Indebtedness" shall mean the Indebtedness of
the Corporation, whether outstanding at the date hereof or incurred hereafter,
which is subordinated to Superior Indebtedness and Senior Subordinated
Indebtedness of the Corporation.
Senior Subordinated Indebtedness:
The term "Senior Subordinated Indebtedness" shall mean the Indebtedness
represented by the Debt Securities, the Indebtedness represented by the
Corporation's 9 1/4% Medium-Term Senior Subordinated Capital Notes Due March 15,
2001, 8 3/8% Senior Subordinated Capital Notes Due November 1, 2001 and 6.98%
Medium-Term Senior Subordinated Capital Notes Due March 1, 2004 and all other
Indebtedness of the Corporation, whether outstanding at the date hereof or
incurred hereafter, which is subordinate only to Superior Indebtedness.
Superior Indebtedness:
The term "Superior Indebtedness" shall mean all Indebtedness of the
Corporation, whether outstanding at the date hereof or incurred hereafter, which
is not by its terms subordinate or junior to any other Indebtedness of the
Corporation. In any event, Superior Indebtedness does not include the
Indebtedness represented by the Corporation's 9 1/4% Medium-Term Senior
Subordinated Capital Notes Due March 15, 2001, 8 3/8% Senior Subordinated
Capital Notes Due November 1, 2001 and 6.98% Medium-Term Senior Subordinated
Capital Notes Due March 1, 2004 or the Debt Securities.
2. Section 6.05 and Section 6.06 of the Standard Provisions are hereby
re-designated as Section 6.06 and Section 6.07, respectively. All references in
the Standard Provisions to Section 6.05 and Section 6.06 of the Standard
Provisions shall hereby be deemed to refer to Section 6.06 and Section 6.07 as
hereby re-designated.
3. The following provision is hereby added to Article Six of the Standard
Provisions and shall hereby be designated as Section 6.05:
Section 6.05. The Corporation will not permit (i) the aggregate amount
of Senior Subordinated Indebtedness outstanding at any time to exceed an
amount equal to 100% of the aggregate amount of the par or stated value of
all classes of capital stock plus the surplus (including retained earnings)
of the Corporation and its Consolidated Subsidiaries (determined in
accordance with generally accepted accounting principles) at such time or
(ii) the aggregate amount of Senior Subordinated Indebtedness and Junior
Subordinated Indebtedness outstanding at any time to exceed an amount equal
to 150% of the aggregate amount of the par or stated value of all classes
of capital stock plus the surplus (including retained earnings) of the
Corporation and its Consolidated Subsidiaries (determined in accordance
with generally accepted accounting principles) at such time.
4. The following provisions are hereby added to the Standard Provisions and
shall hereby be designated as Article Fifteen:
<PAGE>
3
ARTICLE FIFTEEN.
Subordination Of Debt Securities.
Section 15.01. (a) The Corporation covenants and agrees, and each holder of
Debt Securities, by his acceptance thereof, likewise covenants and agrees, that
all Debt Securities shall be issued subject to the provisions of this Article
Fifteen; and each person holding any Debt Security, whether upon original issue
or upon transfer thereof, accepts and agrees to be bound by such provisions.
(b) All Debt Securities issued hereunder shall, to the extent and in the
manner hereinafter set forth, be subordinate and subject in right of payment to
the prior payment in full of all Superior Indebtedness.
Section 15.02. (a) In the event of any insolvency or bankruptcy
proceedings, and any receivership, liquidation, reorganization or other similar
proceedings in connection therewith, relative to the Corporation or to its
creditors, as such, or to its property, and in the event of any proceedings for
voluntary liquidation, dissolution or other winding up of the Corporation,
whether or not involving insolvency or bankruptcy proceedings, then all
principal and interest on all Superior Indebtedness shall first be paid in full,
or such payment be provided for, before any payment on account of principal,
premium, if any, or interest is made upon the indebtedness evidenced by the Debt
Securities, and in any such proceedings any payment or distribution of any kind
or character, whether in cash or property or securities, which may be payable or
deliverable in respect of the Debt Securities shall be paid or delivered
directly to the holders of such Superior Indebtedness for application in payment
thereof unless and until such Superior Indebtedness shall have been paid and
satisfied in full or such payment and satisfaction shall have been provided for;
provided, however, that:
(1) in the event that payment or delivery of such cash, property or
securities to the holders of the Debt Securities is authorized by an order
or decree giving effect, and stating in such order or decree that effect is
given, to the subordination of the Debt Securities to Superior
Indebtedness, and made by a court of competent jurisdiction in any such
proceeding, no payment or delivery of such cash, property or securities
payable or deliverable with respect to the Debt Securities need be made to
the holders of Superior Indebtedness; and
(2) no such delivery need be made of securities which are issued
pursuant to any reorganization, dissolution or liquidation proceedings, or
upon any merger, consolidation or sale not prohibited by Section 16.01, by
the Corporation, as reorganized, or by the corporation succeeding to the
Corporation or acquiring its property and assets, and which securities are
subordinate and junior in right of payment of all Superior Indebtedness
then outstanding.
(b) In the event that the Debt Securities are declared due and payable
before their expressed maturity because of the occurrence of an event of default
specified in Section 7.01 (under circumstances when the provisions of the
foregoing subsection (a) shall not be applicable), the holders of the Debt
Securities shall be entitled to payment only after there shall first have been
paid in full the Superior Indebtedness outstanding at the time such Debt
Securities so became due and payable because of such event of default, or such
payment shall have been provided for.
<PAGE>
4
(c) In the event that any direct or indirect payment or distribution shall
be received by the Trustee or by any holder of the Debt Securities in
contravention of the provisions of this Section, then such payments or
distributions shall be held for the benefit of, and shall be paid over to, the
holders of the Superior Indebtedness at the time outstanding or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Superior
Indebtedness may have been issued, as their respective interests may appear, for
application to the payment of all such Superior Indebtedness until all such
Superior Indebtedness shall have been paid in full, after giving effect to any
concurrent payment or distribution to the holders of such Superior Indebtedness.
Section 15.03. Subject to the payment in full of all Superior Indebtedness,
the holders of the Debt Securities (equally and ratably with the holders of all
other subordinated indebtedness which by its terms ranks on a parity with the
Debt Securities and is entitled to like rights of subrogation) shall be
subrogated to the rights of the holders of Superior Indebtedness to receive
payments or distributions of assets of the Corporation applicable to the
Superior Indebtedness until the principal of, premium, if any, and interest on,
the Debt Securities shall pe paid in full, and no payments or distributions to
the holders of the Superior Indebtedness pursuant to the provisions of this
Article Fifteen shall, as between the Corporation, its creditors other than the
holders of Superior Indebtedness and the holders of the Debt Securities, be
deemed to be a payment by the Corporation to or on account of Superior
Indebtedness, it being understood that the provisions of this Article Fifteen
are and are intended solely for the purpose of defining the relative rights of
the holders of the Debt Securities, on the one hand, and the holders of the
Superior Indebtedness, on the other hand, and nothing contained in this Article
Fifteen or elsewhere in this Indenture or in the Debt Securities shall impair,
as between the Corporation, its creditors other than the holders of Superior
Indebtedness and the holders of the Debt Securities, the obligation of the
Corporation, which is unconditional and absolute, to pay to the holders of the
Debt Securities the principal of, premium, if any, and interest on, the Debt
Securities as and when the same shall become due and payable in accordance with
their terms, or to affect relative rights of the holders of the Debt Securities
and creditors of the Corporation other than the holders of the Superior
Indebtedness, nor shall anything herein or therein prevent the Trustee or the
holder of any Debt Securities from exercising all remedies otherwise permitted
by applicable law or hereunder upon default under this Indenture, subject to the
rights, if any, under this Article Fifteen, of the holders of Superior
Indebtedness in respect of cash, property or securities otherwise payable or
deliverable to the holders of the Debt Securities.
Section 15.04. Each holder of a Debt Security by his acceptance thereof
authorizes the Trustee in his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article Fifteen and
appoints the Trustee his attorney-in-fact for any and all such purposes.
Section 15.05. The Corporation shall give prompt written notice to the
Trustee of any fact known to the Corporation which would prohibit the making of
any payment of moneys to or by the Trustee in respect of the Debt Securities
pursuant to the provisions of this Article Fifteen. Notwithstanding the
provisions of this Article Fifteen or any other provisions of this Indenture,
the Trustee shall not be charged with knowledge of the existence of any fact
which would prohibit the making of any payment of moneys to or by the Trustee in
respect of the Debt Securities pursuant to the provisions of this Article
Fifteen, unless and until the Trustee shall have received written notice thereof
from the Corporation or a holder or holders of Superior Indebtedness or from any
trustee therefor; and, prior to the receipt of any such written notice, the
Trustee shall be entitled in all respects to assume that no such fact exists.
The Trustee shall be entitled to rely on the delivery to it of a written notice
by a person representing himself to be a holder of Superior Indebtedness (or a
trustee on behalf of such holder) to establish that such notice has been given
<PAGE>
5
by a holder of Superior Indebtedness or a trustee on behalf of any such holder.
In the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any person as a holder of Superior
Indebtedness to participate in any payment or distribution pursuant to this
Article Fifteen, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the trustee as to the amount of Superior Indebtedness
held by such person, the extent to which such person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such person under this Article Fifteen, and if such evidence is not furnished
the Trustee may defer any payment to such person pending judicial determination
as to the right of such person to receive such payment.
Section 15.06. The Trustee in his individual capacity shall be entitled to
all the rights set forth in this Article Fifteen in respect of any Superior
Indebtedness at any time held by it, to the same extent as any other holder of
Superior Indebtedness, and nothing in Section 11.09 or elsewhere in this
Indenture shall deprive the Trustee of any of its rights as such holder.
With respect to the holders of Superior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article Fifteen, and no implied covenants
or obligations with respect to the holders of Superior Indebtedness shall be
read into this Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of such Superior Indebtedness and the
Trustee shall not be liable to any holder of Superior Indebtedness if it shall
mistakenly pay over or deliver to holders of Debt Securities, the Corporation or
any other person moneys or assets to which any holder of Superior Indebtedness
shall be entitled by virtue of this Article Fifteen or otherwise.
Section 15.07. No present or future holder of Superior Indebtedness shall
be prejudiced in his right to enforce subordination as herein provided by any
act or failure to act on the part of the Corporation.
Section 15.08. The indebtedness represented by the Debt Securities (a)
shall not be deemed to constitute "Superior Indebtedness" as such term is
defined herein and in the Corporation's 9 1/4% Medium-Term Senior Subordinated
Capital Notes Due March 15, 2001, 8 3/8% Senior Subordinated Capital Notes Due
November 1, 2001 and 6.98% Medium-Term Senior Subordinated Capital Notes Due
March 1, 2004, but shall in all respects rank on a parity with the indebtedness
represented by such Senior Subordinated Notes, and (b) shall be deemed to
constitute "Senior Subordinated Indebtedness" as that term is defined herein.
<PAGE>
<PAGE>
6
In Witness Whereof, The CIT Group Holdings, Inc. has caused this Indenture
to be executed in its corporate name by its Chairman, Vice Chairman, President,
or one of its Vice Presidents, and its corporate seal to be hereunto affixed and
to be attested by its Secretary or one of its Assistant Secretaries, and [name
of trustee], in evidence of its acceptance of the trust hereby created, has
caused this Indenture to be executed in its corporate name by one of its
[title], and its seal to be hereunto affixed and to be attested by one of its
[title], all as of the date first above written.
THE CIT GROUP HOLDINGS, INC.
By
[Title]
[Corporate Seal]
Attest:
[Title]
[NAME OF TRUSTEE], as Trustee
By
[Title]
[Corporate Seal]
Attest:
[Title]
<PAGE>
<PAGE>
7
State of [State] )
) SS.:
County of [County] )
On the [date] day of [month], in the year [year], before me personally came
[name], to me known, who, being by me duly sworn, did depose and say that he/she
resides at [address]; that he/she is a/an [title] of The CIT Group Holdings,
Inc., one of the organizations described in and which executed the foregoing
instrument; that he/she knows the seal of said corporation; that the seal
affixed to said instrument bearing the corporate name of said corporation is
such corporate seal; that it was so affixed by order of the Board of Directors
of said corporation; and that he/she signed his/her name thereto by like order.
Notary Public
[Notarial Seal]
State of [State] )
) SS.:
County of [County] )
On the [date] day of [month], in the year [year], before me personally came
[name], to me known, who, being by me duly sworn, did depose and say that he/she
resides at [address] that he/she is a/an [title] of [name of trustee], one of
the organizations described in and which executed the foregoing instrument; that
he/she knows the seal of said corporation/association; that the seal affixed to
said instrument bearing the name of said corporation/association is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation/association; and that he/she signed his/her name thereto by
like authority.
Notary Public
[Notarial Seal]
<PAGE>
EXHIBIT 4.2c
===============================================================================
THE CIT GROUP HOLDINGS, INC.
STANDARD MULTIPLE-SERIES INDENTURE PROVISIONS
---------------
Indenture
Dated as of May 1, 1994
---------------
DEBT SECURITIES
===============================================================================
<PAGE>
TRUST INDENTURE ACT CROSS REFERENCE
Sections of Trust Sections of
Indenture Act Indenture
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.05
310(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.05
310(a)(3) . . . . . . . . . . . .. . . . . . . . . . . . Not applicable
310(a)(4) . . . . . . . . . . . . . . . . . . . . . . . Not applicable
310(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.05
310(b) . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . 11.06
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
311 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.09
312 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.03
313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.01
314(a) . . . . . . . . . . . . . . . . . . . . . . . .. . . 10.02, 6.05
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
314(c) . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 15.04
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
314(e) . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . 15.04
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.02(1)
315(b) . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . 11.03
315(c) . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . 11.02
315(d) . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . 11.02
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
316(a) . . . . . . . . .. . . . . . . . . . . . . . . . . 7.08 and 8.03
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.09
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.04
317(a) . . . . . . . .. . . . . . . . . . . . . . . . . . 7.03 and 7.04
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.03
318(a) . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . 15.06
-------------
*The Trust Indenture Act Cross Reference Sheet is not a part of this
Indenture.
<PAGE>
- i -
TABLE OF CONTENTS
ARTICLE ONE. Page
DEFINITIONS.
SECTION 1.01. Terms, unless otherwise defined, to have meanings
assigned in Trust Indenture Act of 1939 .......... 1
SECTION 1.02. Definitions:
Board of Directors ................................ 1
Board Resolution .................................. 1
Business day ...................................... 1
Consolidated Subsidiaries ......................... 1
Control ........................................... 1
Corporate trust office ............................ 1
Corporation ....................................... 1
Debt Security ..................................... 2
Debt Securityholder; holder of Debt Securities;
holder ........................................... 2
Depositary ........................................ 2
Event of default .................................. 2
Global Security ................................... 2
Indenture ......................................... 2
Interest .......................................... 2
Majority .......................................... 3
Maturity .......................................... 3
Officer ........................................... 3
Officers' Certificate ............................ 3
Officers' Order .................................. 3
Opinion of Counsel ................................ 3
Original Issue Discount Securities ................ 3
Outstanding ....................................... 3
Person ............................................ 4
Record Date ....................................... 4
Responsible Officer ............................... 4
Subsidiary ........................................ 4
Trust Indenture Act of 1939 ....................... 5
Trustee ........................................... 5
U.S. Government Obligations ....................... 5
Voting stock ...................................... 5
ARTICLE TWO.
ISSUE, EXECUTION, AUTHENTICATION, REGISTRATION, AND
EXCHANGE OF DEBT SECURITIES.
Section 2.01 Unlimited in amount, issuable in series,
terms of Debt Securities ........................ 5
Section 2.02 Certificate of authentication .................... 7
Section 2.03 Execution of Debt Securities ..................... 7
- -----------
*The Table of Contents is not a part of this Indenture.
<PAGE>
-ii-
Page
Section 2.04 Date of Debt Securities and payment of
principal and interest ................... 8
Section 2.05 Temporary Debt Securities ................. 8
Section 2.06 Exchanges and registration of transfer of
Debt Securities .......................... 10
Section 2.07 Mutilated, destroyed, lost, or stolen Debt
Securities ............................... 11
Section 2.08 Rights to interest accrued and unpaid, and
to accrue, on Debt Securities delivered in
exchange or substitution for other Debt
Securities ............................... 12
ARTICLE THREE.
ISSUE OF DEBT SECURITIES.
Section 3.01 Issue of Debt Securities .................. 12
ARTICLE FOUR.
REDEMPTION OF DEBT SECURITIES.
Section 4.01 Terms of redemption ....................... 13
Section 4.02 Notice of redemption to Trustee; selection
of Debt Securities on partial
redemption ............................... 13
Section 4.03 Notice of election to redeem Debt
Securities ............................... 13
Mailing to registered holders of notice of
election to redeem Debt Securities ...... 13
Interest to cease after redemption date ... 13
Issue of new Debt Security for partially
redeemed Debt Securities ................. 14
Section 4.04 Redeemed Debt Securities to be canceled ... 14
ARTICLE FIVE.
SINKING FUNDS.
Section 5.01 Applicability of Article .................. 14
Section 5.02 Satisfaction of sinking fund payments with
Debt Securities .......................... 14
Section 5.03 Redemption of Debt Securities for sinking
fund ..................................... 14
ARTICLE SIX.
PARTICULAR COVENANTS OF THE CORPORATION.
Section 6.01 To pay principal and interest ............. 15
Section 6.02 To maintain office or agency in New York .. 15
Section 6.03 Corporation, or paying agent, to hold in
trust moneys for payment of principal and
interest ................................. 15
Section 6.04 Restrictions upon liens upon property of
Corporation and subsidiaries ............. 16
Section 6.05 Statement to be filed annually with
Trustee as to compliance with covenants of
Corporation .............................. 18
Section 6.06 Compliance with covenants and conditions
may be waived by holders of Debt
Securities ............................... 18
<PAGE>
-iii-
Page
ARTICLE SEVEN.
REMEDIES OF TRUSTEE AND DEBT SECURITYHOLDERS.
Section 7.01 Events of default ........................... 19
Section 7.02 Acceleration of maturity of principal on
default .................................... 20
Waiver of acceleration of maturity .......... 21
Section 7.03 Corporation, failing for thirty days to
pay any installment of interest or failing to
pay principal when due, will pay to Trustee
at its request whole ....................... 21
Upon failure to pay, Trustee may recover
judgment for ratable benefit of Debt
Securityholders ............................ 22
Section 7.04 Trustee appointed attorney-in-fact for
Debt Securityholders to file claims ........ 22
Section 7.05 Application of moneys collected by
Trustee .................................... 22
Section 7.06 Debt Securities may be credited on
purchase price in case of sale ............. 23
Section 7.07 A default subsisting, Trustee entitled to
have receiver appointed .................... 23
Section 7.08 Holders of majority of Debt Securities may
direct proceedings ......................... 23
Section 7.09 Right of Debt Securityholders to institute
proceedings ................................ 23
Section 7.10 Assessment of costs and attorneys' fees in
legal proceedings .......................... 24
Section 7.11 Remedies cumulative ......................... 24
Section 7.12 Waiver of past defaults ..................... 25
ARTICLE EIGHT.
CONCERNING THE DEBT SECURITYHOLDERS.
Section 8.01 Evidence of action by Debt Securityholders ... 25
Section 8.02 Proof of execution of instruments and of
holding of Debt Securities .................. 25
Section 8.03 Debt Securities owned by Corporation or
other obligor on the Debt Securities to be
disregarded in certain cases ................ 25
Section 8.04 Setting of record date ....................... 26
ARTICLE NINE.
DEBT SECURITYHOLDERS MEETINGS.
Section 9.01 Purposes for which meeting may be called .... 26
Section 9.02 Calling of meeting by Trustee ............... 26
Section 9.03 Calling of meetings by Corporation or Debt
Securityholders ............................ 27
Section 9.04 Persons entitled to vote at meetings ........ 27
Section 9.05 Conduct of meetings ......................... 27
Quorum ...................................... 28
Section 9.06 Voting at meetings .......................... 28
Record of proceedings of meetings ........... 28
Section 9.07 Calling of meeting not to affect rights of
Trustee or Debt Securityholders ............ 28
<PAGE>
-iv-
Page
ARTICLE TEN.
REPORTS BY THE CORPORATION AND THE TRUSTEE AND
DEBT SECURITYHOLDERS LISTS.
Section 10.01 Reports by Trustee ............................ 28
Section 10.02 Reports by Corporation ........................ 29
(a) reports and information to be filed with
Trustee................................. 29
(b) additional information to be filed
with Trustee and Securities and
Exchange Commission .................... 29
(c) reports to Debt Securityholders ......... 29
Section 10.03 Debt Securityholder's lists ................... 29
(a) Corporation to furnish Trustee with
names and addresses of Debt
Securityholders ........................ 29
(b) Trustee to preserve information ......... 29
(c) Trustee to furnish certain information
to Debt Securityholders on request ..... 29
-or in lieu thereof to mail
communications to Debt Securityholders.. 30
-unless statement filed by Trustee with
Securities and Exchange Commission ...... 30
-hearing and order by Securities and
Exchange Commission ..................... 30
ARTICLE ELEVEN.
CONCERNING THE TRUSTEE.
Section 11.01 Acceptance of trusts upon specified
conditions ................................. 30
(a) Trustee entitled to compensation and
expenses ............................. 30
(b) Trustee may act by agents and attorneys 30
(c) Trustee not responsible for recitals of
fact ................................. 30
-no representation with respect to
validity of Indenture ................ 31
-not accountable for application of
proceeds of Debt Securities .......... 31
(d) Trustee may consult with counsel ...... 31
(e) Trustee may rely upon certificate as to
adoption of resolutions .............. 31
(f) Trustee may become owner or pledgee of
Debt Securities ...................... 31
(g) Action at request or with consent
of Debt Securityholder binding on
future holders ....................... 31
(h) Trustee may rely on instruments
believed by it to be genuine ......... 31
(i) Trustee need not exercise rights or
powers unless indemnified by Debt
Securityholders ...................... 31
Section 11.02 Duties of Trustee in case of default ........ 31
-Trustee to use same degree of care as
prudent man would use...................... 31
<PAGE>
-v-
Page
-Trustee not to be relieved from liability
for negligence or willful misconduct ...... 31
-except:
(1) when no default subsisting ............ 31
(a) Trustee liable only for
performance of duties
specifically set forth ......... 32
(b) Trustee may conclusively rely
upon opinions, certificates,
and statements furnished to it
pursuant to Indenture .......... 32
(2) Trustee not liable for error of
judgement made in good faith by
responsible officer ................... 32
(3) Trustee not liable for certain action or
non-action at direction of holders of
majority of Debt Securities ........... 32
(4) Trustee not required to incur certain
financial liabilities ................. 32
Section 11.03 Notice to Debt Securityholders of defaults ... 32
Section 11.04 Resignation of Trustee and notice thereof .... 32
Removal of Trustee ........................... 33
Section 11.05 Qualifications of Trustee .................... 33
Section 11.06 Disqualification of Trustee by reason of
conflicting interest ........................ 33
Section 11.07 Appointment of successor Trustee ............. 33
-by Debt Securityholders ..................... 33
-by Corporation .............................. 33
-notice of appointment other than by Debt
Securityholders ............................ 33
-appointment by a court ...................... 34
-execution of instrument by successor Trustee,
predecessor Trustee, and Corporation ....... 34
Section 11.08 Consolidation and merger of Trustee .......... 34
Section 11.09 Trustee required to account for amounts
collected as creditor of Corporation under
certain conditions .......................... 34
Section 11.10 As to matters to be proved or established,
Trustee may rely on certificates furnished by
Corporation ................................. 35
ARTICLE TWELVE
DEFEASANCE.
Section 12.01 Satisfaction and discharge of Indenture ..... 35
Section 12.02 Defeasance .................................. 35
Section 12.03 Satisfaction and discharge of Debt
Securities ................................. 36
Section 12.04 Application by Trustee of money or U.S.
Government Obligations ..................... 36
Section 12.05 Repayment of money or U.S. Government
Obligations ................................ 36
Section 12.06 Return of money, U.S. Government
Obligations ................................ 37
ARTICLE THIRTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS, AND DIRECTORS.
Section 13.01 Liability solely corporate .................. 37
<PAGE>
-vi-
Page
ARTICLE FOURTEEN.
SUPPLEMENTAL INDENTURES.
Section 14.01 Without consent of Debt Securityholders,
Corporation and Trustee may enter into
supplemental indentures for specified
purposes ................................. 37
Section 14.02 Modification of Indenture by supplemental
indenture with consent of holders of
66 2/3% in principal amount of Debt
Securities ............................... 38
Section 14.03 Upon request of Corporation, Trustee to
join in execution of supplemental
indenture ................................ 39
Section 14.04 Effect of supplemental indenture .......... 39
Section 14.05 Matters provided for in supplemental
indenture may be noted on Debt Securities
or new Debt Securities appropriately
modified may be issued in exchange for
outstanding Debt Securities .............. 39
Section 14.06 Supplemental indentures to conform to
Trust Indenture Act of 1939 .............. 40
ARTICLE FIFTEEN.
MISCELLANEOUS PROVISIONS.
Section 15.01 Consolidation, merger, or sale ............ 40
Section 15.02 Rights under Indenture confined to
parties and holders of Debt Securities ... 40
Section 15.03 Compliance not required when Corporation
entitled to have Indenture canceled ...... 41
Section 15.04 Evidence of compliance with conditions
precedent ................................ 41
Execution of notices, requests,
certificates, or statements .............. 41
Contents of certificates and opinions ..... 41
Trustee may examine books and records of
the Corporation .......................... 41
Section 15.05 Cancellation of Debt Securities ........... 42
Section 15.06 Provisions required by Trust Indenture Act
of 1939 to control ....................... 42
Section 15.07 Required notices or demands ............... 42
Section 15.08 Execution in counterparts ................. 42
Section 15.09 Indenture and Debt Securities to be
construed in accordance with the laws of
the State of New York .................... 42
<PAGE>
ARTICLE ONE.
DEFINITIONS.
Section 1.01. Unless otherwise defined in this Indenture or the context
otherwise requires, all terms used herein shall have the meanings assigned to
them in the Trust Indenture Act of 1939.
Section 1.02. Unless the context otherwise requires, the terms defined in
this Section 1.02 shall for all purposes of this Indenture and of any indenture
supplemental hereto have the meanings hereinafter set forth, the following
definitions to be equally applicable to both the singular and the plural forms
of any of the terms herein defined:
Board of Directors:
The term "Board of Directors" shall mean the Board of Directors of the
Corporation or any duly authorized committee of the Board of Directors of
the Corporation.
Board Resolution:
The term "Board Resolution" shall mean a copy of a resolution
certified by the Secretary or an Assistant Secretary of the Corporation to
have been duly adopted by the Board of Directors and to be in full force
and effect on the date of such certification, and delivered to the Trustee.
Business day:
The term "business day" shall mean any day other than a Saturday or a
Sunday or a day on which banking institutions in The City of New York are
authorized or obligated by law or executive order to close.
Consolidated Subsidiaries:
The term "Consolidated Subsidiaries" shall mean all subsidiaries
except, at any given time, any subsidiary the accounts of which are
excluded from the consolidated financial statements included in the last
preceding annual report of the Corporation with the approval of the
independent certified or public accountants or auditors who examined and
reported on said financial statements.
Control:
The term "control" shall mean the power to direct the management and
policies of a person, directly or through one or more intermediaries,
whether through the ownership of voting securities, by contract, or
otherwise; and the terms "controlling" and "controlled" shall have meanings
correlative to the foregoing.
Corporate trust office:
The term "corporate trust office" shall mean the principal office of
the Trustee at which at any particular time its corporate trust business
shall be administered.
Corporation:
The term "Corporation" shall mean The CIT Group Holdings, Inc., a
Delaware corporation, unless and until any successor corporation shall have
become such pursuant to the provisions of Section 15.01 hereof, and
thereafter "Corporation" shall mean such successor.
<PAGE>
2
Debt Security:
The term "Debt Security" shall mean one of the Debt Securities, or one
of any series of Debt Securities (including any Global Securities) issued
hereunder. A Debt Security (including any Global Security) shall be deemed
to have been issued hereunder when duly authenticated by the Trustee or an
agent designated by the Trustee and delivered pursuant to the provisions of
this Indenture.
Debt Securityholder; holder of Debt Securities; holder:
The term "Debt Securityholder" or "holder of Debt Securities" or
"holder", with respect to any Debt Security, shall mean the person in whose
name such Debt Security shall be registered in the register kept for that
purpose hereunder.
Depositary:
The term "Depositary" shall mean a clearing agency registered under
the Securities Exchange Act of 1934, as amended, or any successor thereto,
which shall in either case be designated by the Corporation pursuant to
Section 2.01, until a successor Depositary shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Depositary"
shall mean or include each Person who is then a Depositary hereunder, and
if at any time there is more than one such Person, "Depositary" as used
with respect to the Debt Securities of any series shall mean the Depositary
with respect to the Debt Securities of that series.
Event of default:
The term "event of default" shall have the meaning specified in
Section 7.01.
Global Security:
The term "Global Security" shall mean a Debt Security evidencing all
or part of a series of Debt Securities which is executed by the Corporation
and authenticated and delivered to the Depositary or pursuant to the
Depositary"s instructions, all in accordance with this Indenture and
pursuant to a written order of the Corporation signed by two Officers,
which shall be registered in the name of the Depositary or its nominee and
which shall represent the amount of uncertificated Debt Securities as
specified therein.
Indenture:
The term "Indenture" or "this Indenture" shall mean this instrument
and all indentures supplemental hereto, including, for all purposes of this
instrument and any such supplemental indenture, the provisions of the Trust
Indenture Act that are deemed to be a part of and govern this instrument,
any such supplemental indenture and the terms of each Debt Security issued
thereunder, respectively.
Interest:
The term "interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after maturity,
means interest payable after maturity.
<PAGE>
3
Majority:
The term "majority", with respect to the Debt Securities or any series
of Debt Securities, shall signify "majority in principal amount" whether or
not so expressed.
Maturity:
The term "maturity", with respect to any Debt Security, shall mean the
date on which the principal of such Debt Security shall become due and
payable as therein or herein provided, whether at stated maturity or by
declaration of acceleration of the maturity thereof, call for redemption,
or otherwise.
Officer:
The term "officer" or "Officers" of the Corporation shall mean the
Chairman, Vice Chairman, President, or a Vice President, and if a second
officer is required shall mean, in addition to the above, the Treasurer, an
Assistant Treasurer, the Secretary, or an Assistant Secretary.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by
the Chairman, Vice Chairman, President, or a Vice President and by the
Treasurer, an Assistant Treasurer, the Secretary, or an Assistant Secretary
of the Corporation, and delivered to the Trustee.
Officers' Order:
The term "Officers' Order" shall mean a written request signed by the
Chairman, Vice Chairman, President, or a Vice President and by the
Treasurer, an Assistant Treasurer, the Secretary, or an Assistant Secretary
of the Corporation, and delivered to the Trustee.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean a written opinion of counsel,
which may be given by an employee of or of counsel to the Corporation, and
which in form and substance shall be acceptable to the Trustee.
Original Issue Discount Securities:
The term "Original Issue Discount Securities" shall mean any Debt
Securities which are initially sold at a discount from the principal amount
thereof and which provide upon an event of default for declaration of an
amount less than the principal amount thereof to be due and payable upon
acceleration of the Maturity thereof.
Outstanding:
The term "outstanding" or "Outstanding", subject to Section 8.03
hereof, when used as of any particular time with reference to the Debt
Securities, shall mean all the Debt Securities which shall theretofore have
been issued under this Indenture, except:
(a) Debt Securities which shall be deemed to have been retired as here-
inafter provided;
(b) Debt Securities, including any portion of a Global Security, which
shall have been surrendered to the Trustee for cancellation;
<PAGE>
4
(c) Debt Securities in substitution for which other Debt Securities
shall have been issued pursuant to Section 2.07; and
(d) Debt Securities or portions thereof for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust
with the Trustee or with any paying agent (other than the Corporation)
or shall have been set aside and segregated in trust by the Corporation
(if the Corporation shall act as its own paying agent), provided that if
such Debt Securities are to be redeemed prior to the stated maturity
thereof, notice of such redemption shall have been mailed as provided in
Article Four hereof, or provision satisfactory to the Trustee shall have
been made for mailing such notice.
In determining whether the holders of the requisite principal amount of
outstanding Debt Securities have given any request, demand,
authorization, direction, notice, consent, or waiver hereunder, (i) the
principal amount of an Original Issue Discount Security that shall be
deemed to be outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the maturity thereof
pursuant to Section 7.02 and (ii) the principal amount of a Debt
Security denominated in a foreign currency or currencies shall be the
U.S. dollar equivalent, determined on the date of original issuance of
such Debt Security, of the principal amount (or, in the case of an
Original Issue Discount Security denominated in such foreign currency,
the U.S. dollar equivalent on the date of original issuance of such Debt
Security of the amount determined as provided in (i) above) of such Debt
Security.
Person:
The term "person" or "Person" shall mean an individual, a corporation,
a partnership, a joint venture, an association, a joint stock company, a
trust, an unincorporated organization, or a government or an agency or
political subdivision thereof.
Record Date:
The term "Record Date", when used with respect to an interest payment
date for a series of Debt Securities, shall mean the date fixed by a Board
Resolution or indenture supplemental hereto referred to in Section 2.01 for
the determination of the holders of such Debt Securities entitled to
payments of interest on such interest payment date.
Responsible Officer:
The term "responsible officer" of the Trustee hereunder shall mean any
officer within the corporate trust office of the Trustee, which may include
the chairman and vice chairman of the board of directors, the president,
the chairman of the executive committee of the board of directors, the
chairman of the trust committee, every vice president or officer senior
thereto, every assistant vice president, the secretary, every assistant
secretary, the treasurer, every assistant treasurer, every trust officer,
every assistant trust officer, and every other officer and assistant
officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of
his knowledge of, and familiarity with, a particular subject.
Subsidiary:
The term "subsidiary" shall mean any corporation, association or
business trust at least a majority of the shares of the voting stock of
which shall at the time be owned, directly or indirectly, by the
Corporation or by one or more subsidiaries or by the Corporation and one or
more subsidiaries.
<PAGE>
5
Trust Indenture Act of 1939:
The term "Trust Indenture Act of 1939" shall mean such act as amended
to the date of this Indenture; provided, however, that in the event the
Trust Indenture Act of 1939 is amended after such date, "Trust Indenture
Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
Trustee:
The term "Trustee" shall mean the person named as Trustee in the first
paragraph of this Indenture and, subject to the provisions of Article
Eleven hereof, its successors and assigns. If, pursuant to the terms
hereof, more than one person shall be designated as Trustee hereunder, then
the term "Trustee" when used with respect to the Debt Securities of any
series shall mean the Trustee for such series.
U.S. Government Obligations:
The term "U.S. Government Obligations" shall mean direct obligations
of the United States of America for the timely payment of which the full
faith and credit of the United States of America is pledged and which are
not callable at the issuer's option.
Voting stock:
The term "voting stock", as applied to the stock (or the equivalent
thereof, in the case of corporations incorporated outside the continental
limits of the United States of America) of any corporation, shall mean
stock (or such equivalent) of any class or classes, however designated,
having ordinary voting power for the election of directors of such
corporation, other than stock (or such equivalent) having such power only
by reason of the happening of a contingency.
Certain other terms, relating principally to provisions included in this
Indenture in compliance with the Trust Indenture Act of 1939,are defined in
Article Eleven.
ARTICLE TWO.
ISSUE, EXECUTION, AUTHENTICATION, REGISTRATION, AND
EXCHANGE OF DEBT SECURITIES.
Section 2.01. The aggregate principal amount of Debt Securities which may
be executed by the Corporation and authenticated and delivered under this
Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution or established in one or more
indentures supplemental hereto, prior to the issuance of Debt Securities of any
series:
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of the series from all other Debt
Securities);
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6
(2) any limit upon the aggregate principal amount of the Debt Securities
of the series which may be authenticated and delivered under this Indenture
(except for Debt Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Debt Securities of
the series pursuant to this Indenture);
(3) the date or dates on which the principal of (and premium, if any,
on) the Debt Securities of the series is payable;
(4) the Person to whom any interest on a Debt Security of the series
shall be payable, if other than the Person in whose name that Debt Security
is registered at the close of business on the Record Date for such
interest; the rate or rates (which may be fixed or variable) at which the
Debt Securities of the series shall bear interest, if any, or the method of
determining such rate or rates; the date or dates from which such interest
shall accrue, the interest payment dates on which such interest shall be
payable and the Record Dates for the determination of Debt Securityholders
to whom interest is payable;
(5) the designation of the office or agency of the Corporation in the
Borough of Manhattan, The City of New York, or in such other jurisdiction
as may be designated in writing by the Corporation, where the Debt
Securities of the series may be presented for payment, may be transferred
or exchanged by the registered holders thereof or by their attorneys duly
authorized in writing, and where notices and demands in respect of the
Indenture and the Debt Securities of the series may be served;
(6) the price or prices at which, the period or periods within which,
and the terms and conditions upon which the Debt Securities of the series
may be redeemed, in whole or in part, at the option of the Corporation,
pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Corporation to redeem, purchase, or
repay the Debt Securities of any series pursuant to any sinking fund or
analogous provisions or at the option of a Debt Securityholder thereof, and
the price or prices at which and the period or periods within which and the
terms and conditions upon which the Debt Securities of such series shall be
redeemed, purchased, or repaid, in whole or in part, pursuant to such
obligation;
(8) the denominations in which the Debt Securities of the series shall
be issuable if other than $1,000 and integral multiples thereof, and if
less than $1,000, the principal amount which shall be entitled to one vote
pursuant to Section 9.05 hereof;
(9) if other than the principal amount thereof, the portion of the
principal amount of the Debt Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof pursuant
to Section 7.02 hereof;
(10) any events of default with respect to the Debt Securities of the
particular series, if not set forth herein;
(11) the Trustee with respect to the Debt Securities of the series;
(12) if other than the Trustee named in the first paragraph of this
Indenture or its successors or assigns, the designation of the agent to
authenticate the Debt Securities of the series, and the registrar and
paying agent, which agents shall be acceptable to both the Corporation and
the Trustee;
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7
(13) the currency or currencies, including composite currencies, in
which payment of the principal of and any premium and interest on the Debt
Securities of the series shall be payable if other than the currency of the
United States of America;
(14) if the amount of payments of principal of and any premium or
interest on the Debt Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be
determined;
(15) whether the Debt Securities of the series shall be issued in whole
or in part in the form of one or more Global Securities and, in such case,
the Depositary for such Global Security or Securities;
(16) if other than as provided in Section 2.04, the manner in which
principal of (and premium, if any) and interest, if any, on the Debt
Securities shall be payable;
(17) if other than as provided in Article 12, the manner in which the
Debt Securities of the series are to be defeased; and
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution or in any such indenture supplemental hereto.
Section 2.02. The Debt Securities of each series and the relevant
certificate of authentication shall be in the form (including global form)
approved by or pursuant to a Board Resolution, or established in one or more
indentures supplemental hereto. The Debt Securities shall be authenticated by
the Trustee or an agent designated by the Trustee.
The Debt Securities shall be registered Debt Securities without coupons.
The Debt Securities may have such letters, numbers, or other marks of
identification or designation and such legends or endorsements typewritten,
printed, lithographed, or engraved thereon as the Corporation may deem
appropriate and as are not inconsistent with the provisions of this Indenture,
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 Debt Securities may be listed, or to conform to usage.
Only such of the Debt Securities as shall bear thereon a certificate
substantially in the form of the certificate of authentication approved by or
pursuant to a Board Resolution or established in one or more indentures
supplemental hereto, manually executed by the Trustee or an agent designated by
the Trustee, shall be valid or become obligatory for any purpose or entitle the
holder thereof to any right or benefit under this Indenture, and such
certificate of authentication upon any such Debt Security executed as aforesaid
shall be conclusive evidence that the Debt Security so authenticated has been
duly authenticated and delivered hereunder and that the holder thereof is
entitled to the benefits of this Indenture.
Section 2.03. The Debt Securities shall be signed in the name and on behalf
of the Corporation by the original or facsimile signature of its Chairman, Vice
Chairman, President, or any Vice President and an original or facsimile of its
corporate seal shall be attested by the original or facsimile signature of the
Secretary or an Assistant Secretary of the Corporation. The Debt Securities
shall then be delivered to the Trustee or an agent for authentication so
designated by the Trustee, and thereupon, as provided in Section 3.01, the
Trustee or an agent designated by the Trustee shall authenticate and deliver
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8
such Debt Securities. In case any officer of the Corporation who shall have
signed any of the Debt Securities shall cease to be such officer of the
Corporation before the Debt Securities so signed shall have been actually
authenticated and delivered, such Debt Securities may nevertheless be issued,
authenticated, and delivered as though the person who signed such Debt
Securities had not ceased to be such officer of the Corporation; and also any of
the Debt Securities may be signed on behalf of the Corporation by such persons
as, at the actual date of the execution of such Debt Securities, shall be the
proper officers of the Corporation, although at the date of the execution of
this Indenture any such person was not such officer.
Section 2.04. Each Debt Security shall be dated the date of its
authentication unless otherwise provided by or pursuant to a Board Resolution or
established in one or more indentures supplemental hereto.
Unless otherwise provided as contemplated by Section 2.01 with respect to
any series of Debt Securities, the person in whose name any Debt Security is
registered in the register at the close of business on any Record Date with
respect to any applicable interest payment date for such Debt Security shall be
entitled to receive the interest payable on such interest payment date
notwithstanding the cancellation of such Debt Security upon any registration of
transfer or exchange thereof subsequent to such Record Date and prior to such
interest payment date; provided, however, that if and to the extent the
Corporation shall default in the payment of the interest due on such interest
payment date, the defaulted interest shall be paid to the persons in whose names
outstanding Debt Securities are registered on a subsequent record date for the
payment of such defaulted interest established by notice given by mail by or on
behalf of the Corporation to the holders of Debt Securities not less than
fifteen days preceding such subsequent record date, such subsequent record date
to be not less than five days preceding the date of payment of such defaulted
interest.
Unless otherwise provided as contemplated by Section 2.01 with respect to
any series of Debt Securities, the principal of (and premium, if any) and
interest, if any, on the Debt Securities shall be payable at the office or
agency of the Corporation maintained for such purpose in the Borough of
Manhattan, The City of New York, in such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts; provided, however, that interest on the Debt
Securities may be paid by check mailed to the registered holders thereof at
their addresses as the same shall from time to time appear on the register of
the Corporation.
Section 2.05. (a) Pending the preparation of definitive Debt Securities of
any series, the Corporation may execute and cause to be authenticated and
delivered, in accordance with the terms of this Indenture, temporary Debt
Securities which are printed, lithographed, typewritten, mimeographed, or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Debt Securities in lieu of which they are issued, and with
such appropriate insertions, omissions, substitutions, and other variations as
the officers executing such Debt Securities may determine, as evidenced by their
execution of such Debt Securities.
If temporary Debt Securities of any series are issued, the Corporation will
cause definitive Debt Securities of the same series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities, the
temporary Debt Securities shall be exchangeable for definitive Debt Securities
of the same series, containing the same terms as the temporary Debt Securities
surrendered, upon surrender of the temporary Debt Securities at the office or
agency of the Corporation in the Borough of Manhattan, The City of New York, or
in such other jurisdiction as may be designated in writing by the Corporation,
as provided in Section 6.02, without charge to the Debt Securityholder. Upon
surrender for cancellation of any one or more temporary Debt Securities, the
Corporation shall execute and cause to be authenticated and delivered in
exchange therefor an equal aggregate principal amount of definitive Debt
Securities of authorized denominations of the same series and of like tenor.
Until so exchanged, the duly authenticated temporary Debt Securities shall in
all respects be entitled to the same benefits under this Indenture as definitive
Debt Securities of the same series authenticated and delivered hereunder.
<PAGE>
9
(b) If the Corporation shall establish pursuant to Section 2.01 that the
Debt Securities of a series are to be issued in whole or in part in the form of
one or more Global Securities, then the Corporation shall execute and the
Trustee or an agent designated by the Trustee shall, in accordance with Section
2.01 and pursuant to an Officers' Order, authenticate and deliver one or more
Global Securities in temporary or permanent form that (i) shall represent and
shall be denominated in an amount equal to the aggregate principal amount of the
outstanding Debt Securities of such series to be represented by one or more
Global Securities, (ii) shall be registered in the name of the Depositary for
such Global Security or Securities or the nominee of such Depositary, (iii)
shall be delivered by the Trustee or an agent designated by the Trustee to such
Depositary or pursuant to such Depositary's instruction, and (iv) shall bear a
legend substantially to the following effect: "Unless and until it is exchanged
in whole or in part for Debt Securities in definitive form, this Global Security
may not be transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such Successor Depositary."
Notwithstanding any other provision of this Section 2.05 or Section 2.06,
unless and until it is exchanged in whole or in part for Debt Securities in
definitive form, a Global Security representing all or a portion of the Debt
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for the Debt Securities of a series notifies
the Corporation that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for Debt Securities
of a series shall no longer be registered or in good standing under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation, the Corporation shall appoint a successor Depositary with respect to
the Debt Securities of such series. If a successor Depositary for the Debt
Securities of such series is not appointed by the Corporation within 90 days
after the Corporation receives such notice or becomes aware of such condition,
the Corporation will execute and the Trustee or an agent designated by the
Trustee, upon receipt of an Officers' Order instructing the Trustee or its agent
to authenticate and deliver definitive Debt Securities of such series, will
authenticate and deliver Debt Securities of such series in definitive form in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such series in exchange for such Global Security or
Securities.
The Corporation may at any time and in its sole discretion determine that
the Debt Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities.
In such event, the Corporation will execute and the Trustee or an agent
designated by the Trustee, upon receipt of an Officers' Order instructing the
Trustee or its agent to authenticate and deliver Debt Securities of such series,
will authenticate and deliver Debt Securities of such series in definitive form
and in an aggregate principal amount equal to the amount of the Global Security
or Securities representing such series in exchange for such Global Security or
Securities.
If specified by the Corporation pursuant to Section 2.01 with respect to
Debt Securities of a series, the Depositary for such series of Debt Securities
may surrender a Global Security for such series of Debt Securities in exchange,
in whole or in part, for Debt Securities of such series in definitive form on
such terms as are acceptable to the Corporation and such Depositary. Thereupon,
the Corporation shall execute and the Trustee or an agent designated by the
Trustee, upon receipt of an Officers' Order, shall authenticate and deliver,
without charge,
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10
(i) to each person specified by the Depositary, a new Debt Security or
Securities of the same series of any authorized denomination as requested
by such person in an aggregate principal amount equal to and in exchange
for such person's beneficial interest in the Global Security; and
(ii) to the Depositary, a new Global Security in a denomination equal to
the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Debt Securities
delivered to holders thereof.
Upon the exchange of a Global Security for Debt Securities in definitive
form, such Global Security shall be cancelled by the Trustee. Debt Securities
issued in exchange for a Global Security pursuant to this Section shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Debt Securities to the persons in whose names such Debt Securities are so
registered.
Section 2.06. The Corporation will keep, at the office or agency to be
maintained by it in the Borough of Manhattan, The City of New York, or in such
other jurisdiction as may be designated in writing by the Corporation, as
provided in Section 6.02, a register for the registration of transfer of the
Debt Securities, as in this Indenture provided (the "register"), which register
shall at all times be open for inspection by the Trustee. Such register shall be
in written form or in any other form capable of being converted into written
form within a reasonable time.
Upon surrender for registration of transfer of any Debt Security at either
of such offices or agencies, the Corporation shall execute and cause to be
authenticated and delivered a Debt Security or Debt Securities of the same
series for an equal aggregate principal amount, like tenor, and with a maturity
or maturities in accordance with the terms of such Debt Security or Debt
Securities, in such authorized denomination or denominations and registered in
such name or names as may be requested.
Debt Securities in their several authorized denominations are exchangeable
for a Debt Security or Debt Securities of the same series, in authorized
denominations and an equal aggregate principal amount, like tenor, and with a
maturity or maturities in accordance with the terms of such Debt Security or
Debt Securities. Debt Securities to be exchanged as aforesaid shall be
surrendered for that purpose by the registered holder thereof at such office or
agency and the Corporation shall execute and cause to be authenticated and
delivered, in exchange therefor, the Debt Security or Debt Securities of the
same series in such authorized denomination or denominations as the Debt
Securityholder making the exchange shall have requested and shall be entitled to
receive. The Corporation shall not be required to make any exchange or
registration of transfer of (1) any Debt Security which shall have been
designated for redemption in whole or in part, except, in the case of any Debt
Security to be redeemed in part, the portion thereof not to be so redeemed or
(2) any Debt Security for a period of 15 days next preceding any selection of
Debt Securities for redemption.
All Debt Securities presented or surrendered for registration of transfer,
exchange, or payment shall (if so required by the Corporation, the Trustee, or
any agent) be accompanied by a written instrument or instruments of transfer, in
form satisfactory to the Corporation, the Trustee, or such agent, duly executed
by the registered holder or by his attorney duly authorized in writing.
No service charge shall be made for any such registration of transfer or
exchange, but the Corporation may require payment of a sum sufficient to cover
any stamp tax or other governmental charge payable in connection therewith.
The Corporation, its agents, and the Trustee may deem and treat the person
in whose name any Debt Security is registered as the absolute owner of such Debt
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11
Security (whether or not such Debt Security shall be overdue and notwithstanding
any notation of ownership or other writing thereon) for all purposes whatsoever
(subject to the provisions set forth herein relating to Record Dates and record
dates for the payment of any defaulted interest), and the Corporation, its
agents, and the Trustee shall not be affected by any notice to the contrary.
No holder of any beneficial interest in any Global Security held on its
behalf by a Depositary shall have any rights under this Indenture with respect
to such Global Security, and such Depositary may be treated by the Corporation,
the Trustee, and any agent of the Corporation or the Trustee as the owner of
such Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall impair, as between a Depositary and such holders of
beneficial interests, the operation of customary practices governing the
exercise of the rights of the Depositary as holder of any Debt Security.
Section 2.07. In case any Debt Security shall become mutilated or be
destroyed, lost or stolen, and subject to the conditions hereinafter set forth,
the Corporation in the case of a mutilated Debt Security shall, and in the case
of a lost, stolen, or destroyed Debt Security may, in its discretion, execute,
and thereupon the Trustee or an agent designated by the Trustee shall
authenticate and deliver, or cause to be authenticated and delivered, a new Debt
Security of the same series, tenor, and principal amount and bearing a different
number not contemporaneously outstanding, in exchange and substitution for and
upon cancellation of the mutilated Debt Security or in lieu of and substitution
for the Debt Security so destroyed, lost, or stolen; provided, however, that if
any such mutilated, destroyed, lost, or stolen Debt Security shall have become
payable upon the maturity thereof, the Corporation may, instead of issuing a
substitute Debt Security, pay or authorize the payment of such Debt Security
without requiring the surrender thereof (except in the case of a mutilated Debt
Security). The applicant for any substitute Debt Security or for payment of any
such mutilated, destroyed, lost, or stolen Debt Security shall furnish to the
Corporation, the Trustee, or any agent designated by the Trustee evidence
satisfactory to them, in their discretion, of the ownership of and the
destruction, loss, or theft of such Debt Security and shall furnish to the
Corporation and the Trustee or any agent designated by the Trustee indemnity
satisfactory to them, in their discretion, and, if required, shall reimburse the
Corporation, the Trustee, or any agent designated by the Trustee for all
expenses (including counsel fees and expenses) in connection with the
preparation, issue, and authentication of such substitute Debt Security or the
payment of such mutilated, destroyed, lost, or stolen Debt Security, and shall
comply with such other reasonable regulations as the Corporation, the Trustee,
or any agent designated by the Trustee, or any of them, may prescribe. Any such
new Debt Security delivered pursuant to this Section 2.07 shall constitute an
additional contractual obligation on the part of the Corporation, whether or not
the allegedly destroyed, lost, or stolen Debt Security shall be at any time
enforceable by anyone, and shall be equally and proportionately entitled to the
benefits of this Indenture with all other Debt Securities of the same series
issued hereunder.
Section 2.08. Subject to the provisions set forth herein relating to Record
Dates and record dates for the payment of any defaulted interest, each Debt
Security delivered pursuant to any provision of this Indenture in exchange or
substitution for, or upon registration of transfer of, any other Debt Security
of the same series shall carry all the rights to interest accrued and unpaid,
and to accrue, which were carried by such other Debt Security.
ARTICLE THREE.
ISSUE OF DEBT SECURITIES.
Section 3.01. At any time and from time to time after the execution and
delivery of this Indenture the Corporation may deliver to the Trustee Debt
Securities duly executed by the proper officers of the Corporation. The Trustee
or an agent designated by the Trustee shall authenticate and deliver the Debt
Securities pursuant to an Officers' Order.
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12
In authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to such Debt Securities, the
Trustee or any agent designated by the Trustee shall be entitled to receive, and
shall be fully protected in relying upon:
(1) a copy of any Board Resolution by or pursuant to which the terms
of such series were established and, if applicable, an appropriate record
of any action taken pursuant to such resolution;
(2) an executed supplemental indenture, if any;
(3) an Officers' Certificate prepared in accordance with Section 15.04
and which shall also state that the Corporation is not in default under the
provisions of this Indenture; and
(4) an Opinion of Counsel prepared in accordance with Section 15.04
which shall also state:
(a) that the form of such Debt Securities has been established by
or pursuant to a Board Resolution or by a supplemental indenture in
conformity with the provisions of this Indenture;
(b) that the terms of such Debt Securities have been established by
or pursuant to a Board Resolution or by a supplemental indenture in
conformity with the provisions of this Indenture;
(c) that such Debt Securities, when authenticated and delivered by
the Trustee or any agent designated by the Trustee and issued by the
Corporation in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute legal, valid, and binding
obligations of the Corporation, 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; and
(d) that all laws and requirements in respect of the execution and
delivery by the Corporation of the Debt Securities have been complied
with and that authentication and delivery of the Debt Securities by
the Trustee or any agent designated by the Trustee will not violate
the terms of this Indenture.
Notwithstanding the provisions of this Section 3.01, if all Debt Securities
of a series are not to be originally issued at one time, it shall not be
necessary to deliver the Board Resolution, Officers' Certificate, or the Opinion
of Counsel otherwise required pursuant to this Section at or prior to the time
of authentication of each Debt Security of such series if such documents are
delivered at or prior to the time of authentication upon original issuance of
the first Debt Security of such series to be issued.
After any such first delivery of Debt Securities of a series, any separate
request by the Corporation that the Trustee authenticate Debt Securities of such
series for original issue will be deemed to be a certification by the
Corporation that all conditions precedent provided for in this Indenture
relating to authentication and delivery of such Debt Securities continue to have
been complied with.
The Trustee shall be entitled pursuant to Section 15.04 to request such
additional information and shall have the right to decline to authenticate and
deliver any Debt Securities under this Section 3.01 if the Trustee, being
advised by counsel, determines that such action may not lawfully be taken or if
the Trustee in good faith by its Board of Directors or trustees, executive
committee, or a trust committee of directors or trustees and/or vice presidents
or assistant vice presidents shall determine that such action would expose the
Trustee to personal liability to existing Debt Securityholders or would
adversely affect the Trustee's rights, duties, obligations, or immunities under
this Indenture.
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ARTICLE FOUR.
REDEMPTION OF DEBT SECURITIES.
Section 4.01. Debt Securities of any series which are redeemable pursuant
to their terms shall be redeemable in accordance with the terms and provisions
thereof and in accordance with this Article Four. The election of the
Corporation to redeem all or part of the Debt Securities of any series shall be
evidenced by a Board Resolution.
Section 4.02. In the event of redemption at any time of all or a part of
any series of Debt Securities, the Corporation shall, at least 60 days prior to
the redemption date (unless a shorter notice shall be consented to by the
Trustee), give written notice to the Trustee of the tenor and the principal
amount of the Debt Securities of such series to be redeemed and specifying the
date on which it is proposed that notice of such redemption will be mailed and
the date of redemption. After receipt of such notice, if such redemption is of
only a part of a series of Debt Securities, the Trustee shall select, in any
manner deemed by the Trustee to be fair and appropriate, the Debt Securities or
portions thereof (in multiples of $1,000 or such other authorized amounts) to be
redeemed and shall notify the Corporation of the particular Debt Securities or
portions thereof selected for redemption.
On or prior to the date fixed for redemption specified in the notice of
redemption given as provided in this Section 4.02, the Corporation will deposit
with the Trustee or with any paying agent (or if the Corporation is acting as
its own paying agent, segregate and hold in trust as provided in Section 6.03)
an amount of money sufficient to redeem on the date fixed for redemption all the
Debt Securities called for redemption at the appropriate redemption price,
together with accrued interest, if any, to the date fixed for redemption.
Section 4.03. In case the Corporation shall elect to redeem any Debt
Securities or any portion thereof pursuant to this Article Four, it shall give
notice of its election to do so by mailing written notice, first class postage
prepaid, at least 30 days prior to the redemption date, to all holders of Debt
Securities to be redeemed, addressed to them at their respective addresses as
the same shall then appear in the register of the Corporation. Any notice which
shall be mailed in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not the holder shall receive such notice.
Failure to mail such notice, or any defect in the notice mailed, to the holder
of any Debt Security designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any other Debt
Security. The notice to each such holder shall state such election on the part
of the Corporation, the redemption date, the place of payment and redemption,
the redemption price, and, in case of partial redemption of a series of Debt
Securities, the particular Debt Securities of such series to be redeemed in
whole or in part and, if a portion of any Debt Security is to be redeemed, the
amount of such portion, and that the interest, if any, on the Debt Securities or
portions thereof specified in such notice for redemption shall cease to accrue
on the redemption date.
Notice having been so given by mail, the Debt Securities or portions
thereof so designated for redemption shall, on the redemption date specified in
such notice, become due and payable at the redemption price thereof, determined
as provided in the Board Resolution or supplemental indenture establishing such
series; provided, however, that if the redemption date shall be the same as an
interest payment date, such interest shall be payable to the holders of the Debt
Securities on the applicable Record Date; and from and after the redemption date
so specified (unless the Corporation shall default in the payment of the
redemption price) interest, if any, on such series of Debt Securities or
portions thereof shall cease to accrue and, upon presentation of the Debt
Securities of such series at said place of payment and redemption in accordance
with said notice, the Debt Securities of such series or portions thereof shall
be paid by the Corporation at the redemption price aforesaid. If the Debt
Securities of such series or portions thereof shall not be so paid upon
<PAGE>
14
presentation thereof, the principal and the premium, if any (and, to the extent
that interest thereon shall be legally enforceable, the interest), included in
such redemption price shall, until paid, bear interest from the redemption date
at the rate expressed in the Debt Securities.
Upon the partial redemption of any Debt Security of an authorized
denomination, and upon the surrender thereof to the Trustee or any paying agent
and either payment by the Trustee or any paying agent of the redemption price of
the portion thereof called for redemption or the receipt by the Trustee or any
paying agent of evidence satisfactory to it of the payment of such redemption
price, the Trustee or any agent designated by the Trustee shall authenticate and
deliver to or on the order of the registered holder of such Debt Security,
without charge, a new Debt Security or Debt Securities, of the same series, of
like tenor, and in an aggregate principal amount equal to the unredeemed portion
of the Debt Security or Debt Securities so surrendered, each new Debt Security
to be in such authorized denomination as such registered holder may elect. If a
Global Security is so surrendered, such new Debt Security so issued shall be a
new Global Security.
Section 4.04. All Debt Securities redeemed and paid pursuant to the
provisions of this Article Four shall be canceled and disposed of as provided in
Section 15.05, and, except in the case of partial redemption of any Debt
Security, no Debt Security shall be issued under this Indenture in lieu thereof.
ARTICLE FIVE.
SINKING FUNDS.
Section 5.01. The provisions of this Article Five shall be applicable to
any sinking fund established in or pursuant to a Board Resolution or one or more
indentures supplemental hereto for the retirement of Debt Securities of any
series except as otherwise specified or contemplated by Section 2.01 for Debt
Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Debt Securities 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 Debt Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Debt Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 5.02. Each sinking fund payment shall be applied to the
redemption of Debt Securities of any series as provided for by the terms of Debt
Securities of such series.
Section 5.02. The Corporation (1) may deliver outstanding Debt Securities
of a series (other than any previously called for redemption) that have been
held by the Corporation as treasury securities and (2) may apply as a credit
Debt Securities of a series which have been redeemed either at the election of
the Corporation pursuant to the terms of such Debt Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Debt Securities, in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Debt Securities of such series required
to be made pursuant to the terms of such Debt Securities as provided for by the
terms of such series; provided that such Debt Securities have not been
previously so credited. Such Debt Securities shall be received and credited for
such purpose by the Trustee at the redemption price specified in such Debt
Securities for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly.
Section 5.03. Not less than 60 days prior to each sinking fund payment date
for any series of Debt Securities, the Corporation will deliver to the Trustee
an Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
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15
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 Debt
Securities of that series pursuant to Section 5.02 and will also deliver to the
Trustee any Debt Securities to be so credited which have not theretofore been
delivered. Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Debt Securities of such series to be redeemed upon such
sinking fund payment date in the manner specified in Section 4.02 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Corporation in the manner provided in Section 4.03. Such notice having
been duly given, the redemption of such Debt Securities shall be made upon the
terms and in the manner stated in Sections 4.02 and 4.03.
ARTICLE SIX.
PARTICULAR COVENANTS OF THE CORPORATION.
The Corporation hereby covenants and agrees for the benefit of each series
of Debt Securities as follows:
Section 6.01. The Corporation will duly and punctually pay the principal of
(and premium, if any, on) each of the Debt Securities of such series, and the
interest, if any, which shall have accrued thereon, at the dates and place and
in the manner mentioned in such Debt Security, according to the true intent and
meaning thereof. The interest, if any, on any Debt Security of such series shall
be payable to the registered holder thereof as shown on the register of the
Corporation and as provided in Section 2.04. When and as paid, all Debt
Securities of such series shall be canceled and disposed of as provided in
Section 15.05, and no Debt Securities of such series shall be issued under this
Indenture in lieu thereof.
Section 6.02. Until all the Debt Securities of such series shall have been
paid or payment thereof provided for, the Corporation will maintain an office or
agency in the Borough of Manhattan, The City of New York, or in such other
jurisdiction as may be designated in writing by the Corporation, where the Debt
Securities of such series may be presented for payment and for registration of
transfer and exchange and where notices and demands in respect of this Indenture
and of such Debt Securities may be served. The Corporation will from time to
time give written notice to the Trustee of the location of such office or agency
and of any change in the location of such office or agency. In case the
Corporation shall fail to give such notice of the location or of any change in
the location thereof, presentations and demands may be made and notices may be
served at the corporate trust office of the Trustee. Until otherwise designated
by the Corporation in a written notice to the Trustee, such office or agency
shall be the corporate trust office of the Trustee.
Section 6.03. If the Corporation shall at any time act as its own paying
agent, then, on or before the date on which the principal of (and premium, if
any) or the interest, if any, on any of the Debt Securities of such series shall
become payable, the Corporation will set apart and segregate and hold in trust
for the benefit of the holders of the Debt Securities of such series a sum
sufficient to pay such principal (and premium, if any) or interest, if any,
which shall have so become payable and will notify the Trustee of its action or
failure to act in that regard and of any failure by the Corporation or any other
obligor upon the Debt Securities of such series to make any such payment. If the
Corporation shall appoint, and at the time have, a paying agent for the payment
of the principal of (and premium, if any) or interest, if any, on the Debt
Securities of such series, then, on or prior to the date on which the principal
of (and premium, if any) or interest, if any, on any of the Debt Securities of
such series shall become payable as aforesaid, the Corporation will pay to such
paying agent a sum sufficient to pay such principal (and premium, if any) or
interest, if any, to be held in trust for the benefit of the holders of the Debt
Securities of such series; and, if such paying agent shall be other than the
Trustee, the Corporation will cause such paying agent 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 6.03 and of Section 12.03,
(1) that such paying agent shall hold all sums held by such paying agent for the
payment of the principal of (and premium, if any) or interest, if any, on the
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16
Debt Securities of such series in trust for the benefit of the holders of the
Debt Securities of such series until such sums shall be paid out to the holders
of the Debt Securities of such series or otherwise as herein provided, (2) that
such paying agent shall give to the Trustee notice of any default by the
Corporation or any other obligor upon the Debt Securities of such series in the
making of any deposit with such paying agent for the payment of principal (and
premium, if any) or interest, if any, which shall have become payable and of any
default by the Corporation or any other obligor upon the Debt Securities of such
series in making any such payment, and (3) that such paying agent shall, at any
time during the continuance of any such default, upon the written request of the
Trustee, deliver to the Trustee all sums so held in trust by it.
Anything in this Section 6.03 to the contrary notwithstanding, the
Corporation may at any time, for the purpose of obtaining a release or
satisfaction of this Indenture or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust by it or by any paying agent other than
the Trustee as required by this Section 6.03, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Corporation or such paying agent.
The foregoing provisions of this Section 6.03 are subject to the provisions
of Sections 12.04, 12.05 and 12.06.
Section 6.04. After the date of the execution and delivery of this
Indenture and so long as any Debt Securities shall be outstanding, the
Corporation will not itself, and will not permit any subsidiary to create,
assume, incur, or suffer to be created, assumed, or incurred or to exist any
mortgage, pledge, encumbrance, lien, or charge of any kind upon any of the
properties of any character of the Corporation or any subsidiary, whether owned
at the date hereof or thereafter acquired; provided, however, that the foregoing
restrictions of this Section 6.04 shall not prevent or be deemed to prohibit:
(a) any subsidiary from mortgaging or pledging all or part of its
property to the Corporation as security for indebtedness owing to the
Corporation or from mortgaging or pledging all or part of its property to
any other subsidiary of which the Corporation owns directly or indirectly
all of the shares of the voting stock, other than directors" qualifying
shares, as security for indebtedness owing to such other subsidiary;
(b) the Corporation or any subsidiary (1) from creating or incurring
or suffering to exist purchase money mortgages or other purchase money
liens upon any property acquired by the Corporation or such subsidiary, (2)
from creating or incurring or suffering to exist a mortgage or lien upon
any property acquired by the Corporation or such subsidiary subsequent to
the acquisition of the property under circumstances where the Corporation
or such subsidiary agreed at the time of the acquisition to grant a
security interest at a later date in the property acquired, or (3) from
acquiring property subject to mortgages or liens existing thereon at the
date of acquisition thereof, whether or not the indebtedness secured by any
such mortgage or lien is assumed or guaranteed by the Corporation or any
subsidiary; provided, however, that no such mortgage or lien shall extend
to or cover any other property of the Corporation or of such subsidiary, as
the case may be;
(c) the Corporation or any subsidiary from acquiring, whether by
merger, consolidation, purchase, or otherwise, a majority of the voting
stock or assets of any corporation all or any part of the assets of which,
at the time of such acquisition, are subject to a mortgage, pledge,
encumbrance, lien, or charge whether or not securing indebtedness of such
corporation and the continued existence of any such mortgage, pledge,
encumbrance, lien, or charge shall not be deemed a violation of the
restrictions contained in this Section 6.04; provided, however, that no
such mortgage, pledge, encumbrance, lien, or charge shall extend to or
cover any other property of the Corporation or of such subsidiary, as the
case may be;
<PAGE>
17
(d) any subsidiary from creating or incurring or suffering to exist
any mortgage, pledge, encumbrance, lien, or charge of any kind upon any of
its properties of any character to secure, in the ordinary course of
business, its indebtedness for money borrowed if, as a matter of practice
prior to the time it became a subsidiary, it had borrowed on the basis of
secured loans or had customarily deposited collateral to secure all or any
of its obligations;
(e) any subsidiary operating outside the territorial limits of the
United States of America from creating or incurring or suffering to exist
any mortgage, pledge, encumbrance, lien, or charge of any kind upon any of
its properties of any character to secure, in the ordinary course of
business, its indebtedness for money borrowed outside the territorial
limits of the United States of America if in the countries in which it
incurs such indebtedness it is necessary or appropriate to borrow on a
secured basis or to deposit collateral to secure all or any of its
obligations;
(f) the Corporation or any subsidiary from making any deposit with or
giving any other form of security to any governmental agency or any body
created or approved by law or governmental regulation in order to entitle
the Corporation or a subsidiary to maintain self-insurance, or to
participate in any fund in connection with workmen's compensation,
disability benefits, unemployment insurance, old age pensions, or other
social security or to share in any privileges or other benefits available
to companies participating in any such arrangements, or for any other
purpose at any time required by law or governmental regulation as a
condition to the transaction of any business or the exercise of any
privilege or license; or depositing assets of the Corporation, or of a
subsidiary, with any surety company or clerk of any court, or in escrow, as
collateral in connection with, or in lieu of, any bond on appeal by the
Corporation or a subsidiary from any judgment or decree against it, or in
connection with any other proceedings by or against the Corporation or a
subsidiary;
(g) the Corporation or a subsidiary from extending, renewing, or
refunding any mortgage, pledge, or other lien permitted by the foregoing
provisions of this Section 6.04 upon the same property theretofore subject
thereto, or extending, renewing, or refunding the indebtedness secured
thereby;
(h) the Corporation or any subsidiary from incurring or suffering to
be incurred or to exist upon any of its property or assets (1) the lien of
any taxes or assessments or governmental charges or levies, if such taxes
or assessments or charges or levies shall not at the time be due and
payable or if the Corporation or a subsidiary shall currently be contesting
the validity thereof in good faith by appropriate proceedings and shall
have set aside on its books adequate reserves with respect thereto, (2) the
liens of any judgments, if such judgments shall not have remained
undischarged, or unstayed on appeal or otherwise, for more than six months,
(3) undetermined liens or charges incident to construction, (4) any other
claims for labor, materials, and supplies which, if unpaid, might by law
become a lien or charge upon its property, if the Corporation or a
subsidiary shall currently be contesting the validity thereof in good faith
by appropriate proceedings and shall have set aside on its books adequate
reserves with respect thereto, (5) any encumbrances consisting of zoning
restrictions, easements and restrictions on the use of real property, and
minor defects and irregularities in the title thereto, which do not, in the
opinion of the Board of Directors of the Corporation, materially impair the
use of such property, by the Corporation or the respective subsidiary in
the operation of its business or the value of such property for the purpose
of such business, or (6) any leases or subleases if, in the opinion of the
Board of Directors of the Corporation, the property subject thereto is not
needed by the Corporation or the respective subsidiary in the operation of
its business;
(i) the Corporation or any subsidiary from creating, permitting or
suffering to exist (1) other consensual mortgages, pledges, liens, charges
<PAGE>
18
and encumbrances in the ordinary course of business of the Corporation or
such subsidiary that secure indebtedness, which, in accordance with
generally accepted accounting principles, would not be included in total
liabilities as shown on the Corporation's consolidated balance sheet, or
(2) mortgages, pledges, liens, charges and encumbrances created by the
Corporation or any subsidiary in connection with a transaction intended by
the Corporation to be a sale of the properties or assets of the Corporation
or such subsidiary, provided that the mortgage, pledge, lien, charge or
encumbrance is upon any or all of the properties or assets intended to be
sold, the income from such properties or assets and/or the proceeds of such
properties or assets; or
(j) the Corporation or any subsidiary from creating, permitting or
suffering to exist other mortgages, pledges, liens, charges and
encumbrances that secure indebtedness of the Corporation or any subsidiary
which, together with other secured indebtedness of the Corporation and its
subsidiaries permitted under this Section 6.04(j) (excluding indebtedness
secured by a mortgage, pledge, lien, charge or encumbrance existing as of
the date of this Indenture and excluding indebtedness secured by a
mortgage, pledge, lien, charge or encumbrance otherwise permitted under
Section 6.04(a)-(i)), in an aggregate principal amount then outstanding,
does not exceed 10% of the difference between the Corporation's
consolidated tangible assets and consolidated liabilities as shown on the
Corporation's most recent audited consolidated financial statements
prepared in accordance with generally accepted accounting principles.
For the purposes of this Section 6.04, any contract by which title is
retained as security for the payment of a purchase price shall be deemed to be a
purchase money lien. Nothing in this Section 6.04 shall apply to any mortgage,
pledge, encumbrance, lien, or charge of any kind upon any of the properties of
any character of the Corporation or any subsidiary existing on the date of
execution and delivery of this Indenture.
Nothing in this Section 6.04 or elsewhere in this Indenture contained shall
prevent or be deemed to prohibit the creation, assumption, or guaranty by the
Corporation or any subsidiary of any unsecured indebtedness or the issuance by
the Corporation or any subsidiary of any debentures, notes, or other evidences
of unsecured indebtedness, whether in the ordinary course of business or
otherwise.
Section 6.05. On or before April 30 in each year (commencing with the first
April 30 which is not less than 60 days following the first date of issuance of
Debt Securities of any series under this Indenture), the Corporation will file
with the Trustee a brief certificate (which need not comply with Section 15.04),
signed by the principal executive officer, the principal financial officer, or
the principal accounting officer of the Corporation, stating whether or not the
signer has knowledge of any default by the Corporation in the performance or
fulfillment of any covenant, agreement, or condition contained in this
Indenture, and, if so, specifying each such default of which the signer has
knowledge, the nature thereof, and what action, if any, has been taken and is
proposed to be taken to cure such default. For purposes of this paragraph, such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture. Within five days after the
occurrence thereof, the Corporation will notify the Trustee in writing of any
failure by the Corporation to pay any instalment of interest or any principal
(or premium, if any) which with the giving of notice by the Trustee would be an
"event of default" within the meaning of Section 7.01 (h) hereof.
Section 6.06. Anything in this Indenture to the contrary notwithstanding,
the Corporation or any subsidiary may fail or omit in any particular instance to
comply with a covenant or condition set forth in Section 6.04 with respect to
the Debt Securities of any series if the Corporation shall have obtained and
filed with the Trustee, prior to the time of such failure or omission, evidence
(as provided in Article Eight) of the consent of the holders of at least a
majority in aggregate principal amount of such series of Debt Securities at the
time outstanding, either waiving such compliance in such instance or generally
<PAGE>
19
waiving compliance with such covenant or condition, but no such waiver shall
extend to or affect any obligation not so waived or impair any right consequent
thereon.
ARTICLE SEVEN.
REMEDIES OF TRUSTEE AND DEBT SECURITYHOLDERS.
Section 7.01. Except where otherwise indicated by the context or where the
term is otherwise defined for a specific purpose, the term "event of default"
wherever used in this Indenture shall mean, with respect to a particular series
of Debt Securities, one of the following described events:
(a) the failure of the Corporation to pay any instalment of interest
on any Debt Security of such series, when and as the same shall become due
and payable, which failure shall have continued unremedied for a period of
30 days;
(b) the failure of the Corporation to pay the principal of (or
premium, if any, on) any Debt Security of such series, when and as the same
shall become payable, whether at maturity as therein expressed, by call for
redemption, by declaration of acceleration of maturity thereof as
authorized by this Indenture or otherwise;
(c) the failure of the Corporation to make or satisfy any sinking fund
payment or analogous obligation for such series, when and as the same shall
become due and payable;
(d) the failure of the Corporation, subject to the provisions of
Section 6.06, to observe and perform any other of the covenants or
agreements on the part of the Corporation with respect to such series
contained in this Indenture (including any indenture supplemental hereto or
any Board Resolution establishing the terms and provisions of such series),
which failure shall have continued unremedied to the satisfaction of the
Trustee, or without provision deemed by the Trustee to be adequate for the
remedying thereof having been made, for a period of 30 days after written
notice shall have been given to the Corporation by the Trustee by
registered or certified mail, or shall have been given to the Corporation
and the Trustee by the holders of 25% or more in principal amount of the
Debt Securities of such series then outstanding, specifying such failure
and requiring the Corporation to remedy the same;
(e) the entry by a court of competent jurisdiction of a decree or
order, unstayed on appeal or otherwise and in effect for 30 days,
adjudicating the Corporation a bankrupt or insolvent;
(f) the entry by a court of competent jurisdiction of a decree or
order appointing a receiver or liquidator or trustee of the Corporation or
of substantially all the property of the Corporation, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment,
or composition of or in respect of the Corporation under Title 11 of the
United States Code, as now constituted or as hereafter in effect, or any
other Federal or state bankruptcy or other similar statute applicable to
the Corporation; but only if and when such decree or order shall have
continued unstayed on appeal or otherwise and in effect for 60 days;
(g) the filing by the Corporation of a petition in voluntary bankruptcy
under any of the provisions of any bankruptcy law; or the consenting by the
Corporation to the filing of any bankruptcy or reorganization petition
against it under any such law; or (without limitation of the generality of
the foregoing) the filing by the Corporation of a petition seeking relief
under Title 11 of the United States Code, as now constituted or as
hereafter in effect, or any other Federal or state bankruptcy or other
similar statute applicable to the Corporation, as now or hereafter in
effect; or the making by the Corporation of an assignment for the benefit
of creditors; or the admitting in writing by the Corporation of its
inability to pay its debts generally as they become due; or the consenting
<PAGE>
20
by the Corporation to the appointment of a receiver or liquidator or
custodian or trustee of it or of substantially all its property; or
(h) the failure of the Corporation to pay any instalment of interest,
when and as the same shall become due and payable and any period of grace
with respect thereto shall have expired, on any bond, debenture, note, or
other evidence of indebtedness of, or assumed or guaranteed by, the
Corporation, other than indebtedness which is subordinated to the Debt
Securities, or the failure by the Corporation to pay the principal of any
such bond, debenture, note, or other evidence of indebtedness when and as
the same shall become due and payable, whether at maturity as therein
expressed, by call for redemption, by declaration of acceleration of
maturity thereof, or otherwise, and any period of grace with respect
thereto shall have expired, unless the time for payment of such interest or
principal shall have been effectively extended; provided, that, in any
case, written notice of such failure of the Corporation to pay, and of the
expiration of any period of grace with respect thereto, shall have been
given to the Corporation by the Trustee, or shall have been given to the
Corporation and the Trustee by the holders of 25% or more in principal
amount of the outstanding Debt Securities of such series; provided,
further, that, subject to the provisions of Sections 11.02 and 11.03, the
Trustee shall not be charged with knowledge of any such default unless
written notice thereof shall have been given to the Trustee by the
Corporation, by the holder or an agent of the holder of any such
indebtedness, by the trustee then acting under any indenture or other
instrument under which such default shall have occurred, or by the holders
of not less than 10% in aggregate principal amount of the outstanding Debt
Securities of such series.
Upon receipt by a Responsible Officer of the Trustee of any notice of
default pursuant to Section 7.01(d) with respect to Debt Securities of a series
all or part of which is represented by a Global Security, the Trustee may
establish a record date in accordance with Section 8.04 of this Indenture for
determining holders of Outstanding Debt Securities of such series entitled to
join in such notice of default, or, if not established by the Trustee, the
record date shall be established in accordance with the second sentence of
Section 8.04 of this Indenture. If a record date is so established, the holders
of Debt Securities of such series on such record date, or their duly designated
proxies, and only such persons, shall be entitled to join in such notice of
default, whether or not such holders remain holders after such record date;
provided, that unless holders of at least 10% in principal amount of the
Outstanding Debt Securities of such series, or their proxies, shall have joined
in such notice of default prior to the day which is 60 days after such record
date, such notice of default shall automatically and without further action by
any holder be cancelled and of no further effect.
Section 7.02. If any one or more of the above-described events of default
shall happen with respect to Debt Securities of any series, then, and in each
and every such case, during the continuance of any such event of default, the
Trustee or the holders of 25% or more in principal amount of the Debt Securities
of such series then outstanding may, and upon the written request of the holders
of a majority in principal amount of the Debt Securities of such series then
outstanding the Trustee shall, declare the principal of all the Debt Securities
of such series (or, with respect to Original Issue Discount Securities, such
lesser amount as may be specified in the terms of such Debt Securities) then
outstanding (if not then due and payable) to be due and payable, and upon any
such declaration of acceleration of the maturity thereof the same shall become
and be immediately due and payable, anything in this Indenture or in the Debt
Securities of such series contained to the contrary notwithstanding. This
provision, however, is subject to the condition that, if at any time after the
principal of the Debt Securities of a series (or, with respect to Original Issue
Discount Securities, such lesser amount as may be specified in the terms of such
Debt Securities) shall have been so declared to be due and payable, all arrears
of interest, if any, upon all the Debt Securities of such series (with interest,
to the extent that interest thereon shall, in the opinion of counsel
satisfactory to the Trustee, be legally enforceable, on any overdue installments
<PAGE>
21
of interest at the rate borne by the Debt Securities of such series) and the
reasonable charges, fees and expenses of the Trustee, its agents and attorneys,
and all other sums payable under this Indenture with respect to such series
(except the principal of the Debt Securities of such series which would not be
due and payable were it not for such declaration), shall be paid by the
Corporation, and every other default and event of default under this Indenture
with respect to the Debt Securities of such series shall have been made good to
the reasonable satisfaction of the Trustee or of the holders of a majority in
principal amount of the Debt Securities of such series then outstanding, or
provision deemed by the Trustee or by such holders to be adequate therefor shall
have been made, then and in every such case the holders of a majority in
principal amount of the Debt Securities of such series then outstanding may, on
behalf of the holders of all the Debt Securities of such series, waive the event
of default by reason of which the principal of the Debt Securities of such
series shall have been so declared to be due and payable and may rescind and
annul such declaration and its consequences; but no such waiver, rescission, or
annulment shall extend to or affect any subsequent default or event of default
or impair any right consequent thereon. Any declaration by the Trustee pursuant
to this Section 7.02 shall be by written notice to the Corporation, and any
declaration or waiver by the holders of Debt Securities of a series pursuant to
this Section 7.02 shall be by written notice to the Corporation and the Trustee.
Upon receipt by the Trustee of any written declaration of acceleration, or
waiver, rescission, and annulment thereof, with respect to Debt Securities of a
series all or part of which is represented by a Global Security, the Trustee may
establish a record date for determining holders of Outstanding Debt Securities
of such series entitled to join in such declaration of acceleration, or waiver,
rescission, and annulment, as the case may be, in accordance with Section 8.04
of this Indenture, or, if not established by the Trustee, the record date shall
be established in accordance with the second sentence of Section 8.04 of this
Indenture. If a record date is so established, the holders on such record date,
or their duly designated proxies, and only such persons, shall be entitled to
join in such declaration of acceleration, or waiver, rescission, and annulment,
as the case may be, whether or not such holders remain holders after such record
date; provided, that unless such declaration of acceleration, or waiver,
rescission, and annulment, as the case may be, shall have become effective by
virtue of the requisite percentage having been obtained prior to the day which
is 60 days after such record date, such declaration of acceleration, or waiver,
rescission, and annulment, as the case may be, shall automatically and without
further action by any holder be cancelled and of no further effect.
Section 7.03. If the Corporation shall fail for a period of 30 days to pay
any instalment of interest on any Debt Security of any series or shall fail to
pay the principal of (or premium, if any, on) any of the Debt Securities of any
series when and as the same shall become due and payable, whether at maturity,
by call for redemption, pursuant to any sinking fund or analogous obligation, by
declaration of acceleration of the maturity thereof as authorized by this
Indenture, or otherwise, then, upon demand of the Trustee, the Corporation will
pay to the Trustee for the benefit of the holders of the Debt Securities of such
series then outstanding the whole amount which then shall have become due and
payable on all Debt Securities of such series, with interest on the overdue
principal (and premium, if any) and (so far as the same may be legally
enforceable) on the overdue installments of interest at the rate borne by the
Debt Securities of such series (or, with respect to Original Issue Discount
Securities, at the rate specified in the terms of such Debt Securities for
interest on overdue principal thereof upon maturity, redemption, or
acceleration) and reasonable compensation to the Trustee, its agents and
attorneys, and any other reasonable expenses and liabilities incurred by the
Trustee under this Indenture without negligence or bad faith.
In case the Corporation shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust or
otherwise as it shall deem advisable, shall be entitled and empowered to
institute any act ion or proceeding at law or in equity for the collection of
the sums so due and unpaid, and may prosecute any such action or proceeding to
judgment or final decree, and may enforce any such judgment or final decree
against the Corporation or any other obligor upon such Debt Securities, and
<PAGE>
22
collect the moneys adjudged or decreed to be payable out of the property of the
Corporation or any other obligor upon such Debt Securities, wherever situated,
in the manner provided by law. Every recovery of judgment in any such action or
other proceeding, subject to the payment of the expenses, disbursements, and
compensation of the Trustee, its agents and attorneys, shall be for the ratable
benefit of the holders of such Debt Securities which shall be the subject of
such action or proceeding. All rights of action upon or under any of the Debt
Securities or this Indenture may be enforced by the Trustee without the
possession of any of the Debt Securities and without the production of any
thereof at any trial or any proceeding relative thereto.
Section 7.04. The Trustee for each series of Debt Securities is hereby
appointed, and each and every holder of Debt Securities of such series, by
receiving and holding the same, shall be conclusively deemed to have appointed
such Trustee, the true and lawful attorney-in-fact of such holder, with
authority to make or file (whether or not the Corporation shall be in default in
respect of the payment of the principal of (or premium, if any) or interest, if
any, on any of the Debt Securities of such series), in its own name as trustee
of an express trust or otherwise as it shall deem advisable, in any
receivership, insolvency, liquidation, bankruptcy, reorganization, or other
judicial proceedings relative to the Corporation or any other obligor upon such
Debt Securities or to their respective creditors or property, any and all
claims, proofs of claim, proofs of debt, petitions, consents, other papers and
documents, and amendments of any thereof, as may be necessary or advisable in
order to have the claims of the Trustee and of the holders of such Debt
Securities allowed in any such proceeding and to collect and receive any moneys
or other property payable or deliverable on any such claim, and to execute and
deliver any and all other papers and documents and to do and perform any and all
other acts and things, as it may deem necessary or advisable in order to enforce
in any such proceedings any of the claims of such Trustee and of any of such
holders in respect of any of the Debt Securities of such series; and any
receiver, assignee, custodian, trustee, or debtor in any such proceedings is
hereby authorized, and each and every holder of the Debt Securities of such
series, by receiving and holding the same, shall be conclusively deemed to have
authorized any such receiver, assignee, custodian, trustee, or debtor, to make
any such payment or delivery to or on the order of such Trustee, and, in the
event that such Trustee shall consent to the making of such payments or
deliveries directly to the holders of the Debt Securities of such series, to pay
to such Trustee any amount due it for compensation and expenses, including
counsel fees and expenses, incurred by it down to the date of such payment or
delivery; provided, however, that nothing herein contained shall be deemed to
authorize or empower such Trustee to consent to or accept or adopt, on behalf of
any holder of Debt Securities of such series, any plan of reorganization or
readjustment of the Corporation affecting the Debt Securities of such series or
the rights of any holder thereof, or to authorize or empower such Trustee to
vote in respect of the claim of any holder of any Debt Securities of such series
in any such proceedings.
Section 7.05. Any moneys collected by the Trustee under this Article Seven
shall be applied by the Trustee as follows:
First: To the payment of all amounts due the Trustee under this
Indenture and, in particular, Section 11.01 (a) hereof.
Second: To the payment of the amounts then due and unpaid upon the Debt
Securities in respect of which such moneys shall have been collected,
ratably and without preference or priority of any kind, according to the
amounts due and payable on such Debt Securities at the date fixed by the
Trustee for the distribution of such moneys, upon presentation of such Debt
Securities and notation thereon of the payment, if only partially paid, and
upon the surrender and cancellation thereof, if fully paid.
Any surplus then remaining shall be paid to the Corporation or to such other
persons as shall be entitled to receive it.
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23
Section 7.06. Upon any sale made under any writ of execution issued on any
judgment for the recovery of the indebtedness evidenced by the Debt Securities
of any series or recovered under this Indenture, any purchaser shall be
entitled, if and to the extent permitted by law, in making settlement or payment
of the purchase price of the property purchased, to present and to turn in and
use any of the Debt Securities of such series then matured and unpaid, such Debt
Securities being computed for that purpose at a sum equal to that which shall be
payable out of the net proceeds of such sale to such purchaser as the holder
thereof for his share of such net proceeds; and, if the amounts so payable in
respect of such Debt Securities shall be less than the amount for which the
Corporation may be liable thereon, then the receipt endorsed thereon under the
direction of any person authorized to receive payment of the purchase price for
the amount to be so allowed or credited thereon shall constitute partial payment
and settlement and shall be conclusive proof of the amount thereof. At any such
sale, any holder or holders of the Debt Securities of such series may directly,
or through one or more agents, bid for and purchase the property sold for his or
their own account and make payment therefor as aforesaid or otherwise and may
hold, retain, and dispose of such property without further accountability.
Section 7.07. If any one or more of the events of default described in
Section 7.01 shall occur and be continuing with respect to any series of Debt
Securities, the Trustee shall be entitled, if it shall so elect, as a matter of
right, whether or not the principal of (or premium, if any, on) the Debt
Securities of such series or any thereof shall have been declared or shall have
become due and payable, to the appointment of a receiver of any of or all the
property, interests, rights, and business of the Corporation and of the
earnings, rents, issues, and profits thereof, with such powers as the court
making such appointment shall confer; provided, however, that nothing in this
Section 7.07 contained shall entitle the Trustee to the appointment of a
receiver of any property which shall at the time be subject to the lien of any
mortgage if, pursuant to the provisions of such mortgage, such property shall
then be in the possession of the trustee under such mortgage or a receiver of
such property shall have been appointed by a court of competent jurisdiction and
the appointment of such receiver shall then be in effect.
Section 7.08. The holders of a majority in principal amount of the
outstanding Debt Securities of any series affected thereby (each series voting
as one class) at the time outstanding may direct the time, method, and place of
conducting any proceeding for any remedy available with respect to such series
to the Trustee hereunder, or of exercising any trust or power hereby conferred
upon the Trustee; but, subject to the provisions of Section 11.02, the Trustee
shall have the right to decline to follow any such direction if a responsible
officer or officers of the Trustee shall determine that the action so directed
would be unjustly prejudicial to the holders of Debt Securities of such series
not joining therein, may not be lawfully taken or would involve the Trustee in
personal liability.
Upon receipt by the Trustee of any such direction with respect to Debt
Securities of a series all or part of which is represented by a Global Security,
the Trustee may establish a record date in accordance with Section 8.04 of this
Indenture for determining holders of Outstanding Debt Securities of such series
entitled to join in such direction, or, if not established by the Trustee, the
record date shall be established in accordance with the second sentence of
Section 8.04 of this Indenture. If a record date is so established, the holders
on such record date, or their duly designated proxies, and only such persons,
shall be entitled to join in such direction, whether or not such holders remain
holders after such record date; provided, that unless such majority in principal
amount shall have been obtained prior to the day which is 60 days after such
record date, such direction shall automatically and without further action by
any holder be cancelled and of no further effect.
Section 7.09. No holder of any Debt Security of any series shall have any
right to institute any action, suit, or proceeding at law or in equity for the
execution of any trust hereunder or for the appointment of a receiver or for any
other remedy hereunder, unless such holder previously shall have given to the
Trustee for such series written notice of the happening of one or more of the
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24
events of default herein specified, and unless also the holders of a majority in
principal amount of the Debt Securities of such series then outstanding shall
have requested the Trustee in writing to take action in respect of the matter
complained of, and unless also there shall have been offered to the Trustee
security and indemnity satisfactory to it against the costs, expenses, and
liabilities to be incurred therein or thereby, and the Trustee, for 30 days
after receipt of such notification, request, and offer of security and
indemnity, shall have neglected or refused to institute any such action, suit,
or proceeding; and such notification, request, and offer of security and
indemnity are hereby declared in every such case to be conditions precedent to
any such action, suit, or proceeding by any holder of any Debt Securities of any
series; it being understood and intended that no one or more of the holders of
Debt Securities of any series shall have any right in any manner whatsoever by
his or their action to enforce any right hereunder, except in the manner herein
provided, and that every action, suit, or proceeding at law or in equity shall
be instituted, had, and maintained in the manner herein provided and for the
equal benefit of all holders of the outstanding Debt Securities of such series;
provided, however, that nothing in this Indenture or in the Debt Securities
contained shall affect or impair the obligation of the Corporation, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest, if any, on the Debt Securities to the respective holders of the Debt
Securities at the respective due dates in such Debt Securities stated, or shall
affect or impair the right, which is also absolute and unconditional, of such
holders (without their consent) to institute suit to enforce the payment
thereof.
Section 7.10. All parties to this Indenture and the holders of the Debt
Securities agree that the court may in its discretion require, in any action,
suit, or proceeding for the enforcement of any right or remedy under this
Indenture, or in any action, suit, or proceeding against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in
such action, suit, or proceeding of an undertaking to pay the costs of such
action, suit, or proceeding, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such action, suit, or proceeding, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; provided,
however, that the provisions of this Section 7.10 shall not apply to any action,
suit, or proceeding instituted by the Trustee, to any action, suit, or
proceeding instituted by any one or more holders of Debt Securities of a series
holding in the aggregate more than 10% in principal amount of the Debt
Securities of such series then outstanding, or to any action, suit, or
proceeding instituted by any holder of Debt Securities for the enforcement of
the payment of the principal of (or premium, if any) or interest, if any, on any
of the Debt Securities of such series, on or after the respective due dates
expressed in such Debt Securities.
Section 7.11. No remedy herein conferred upon or reserved to the Trustee or
to the holders of Debt Securities of any series is intended to be exclusive of
any other remedy or remedies, and each and every remedy shall be cumulative and
shall be in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute. No delay or omission of the Trustee
or of any holder of the Debt Securities to exercise any right or power accruing
upon any default shall impair any such right or power or shall be construed to
be a waiver of any such default or an acquiescence therein; and every power and
remedy given by this Article Seven to the Trustee and to the holders of Debt
Securities of any series, respectively, may be exercised from time to time and
as often as may be deemed expedient by the Trustee or by the holders of Debt
Securities of such series, as the case may be. In case the Trustee or any holder
of Debt Securities of such series shall have proceeded to enforce any right
under this Indenture and the proceedings for the enforcement thereof shall have
been discontinued or abandoned because of waiver or for any other reason or
shall have been adjudicated adversely to the Trustee or to such holder of Debt
Securities, then and in every such case the Corporation, the Trustee and the
holders of the Debt Securities of such series shall severally and respectively
be restored to their former positions and rights hereunder and thereafter all
rights, remedies, and powers of the Trustee shall continue as though no such
proceedings had been taken, except as to any matters so waived or adjudicated.
The provisions of this Section 7.11 are subject to the provisions of Section
7.09.
<PAGE>
25
Section 7.12. The holders of not less than a majority in principal amount
of the outstanding Debt Securities of any series may on behalf of the holders of
all the outstanding Debt Securities of such series waive any past default
hereunder with respect to the Debt Securities of such series and its
consequences, except a default
(a) in the payment of the principal of (or premium, if any) or interest
on any Debt Securities of such series, or
(b) in respect of a covenant or provision of this Indenture which under
Article Fourteen cannot be modified or amended without the consent of the
holder of each outstanding Debt Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any event of
default described in Section 7.01 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.
ARTICLE EIGHT.
CONCERNING THE DEBT SECURITYHOLDERS.
Section 8.01. Whenever in this Indenture it is provided that the holders of
a specified percentage or a majority in aggregate principal amount of Debt
Securities of any or all series may take any action (including the making of any
demand or request, the giving of any notice, consent, or waiver, or the taking
of any other action), the fact that at the time of taking any such action the
holders of such specified percentage or majority have joined therein may be
evidenced (1) by any instrument or any number of instruments of similar tenor
executed by Debt Securityholders in person or by an agent or proxy appointed in
writing, or (2) by the record of the holders of Debt Securities voting in favor
thereof at any meeting of Debt Securityholders duly called and held in
accordance with the provisions of Article Nine, or (3) by a combination of such
instrument or instruments and any such record of such a meeting of Debt
Securityholders.
Section 8.02. Subject to the provisions of Section 11.02, proof of the
execution of any instrument by a Debt Securityholder or his agent or proxy and
proof of the holding by any person of any of the Debt Securities shall be
sufficient if made in the following manner:
The fact and date of the execution by any person of any such instrument may
be proved in any reasonable manner acceptable to the Trustee.
The ownership of Debt Securities may be proved by the register of such Debt
Securities or by a certificate of the registrar thereof.
The record of any Debt Securityholders' meeting shall be proved in the
manner provided in Section 9.06.
Section 8.03. In determining whether the holders of the requisite principal
amount of the Debt Securities of any or all series have given any direction,
request, waiver, or consent under this Indenture, Debt Securities which are
owned by the Corporation or by any other obligor on the Debt Securities or by
any person directly or indirectly controlling, or controlled by, or under direct
or indirect common control with, the Corporation or any such other obligor shall
be disregarded, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, request, or consent, only
Debt Securities which the Trustee knows are so owned shall be disregarded. Debt
Securities so owned which have been pledged in good faith may be regarded as
outstanding for purposes of this Section 8.03, if the pledgee shall establish to
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26
the satisfaction of the Trustee the pledgee's right to vote such Debt Securities
and that the pledgee is not a person directly or indirectly controlling, or
controlled by, or under direct or indirect common control with, the Corporation
or any such other obligor. In case of a dispute as to such right, any decision
by the Trustee taken upon and in accordance with the advice of counsel shall be
full protection to the Trustee.
Section 8.04. The Corporation may set a record date in the circumstances
permitted by the Trust Indenture Act for the purpose of determining the holders
of Debt Securities of any series entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver, or other action, or to vote
on any action authorized or permitted to be given or taken by holders of Debt
Securities of such series. If not set by the Corporation prior to the first
solicitation of a holder of Debt Securities of such series in respect of any
such action, or, in the case of any such vote, prior to such vote, or if not set
by the Trustee in accordance with (1) Section 7.01, upon receipt by the Trustee
of any notice of default pursuant to Section 7.01(d), (2) Section 7.02, upon
receipt by the Trustee of any written declaration of acceleration of maturity,
or waiver, rescission, and annulment thereof, or (3) Section 7.08, upon receipt
by the Trustee of any direction of the time, method and place for conducting any
proceeding for any remedy available, each such notice, declaration, or direction
given with respect to Debt Securities of a series all or part of which is
represented by a Global Security, the record date for any such action, vote,
notice, declaration, or direction shall be the 30th day (or, if later, the date
of the most recent list of holders required to be provided pursuant to Section
10.03) prior to such first solicitation, vote, notice, declaration, or
direction, as the case may be. With regard to any record date for action to be
taken by the holders of one or more series of Debt Securities, only the holders
of Debt Securities of such series on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the relevant action.
ARTICLE NINE.
DEBT SECURITYHOLDERS' MEETINGS.
Section 9.01. A meeting of Debt Securityholders of any or all series may be
called at any time and from time to time pursuant to the provisions of this
Article Nine for any of the following purposes:
(1) to give any notice to the Corporation or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to
be taken by Debt Securityholders pursuant to any of the provisions of
Article Seven;
(2) to remove the Trustee for any series and appoint a successor Trustee
for such series pursuant to the provisions of Article Eleven;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 14.02; or
(4) to take any other action authorized to be taken by or on behalf of
the holders of any specified aggregate principal amount of the Debt
Securities of any or all series under any other provision of this Indenture
or under applicable law.
Section 9.02. The Trustee may at any time call a meeting of Debt
Securityholders of any or all series to take any action specified in Section
9.01, to be held at such time and at such place as the Trustee shall determine.
Notice of every meeting of the Debt Securityholders of any or all series setting
forth the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be mailed by the Corporation, first
class postage prepaid, not later than the twentieth day prior to the date fixed
<PAGE>
27
for such meeting, to all Debt Securityholders of the applicable series at their
addresses as the same shall then appear in the register of the Corporation.
Section 9.03. In case at any time the Corporation, pursuant to a Board
Resolution, or the holders of at least 10% in aggregate principal amount of the
Debt Securities of any or all series, as the case may be, then outstanding,
shall have requested the Trustee to call a meeting of Debt Securityholders of
any or all series, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
mailed the notice of such meeting within 20 days after receipt of such request,
then the Corporation or the holders of such Debt Securities in the amount above
specified may determine the time and place for such meeting and may call such
meeting to take any action authorized in Section 9.01, by mailing notice thereof
as provided in Section 9.02.
Section 9.04. To be entitled to vote at any meeting of Debt Securityholders
a person shall be (a) a holder of one or more Debt Securities of a series with
respect to which a meeting is being held, or (b) a person appointed as a proxy
by an instrument executed by such holder. The only persons who shall be entitled
to be present or to speak at any meeting of Debt Securityholders shall be the
persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Corporation and its counsel.
Section 9.05. Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Debt Securityholders, in regard to proof of the holding of Debt
Securities and of the appointment of proxies, and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies,
certificates, and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think fit. Except as otherwise
permitted or required by any such regulations, the holding of Debt Securities
shall be proved in the manner specified in Section 8.02 and the appointment of
any proxy shall be proved in the manner specified in Section 8.02 or by having
the signature of the person executing the proxy witnessed or guaranteed by any
trust company, bank, banker, or stock exchange member firm satisfactory to the
Trustee.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Corporation or by Debt Securityholders as provided in Section 9.03, in which
case the Corporation or the Debt Securityholders calling the meeting, as the
case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of
the holders of a majority in principal amount of the Debt Securities represented
at the meeting and entitled to vote.
Subject to the provisions of Section 8.03, at any meeting each Debt
Securityholder or proxy shall be entitled to one vote for each $1,000 principal
amount or such other amount established pursuant to Section 2.01 (in the case of
Original Issue Discount Securities or Debt Securities denominated in a foreign
currency or currencies, such principal amount to be determined as provided in
the definition of "Outstanding" in Section 1.02) of Debt Securities held or
represented by him; provided, however, that no vote shall be cast or counted at
any meeting in respect of any such Debt Security challenged as not outstanding
and ruled by the chairman of the meeting to be not outstanding. The chairman of
the meeting shall have no right to vote other than as stated in Section 9.04.
Any meeting of Debt Securityholders duly called pursuant to the provisions of
Section 9.02 or 9.03 may be adjourned from time to time, and the meeting may be
held as so adjourned without further notice.
At any meeting of Debt Securityholders, the presence of persons holding or
representing Debt Securities in an aggregate principal amount sufficient to take
action upon the business for the transaction of which such meeting was called
shall be necessary to constitute a quorum; but, if less than a quorum be
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28
present, the persons holding or representing a majority of the Debt Securities
properly represented at the meeting may adjourn such meeting with the same
effect, for all intents and purposes, as though a quorum had been present.
Section 9.06. The vote upon any resolution submitted to any meeting of Debt
Securityholders shall be by written ballots on which shall be subscribed the
signatures of the holders of Debt Securities or of their representatives by
proxy and the principal amount (in the case of Original Issue Discount
Securities or Debt Securities denominated in a foreign currency or currencies,
such principal amount to be determined as provided in the definition of
"Outstanding" in Section 1.02) of the Debt Securities of the appropriate series
held or represented by them. The permanent chairman of the meeting shall appoint
two inspectors of votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the secretary of the
meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of Debt
Securityholders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was mailed as provided in Section 9.02. The record
shall be signed and verified by the affidavits of the permanent chairman and
secretary of the meeting and one of the duplicates shall be delivered to the
Corporation and the other to the Trustee to be preserved by the Trustee. With
the latter there shall also be delivered to the Trustee the ballots voted at the
meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 9.07. Nothing contained in this Article Nine shall be deemed or
construed to authorize or permit, by reason of any call of a meeting of Debt
Securityholders of any or all series or any rights expressly or impliedly
conferred hereunder to make such call, any hindrance or delay in the exercise of
any right or rights conferred upon or reserved to the Trustee or to the Debt
Securityholders of any or all series under any of the provisions of this
Indenture or of such series of Debt Securities.
ARTICLE TEN.
REPORTS BY THE CORPORATION AND THE
TRUSTEE AND DEBT SECURITYHOLDERS' LISTS.
Section 10.01. The Trustee shall transmit to the holders of Debt Securities
for which it serves as Trustee within 60 days after April 15 of each year
commencing with the year in which Debt Securities of any series are issued under
this Indenture, a brief report dated as of such April 15 that complies with
Section 313(a) of the Trust Indenture Act of 1939 if required by such Section
313(a). The Trustee also shall comply with Sections 313(b)(2), 313(c) and 313(d)
of the Trust Indenture Act of 1939.
The Corporation will reimburse the Trustee for all expenses incurred in the
preparation and transmission of any report pursuant to the provisions of this
Section 10.01 and of Section 10.02.
Section 10.02. (a) The Corporation will file with the Trustee, within 15
days after the Corporation shall be required so to file the same with the
Securities and Exchange Commission, copies of the annual reports and of the
information, documents, and other reports which the Corporation may be required
to file with the Securities and Exchange Commission pursuant to the provisions
of Section 13 or Section 15 (d) of the Securities Exchange Act of 1934 (or
copies of such portions of any of the foregoing as the Securities and Exchange
Commission may by rules and regulations prescribe); or, if the Corporation is
not required to file information, documents, or reports pursuant to the
provisions of either of such Sections, then the Corporation will file with the
Trustee and the Securities and Exchange Commission, in accordance with rules and
regulations prescribed by the Securities and Exchange Commission, such of the
<PAGE>
29
supplementary and periodic information, documents, and reports which may be
required pursuant to the provisions of Section 13 of the Securities Exchange Act
of 1934, in respect of a security listed and registered on a national securities
exchange, as may be prescribed in such rules and regulations.
(b) The Corporation will file with the Trustee and the Securities and
Exchange Commission, in accordance with rules and regulations prescribed by the
Securities and Exchange Commission, such additional information, documents, and
reports with respect to compliance by the Corporation with the conditions and
covenants provided for in this Indenture as may be required by such rules and
regulations.
(c) The Corporation will transmit to the holders of Debt Securities, within
30 days after the filing thereof with the Trustee (unless some other time shall
be fixed by the Securities and Exchange Commission) and in the manner and to the
extent provided in subdivision (c) of Section 10.01, such summaries of any
information, documents, and reports required to be filed by the Corporation
pursuant to the provisions of subdivisions (a) and (b) of this Section 10.02 as
may be required by rules and regulations prescribed by the Securities and
Exchange Commission.
Section 10.03. (a) The Corporation will furnish or cause to be furnished to
the Trustee semiannually, not more than 15 days after each Record Date for a
series of Debt Securities, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the holders of the Debt Securities of
such series as of such Record Date, and at such other times as the Trustee may
request in writing, within 30 days after the receipt by the Corporation of any
such request, a list of similar form and content as of a date not more than 15
days prior to the time such list is furnished, but so long as the Trustee is the
Debt Security registrar, no such lists shall be required to be furnished.
(b) The Trustee will preserve, in as current form as is reasonably
practicable, all information as to the names and addresses of holders of Debt
Securities so furnished to it or received by it in the capacity of paying agent
or Debt Security registrar, if acting as such. The Trustee may (1) destroy any
information furnished to it as provided in subdivision (a) of this Section 10.03
upon receipt of new similar information so furnished to it; and (2) destroy any
information received by it as paying agent or Debt Security registrar in
connection with an interest payment, upon receipt of new similar information but
not until 45 days after a subsequent interest payment shall have been made.
(c) Within five business days after receipt by the Trustee of a written
application by any three or more holders of Debt Securities of any series
stating that such holders (hereinafter in this subdivision (c) called such
applicants) desire to communicate with other holders of Debt Securities of such
series with respect to their rights under this Indenture or under the series of
Debt Securities, and accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, and by reasonable proof
that each such applicant has owned a Debt Security of such series for a period
of at least six months preceding the date of such application, the Trustee will,
at its election, either:
(1) afford to such applicants access to all information furnished to, or
received by, and preserved by, the Trustee pursuant to the provisions of
this Section 10.03; or
(2) inform such applicants as to the approximate number of holders of
Debt Securities of such series according to the most recent information so
furnished to, or received by, and preserved by, the Trustee, and as to the
approximate cost of mailing to such holders of Debt Securities the form of
proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to all holders of Debt Securities of the series whose names and addresses
are contained in the information so furnished to, or received by, and preserved
by, the Trustee copies of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
<PAGE>
30
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of such mailing, unless, within five
business days after such tender, the Trustee shall mail to such applicants, and
file with the Securities and Exchange Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the holders
of the Debt Securities of such series or would be in violation of applicable
law. Such written statement shall specify the basis of such opinion. If the
Securities and Exchange Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of the objections specified in the written statement so
filed, or if, after the entry of an order sustaining one or more of such
objections, the Securities and Exchange Commission shall find, after notice and
opportunity for hearing, that all objections so sustained have been met, and
shall enter an order so declaring, the Trustee shall mail copies of such
material to all such holders of Debt Securities with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise the Trustee
shall be relieved of any obligation or duty to such applicants respecting their
application.
Each and every holder of the Debt Securities, by receiving and holding the
same, agrees with the Corporation, any agent and the Trustee that neither the
Corporation, any agent nor the Trustee shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
holders of Debt Securities in accordance with the provisions of this subdivision
(c), regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under this subdivision (c).
ARTICLE ELEVEN.
CONCERNING THE TRUSTEE.
Section 11.01. The Trustee accepts the trusts created by this Indenture
upon the terms and conditions hereof, including the following, to all of which
the parties hereto and the holders from time to time of Debt Securities of each
series, by receiving and holding the same, agree:
(a) The Trustee shall be entitled to reasonable compensation for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust), and such compensation, as well as the reasonable
compensation of its counsel, and all other reasonable expenses incurred by
the Trustee hereunder, the Corporation agrees to pay promptly on demand
from time to time as such services shall be rendered and as such expenses
shall be incurred. In default of such payment by the Corporation, the
Trustee shall have a lien therefor on any moneys held by the Trustee
hereunder prior to any rights therein of the holders of the Debt Securities
of any series for which it serves as Trustee. The Corporation also agrees
to indemnify the Trustee for, and to hold it harmless against, any loss,
liability, or expense incurred without negligence or bad faith on the part
of the Trustee, arising out of or in connection with the acceptance or
administration of this trust or the performance of its duties hereunder, as
well as the costs and expenses of defending against any claim of liability
in the premises.
(b) The Trustee may execute any of the trusts or powers hereof and
perform any duty hereunder either directly or by its agents and 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.
(c) The Trustee shall not be responsible in any manner whatsoever for
the correctness of the recitals herein or in the Debt Securities (except
its certificate of authentication thereon, if such shall have been executed
by the Trustee), all of which are made by the Corporation solely; and the
Trustee shall not be responsible or accountable in any manner whatsoever
<PAGE>
31
for or with respect to the validity or execution or sufficiency of this
Indenture or of the Debt Securities (except its certificate of
authentication thereon, if such shall have been executed by the Trustee),
and the Trustee makes no representation with respect thereto. The Trustee
shall not be accountable for the use or application by the Corporation of
any series of Debt Securities, or the proceeds of any series of Debt
Securities authenticated and delivered by the Trustee in conformity with
the provisions of this Indenture.
(d) The Trustee may consult with counsel, and, to the extent permitted
by Section 11.02, the opinion or written advice of such counsel shall be
full and complete authorization and protection in respect of any action
taken or suffered or omitted to be taken by the Trustee hereunder in good
faith and in accordance with the opinion or advice of such counsel.
(e) The Trustee, to the extent permitted by Section 11.02, may rely upon
the certificate of the Secretary or one of the Assistant Secretaries of the
Corporation as to the adoption of any Board Resolution.
(f) The Trustee, in its individual or any other capacity, may become the
owner or pledgee of Debt Securities and may otherwise deal with the
Corporation with the same rights it would have had if it were not Trustee
hereunder.
(g) Any action taken by the Trustee pursuant to any provision hereof at
the request or with the consent of any person who at the time is the holder
of a Debt Security of any series shall be conclusive and binding in respect
of such Debt Security upon all future holders thereof or of any Debt
Security or Debt Securities which may be issued for or in lieu thereof in
whole or in part, whether or not such Debt Security shall have noted
thereon the fact that such request or consent had been made or given.
(h) Subject to the provisions of Section 11.02, the Trustee may rely and
shall be protected in acting upon any resolution, certificate, statement,
instrument, notice, opinion, order, request, direction, Debt Security, or
other paper or document believed by it to be genuine and to have been
signed or presented to it by the proper party or parties.
(i) Subject to the provisions of Section 11.02, the Trustee shall not be
under any obligation to exercise any of the rights or powers vested in it
by this Indenture at the request, order, or direction of any of the holders
of any series of Debt Securities, pursuant to any provisions of this
Indenture, unless one or more of the holders of such Debt Securities shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses, and liabilities which may be incurred by it therein or
thereby.
Section 11.02. If some one or more of the events of default specified in
Section 7.01 shall have happened, then, during the continuance thereof, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and shall use the same degree of care and skill in its exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
None of the provisions of this Indenture shall be construed as relieving
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that, anything in this
Indenture contained to the contrary notwithstanding:
(1) unless and until an event of default specified in Section 7.01 shall
have happened which at the time is subsisting,
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32
(a) the Trustee shall not be liable except for the performance of such
duties as are specifically set out in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee, whose duties and obligations shall be determined solely by the
express provisions of this Indenture, and
(b) the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, in the absence of
bad faith on the part of the Trustee, upon certificates and opinions
furnished to it and conforming to the requirements of this Indenture; but
in the case of any such certificates or opinions which, by the provisions
of this Indenture, 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;
(2) the Trustee shall not be liable to any holder of Debt Securities or
to any other person for any error of judgment made in good faith by a
responsible officer or officers of the Trustee, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable to any holder of Debt Securities or
to any other person 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 Debt Securities of any series at the
time outstanding (determined in accordance with the provisions of Article
Eight hereof), relating to the time, method, and place of conducting any
proceeding for any remedy available to it or exercising any trust or power
conferred upon it by this Indenture; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
Section 11.03. The Trustee shall give to the holders of the Debt Securities
of each series for which it serves as Trustee, in the manner and to the extent
provided in subdivision (c) of Section 10.01, notice of each default with
respect to such series known to the Trustee within 90 days after the occurrence
thereof, unless such default shall have been cured before the giving of such
notice; but, unless such default be the failure to pay the principal of (or
premium, if any) or interest, if any, on any of the Debt Securities of such
series when and as the same shall become payable, 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 of the Debt Securities of such series.
The term "default", as used in this Section 11.03 and in Section 11.06, shall
mean the happening of any event defined in Section 7.01 as an "event of
default", except that, for the purposes of this Section 11.03 and Section 11.06
only, there shall be eliminated from the definition of any such event specified
in paragraph (a), (c), (d), (e), or (g) of said Section 7.01 any reference to
the continuance, the continuance in effect for any period of days, or the giving
of written notice of any failure on the part of the Corporation or of any decree
or order, referred to in such definition.
Section 11.04. The Trustee, or any successor to it hereafter appointed, may
at any time resign and be discharged of the trusts hereby created as to any or
all series of Debt Securities for which it serves as Trustee by giving to the
Corporation notice in writing and by mailing notice thereof to the holders of
the Debt Securities of such series at their addresses as the same shall then
appear in the register of the Corporation. Such resignation shall take effect
upon the appointment by the holders of the Debt Securities of such series or by
the Corporation as hereinafter provided of a successor Trustee eligible under
Section 11.05 and not disqualified under Section 11.06, and the acceptance of
<PAGE>
33
such appointment by such successor Trustee. Any Trustee hereunder may be removed
with respect to any series at any time by the filing with such Trustee and the
delivery to the Corporation of an instrument in writing signed by the holders of
a majority in principal amount of the Debt Securities of such series then
outstanding, specifying such removal and the date when it shall become
effective.
Upon its resignation or removal, any Trustee shall be entitled to the
payment of reasonable compensation for the services rendered hereunder by such
Trustee and to the payment of all reasonable expenses incurred hereunder and all
moneys then due it hereunder.
Section 11.05. There shall at all times be a Trustee under this Indenture;
and such Trustee shall at all times be (i) a corporation organized and doing
business under the laws of the United States of America or any State thereof,
which is authorized under such laws to exercise corporate trust powers and is
subject to supervision or examination by Federal or State authority and which
has a combined capital and surplus of not less than $5,000,000, or (ii) a
corporation or other person organized and doing business under the laws of a
foreign government that the Securities and Exchange Commission shall have
permitted, pursuant to the Trust Indenture Act of 1939, to act as sole trustee
under an indenture qualified or to be qualified pursuant thereto and which has a
combined capital and surplus of not less than $5,000,000; provided that such
corporation or other person (A) is authorized under such laws to exercise
corporate trust powers and (B) is subject to supervision or examination by
authority of such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable to United
States institutional trustees. For the purposes of this Section 11.05, the
combined capital and surplus of any such Trustee shall be deemed to be the
combined capital and surplus as set forth in the most recent report of its
condition published by such Trustee, provided that such reports are published at
least annually, pursuant to law or to the requirements of a Federal, State or
foreign supervising or examining authority. Neither the Corporation nor any
person directly or indirectly controlling, controlled by, or under common
control with the Corporation shall serve as Trustee hereunder. If such Trustee
or any successor shall at any time cease to have the qualifications prescribed
in this Section 11.05, it shall promptly resign as Trustee hereunder.
Section 11.06. The Trustee shall comply with Section 310(b) of the Trust
Indenture Act of 1939.
Section 11.07. In case at any time the Trustee shall resign with respect to
one or more series of Debt Securities, or shall be removed (unless the Trustee
shall be removed with respect to one or more series of Debt Securities as
provided in subdivision (c) of Section 11.06, in which event the vacancy shall
be filled as provided in said subdivision), or shall become incapable of acting,
or shall be adjudged a bankrupt or insolvent, or if a receiver of the Trustee or
of its property shall be appointed, or if 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, a successor Trustee may be
appointed by the holders of a majority in principal amount of the Debt
Securities of the applicable series then outstanding (each series voting as a
class) by an instrument or concurrent instruments in writing signed in duplicate
by such holders and filed, one original thereof with the Corporation and the
other with the successor Trustee; but, until a successor Trustee shall have been
so appointed by the holders of Debt Securities of the applicable series as
herein authorized, the Corporation by a Board Resolution (or, in case all or
substantially all the assets of the Corporation shall be in the possession of
one or more receivers lawfully appointed, or of trustees or custodians in
bankruptcy or reorganization proceedings (including a trustee or trustees or a
custodian or custodians appointed under the provisions of Title 11 of the United
States Code, as now constituted or as hereafter in effect), or of assignees for
the benefit of creditors, such receivers, trustees, custodians, or assignees, as
the case may be, by an instrument in writing), shall appoint a successor
Trustee. Subject to the provisions of Sections 11.05 and 11.06, upon the
appointment as aforesaid of a successor Trustee, the Trustee shall cease to be
Trustee as to the applicable series of Debt Securities hereunder. After any such
appointment other than by the holders of the applicable series of Debt
Securities, the person making such appointment shall forthwith cause notice
thereof to be mailed to the holders of the applicable series of Debt Securities
<PAGE>
34
at their addresses as the same then appear in the register of the Corporation;
but any successor Trustee so appointed shall, immediately and without further
act, be superseded by a successor Trustee appointed by the holders of the
applicable series of Debt Securities in the manner above prescribed, if such
appointment be made prior to the expiration of one year from the date of the
mailing of such notice by the Corporation, or by such receivers, trustees,
custodians, or assignees.
If any Trustee shall resign because of a conflict of interest as provided
in subdivision (a) of Section 11.06 and a successor Trustee shall not have been
appointed by the Corporation or by the holders of the applicable series of Debt
Securities or, if any successor Trustee so appointed shall not have accepted its
appointment within 30 days after such appointment shall have been made, the
resigning Trustee may apply to any court of competent jurisdiction for the
appointment of a successor Trustee. If in any other proper case a successor
Trustee shall not be appointed pursuant to the foregoing provisions of this
Section 11.07 within three months after such appointment might have been made
hereunder, the holder of any Debt Security of the applicable series or any
retiring Trustee may apply to any court of competent jurisdiction to appoint a
successor Trustee. Such court may thereupon, in any such case, after such
notice, if any, as such court may deem proper and prescribe, appoint a successor
Trustee.
Any successor Trustee appointed hereunder shall execute, acknowledge, and
deliver to its predecessor Trustee and to the Corporation, and, if applicable,
to the receivers, trustees, custodians, assignees, or court appointing it, as
the case may be, an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor Trustee as to each
applicable series of Debt Securities shall become effective and such successor
Trustee, without any further act, deed, or conveyance, shall become vested with
all the authority, rights, powers, trusts, immunities, duties, and obligations
of such predecessor Trustee with respect to such series with like effect as if
originally named as Trustee hereunder with respect to such series, and such
predecessor Trustee, upon payment of its charges and disbursements then unpaid,
shall thereupon become obligated to pay over, and such successor Trustee shall
be entitled to receive, all moneys on deposit with or held by such predecessor
Trustee as Trustee hereunder with respect to such series, subject, nevertheless,
to the lien provided for in Section 11.01. Nevertheless, on the written request
of the Corporation or of the successor Trustee or of the holders of at least 10%
in principal amount of the applicable series of Debt Securities then
outstanding, such predecessor Trustee, upon payment of its said charges and
disbursements, shall execute and deliver an instrument transferring to such
successor Trustee upon the trusts herein expressed all the rights, powers, and
trusts of such predecessor Trustee with respect to such series, and shall
assign, transfer, and deliver to the successor Trustee all moneys and properties
held by such predecessor Trustee with respect to such series; and, upon request
of any such successor Trustee, the Corporation shall make, execute, acknowledge,
and deliver any and all instruments in writing for more fully and effectually
vesting in and confirming to such successor Trustee all such authority, rights,
powers, trusts, immunities, duties, and obligations.
Section 11.08. Any corporation or other person into which the Trustee or
any successor to it in the trusts created by this Indenture shall be merged or
converted, or any corporation or other person with which it or any successor to
it shall be consolidated, or any corporation or other person resulting from any
merger, conversion, or consolidation to which the Trustee or any such successor
to it shall be a party, or any corporation or other person to which the Trustee
or any successor to it shall sell or otherwise transfer all or substantially all
of the corporate trust business of the Trustee, shall be the successor Trustee
under this Indenture without the execution or filing of any paper or any further
act on the part of any of the parties hereto; provided, however, that any such
corporation or other person shall be otherwise qualified and eligible under this
Article Eleven.
Section 11.09. The Trustee shall comply with Section 311(a) of the Trust
Indenture Act of 1939, excluding any creditor relationship listed in Section
311(b) thereof. The Trustee, upon its resignation or removal, shall be subject
to Section 311(a) of the Trust Indenture Act of 1939 as indicated therein.
<PAGE>
35
Section 11.10. Except as otherwise provided in Section 11.02, and subject
to the provisions of Section 15.04 with respect to the certificates required
thereby, whenever in the administration of the provisions of this Indenture the
Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering any action hereunder, such matters
(unless other evidence in respect thereof be herein specifically prescribed)
may, in the absence of negligence or bad faith on the part of the Trustee, be
deemed to be conclusively proved and established by a certificate with respect
thereto signed by the Chairman, Vice Chairman, President, or one of the Vice
Presidents and by the Treasurer or one of the Assistant Treasurers or by the
Secretary or one of the Assistant Secretaries of the Corporation and delivered
to the Trustee, and such certificate, in the absence of negligence or bad faith
on the part of the Trustee, shall be full warrant to the Trustee for any action
taken, suffered, or omitted by it under the provisions of this Indenture upon
the faith thereof.
ARTICLE TWELVE
DEFEASANCE.
Section 12.01. If at any time (a) the Corporation shall have paid or caused
to be paid the principal of and interest on all the Debt Securities of any
series outstanding hereunder, as and when the same shall have become due and
payable, or (b) the Corporation shall have delivered to the Trustee for
cancellation all Debt Securities of any series theretofore authenticated (other
than any Debt Securities of such series which shall have been destroyed, lost or
stolen and which shall have been replaced as provided in Section 2.07 or paid),
and if, in any such case, the Corporation shall also pay or cause to be paid all
other sums payable hereunder by the Corporation with respect to Debt Securities
of such series, then this Indenture shall cease to be of further effect with
respect to Debt Securities of such series (except as to (i) rights of
registration of transfer and exchange, (ii) substitution of apparently
mutilated, defaced, destroyed, lost or stolen Debt Securities, (iii) rights of
the Debt Securityholders to receive payments of principal thereof and interest
thereon from the trust fund established pursuant to Section 12.02, and remaining
rights of the Debt Securityholders to receive mandatory sinking fund payments,
if any, from the trust fund established pursuant to Section 12.02, (iv) the
rights, obligations and immunities of the Trustee hereunder, (v) the rights of
the Debt Securityholders of such series as beneficiaries hereof with respect to
the property so deposited with the Trustee payable to all or any of them, (vi)
all other obligations of the Corporation in Sections 2.04, 2.06, 2.07, 10.03,
11.01, 11.04, 11.07 and 12.06 and (vii) the Corporation's rights pursuant to
Sections 11.04, 11.07, 12.05 and 12.06), and the Trustee, on demand of the
Corporation accompanied by an Officers' Certificate and an Opinion of Counsel
and at the cost and expense of the Corporation, shall execute proper instruments
acknowledging such satisfaction and discharging of this Indenture with respect
to Debt Securities of such series. The Corporation agrees to reimburse the
Trustee for any costs or expenses thereafter reasonably and properly incurred
and to compensate the Trustee for any services thereafter reasonably and
properly rendered by the Trustee in connection with this Indenture or the Debt
Securities of such series.
Section 12.02. For purposes of Section 12.01, the Corporation shall be
deemed to have paid the principal of and interest on Debt Securities of any
series outstanding hereunder as and when the same shall have become due and
payable, if the Company shall have irrevocably deposited or caused to be
deposited in trust with the Trustee funds in cash and/or U.S. Government
Obligations sufficient to provide for timely payment of principal of, premium,
if any, and interest on the Debt Securities of such series to the stated
maturity or redemption, as the case may be, the sufficiency of which shall be
verified in a written report of a nationally recognized, independent public
accounting firm acceptable to the Trustee; provided, however, that (i) in order
to have money available on a payment date to pay principal or interest on the
Debt Securities of such series, the U.S. Government Obligations shall be payable
as to principal and interest on or before such payment date in such amounts as
will provide the necessary money; and (ii) the Corporation shall obtain an
Opinion of Counsel (which may be based on a ruling from, or published by, the
<PAGE>
36
Internal Revenue Service) to the effect that holders of Debt Securities of that
series will not recognize income, gain or loss for federal income tax purposes
as a result of such deposit, defeasance and discharge and will be subject to
federal income tax on the same amounts and in the same manner and at the same
times, as would have been the case if such deposit, defeasance and discharge had
not occurred; and provided further, however, that notwithstanding the foregoing,
with respect to any series of Debt Securities which shall at the time be listed
for trading on The New York Stock Exchange, there shall be no deposit of funds
in cash and/or in U.S. Government Obligations with the Trustee to pay the
principal amount, the redemption price or any installment of interest in order
to discharge the Corporation's obligation in respect of any such payment if at
such time the rules of The New York Stock Exchange prohibit such deposit with
the Trustee. The Corporation shall provide the Trustee an Officers' Certificate
stating whether such series of Debt Securities is so listed at the time of such
defeasance.
Section 12.03. Debt Securities of a series shall be deemed to have been
paid in full as between the Corporation and the respective holders (and future
holders) of Debt Securities of such series upon the satisfaction and discharge
of the Indenture with respect to Debt Securities of such series pursuant to
Section 12.01, except that in the case of such satisfaction and discharge as a
result of compliance with Section 12.02, the Debt Securities of such series
shall be deemed to have been paid in full as between the Corporation and the
respective holders (and future holders) of Debt Securities of such series only
if (1) the deposit in trust with the Trustee by the Corporation of the funds in
cash and/or U.S. Government Obligations as provided in Section 12.02 is not
subsequently deemed a preference under the United States Bankruptcy Code as then
in effect, (2) such defeasance does not result in a default under this Indenture
and (3) the Corporation provides the Trustee an Officers' Certificate stating
that the Corporation has complied with all conditions precedent to such
defeasance.
Section 12.04. Subject to Section 12.06, all money or U.S. Government
Obligations deposited with the Trustee pursuant to Section 12.02 shall be held
in trust and applied by it to the payment, either directly or through the paying
agent (including the Corporation acting as its own paying agent), to the holders
of the particular Debt Securities of such series for the payment or redemption
of which such money or U.S. Government Obligations shall have been deposited
with the Trustee, of all sums due and to become due thereon for principal,
premium, if any, and interest. To facilitate the defeasance of Debt Securities
of a series, upon receipt of any funds in cash or payment in respect of any U.S.
Government Obligations deposited with it pursuant to Section 12.02 and at the
written direction of the Corporation, the Trustee may invest such funds or
reinvest the proceeds of such payment in U.S. Government Obligations sufficient
to provide for timely payment of principal, premium, if any, and interest on the
Debt Securities to the stated maturity or redemption, as the case may be.
Section 12.05. In connection with the satisfaction and discharge of this
Indenture with respect to Debt Securities of any series, all money or U.S.
Government Obligations then held by the paying agent under the provisions of
this Indenture with respect to such series of Debt Securities shall, upon demand
of the Corporation, be paid or delivered to the Trustee and thereupon the paying
agent, if other than the Trustee, shall be released from all further liability
with respect to such money or U.S. Government Obligations.
Section 12.06. After full payment of any and all amounts due and owing (i)
pursuant to any provision of this Indenture and (ii) with respect to Debt
Securities of a series, the Trustee and the paying agent, if other than the
Trustee, shall promptly pay to the Corporation upon written request any excess
money, U.S. Government Obligations or Debt Securities of such series held by
them at any time. Any money or U.S. Government Obligations deposited with or
paid to the Trustee or the paying agent for the payment of the principal of,
premium, if any, or interest on any Debt Security of any series and not applied
but remaining unclaimed for two years after the date upon which such principal,
premium, if any, or interest shall become due and payable, shall, upon the
written request of the Corporation and unless otherwise required by mandatory
<PAGE>
37
provisions of applicable escheat or abandoned or unclaimed property laws, be
repaid or delivered to the Corporation by the Trustee for such series or by the
paying agent, if other than the Trustee, and the holder of the Debt Security of
such series shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property laws, thereafter look only
to the Corporation for any payment which such Debt Securityholder may be
entitled to collect, and all liability of the Trustee or the paying agent, if
other than the Trustee, with respect to such money or U.S.
Government Obligations shall thereupon cease.
ARTICLE THIRTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS, AND DIRECTORS.
Section 13.01. No recourse shall be had for the payment of the principal of
(and premium, if any) or interest, if any, on any Debt Security, or for any
claim based thereon or otherwise in respect thereof or of the indebtedness
represented thereby, or upon any obligation, covenant, or agreement of this
Indenture, against any incorporator, stockholder, officer, or director, as such,
past, present, or future, of the Corporation or of any successor corporation,
either directly or through the Corporation or any successor corporation, whether
by virtue of any constitutional provision, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly agreed
and understood that this Indenture and all the Debt Securities are solely
corporate obligations, and that no personal liability whatsoever shall attach
to, or be incurred by, any incorporator, stockholder, officer, or director, as
such, past, present, or future, of the Corporation or of any successor
corporation, either directly or through the Corporation or any successor
corporation, because of the incurring of the indebtedness hereby authorized, or
under or by reason of any of the obligations, covenants, promises, or agreements
contained in this Indenture or in any of the Debt Securities or to be implied
herefrom or therefrom, and that all liability, if any, of that character against
every such incorporator, stockholder, officer, and director is, by the
acceptance of the Debt Securities, and as a condition of, and as part of the
consideration for, the execution of this Indenture and the issue of the Debt
Securities, expressly waived and released.
ARTICLE FOURTEEN.
SUPPLEMENTAL INDENTURES.
Section 14.01. The Corporation (when authorized by a Board Resolution) and
the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any one
or more of or all the following purposes:
(a) to add to the covenants and agreements of the Corporation, to be
observed thereafter and during the period, if any, in such supplemental
indenture or indentures expressed, for the protection or benefit of the
holders of the Debt Securities of any or all series (and if such covenants
and agreements are to be for less than all series of Debt Securities,
stating that such covenants or agreements are expressly being included for
the benefit of such series);
(b) to evidence the succession of another corporation to the
Corporation, or successive successions, and the assumption by a successor
corporation of the covenants and obligations of the Corporation in the Debt
Securities and in this Indenture or any supplemental indenture contained;
(c) to cure any ambiguity or to correct or supplement any provision
contained herein which may be defective or inconsistent with any other
provision contained herein or in any supplemental indenture, or to make any
other provision in regard to matters or questions arising under this
Indenture which the Board of Directors of the Corporation may deem
<PAGE>
38
necessary or desirable and which shall not adversely affect the interests
of the holders of the Debt Securities in any material respect;
(d) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Debt Securities of one or more
series or 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
trust hereunder by more than one trustee;
(e) to establish the form or terms of Debt Securities of any series as
permitted by Sections 2.01 and 3.01; or
(f) to provide for the issuance under this Indenture of Debt Securities
in coupon form (including Debt Securities registrable as to principal only)
and to provide for exchangeability of such Debt Securities for Debt
Securities of such series issued hereunder in fully registered form and to
make all appropriate changes for such purpose.
Subject to the provisions of Section 14.03, the Trustee is authorized to
join with the Corporation in the execution of any such supplemental indenture,
and to make the further agreements and stipulations which may be therein
contained.
Any supplemental indenture authorized by the provisions of this Section
14.01 may be executed by the Corporation and the Trustee without the consent of
the holders of any of the Debt Securities at the time outstanding,
notwithstanding any of the provisions of Section 14.02.
Section 14.02. With the consent (evidenced as provided in Article Eight) of
the holders of not less than 66 2/3% in aggregate principal amount of the
outstanding Debt Securities of each series affected thereby, at the time
outstanding, the Corporation, when authorized by a Board Resolution, and the
Trustee may from time to time and at any time 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
holder of any Debt Security; provided, however, that no such supplemental
indenture shall (i) extend the fixed maturity of any Debt Security, or reduce
the rate or extend the time of payment of interest thereon, or reduce the amount
of the principal (or premium, if any) thereof, or reduce the amount of principal
of an Original Issue Discount Security which would be due and payable upon a
declaration of acceleration of the maturity thereof, without the consent of the
holder of such Debt Security, or (ii) reduce the aforesaid percentage of Debt
Securities of any series, the holders of which are required to consent to any
such supplemental indenture, without the consent of the holders of all the Debt
Securities of all such series affected thereby then outstanding, or (iii)
modify, without the written consent of the Trustee, the rights, duties, or
immunities of the Trustee.
It shall not be necessary for the consent of the holders of the Debt
Securities of any series under this Section 14.02 to approve the particular form
of any proposed supplemental indenture, but it shall be sufficient if such
consent shall approve the substance thereof.
Any consent given by any holder of a Debt Security under this Section 14.02
shall be irrevocable for a period of six months after the day of execution
thereof, but may be revoked at any time thereafter by such holder or by his
successor in title by filing written notice of such revocation with the Trustee
at its corporate trust office; provided, however, that such consent shall not be
revocable after the holders of not less than 66 2/3% in aggregate principal
amount of the Debt Securities of the series of which such Debt Security is a
part at the time outstanding shall have consented to such supplemental
indenture. No notation on any Debt Security of the fact of such consent shall be
necessary, but any such written consent by the holder of any Debt Security shall
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39
be conclusive and binding on all future holders and owners of the same Debt
Security and of all Debt Securities delivered in exchange therefor, unless
revoked in the manner and during the period provided in this Section 14.02.
Promptly after the execution by the Corporation and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 14.02, the
Corporation shall mail a notice, setting forth in general terms the substance of
such supplemental indenture, to the holders of Debt Securities of the affected
series at their addresses as the same shall then appear in the register of the
Corporation. Any failure of the Corporation to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
Section 14.03. Upon the request of the Corporation, accompanied by an
Officers' Certificate and Opinion of Counsel required by Section 15.04 and by:
(a) a supplemental indenture duly executed on behalf of the Corporation;
(b) a copy of a Board Resolution authorizing the execution and delivery
of said supplemental indenture;
(c) an Opinion of Counsel, stating that said supplemental indenture
complies with, and that the execution thereof is authorized or permitted
by, the provisions of this Indenture; and
(d) if said supplemental indenture shall be executed pursuant to Section
14.02, evidence (as provided in Article Eight) of the consent thereto of
the Debt Securityholders required to consent thereto as in Section 14.02
provided,
the Trustee shall join with the Corporation in the execution of said
supplemental indenture unless said supplemental indenture affects the Trustee"s
own rights, duties, or immunities under this Indenture or otherwise or is not
reasonably acceptable to the Trustee, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into said supplemental
indenture; and, subject to the provisions of Section 11.02, the Trustee shall be
fully protected in executing any such supplemental indenture and accepting any
additional trusts created thereby or any modifications effected thereby of this
Indenture or of the trusts created by this Indenture, in reliance upon such
Board Resolution and Opinion of Counsel and (if required as aforesaid) evidence
of consent of Debt Securityholders.
Section 14.04. Upon the execution of any supplemental indenture pursuant to
the provisions of this Article Fourteen, this Indenture shall be and be deemed
to be modified and amended in accordance therewith and, except as herein
otherwise expressly provided, the respective rights, limitations of rights,
obligations, duties, and immunities under this Indenture of the Trustee, the
Corporation, and the holders of Debt Securities shall thereafter be determined,
exercised, and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
Section 14.05. Debt Securities authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article Fourteen may bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Corporation or the
Trustee shall so determine, new Debt Securities so modified as to conform, in
the opinion of the Trustee and the Board of Directors of the Corporation, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared by the Corporation, authenticated, and delivered as hereinbefore
provided in exchange for the Debt Securities of such series then outstanding in
equal aggregate principal amounts, and such exchange shall be made without cost
to the holders of the Debt Securities.
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40
Section 14.06. Every supplemental indenture executed pursuant to the
provisions of this Article Fourteen shall conform to the requirements of the
Trust Indenture Act of 1939.
ARTICLE FIFTEEN.
MISCELLANEOUS PROVISIONS.
Section 15.01. Subject to the provisions of Section 6.04, nothing contained
in this Indenture or in the Debt Securities shall be deemed to prevent the
consolidation or merger of the Corporation with or into any other corporation,
or the merger into the Corporation of any other corporation, or the sale by the
Corporation of its property and assets as, or substantially as, an entirety, or
otherwise; provided, however, that (1) in case of any such consolidation or
merger, the corporation resulting from such consolidation or any corporation
other than the Corporation into which such merger shall be made shall succeed to
and be substituted for the Corporation with the same effect as if it had been
named as the Corporation herein and shall become liable and be bound for, and
shall expressly assume, by indenture executed and delivered to the Trustee, the
due and punctual payment of the principal of (and premium, if any) and interest,
if any, on all the Debt Securities then outstanding and the performance and
observance of each and every covenant and condition of this Indenture on the
part of the Corporation to be performed or observed, and (2) as a condition of
any such sale of the property and assets of the Corporation as, or substantially
as, an entirety, the corporation to which such property and assets shall be sold
shall (a) expressly assume, as a part of the purchase price thereof, the due and
punctual payment of the principal of (and premium, if any) and interest, if any,
on all the Debt Securities and the performance and observance of all the
covenants and conditions of this Indenture on the part of the Corporation to be
performed or observed, and (b) simultaneously with the delivery to it of the
conveyances or instruments of transfer of such property and assets, execute and
deliver to the Trustee a proper indenture in form satisfactory to the Trustee,
whereby such purchasing corporation shall so assume the due and punctual payment
of the principal of (and premium, if any) and interest, if any, on all the Debt
Securities then outstanding and the performance and observance of each and every
covenant and condition of this Indenture on the part of the Corporation to be
performed or observed, to the same extent that the Corporation is bound and
liable.
The Corporation will not consolidate with any other corporation or accept a
merger of any other corporation into the Corporation or permit the Corporation
to be merged into any other corporation, or sell its properties and assets as,
or substantially as, an entirety, except upon the terms and conditions set forth
in this Section 15.01 and Section 6.04. Upon any consolidation or merger, or any
sale of the properties and assets of the Corporation as, or substantially as, an
entirety in accordance with the provisions of this Section 15.01, the
corporation formed by such consolidation or into which the Corporation shall
have been merged or to which such sale shall have been made shall succeed to and
be substituted for the Corporation with the same effect as if it had been named
herein as a party hereto, and thereafter from time to time such corporation may
exercise each and every right and power of the Corporation under this Indenture,
in the name of the Corporation or in its own name; and any act or proceeding by
any provision of this Indenture required or permitted to be done by any board or
officer of the Corporation may be done with like force and effect by the like
board or officer of any corporation that shall at the time be the successor of
the Corporation hereunder.
Section 15.02. Nothing in this Indenture expressed and nothing that may be
implied from any of the provisions hereof is intended, or shall be construed, to
confer upon, or to give to, any person or corporation other than the parties
hereto and the holders of the Debt Securities any right, remedy, or claim under
or by reason of this Indenture or any covenant, condition, stipulation, promise,
or agreement hereof, and all covenants, conditions, stipulations, promises, and
agreements in this Indenture contained shall be for the sole and exclusive
benefit of the parties hereto and their successors and of the holders of the
Debt Securities.
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41
Section 15.03. Whenever in this Indenture the Corporation shall be required
to do or not to do anything "so long as any of the Debt Securities shall be
outstanding", the Corporation, notwithstanding any such provision, shall not be
required to comply with such provision if it shall be entitled to have this
Indenture satisfied and discharged pursuant to the provisions hereof, although
the holders of any of the Debt Securities shall have failed to present and
surrender them for payment pursuant to the provisions of this Indenture.
Section 15.04. As evidence of compliance with the conditions precedent
provided for in this Indenture (including any covenants compliance with which
constitutes a condition precedent) which relate to the satisfaction and
discharge of this Indenture or to any other action to be taken or omitted to be
taken by the Trustee at the request or upon the application of the Corporation,
the Corporation will furnish to the Trustee an Officers' Certificate, signed as
provided in this Section 15.04, stating that such conditions precedent have been
complied with and an Opinion of Counsel stating that in his opinion such
conditions precedent have been complied with.
Unless herein otherwise expressly provided, any order, notice, request,
certificate, or statement of the Corporation required or permitted to be filed
with the Trustee, or to be made or given under any provision hereof, shall be
sufficient if it shall have been signed by the Chairman, Vice Chairman,
President, or one of the Vice Presidents and by the Treasurer or one of the
Assistant Treasurers or the Secretary or one of the Assistant Secretaries of the
Corporation.
In any case in which it is provided herein that an Opinion of Counsel shall
or may be furnished to the Trustee, the counsel rendering such opinion may be
counsel for the Corporation.
Each Officers' Certificate or Opinion of Counsel with respect to compliance
with a condition or covenant provided for in this Indenture shall include (1) a
statement that the person making such certificate or opinion has read such
condition or covenant, (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
such person, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such condition or
covenant has been complied with, and (4) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
Notwithstanding any provision of this Indenture authorizing the Trustee
conclusively to rely upon any certificates or opinions, the Trustee, before
granting any application by the Corporation to take or refrain from taking any
other action in reliance thereon, may, but shall not be obligated to, require
any further evidence or make any further investigation as to the facts or
matters stated therein which it may, in good faith, deem reasonable in the
circumstances, and in connection therewith the Trustee may examine or cause to
be examined the pertinent books, records, and premises of the Corporation or of
any subsidiary; and the Trustee shall, in any such case, require such further
evidence or make such further investigation as may be requested by the holders
of a majority in principal amount of the Debt Securities of all series (each
series voting as a class) affected thereby then outstanding; provided, that, if
payment to the Trustee of the costs, expenses, and liabilities likely to be
incurred by it in making such investigation is not reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the
Trustee before making such investigation may require reasonable indemnity
against such costs, expenses, or liabilities. Any further evidence which may be
requested by the Trustee pursuant to any of the provisions of this paragraph
shall be furnished by the Corporation at its own expense; and any costs,
expenses, and liabilities incurred by the Trustee pursuant to any of the
provisions of this paragraph shall be paid by the Corporation, or, if paid by
the Trustee, shall be repaid by the Corporation, upon demand, with interest at
the rate of 6% per annum, and, until such repayment, shall be secured by a lien
on any moneys held by the Trustee hereunder prior to any rights therein of the
holders of Debt Securities.
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42
Section 15.05. All Debt Securities paid, exchanged, surrendered for
registration of transfer, or otherwise retired shall, if surrendered to the
Corporation or to any paying agent, be delivered to the Trustee for cancellation
and shall be canceled by it or, if surrendered to the Trustee, shall be canceled
by it, and, except as otherwise provided in Article Two, Section 4.03 and
Section 14.05, no Debt Securities shall be issued under this Indenture in lieu
thereof. The Trustee shall make appropriate notations in its records in respect
of all such Debt Securities and shall deliver the canceled Debt Securities to or
on the order of the Corporation or shall dispose of such Debt Securities as
directed by the Corporation and deliver a certificate of such disposition to the
Corporation. If the Corporation shall acquire any of the Debt Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Debt Securities unless and until the same
are surrendered to the Trustee for cancellation.
Section 15.06. If any provision of this Indenture limits, qualifies, or
conflicts with the duties imposed by operation of subsection (c) of Section 318
of the Trust Indenture Act of 1939, the imposed duties shall control. The
provisions of Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939
that impose duties on any person (including provisions automatically deemed
included in an indenture unless the indenture provides that such provisions are
excluded) are a part of and govern this Indenture.
Section 15.07. Any notice or demand authorized by this Indenture to be
served on or given to the Corporation shall be sufficiently served or given for
all purposes if it shall be sent by registered mail to the Corporation addressed
to it at 1211 Avenue of the Americas, New York, NY 10036, or at such other
address as may have been furnished in writing to the Trustee by the Corporation.
Any notice or demand authorized by this Indenture to be served on or given
to the Trustee shall be sufficiently served or given for all purposes if it
shall be sent by registered mail to the Trustee addressed to it at the corporate
trust office of the Trustee, or at such other address as may have been furnished
in writing to the Corporation by the Trustee.
Any notice required or permitted to be mailed to a Debt Securityholder by
the Corporation or the Trustee pursuant to the provisions of this Indenture
shall be deemed to be properly mailed by being deposited first class postage
prepaid, in a post office letter box in the United States addressed to such Debt
Securityholder at the address of such holder as shown in the Debt Security
register.
In case, by reason of the suspension of or irregularities in regular mail
service, it shall be impractical to mail notice of any event to Debt
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
Section 15.08. 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.
Section 15.09. This Indenture and each Debt Security shall be deemed to be
a contract made under the laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of said State.
<PAGE>
EXHIBIT 24.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
The CIT Group Holdings, Inc.:
We consent to the use of our reports dated January 18, 1994, relating to
the consolidated balance sheets of The CIT Group Holdings, Inc. and subsidiaries
as of December 31, 1993 and 1992, and the related consolidated statements of
income, changes in stockholders' equity, and cash flows for each of the years in
the three-year period ended December 31, 1993, and the related schedule for each
of the years in the three-year period ended December 31, 1993, incorporated by
reference in this Registration Statement on Form S-3 of The CIT Group Holdings,
Inc., which reports appear in the December 31, 1993 Annual Report on Form 10-K
of The CIT Group Holdings, Inc., and to the reference to our firm under the
heading "Experts" in the Registration Statement.
Our report on the consolidated financial statements refers to a change in
the method of accounting for postretirement benefits other than pensions in
1993.
KPMG Peat Marwick
Short Hills, New Jersey
May 3, 1994
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