As filed with the Securities and Exchange Commission on March 15, 1994
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
and
POST-EFFECTIVE AMENDMENT NO. 1
and
POST-EFFECTIVE AMENDMENT NO. 2
and
POST-EFFECTIVE AMENDMENT NO. 3
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) 740-5465
(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
------------------------
Approximate date of commencement of proposed sale to the public:
When market conditions warrant after the effective date of this
Registration Statement.
------------------------
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/
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================================
Proposed Proposed
Amount maximum maximum Amount of
Title of each class of securities to be offering price aggregate registration
to be registered registered per unit offering price fee
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Senior/Senior Subordinated
Debt Securities................... $4,000,000,000(1) 100%(2) $4,000,000,000(2) $1,379,310
===============================================================================================================
</TABLE>
(1) If any Debt Securities are issued (i) with a principal amount denominated
in a foreign currency, such principal amount as shall result in an
aggregate initial offering price the equivalent of U.S. $4,000,000,000 at
the time of initial offering, or (ii) at an original issue discount, such
greater principal amount as shall result in an aggregate initial offering
price of $4,000,000,000.
(2) Estimated solely for the purpose of determining the registration fee.
(continued on following page)
<PAGE>
(continued from previous page)
------------------------
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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 declared
effective on March 15, 1993, (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 declared effective on March 15, 1993, and (c) $1,414,000,000 principal
amount of Debt Securities registered on Form S-3, Registration No. 33-58418,
which was declared effective on March 15, 1993. This Registration Statement,
which is a new registration statement, also constitutes Post-Effective Amendment
No. 3 to the Registrant's Registration Statement on Form S-3, Registration No.
33-42529, Post-Effective Amendment No. 2 to the Registrant's Registration
Statement on Form S-3, Registration No. 33-50666, and Post-Effective Amendment
No. 1 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.
================================================================================
<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.
SUBJECT TO COMPLETION, DATED MARCH 15, 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 $5,961,000,000 (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 $5,961,000,000). 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 March , 1994.
<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, 1992;
(b) The Corporation's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1993, June 30, 1993 and September 30, 1993; and
(c) The Corporation's Current Reports on Form 8-K dated January 13,
1993, April 13, 1993, July 12, 1993, October 14, 1993, November 9, 1993,
January 14, 1994 and February 28, 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
2
<PAGE>
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
3
<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 administrative and 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 33 sales offices serving 23 states and two offices
which offer mortgage loans for resale to third parties. 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 agency
activities. Financing is also provided in the form of revolving and term loans,
and letter of credit support. The CIT Group/Commercial Services is headquartered
4
<PAGE>
in New York City, with sales offices 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.
5
<PAGE>
SUMMARY OF FINANCIAL INFORMATION
The following is a summary of certain financial information of the
Corporation and its subsidiaries. The data for the year ended December 31, 1993
were obtained from the unaudited summary financial information contained in the
Corporation's Current Report on Form 8-K dated January 14, 1994. The data for
the years ended December 31, 1992, 1991, and 1990 were obtained from the
Corporation's audited consolidated financial statements contained in the
Corporation's 1992 Annual Report on Form 10-K. The data for the year ended
December 31, 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
---- ---- ---- ---- ----
(unaudited)
(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.
Ratios of Earnings to Fixed Charges
<TABLE>
<CAPTION>
Year Ended December 31,
-------------------------------------------------------
1993 1992 1991 1990 1989
---- ---- ---- ---- ----
(unaudited)
<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.
6
<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 the Indenture, dated as of
May 1, 1988, as amended by Indenture Supplement No. 1, dated as of January 15,
1991 (as so amended, the "Senior Subordinated Indenture"), between the
Corporation and The Bank of New York, as trustee (the "Senior Subordinated
Trustee"), or (ii) one or more separate, unlimited series of Debt Securities
constituting senior subordinated indebtedness under the Senior Subordinated
Indenture 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 Indenture are
sometimes herein referred to as the "Indentures", and the Senior Trustees and
the Senior Subordinated Trustee are sometimes herein referred to as the
"Trustees".
The statements under this heading are subject to the detailed provisions of
each Indenture. A copy of the form of global Senior Indenture and a copy of the
Senior Subordinated Indenture are filed as exhibits to this Registration
Statement. 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 $5,961,000,000 (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 $5,961,000,000). The Senior Subordinated
Securities to be offered pursuant to this Prospectus are limited to an aggregate
initial offering price of $5,864,000,000 (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 $5,864,000,000). 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 Indenture does 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 December 31, 1993, under
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the most restrictive of such provisions in any such agreement, the Corporation
could issue up to approximately $1.69 billion of Senior Subordinated
Indebtedness, of which approximately $200.0 million was issued and outstanding
as of December 31, 1993. 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 December 31, 1993,
approximately $10.6 billion of outstanding Superior Indebtedness was reflected
in the Corporation's consolidated unaudited balance sheet. The Senior Securities
will be senior to all Senior Subordinated Indebtedness, including the Senior
Subordinated Securities, which at December 31, 1993 totaled $200.0 million
outstanding, and Junior Subordinated Indebtedness, none of which was outstanding
at December 31, 1993. 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 Indenture, 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
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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
deposit collateral to secure all or any of its obligations; renewals or
refundings of any of the foregoing; incidental liens that do not secure
liabilities incurred in connection with the borrowing of money; sales of
securitized assets or property of the Corporation or its subsidiaries and
certain other minor exceptions. (Section 6.04.) In addition, the Senior
Subordinated Indenture provides 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 Indenture, as of
December 31, 1993, the Corporation could issue up to approximately $1.49 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
Indentures 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
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
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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 Indentures Section 6.05, Senior
Subordinated Indenture Section 6.06.)
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
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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. The Senior
Subordinated Trustee also acts as trustee under several of the Corporation's
other indentures, including as a Senior Trustee under a Senior Indenture.
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.
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.
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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,
Financial Statement Schedule and Reports on Form 8-K" in the Corporation's 1992
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.
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.
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
==========
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.
g1.2 --Form of Selling Agency Agreement.
a4.1a --Proposed form of Debt Securities (Note).
a4.1b --Proposed form of Debt Securities (Debenture).
a4.1c --Proposed form of Debt Securities (Deep Discount Debenture).
a4.1d --Proposed form of Debt Securities (Zero Coupon Debenture).
a4.1e --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).
f4.1h --Proposed form of Debt Securities (Medium-Term Senior Fixed Rate
Note).
f4.1i --Proposed form of Debt Securities (Medium-Term Senior Floating Rate
Note).
f4.1j --Proposed form of Debt Securities (Medium-Term Senior Subordinated
Fixed Rate Note).
f4.1k --Proposed form of Debt Securities (Medium-Term Senior Subordinated
Floating Rate Note).
h4.2a --Form of Global Indenture between the Registrant and each Senior
Trustee.
b4.2b --Indenture dated as of May 1, 1988, between the Registrant and The
Bank of New York, as Trustee.
e4.2c --Indenture Supplement No. 1 dated as of January 15, 1991, between the
Registrant and The Bank of New York, as Trustee.
h5 --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)
h12 --Computation of Ratios of Earnings to Fixed Charges.
h24.1 --Consent of KPMG Peat Marwick.
h24.2 --Consent of Counsel. The consent of Schulte Roth & Zabel is included
in its opinion filed herewith as Exhibit 5 to this Registration
Statement.
h25.1 --Powers of Attorney.
h25.2 --Board Resolutions.
h26.1 --Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of Continental Bank, National Association.
h26.2 --Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York.
h26.3 --Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The Chase Manhattan Bank (National Association).
h26.4 --Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The First National Bank of Chicago.
h26.5 --Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of Harris Trust and Savings Bank.
h26.6 --Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of BankAmerica National Trust Company.
h26.7 --Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The First National Bank of Boston.
h26.8 --Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of PNC Bank, National Association.
h26.9 --Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of Citibank, N.A.
h26.10 --Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of Society National Bank.
- -----------------
a Incorporated by reference to Registration Statement No. 2-93960 on Form S-3
filed October 25, 1984.
b Incorporated by reference to Registration Statement No. 33-21954 on Form S-3
filed May 18, 1988.
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 Registration Statement No. 33-48658 on Form S-3
filed June 22, 1992.
f Incorporated by reference to the Registrant's Current Report on Form 8-K
dated July 21, 1992.
g Incorporated by reference to Registration Statement No. 33-58418 on Form S-3
filed February 16, 1993.
h 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 New York and State of New York, on the 15th day of
March, 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
Director
*By WILLIAM BARONOFF
----------------- March 15, 1994
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 Financial Officer
(principal financial and accounting officer)
March 15, 1994
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.
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 March 15, 1994 (the "Standard
Provisions"), are hereby incorporated herein by reference with
the same force and effect as though fully set out herein.
PARAGRAPH B. ADDITIONAL PROVISIONS
The following provision, which constitutes part of this
Indenture, is numbered to conform with the format of the Standard
Provisions:
Section 1.02. Definitions
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].
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
<PAGE>
2
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>
================================================================================
THE CIT GROUP HOLDINGS, INC.
STANDARD MULTIPLE-SERIES INDENTURE PROVISIONS
_______________
Indenture
Dated as of March 15, 1994
_______________
DEBT SECURITIES
================================================================================
<PAGE>
TRUST INDENTURE ACT CROSS REFERENCE SHEET*
-----------------------------------------
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 . . . . . . . . . . . . . . . 2
Debt Security . . . . . . . . . . . . . . 2
Debt Securityholder; holder of Debt
Securities; holder. . . . . . . . . . . . 2
Depositary. . . . . . . . . . . . . . . . 2
Event of default. . . . . . . . . . . . . 2
Global Security . . . . . . . . . . . . . 2
Indenture . . . . . . . . . . . . . . . . 2
Interest. . . . . . . . . . . . . . . . . 3
Majority. . . . . . . . . . . . . . . . . 3
Maturity. . . . . . . . . . . . . . . . . 3
Officer . . . . . . . . . . . . . . . . . 3
Officers' Certificate . . . . . . . . . . 3
Officers' Order . . . . . . . . . . . . . . 3
Opinion of Counsel. . . . . . . . . . . . 3
Original Issue Discount Securities. . . . 3
Outstanding . . . . . . . . . . . . . . . 4
Person. . . . . . . . . . . . . . . . . . 4
Record Date . . . . . . . . . . . . . . . 4
Responsible Officer . . . . . . . . . . . 4
Subsidiary. . . . . . . . . . . . . . . . 5
Trustee . . . . . . . . . . . . . . . . . 5
U.S. Government Obligations . . . . . . . 5
Trust Indenture Act of 1939 . . . . . . . 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 . . . . 6
Section 2.02 Certificate of authentication. . . . . . 7
Section 2.03 Execution of Debt Securities . . . . . . 8
_____________
*The Table of Contents is not a part of this Indenture.
<PAGE>
-ii-
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. . . . . . . . . . . . . 13
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. . . . 15
Section 5.03 Redemption of Debt Securities for
sinking fund . . . . . . . . . . . . 15
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. . . . . . . 16
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-
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. . 20
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 . . . . . . 21
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. . . . . . . . 24
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. . . . 27
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 . . . . . . . . . . . . . . . 27
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-
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 . . . . . . . . 30
(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 31
(c) Trustee not responsible for recitals of
fact. . . . . . . . . . . . . . . . . . 31
-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
-Trustee not to be relieved from liability
for negligence or
willful misconduct. . . . . . . . . . . 32
-except:
(1) when no default subsisting . . . . . .32
(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. . . . . . . . . . . . . . . 33
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. . . . . . . . . .34
-by Corporation . . . . . . . . . . . . . .34
-notice of appointment other than by Debt
Securityholders . . . . . . . . . . . . . .34
-appointment by a court . . . . . . . . . 34
-execution of instrument by successor
Trustee, predecessor
Trustee, and Corporation. . . . . . . . 34
Section 11.08 Consolidation and merger of
Trustee. . . . . . . . . . . . . . . 35
Section 11.09 Trustee required to account for
amounts collected as creditor of
Corporation under certain conditions. . 35
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
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 662/3% 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 40
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 . . . . . . . . . . . . 41
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. . . . . . 43
Section 15.09 Indenture and Debt Securities to be
construed in accordance with the
laws of the State of New York . . . . . 43
<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.
<PAGE>
2
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.
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.
<PAGE>
3
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.
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.
<PAGE>
4
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 hereinafter provided;
(b) Debt Securities, including any portion of a
Global Security, which shall have been surrendered
to the Trustee for cancellation;
(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
<PAGE>
5
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.
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.
<PAGE>
6
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);
(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;
<PAGE>
7
(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;
(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.
<PAGE>
8
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
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,
<PAGE>
9
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.
(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.
<PAGE>
10
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,
(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
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11
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 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.
<PAGE>
12
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.
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
<PAGE>
13
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.
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,
<PAGE>
14
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 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.
<PAGE>
15
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 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.
<PAGE>
16
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 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
<PAGE>
17
property acquired by the Corporation or such subsidiary
or (2) 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;
(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
<PAGE>
18
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; or
(i) the Corporation or any subsidiary from
creating, permitting or suffering to exist (1) other
mortgages, pledges, liens, charges and encumbrances
that are incidental to the conduct of the business of
the Corporation or such subsidiary, or the ownership of
the properties or assets of the Corporation or such
subsidiary, and that do not secure liabilities incurred
in connection with the borrowing of money, 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.
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
<PAGE>
19
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 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
<PAGE>
20
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 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
<PAGE>
21
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 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.
<PAGE>
22
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 action 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 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
<PAGE>
23
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.
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
<PAGE>
24
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 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.
<PAGE>
26
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 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
<PAGE>
27
(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 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,
<PAGE>
28
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 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.
<PAGE>
29
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 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
<PAGE>
30
(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
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.
<PAGE>
31
(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 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.
<PAGE>
32
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,
(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.
<PAGE>
33
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 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
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34
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 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
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35
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.
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
<PAGE>
36
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 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.
<PAGE>
37
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 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);
<PAGE>
38
(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 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 662/3% 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.
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39
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 662/3% 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 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
<PAGE>
40
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.
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
<PAGE>
41
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.
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
<PAGE>
42
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.
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.
<PAGE>
43
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.
EXHIBIT 5
[Letterhead of Shulte Roth & Zabel]
March 15, 1994
The CIT Group Holdings, Inc.
1211 Avenue of the Americas
New York, New York 10036
Ladies and Gentlemen:
We are special counsel to The CIT Group Holdings, Inc.,
a Delaware corporation (the "Corporation"), in connection with
(a) the Registration Statement on Form S-3 of the Corporation
covering $4,000,000,000 aggregate principal amount of the
Corporation's senior/senior subordinated debt securities (the
"Debt Securities"), which is being filed with the Securities and
Exchange Commission (the "Commission") on the date hereof; (b)
Post-Effective Amendment No. 3, which is being filed with the
Commission on the date hereof, to the Corporation's Registration
Statement on Form S-3 (File No. 33-42529), which was declared
effective by the Commission on September 10, 1991, as amended by
Post-Effective Amendment No. 1, as further amended by Post-
Effective Amendment No. 2; (c) Post-Effective Amendment No. 2,
which is being filed with the Commission on the date hereof, to
the Corporation's Registration Statement on Form S-3 (File No.
33-50666), which was declared effective by the Commission on
August 28, 1992, as amended by Post-Effective Amendment No. 1;
and (d) Post-Effective Amendment No. 1 which is being filed with
the Commission on the date hereof, to the Corporation's
Registration Statement on Form S-3 (File No. 33-58418), which was
declared effective by the Commission on March 15, 1993 (each, as
so amended, a "Registration Statement", and, collectively, as so
amended, the "Registration Statements") relating to the issuance
from and after the date hereof of up to $5,961,000,000 in
aggregate principal amount of the Debt Securities pursuant to the
following indentures (each, an "Indenture"): (i) the Indenture
dated as of March 15, 1994, between the Corporation and The Chase
Manhattan Bank (National Association), as Trustee; (ii) the
Indenture dated as of March 15, 1994, between the Corporation and
<PAGE>
The CIT Group Holdings, Inc.
March 15, 1994
Page 2
The First National Bank of Chicago, as Trustee; (iii) the
Indenture dated as of March 15, 1994 between the Corporation and
Harris Trust and Savings Bank, as Trustee; (iv) the Indenture
dated as of March 15, 1994, between the Corporation and
Continental Bank, National Association, as Trustee; (v) the
Indenture dated as of March 15, 1994, between the Corporation and
BankAmerica National Trust Company, as Trustee; (vi) the
Indenture dated as of March 15, 1994, between the Corporation and
The First National Bank of Boston, as Trustee; (vii) the
Indenture dated as of March 15, 1994, between the Corporation and
The Bank of New York, as Trustee; (viii) the Indenture dated as
of March 15, 1994, between the Corporation and PNC Bank, National
Association, formerly known as Pittsburgh National Bank, as
Trustee; (ix) the Indenture dated as of March 15, 1994, between
the Corporation and Citibank, N.A., as Trustee; (x) the Indenture dated
as of March 15, 1994, between the Corporation and Society National
Bank (each of the Indentures referred to in clauses (i)-(x) collectively,
the "March 1994 Indentures"); and (xi) the Indenture dated as of May
1, 1988, between the Corporation and The Bank of New York, as
Trustee, as supplemented by Indenture Supplement No. 1 dated as
of January 15, 1991, between the Corporation and The Bank of New
York, as Trustee (the "Senior Subordinated Indenture").
In this capacity, we have examined signed copies of
each Registration Statement and originals, telecopies or copies,
certified or otherwise identified to our satisfaction, of such
records of the Corporation and all such agreements, certificates
of public officials, certificates of officers or representatives
of the Corporation and others, and such other documents,
certificates and corporate or other records as we have deemed
necessary or appropriate as a basis for this opinion.
As to all matters of fact (including, without
limitation, matters of fact set forth in this opinion), we have
relied upon and assumed the accuracy of statements and
representations of officers and other representatives of the
Corporation and others.
In our examination, we have assumed the genuineness of
all signatures, the legal capacity of natural persons signing or
delivering any instrument, the authenticity of all documents
submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or
photostatic copies and the authenticity of the originals of such
latter documents.
<PAGE>
The CIT Group Hoildings Inc.
March 15, 1994
Page 3
We have also assumed, with respect to each of the March
1994 Indentures, that (a) such Indenture will be duly executed
and delivered by each of the parties thereto prior to the
issuance of any Debt Securities thereunder and (b) during the
period from the date hereof until the date of such execution and
delivery, there will be no change in (i) any relevant
authorization, law or regulation, or interpretation thereof; (ii)
the terms and conditions of such Indenture; or (iii) any set of
facts or circumstances relating to such Indenture. With respect
to the Senior Subordinated Indenture, we have assumed that such
Indenture was duly authorized, executed and delivered by The Bank
of New York, as Trustee.
Based upon the foregoing, having regard for such legal
considerations as we deem relevant, we are of the opinion that
the Debt Securities have been duly authorized and, when duly
executed by the Corporation and authenticated in accordance with
the terms of an Indenture and issued and delivered in accordance
with the terms of such Indenture against payment therefor as
contemplated by the applicable Registration Statement, will
constitute valid and binding obligations of the Corporation.
We hereby consent to the filing of this opinion as an
exhibit to each Registration Statement and to the reference to
this firm appearing under the heading "Legal Opinions" in each
Registration Statement and the Prospectus which forms a part of
each Registration Statement. In giving such consent, we do not
thereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act of
1993, as amended, or the General Rules and Regulations of the
Commission thereunder.
We are attorneys admitted to practice in the state of
New York and the opinion set forth below is limited to the laws
of the state of New York and the Delaware General Corporation
Law. Paul N. Roth, a member of the firm rendering this opinion,
is a director of the Corporation.
Very truly yours,
SCHULTE ROTH & ZABEL
Exhibit 12
THE CIT GROUP HOLDINGS, INC. AND SUBSIDIARIES
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
Year Ended December 31,
------------------------------
1993 1992 1991
---- ---- ----
(unaudited)
(Dollar Amounts in Thousands)
Net income .............................. $ 182,308 $ 162,300 $ 150,128
Provision for income taxes .............. 128,489 105,311 100,032
Extraordinary item--loss on early
extinguishment of debt, net of
income tax benefit .................... -- 4,241 1,325
--------- --------- ---------
Earnings before provision for
income taxes and extraordinary
item .................................. 310,797 271,852 251,485
--------- --------- ---------
Fixed Charges:
Interest and debt expenses
on indebtedness ..................... 508,006 552,017 709,373
Interest factor-one third
of rentals on real and
personal properties ................. 8,001 8,278 8,368
--------- --------- ---------
Total fixed charges ................. 516,007 560,295 717,741
--------- --------- ---------
Total earnings before
provisions for income taxes,
extraordinary item, and
fixed charges ...................... $ 826,804 $ 832,147 $ 969,226
========= ========= =========
Ratios of Earnings to Fixed
Charges ............................... 1.60 1.49 1.35
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 19, 1993, relating to the
consolidated balance sheets of The CIT Group Holdings, Inc. and subsidiaries as
of December 31, 1992 and 1991, 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, 1992, and the related schedule for each
of the years in the three-year period ended December 31, 1992, incorporated by
reference in this Registration Statement on Form S-3 of The CIT Group Holdings,
Inc., which reports appear in the December 31, 1992 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.
KPMG Peat Marwick
Short Hills, New Jersey
March 15, 1994
EXHIBIT 24.2
[Letterhead of Shulte Roth & Zabel]
March 15, 1994
The CIT Group Holdings, Inc.
1211 Avenue of the Americas
New York, New York 10036
Ladies and Gentlemen:
We are special counsel to The CIT Group Holdings, Inc.,
a Delaware corporation (the "Corporation"), in connection with
(a) the Registration Statement on Form S-3 of the Corporation
covering $4,000,000,000 aggregate principal amount of the
Corporation's senior/senior subordinated debt securities (the
"Debt Securities"), which is being filed with the Securities and
Exchange Commission (the "Commission") on the date hereof; (b)
Post-Effective Amendment No. 3, which is being filed with the
Commission on the date hereof, to the Corporation's Registration
Statement on Form S-3 (File No. 33-42529), which was declared
effective by the Commission on September 10, 1991, as amended by
Post-Effective Amendment No. 1, as further amended by Post-
Effective Amendment No. 2; (c) Post-Effective Amendment No. 2,
which is being filed with the Commission on the date hereof, to
the Corporation's Registration Statement on Form S-3 (File No.
33-50666), which was declared effective by the Commission on
August 28, 1992, as amended by Post-Effective Amendment No. 1;
and (d) Post-Effective Amendment No. 1 which is being filed with
the Commission on the date hereof, to the Corporation's
Registration Statement on Form S-3 (File No. 33-58418), which was
declared effective by the Commission on March 15, 1993 (each, as
so amended, a "Registration Statement", and, collectively, as so
amended, the "Registration Statements") relating to the issuance
from and after the date hereof of up to $5,961,000,000 in
aggregate principal amount of the Debt Securities pursuant to the
following indentures (each, an "Indenture"): (i) the Indenture
dated as of March 15, 1994, between the Corporation and The Chase
Manhattan Bank (National Association), as Trustee; (ii) the
Indenture dated as of March 15, 1994, between the Corporation and
<PAGE>
The CIT Group Holdings, Inc.
March 15, 1994
Page 2
The First National Bank of Chicago, as Trustee; (iii) the
Indenture dated as of March 15, 1994 between the Corporation and
Harris Trust and Savings Bank, as Trustee; (iv) the Indenture
dated as of March 15, 1994, between the Corporation and
Continental Bank, National Association, as Trustee; (v) the
Indenture dated as of March 15, 1994, between the Corporation and
BankAmerica National Trust Company, as Trustee; (vi) the
Indenture dated as of March 15, 1994, between the Corporation and
The First National Bank of Boston, as Trustee; (vii) the
Indenture dated as of March 15, 1994, between the Corporation and
The Bank of New York, as Trustee; (viii) the Indenture dated as
of March 15, 1994, between the Corporation and PNC Bank, National
Association, formerly known as Pittsburgh National Bank, as
Trustee; (ix) the Indenture dated as of March 15, 1994, between
the Corporation and Citibank, N.A., as Trustee; (x) the Indenture dated
as of March 15, 1994, between the Corporation and Society National
Bank (each of the Indentures referred to in clauses (i)-(x) collectively,
the "March 1994 Indentures"); and (xi) the Indenture dated as of May
1, 1988, between the Corporation and The Bank of New York, as
Trustee, as supplemented by Indenture Supplement No. 1 dated as
of January 15, 1991, between the Corporation and The Bank of New
York, as Trustee (the "Senior Subordinated Indenture").
In this capacity, we have examined signed copies of
each Registration Statement and originals, telecopies or copies,
certified or otherwise identified to our satisfaction, of such
records of the Corporation and all such agreements, certificates
of public officials, certificates of officers or representatives
of the Corporation and others, and such other documents,
certificates and corporate or other records as we have deemed
necessary or appropriate as a basis for this opinion.
As to all matters of fact (including, without
limitation, matters of fact set forth in this opinion), we have
relied upon and assumed the accuracy of statements and
representations of officers and other representatives of the
Corporation and others.
In our examination, we have assumed the genuineness of
all signatures, the legal capacity of natural persons signing or
delivering any instrument, the authenticity of all documents
submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or
photostatic copies and the authenticity of the originals of such
latter documents.
<PAGE>
The CIT Group Hoildings Inc.
March 15, 1994
Page 3
We have also assumed, with respect to each of the March
1994 Indentures, that (a) such Indenture will be duly executed
and delivered by each of the parties thereto prior to the
issuance of any Debt Securities thereunder and (b) during the
period from the date hereof until the date of such execution and
delivery, there will be no change in (i) any relevant
authorization, law or regulation, or interpretation thereof; (ii)
the terms and conditions of such Indenture; or (iii) any set of
facts or circumstances relating to such Indenture. With respect
to the Senior Subordinated Indenture, we have assumed that such
Indenture was duly authorized, executed and delivered by The Bank
of New York, as Trustee.
Based upon the foregoing, having regard for such legal
considerations as we deem relevant, we are of the opinion that
the Debt Securities have been duly authorized and, when duly
executed by the Corporation and authenticated in accordance with
the terms of an Indenture and issued and delivered in accordance
with the terms of such Indenture against payment therefor as
contemplated by the applicable Registration Statement, will
constitute valid and binding obligations of the Corporation.
We hereby consent to the filing of this opinion as an
exhibit to each Registration Statement and to the reference to
this firm appearing under the heading "Legal Opinions" in each
Registration Statement and the Prospectus which forms a part of
each Registration Statement. In giving such consent, we do not
thereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act of
1993, as amended, or the General Rules and Regulations of the
Commission thereunder.
We are attorneys admitted to practice in the state of
New York and the opinion set forth below is limited to the laws
of the state of New York and the Delaware General Corporation
Law. Paul N. Roth, a member of the firm rendering this opinion,
is a director of the Corporation.
Very truly yours,
SCHULTE ROTH & ZABEL
EXHIBIT 25.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of THE CIT GROUP HOLDINGS, INC., a Delaware corporation, which is about
to file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a Registration Statement
on Form S-3 for the registration of debt securities under said Act of
$4,000,000,000 aggregate principal amount, or if issued at an original discount,
such greater principal amount as shall result in an aggregate initial public
offering price of $4,000,000,000 (all in United States dollars or an equivalent
amount in another currency or composite currency), hereby constitutes and
appoints ALBERT R. GAMPER, JR., WILLIAM BARONOFF, and DONALD J. RAPSON his true
and lawful attorneys-in-fact and agents, and each of them with full power to act
without the others, his true and lawful attorneys-in-fact and agents, for him
and in his name, place, and stead, in any and all capacities, to sign such
Registration Statement and any and all amendments thereof, with power where
appropriate to affix the corporate seal of said corporation thereto and to
attest to said seal, and to file such Registration Statement and each such
amendment, with all exhibits thereto, and any and all other documents in
connection therewith, with the Securities and Exchange Commission, and hereby
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform any and all acts and things requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person and hereby ratifies and confirms all that said
attorneys-in-fact and agents, or any of them, may lawfully do or cause to be
done by virtue hereby.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on the 2nd
day of February, 1994.
/s/ALBERT R. GAMPER, JR.
Albert R. Gamper, Jr.
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of THE CIT GROUP HOLDINGS, INC., a Delaware corporation, which is about
to file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a Registration Statement
on Form S-3 for the registration of debt securities under said Act of
$4,000,000,000 aggregate principal amount, or if issued at an original discount,
such greater principal amount as shall result in an aggregate initial public
offering price of $4,000,000,000 (all in United States dollars or an equivalent
amount in another currency or composite currency), hereby constitutes and
appoints ALBERT R. GAMPER, JR., WILLIAM BARONOFF, and DONALD J. RAPSON his true
and lawful attorneys-in-fact and agents, and each of them with full power to act
without the others, his true and lawful attorneys-in-fact and agents, for him
and in his name, place, and stead, in any and all capacities, to sign such
Registration Statement and any and all amendments thereof, with power where
appropriate to affix the corporate seal of said corporation thereto and to
attest to said seal, and to file such Registration Statement and each such
amendment, with all exhibits thereto, and any and all other documents in
connection therewith, with the Securities and Exchange Commission, and hereby
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform any and all acts and things requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person and hereby ratifies and confirms all that said
attorneys-in-fact and agents, or any of them, may lawfully do or cause to be
done by virtue hereby.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on the 2nd
day of February, 1994.
/s/MICHIO MURATO
Michio Murata
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of THE CIT GROUP HOLDINGS, INC., a Delaware corporation, which is about
to file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a Registration Statement
on Form S-3 for the registration of debt securities under said Act of
$4,000,000,000 aggregate principal amount, or if issued at an original discount,
such greater principal amount as shall result in an aggregate initial public
offering price of $4,000,000,000 (all in United States dollars or an equivalent
amount in another currency or composite currency), hereby constitutes and
appoints ALBERT R. GAMPER, JR., WILLIAM BARONOFF, and DONALD J. RAPSON his true
and lawful attorneys-in-fact and agents, and each of them with full power to act
without the others, his true and lawful attorneys-in-fact and agents, for him
and in his name, place, and stead, in any and all capacities, to sign such
Registration Statement and any and all amendments thereof, with power where
appropriate to affix the corporate seal of said corporation thereto and to
attest to said seal, and to file such Registration Statement and each such
amendment, with all exhibits thereto, and any and all other documents in
connection therewith, with the Securities and Exchange Commission, and hereby
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform any and all acts and things requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person and hereby ratifies and confirms all that said
attorneys-in-fact and agents, or any of them, may lawfully do or cause to be
done by virtue hereby.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on the 2nd
day of February, 1994.
/s/KEIJI TORII
Keiji Torii
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of THE CIT GROUP HOLDINGS, INC., a Delaware corporation, which is about
to file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a Registration Statement
on Form S-3 for the registration of debt securities under said Act of
$4,000,000,000 aggregate principal amount, or if issued at an original discount,
such greater principal amount as shall result in an aggregate initial public
offering price of $4,000,000,000 (all in United States dollars or an equivalent
amount in another currency or composite currency), hereby constitutes and
appoints ALBERT R. GAMPER, JR., WILLIAM BARONOFF, and DONALD J. RAPSON his true
and lawful attorneys-in-fact and agents, and each of them with full power to act
without the others, his true and lawful attorneys-in-fact and agents, for him
and in his name, place, and stead, in any and all capacities, to sign such
Registration Statement and any and all amendments thereof, with power where
appropriate to affix the corporate seal of said corporation thereto and to
attest to said seal, and to file such Registration Statement and each such
amendment, with all exhibits thereto, and any and all other documents in
connection therewith, with the Securities and Exchange Commission, and hereby
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform any and all acts and things requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person and hereby ratifies and confirms all that said
attorneys-in-fact and agents, or any of them, may lawfully do or cause to be
done by virtue hereby.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on the 2nd
day of February, 1994.
/s/HISAO KOBAYASHI
Hisao Kobayashi
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of THE CIT GROUP HOLDINGS, INC., a Delaware corporation, which is about
to file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a Registration Statement
on Form S-3 for the registration of debt securities under said Act of
$4,000,000,000 aggregate principal amount, or if issued at an original discount,
such greater principal amount as shall result in an aggregate initial public
offering price of $4,000,000,000 (all in United States dollars or an equivalent
amount in another currency or composite currency), hereby constitutes and
appoints ALBERT R. GAMPER, JR., WILLIAM BARONOFF, and DONALD J. RAPSON his true
and lawful attorneys-in-fact and agents, and each of them with full power to act
without the others, his true and lawful attorneys-in-fact and agents, for him
and in his name, place, and stead, in any and all capacities, to sign such
Registration Statement and any and all amendments thereof, with power where
appropriate to affix the corporate seal of said corporation thereto and to
attest to said seal, and to file such Registration Statement and each such
amendment, with all exhibits thereto, and any and all other documents in
connection therewith, with the Securities and Exchange Commission, and hereby
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform any and all acts and things requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person and hereby ratifies and confirms all that said
attorneys-in-fact and agents, or any of them, may lawfully do or cause to be
done by virtue hereby.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on the 2nd
day of February, 1994.
/s/TOSHIJI TOKIWA
Toshiji Tokiwa
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of THE CIT GROUP HOLDINGS, INC., a Delaware corporation, which is about
to file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a Registration Statement
on Form S-3 for the registration of debt securities under said Act of
$4,000,000,000 aggregate principal amount, or if issued at an original discount,
such greater principal amount as shall result in an aggregate initial public
offering price of $4,000,000,000 (all in United States dollars or an equivalent
amount in another currency or composite currency), hereby constitutes and
appoints ALBERT R. GAMPER, JR., WILLIAM BARONOFF, and DONALD J. RAPSON his true
and lawful attorneys-in-fact and agents, and each of them with full power to act
without the others, his true and lawful attorneys-in-fact and agents, for him
and in his name, place, and stead, in any and all capacities, to sign such
Registration Statement and any and all amendments thereof, with power where
appropriate to affix the corporate seal of said corporation thereto and to
attest to said seal, and to file such Registration Statement and each such
amendment, with all exhibits thereto, and any and all other documents in
connection therewith, with the Securities and Exchange Commission, and hereby
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform any and all acts and things requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person and hereby ratifies and confirms all that said
attorneys-in-fact and agents, or any of them, may lawfully do or cause to be
done by virtue hereby.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on the 2nd
day of February, 1994.
/s/TOMOAKI TANAKA
Tomoaki Tanaka
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of THE CIT GROUP HOLDINGS, INC., a Delaware corporation, which is about
to file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a Registration Statement
on Form S-3 for the registration of debt securities under said Act of
$4,000,000,000 aggregate principal amount, or if issued at an original discount,
such greater principal amount as shall result in an aggregate initial public
offering price of $4,000,000,000 (all in United States dollars or an equivalent
amount in another currency or composite currency), hereby constitutes and
appoints ALBERT R. GAMPER, JR., WILLIAM BARONOFF, and DONALD J. RAPSON his true
and lawful attorneys-in-fact and agents, and each of them with full power to act
without the others, his true and lawful attorneys-in-fact and agents, for him
and in his name, place, and stead, in any and all capacities, to sign such
Registration Statement and any and all amendments thereof, with power where
appropriate to affix the corporate seal of said corporation thereto and to
attest to said seal, and to file such Registration Statement and each such
amendment, with all exhibits thereto, and any and all other documents in
connection therewith, with the Securities and Exchange Commission, and hereby
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform any and all acts and things requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person and hereby ratifies and confirms all that said
attorneys-in-fact and agents, or any of them, may lawfully do or cause to be
done by virtue hereby.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on the 2nd
day of February, 1994.
/s/JOSEPH A. POLLICINO
Joseph A. Pollicino
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of THE CIT GROUP HOLDINGS, INC., a Delaware corporation, which is about
to file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a Registration Statement
on Form S-3 for the registration of debt securities under said Act of
$4,000,000,000 aggregate principal amount, or if issued at an original discount,
such greater principal amount as shall result in an aggregate initial public
offering price of $4,000,000,000 (all in United States dollars or an equivalent
amount in another currency or composite currency), hereby constitutes and
appoints ALBERT R. GAMPER, JR., WILLIAM BARONOFF, and DONALD J. RAPSON his true
and lawful attorneys-in-fact and agents, and each of them with full power to act
without the others, his true and lawful attorneys-in-fact and agents, for him
and in his name, place, and stead, in any and all capacities, to sign such
Registration Statement and any and all amendments thereof, with power where
appropriate to affix the corporate seal of said corporation thereto and to
attest to said seal, and to file such Registration Statement and each such
amendment, with all exhibits thereto, and any and all other documents in
connection therewith, with the Securities and Exchange Commission, and hereby
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform any and all acts and things requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person and hereby ratifies and confirms all that said
attorneys-in-fact and agents, or any of them, may lawfully do or cause to be
done by virtue hereby.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on the 2nd
day of February, 1994.
/s/PAUL N. ROTH
Paul N. Roth
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of THE CIT GROUP HOLDINGS, INC., a Delaware corporation, which is about
to file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a Registration Statement
on Form S-3 for the registration of debt securities under said Act of
$4,000,000,000 aggregate principal amount, or if issued at an original discount,
such greater principal amount as shall result in an aggregate initial public
offering price of $4,000,000,000 (all in United States dollars or an equivalent
amount in another currency or composite currency), hereby constitutes and
appoints ALBERT R. GAMPER, JR., WILLIAM BARONOFF, and DONALD J. RAPSON his true
and lawful attorneys-in-fact and agents, and each of them with full power to act
without the others, his true and lawful attorneys-in-fact and agents, for him
and in his name, place, and stead, in any and all capacities, to sign such
Registration Statement and any and all amendments thereof, with power where
appropriate to affix the corporate seal of said corporation thereto and to
attest to said seal, and to file such Registration Statement and each such
amendment, with all exhibits thereto, and any and all other documents in
connection therewith, with the Securities and Exchange Commission, and hereby
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform any and all acts and things requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person and hereby ratifies and confirms all that said
attorneys-in-fact and agents, or any of them, may lawfully do or cause to be
done by virtue hereby.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on the 2nd
day of February, 1994.
/s/PETER J. TOBIN
Peter J. Tobin
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of THE CIT GROUP HOLDINGS, INC., a Delaware corporation, which is about
to file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a Registration Statement
on Form S-3 for the registration of debt securities under said Act of
$4,000,000,000 aggregate principal amount, or if issued at an original discount,
such greater principal amount as shall result in an aggregate initial public
offering price of $4,000,000,000 (all in United States dollars or an equivalent
amount in another currency or composite currency), hereby constitutes and
appoints ALBERT R. GAMPER, JR., WILLIAM BARONOFF, and DONALD J. RAPSON his true
and lawful attorneys-in-fact and agents, and each of them with full power to act
without the others, his true and lawful attorneys-in-fact and agents, for him
and in his name, place, and stead, in any and all capacities, to sign such
Registration Statement and any and all amendments thereof, with power where
appropriate to affix the corporate seal of said corporation thereto and to
attest to said seal, and to file such Registration Statement and each such
amendment, with all exhibits thereto, and any and all other documents in
connection therewith, with the Securities and Exchange Commission, and hereby
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform any and all acts and things requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person and hereby ratifies and confirms all that said
attorneys-in-fact and agents, or any of them, may lawfully do or cause to be
done by virtue hereby.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on the 2nd
day of February, 1994.
/s/WILLIAM H. TURNER
William H. Turner
EXHIBIT 25.2
THE CIT GROUP HOLDINGS, INC.
Secretary's Certificate
I, Ernest D. Stein, Executive Vice President, General
Counsel, and Secretary of The CIT Group Holdings, Inc., a
Delaware corporation (the "Corporation"), hereby certify that
attached hereto as Exhibit A is a true, accurate and complete
copy of the unanimous written consent of the Board of Directors
dated February 2, 1994, and such consent has not been amended,
modified, or rescinded and remains in full force and effect.
IN WITNESS WHEREOF, I have hereunto signed my name and
affixed the seal of the Corporation this 14th day of March, 1994.
/s/ ERNEST D. STEIN
_______________________
Secretary
[Seal]
<PAGE>
THE CIT GROUP HOLDINGS, INC.
BOARD OF DIRECTORS CONSENT
The undersigned, being all of the members of the Board of
Directors of The CIT Group Holdings, Inc., a Delaware corporation
(the "Corporation"), hereby consent in writing, pursuant to the
provisions of Section 141 (f) of the Delaware General Corporation
Law, to the following resolutions:
WHEREAS, the Corporation desires to obtain financing in
public debt markets and in that connection desires to
authorize Albert R. Gamper, Jr., William Baronoff, and
Donald J. Rapson, and each of them, to sign, on behalf of
the Corporation and certain of its directors and officers a
registration statement on Form S-3, and any amendments
thereto, for the registration of debt securities of the
Corporation under the Securities Act of 1933, as amended
(the "Securities Act"), under such terms and conditions to
be determined by the Executive Committee of the Board of
Directors (the "Executive Committee"), which terms and
conditions may be amended from time to time;
NOW, THEREFORE, BE IT:
RESOLVED, that the Corporation deems it advisable
and in the best interest of the Corporation for the
Corporation to be in a position to obtain additional
financing from time to time by means of an offering of
up to $4,000,000,000 aggregate principal amount or, if
issued at an original issue discount, such greater
principal amount as shall result in an aggregate
initial public offering price of $4,000,000,000 (all in
United States dollars or an equivalent amount in
another currency or composite currency) to be made (i)
directly to purchasers, (ii) through agents designated
from time to time, (iii) through underwriters or a
group of underwriters represented by one or more
particular underwriter(s), or (iv) to dealers, from and
after the date hereof on a continuing basis (such issue
of debt securities or any series thereof being
hereinafter sometimes referred to in these resolutions
as the "Debt Securities") under such terms and
conditions, which may be amended from time to time, as
the Executive Committee shall determine; and
RESOLVED FURTHER, that the proper officers of the
Corporation be, and they hereby are, authorized to
proceed with the preparation of a registration
statement on Form S-3 (such registration statement
<PAGE>
being hereinafter referred to in these resolutions as
the "Registration Statement") for the registration
under the Securities Act of any or all of the Debt
Securities for sale, and to proceed with such financing
at such time, if at all, within such period as the
Executive Committee shall deem appropriate; and
RESOLVED FURTHER, that Albert R. Gamper, Jr.,
William Baronoff, and Donald J. Rapson be, and each of
them with full power to act with or without the others
hereby is, authorized to sign the Registration
Statement covering the registration under the
Securities Act of the Debt Securities and any and all
amendments (including post-effective amendments) to the
Registration Statement, on behalf of and as true and
lawful attorney or attorneys for the Corporation and on
behalf of and as true and lawful attorney or attorneys
for the Principal Executive Officer and/or the
Principal Financial Officer and/or the Principal
Accounting Officer and/or other officers of the
Corporation, including, without limitation, the
Chairman and/or the Vice Chairman and/or the President
and/or each Senior Executive Vice President and/or each
Executive Vice President and/or each Senior Vice
President and/or each Vice President and/or the
Treasurer and/or the Secretary and/or the Assistant
Secretary (in attestation of the corporate seal of the
Corporation or otherwise).
/s/ALBERT R. GAMPER, JR. /s/HISAO KOBAYASHI
- ------------------------ ---------------------------
Albert R. Gamper, Jr. Hisao Kobayashi
/s/MICHIO MURATO /s/JOSEPH A. POLLICINO
- ------------------------ ---------------------------
Michio Murata Joseph A. Pollicino
/s/PAUL N. ROTH /s/TOMOAKI TANAKA
- ------------------------ ---------------------------
Paul N. Roth Tomoaki Tanaka
/s/PETER J. TOBIN /s/TOSHIJI TOKIWA
- ------------------------ ---------------------------
Peter J. Tobin Toshiji Tokiwa
/s/KEIJI TORII /s/WILLIAM H. TURNER
- ------------------------ ---------------------------
Keiji Torii William H. Turner
Dated: February 2, 1994
2
EXHIBIT 26.1
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION
305(B)(2)_____
----------------
CONTINENTAL BANK, NATIONAL ASSOCIATION
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
36-0947896
(I.R.S. EMPLOYER
IDENTIFICATION NO.)
231 SOUTH LASALLE STREET, CHICAGO, 60697
ILLINOIS (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE
OFFICES)
----------------
THE CIT GROUP HOLDINGS, INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 13-2994534
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
1211 AVENUE OF THE AMERICAS 10036
NEW YORK, NEW YORK (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE
OFFICES)
DEBT SECURITIES
(TITLE OF THE INDENTURE SECURITIES)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
Comptroller of the Currency, Washington, D.C.
Chicago Clearing House Association, 164 W. Jackson Boulevard,
Chicago, Illinois.
Federal Deposit Insurance Corporation, Washington, D.C.
The Board of Governors of the Federal Reserve System, Washington,
D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee.
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF VOTING SECURITIES
OF THE TRUSTEE:
AS OF MARCH 15, 1994
<TABLE>
<CAPTION>
COL. A COL. B
TITLE OF CLASS AMOUNT OUTSTANDING
-------------- ------------------
<S> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY OTHER
SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, FURNISH THE FOLLOWING
INFORMATION:
(A) TITLE OF THE SECURITIES OUTSTANDING UNDER EACH SUCH OTHER INDENTURE.
Not applicable by virtue of response to Item 13.
(B) A BRIEF STATEMENT OF THE FACTS RELIED UPON AS A BASIS FOR THE CLAIM
THAT NO CONFLICTING INTEREST WITHIN THE MEANING OF SECTION 310(B)(1) OF
THE ACT ARISES AS A RESULT OF THE TRUSTEESHIP UNDER ANY SUCH OTHER
INDENTURE, INCLUDING A STATEMENT AS TO HOW THE INDENTURE SECURITIES
WILL RANK AS COMPARED WITH THE SECURITIES ISSUED UNDER SUCH OTHER
INDENTURE.
Not applicable by virtue of response to Item 13.
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR
UNDERWRITERS.
IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICERS OF THE
TRUSTEE IS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE, OR
REPRESENTATIVE OF THE OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR,
IDENTIFY EACH SUCH PERSON HAVING ANY SUCH CONNECTION AND STATE THE NATURE
OF EACH SUCH CONNECTION.
Not applicable by virtue of response to Item 13.
1
<PAGE>
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY THE OBLIGOR AND EACH DIRECTOR, PARTNER AND
EXECUTIVE OFFICER OF THE OBLIGOR.
AS OF MARCH 15, 1994
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
AMOUNT OWNED REPRESENTED BY AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
------------- -------------- ------------------------- ---------------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY EACH UNDERWRITER FOR THE OBLIGOR AND EACH
DIRECTOR, PARTNER, AND EXECUTIVE OFFICER OF EACH SUCH UNDERWRITER.
AS OF MARCH 15, 1994
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
AMOUNT OWNED REPRESENTED BY AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
------------- -------------- ------------------------- ---------------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO SECURITIES OF THE OBLIGOR OWNED
BENEFICIALLY OR HELD AS COLLATERAL SECURITY FOR OBLIGATIONS IN DEFAULT BY
THE TRUSTEE:
AS OF MARCH 15, 1994
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
WHETHER THE
SECURITIES
ARE VOTING AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
OR NONVOTING HELD AS COLLATERAL SECURITY REPRESENTED BY AMOUNT
TITLE OF CLASS SECURITIES FOR OBLIGATIONS IN DEFAULT GIVEN IN COL. C
- -------------- ----------------- ---------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
2
<PAGE>
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH
UNDERWRITER ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
AS OF MARCH 15, 1994
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
NAME OF ISSUER AND HELD AS COLLATERAL SECURITY FOR REPRESENTED BY AMOUNT
TITLE OF CLASS AMOUNT OUTSTANDING OBLIGATIONS IN DEFAULT BY TRUSTEE GIVEN IN COL. C
- ------------------ ------------------ --------------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT VOTING SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE
OF THE TRUSTEE (1) OWNS 10 PERCENT OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR OR (2) IS AN AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF SUCH
PERSON.
AS OF MARCH 15, 1994
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
NAME OF ISSUER AND HELD AS COLLATERAL SECURITY FOR REPRESENTED BY AMOUNT
TITLE OF CLASS AMOUNT OUTSTANDING OBLIGATIONS IN DEFAULT BY TRUSTEE GIVEN IN COL. C
- ------------------ ------------------ --------------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF
THE TRUSTEE, OWNS 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR, FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES
OF SUCH PERSON ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
AS OF MARCH 15, 1994
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
NAME OF ISSUER AND HELD AS COLLATERAL SECURITY FOR REPRESENTED BY AMOUNT
TITLE OF CLASS AMOUNT OUTSTANDING OBLIGATIONS IN DEFAULT BY TRUSTEE GIVEN IN COL. C
- ------------------ ------------------ --------------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
3
<PAGE>
ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
EXCEPT AS NOTED IN THE INSTRUCTIONS, IF THE OBLIGOR IS INDEBTED TO THE
TRUSTEE, FURNISH THE FOLLOWING INFORMATION:
AS OF MARCH 15, 1994
<TABLE>
<CAPTION>
COL. A COL. B COL. C
NATURE OF INDEBTEDNESS AMOUNT OUTSTANDING DATE DUE
- ---------------------- ------------------ --------
<S> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 13. DEFAULTS BY THE OBLIGOR.
(A) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT TO THE
SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There is not nor has there been a default with respect to the
securities under this indenture.
(B) IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY
OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, OR IS TRUSTEE FOR MORE THAN ONE
OUTSTANDING SERIES OF SECURITIES UNDER THE INDENTURE, STATE WHETHER THERE
HAS BEEN A DEFAULT UNDER ANY SUCH INDENTURE OR SERIES, IDENTIFY THE
INDENTURE OR SERIES AFFECTED, AND EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There is not nor has there been a default with respect to the
securities under this indenture. The trustee is a trustee under another
indenture under which securities issued by the obligor are outstanding.
There is not nor has there been a default with respect to the
securities under such other indenture.
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
IF ANY UNDERWRITER IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
Not applicable by virtue of response to Item 13.
ITEM 15. FOREIGN TRUSTEE.
IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE FOREIGN TRUSTEE IS
AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE
QUALIFIED UNDER THE ACT.
Not applicable.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the Articles of Association of Continental Bank, National
Association as now in effect, incorporated herein by reference to Exhibit 1
to T-1; Registration No. 33-40462.
2. A copy of the certificate of authority to commence business,
incorporated herein by reference to Exhibit 2 to T-1; Registration No. 33-
26747.
3. A copy of the authorization to exercise corporate trust powers,
incorporated herein by reference to Exhibit 3 of Amendment No. 1 to T-1;
Registration No. 2-51075.
4. A copy of the existing By-laws of Continental Bank, National
Association as now in effect, incorporated herein by reference to Exhibit 4
to T-1; Registration No. 33-43020.
5. Not applicable by virtue of response to Item 13.
4
<PAGE>
6. The consent of the trustee required by Section 321(b) of the Trust
Indenture Act of 1939, incorporated herein by reference to Exhibit 6 of
Amendment No. 1 to T-1; Registration No. 2-51075.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority, filed herewith.
8. Not applicable.
9. Not applicable.
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939, THE TRUSTEE,
CONTINENTAL BANK, NATIONAL ASSOCIATION, A NATIONAL BANKING ASSOCIATION
ORGANIZED AND EXISTING UNDER THE LAWS OF THE UNITED STATES OF AMERICA, HAS DULY
CAUSED THIS STATEMENT OF ELIGIBILITY TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, ALL IN THE CITY OF CHICAGO, AND STATE
OF ILLINOIS, AS OF THE 15TH DAY OF MARCH, 1994.
CONTINENTAL BANK, NATIONAL
ASSOCIATION
By /s/ GREG JORDAN
-----------------------------------
Greg Jordan
Vice President
5
EXHIBIT 7
(OFFICIAL PUBLICATION)
REPORT OF CONDITION
CONSOLIDATING DOMESTIC AND FOREIGN SUBSIDIARIES OF THE
CONTINENTAL BANK, NATIONAL ASSOCIATION
Charter No. 13639 National Bank Region No. 7
In the state of Illinois at the closed of business on December 31, 1993
published in response to call made by Comptroller of the Currency, under title
12, United States Code, Section 161.
ASSETS In Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency
and coin........................................................ $ 2,042
Interest-bearing balances......................................... 1,802
Securities........................................................ 1,893
Federal funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBFs:
Federal funds sold.............................................. 608
Securities purchased under agreements to resell................. 922
Loans and lease financing receivables:
Loans and leases, net of unearned income................ $11,930
LESS: Allowance for loan and lease losses............... 328
LESS: Allocated transfer risk reserve................... 0
Loans and leases, net of unearned income,
allowance, and reserve.......................................... 11,602
Assets held in trading accounts................................... 1,637
Premises and fixed assets (including capitalized leases).......... 222
Other real estate owned........................................... 143
Investments in unconsolidated subsidiaries and
associated companies............................................ 0
Customers' liability to this bank on acceptances outstanding...... 69
Intangible assets................................................. 1
Other assets...................................................... 1,390
-------
TOTAL ASSETS.................................................... $22,331
=======
LIABILITIES
Deposits:
In domestic offices............................................. $10,223
Noninterest-bearing.......................................$2,924
Interest-bearing.......................................... 7,229
In foreign offices, Edge and Agreement subsidiaries,
and IBFs........................................................ 3,802
Noninterest-bearing.......................................$ 70
Interest-bearing.......................................... 3,732
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge and Agreement subsidiaries,
and in IBFs:
Federal funds purchased......................................... 1,312
Securities sold under agreements to repurchase.................. 418
Demand notes issued to the U.S. Treasury.......................... 1,300
Other borrowed money.............................................. 1,670
Mortgage indebtedness and obligations under capitalized leases.... 0
Bank's liability on acceptances executed and outstanding.......... 69
Notes and debentures subordinated to deposits..................... 398
Other liabilities................................................. 993
-------
TOTAL LIABILITIES............................................... 20,185
-------
Limited-life preferred stock...................................... 0
EQUITY CAPITAL
Perpetual preferred stock......................................... 0
Common stock...................................................... 685
Surplus........................................................... 827
Undivided profits and capital reserves............................ 604
LESS: Net unrealized loss on marketable equity securities....... (35)
Cumulative foreign currency translation adjustments............... (5)
-------
TOTAL EQUITY CAPITAL............................................ 2,146
-------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK,
AND EQUITY CAPITAL.............................................. $22,321
=======
I, John J. Higgins, Controller of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and
belief.
/s/ JOHN J. HIGGINS
-----------------------
Controller
February 11, 1994
EXHIBIT-26.2
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
------------------------
THE CIT GROUP HOLDINGS, INC.
(Exact name of obligor as specified in its charter)
Delaware 13-2994534
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1211 Avenue of the Americas
New York, New York 10036
(Address of principal executive offices) (Zip code)
______________________
Senior/Senior Subordinated Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the 2 Rector Street, New York,
State of New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20549
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an exhibit
hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of
1939 (the"Act") and Rule 24 of the Commission's Rules of Practice.
1. A copy of the Organization Certificate of The Bank of New
York (formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No.33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by
the Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
- 3 -
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of
New York, a corporation organized and existing under the laws of the State of
New York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of New
York, and State of New York, on the 11th day of March, 1994.
THE BANK OF NEW YORK
By: /S/ S.D. MINEO
----------------------
Name: S.D. Mineo
Title: Vice President
-4-
<PAGE>
- -------------------------------------------------------------------------------
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
December 31, 1993, published in accordance with a call made by the
Federal Reserve Bank of this District pursuant to the provisions
of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository
institutions:
Noninterest-bearing balances and
currency and coin .................. $ 4,393,393
interest-bearing balances .......... 652,315
Securities ........................... 3,809,834
Federal funds sold in domestic offices
of the bank ........................ 331,075
Loans and lease financing receivables:
Loans and leases, net of unearned
income .................23,708,678
Less Allowance for loan and lease
losses .....................773,597
Less allocated transfer risk
reserve .....................28,427
Loans and leases, net of unearned
income, allowance and reserve .... 22,906,654
Assets held in trading accounts ...... 851,615
Premises and fixed assets (including
capitalized leases) ................ 657,247
Other real estate owned .............. 60,806
Investments in unconsolidated subsi-
diaries and associated companies ... 170,378
Customers liability to this bank on
acceptances outstanding ............ 885,751
Intangible assets .................... 42,689
Other assets 1,326,362
-----------
Total assets $36,088,119
===========
LIABILITIES
Deposits:
In domestic offices ................ $19,486,153
Noninterest-bearing .......7,388,636
Interest-bearing .........12,097,517
In foreign offices, Edge and Agree-
ment Subsidiaries, and IBFs ........ 8,230,444
Noninterest-bearing ..........53,571
Interest-bearing ..........8,176,873
Federal funds purchased and securities
sold under agreements to repurchase
in domestic offices of the bank and
of its Edge and Agreement subsi-
diaries, and in IBFs:
Federal funds purchased ............ 1,207,881
Securities sold under agreements to
repurchase ....................... 350,492
Demand notes issued to the U.S.
Treasury ........................... 300,000
Other borrowed money ................. 530,559
Bank's liability on acceptances exe-
cuted and outstanding .............. 897,899
Subordinated notes and debentures .... 1,064,780
Other liabilities .................... 1,139,025
Total liabilities .................... 33,207,233
EQUITY CAPITAL
Perpetual preferred stock and related
surplus ........................... 75,000
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,342,860
Cumulative foreign Currency transla-
-----------
tion adjustments .................. ( 4,924)
Total equity capital ................ 2,880,886
Total liabilities, limited-life pre-
-----------
ferred stock, and equity capital .. $36,088,119
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of
the above-named bank do hereby declare that this Report of
Condition has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and
to the best of our knowledge and belief has been prepared in
conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true and correct.
J. Carter Bacot |
Alan R. Griffith | Directors
Samuel F. Chevalier |
- ------------------------------------------------------------------------------
Securities Act of 1933 File No. _________
(If application to determine eligibility of trustee
for delayed offering pursuant to Section 305 (b) (2))
EXHIBIT 26.3
________________________________________________________________________
_________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)________
--------------------
THE CHASE MANHATTAN BANK
(National Association)
(Exact name of trustee as specified in its charter)
13-2633612
(I.R.S. Employer Identification Number)
1 Chase Manhattan Plaza, New York, New York
(Address of principal executive offices)
10081
(Zip Code)
________________
THE CIT GROUP HOLDINGS, INC.
(Exact name of obligor as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
13-2994534
(I.R.S. Employer Identification No.)
1211 Avenue of the Americas
New York, New York
(Address of principal executive offices)
10036
(Zip Code)
__________________________________
Debt Securities
(Title of the indenture securities)
___________________________________________________________________________
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of The Federal Reserve System, Washington, D. C.
(b) Whether it is authorized to exercise corpor
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
The Trustee is not the obligor, nor is the Trustee directly or
indirectly controlling, controlled by, or under common control
with the obligor.
(See Note on Page 2.)
Item 16. List of Exhibits.
List below all exhibits filed as a part of this statement of eligibility.
*1. -- A copy of the articles of association of the trustee as now in
effect . (See Exhibit T-1 (Item 12) , Registration No. 33-55626.)
*2. -- Copies of the respective authorizations of The Chase Manhattan
Bank (National Association) and The Chase Bank of New York
(National Association) to commence business and a copy of approval
of merger of said corporations, all of which documents are still
in effect. (See Exhibit T-1 (Item 12), Registration No. 2-67437.)
*3. -- Copies of authorizations of The Chase Manhattan Bank (National
Association) to exercise corporate trust powers, both of which
documents are still in effect. (See Exhibit T-1 (Item 12),
Registration No. 2-67437).
*4. -- A copy of the existing by-laws of the trustee. (See Exhibit T-1
(Item 12(a)), Registration No. 33-28806.)
*5. -- A copy of each indenture referred to in Item 4, if the obligor is
in default. (Not applicable).
*6. -- The consents of United States institutional trustees required by
Section 321(b) of the Act. (See Exhibit T-1, (Item 12),
Registration No. 22-19019.)
7. -- A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or
examining authority.
___________________
*The Exhibits thus designated are incorporated herein by reference.
Following the description of such Exhibits is a reference to the copy of the
Exhibit heretofore filed with the Securities and Exchange Commission, to
which there have been no amendments or changes.
___________________
1.
<PAGE>
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
trustee of all facts on which to base a responsive answer to Item 2 the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, The Chase Manhattan Bank (National Association), a corporation
organized and existing under the laws of the United States of America, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of New York, and the
State of New York, on the 15th day March, 1994.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
/s/ Charles J. Heinzelmann
By -------------------------
Charles J. Heinzelmann
Vice President
_________________
2
<PAGE>
Exhibit 7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of
The Chase Manhatten Bank, N.A. of New York in the State of New York, at the
close of business on December 31, 1993, published in response to call made by
Comptroller of the Currency, under title 12, United States Code, Section 161.
Charter Number 02370 Comptroller of the Currency Northeastern District
Statement of Resources and Liabilities
ASSETS Thousands
of Dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin .............. $5,778,428
Interest-bearing balances ....................................... 5,431,174
Securities ........................................................ 7,439,029
Federal funds sold and securities purchased under agreements to resell
in domestic offices of the bank and of its Edge and Agreement
subsidiaries, and in IBFs:
Federal funds sold .............................................. 3,982,649
Securities purchased under agreements to resell ................. 0
Loans and lease financing receivables:
Loans and leases, net of unearned income ............ $48,856,930
LESS: Allowance for loan and lease losses ........... 1,065,877
LESS: Allocated transfer risk reserve ............... 0
-----------
Loans and leases, net of unearned income, allowance, and reserve .. 47,791,053
Assets held in trading accounts ................................... 6,244,939
Premises and fixed assets (including capitalized leases) .......... 1,617,111
Other real estate owned ........................................... 1,189,024
Investments in unconsolidated subsidiaries and associated
companies ....................................................... 67,637
Customers' liability to this bank on acceptances outstanding ...... 774,020
Intangible assets ................................................. 354,023
Other assets ...................................................... 3,520,283
TOTAL ASSETS ...................................................... $84,189,415
===========
LIABILITIES
Deposits:
In domestic offices ............................................. $34,624,513
Noninterest-bearing ............................... $13,739,371
Interest-bearing .................................. 20,885,142
In foreign offices, Edge and Agreement subsidiaries, and IBFs ... 30,660,808
Noninterest-bearing ............................... $ 2,473,222
Interest-bearing .................................. 28,187,586
-----------
Federal funds purchased and securities sold under agreements to
repurchase in domestic offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
Federal funds purchased ......................................... 2,829,219
Securities sold under agreements to repurchase .................. 140,462
Demand notes issued to the U.S. Treasury .......................... 25,000
Other borrowed money .............................................. 2,618,185
Mortgage indebtedness and obligations under capitalized leases .... 41,366
Bank's liability on acceptances, executed and outstanding ......... 780,289
Subordinated notes and debentures ................................. 2,360,000
Other liabilities ................................................. 3,697,556
-----------
TOTAL LIABILITIES ................................................. $77,777,398
-----------
Limited-life preferred stock and related surplus .................. 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus ..................... 0
Common stock ...................................................... $910,494
Surplus ........................................................... 4,382,506
Undivided profits and capital reserves ............................ 920,258
Net unrealized gains on available-for-sale securities ............. 187,683
Cumulative foreign currency translation adjustments ............... 11,076
---------
TOTAL EQUITY CAPITAL .............................................. 6,412,017
---------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK, AND
EQUITY CAPITAL .................................................. $84,189,415
I, Lester J. Stephens, Jr., Senior Vice President and Controller of the
above-named bank do hereby declare that this Report of Condition is true and
correct to the best of my knowledge and belief.
(Signed) Lester J. Stephens, Jr.
We the undersigned directors, attest to the correctness of this statement of
resources and liabilities.
We declare that it has been examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the insturctions and is true and
correct.
(Signed) Thomas G. Labrecque
(Signed) Arthur F. Ryan Directors
(Signed) Richard J. Boyle
EXHIBIT 26.4
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)_______
-----------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312)732-6919
(Name, address and telephone number of agent for service)
-----------------------
THE CIT GROUP HOLDINGS, INC.
(Exact name of obligor as specified in its charter)
Delaware 13-2994534
(State or other jurisdiction of (I.R.S. employer
incorporation of organization) identification number)
133 West 50th Street 10020
New York, New York
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of Indenture Securities)
<PAGE>
Item 1. General Information. Furnish the following information as to
the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Comptroller of Currency, Washington, D.C., Federal Deposit
Insurance Corporation Washington, D.C., The Board of
Governors of the Federal Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor is an affiliate
of the trustee, describe each such affiliation.
No such affiliation exists with the trustee.
Item 16. List of Exhibits. List below all exhibits filed as a part of
this Statement of Eligibility.
1. A copy of the articles of association of the trustee now
in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable
9. Not Applicable
* Exhibit 1,2,3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 12 of the Form T-1 of The First National
Bank of Chicago, filed as Exhibit 26 to the Registration Statement on Form
S-3 of The CIT Group Holdings, Inc., filed with the Securities and Exchange
Commission of February 16, 1993 (Registration NO. 33-58418).
<PAGE>
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the
trustee, The First National Bank of Chicago, a national banking association
organized and existing under the laws of the United States of America, has duly
caused this Statement of Eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Chicago and State of
Illinois, on the 15th day of March, 1994.
The First National Bank of Chicago,
Trustee
By /s/ STEVEN M. WAGNER
---------------------------------
Steven M. Wagner
Vice President and Senior Counsel
Corporate Trust Services Division
pp1-3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
March 15, 1994
Securities and Exchange Commission,
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between The CIT Group
Holdings, Inc. and The First National Bank of Chicago, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State Authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon
its request therefore.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/STEVEN M. WAGNER
---------------------------------
Steven M. Wagner
Vice President and Senior Counsel
Corporate Trust Services Division
<PAGE>
EXHIBIT 7
A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining authority.
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date:12/31/93 ST-BK:17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31, 1993
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
</TABLE>
<TABLE>
<CAPTION>
Dollar C400
Amounts in ------------ <-
Thousands RCFD BIL MIL THOU
---------- ---- --- --- ---- ---
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository
institutions (from Schedule RCA-A):
a. Noninterest-bearing balances and
currency and coin(1).......................... 0081 3,552,441 1.a.
b. Interest-bearing balances(2) ................ 0071 5,687,085 1.b.
2. Securities (from Schedule RC-B) ................ 0390 470,252 2
3. Federal funds sold and securities
purchased under agreements to resell
in domestic offices of the bank and
its Edge and Agreement subsidiaries,
and in IBFs:
a. Federal Funds sold .......................... 0276 3,985,638 3.a.
b. Securities purchased under agreements
to resell ................................... 0277 880,886 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned
income (from Schedule RC-C) ................. RCFD 2122 13,308,340 4.a.
b. LESS: Allowance for loan and
lease losses................................. RCFD 3123 339,885 4.b.
c. LESS:Allocated transfer risk reserve ........ RCFD 3128 0 4.c.
d. Loans and leases, net of unearned
income, allowance, and reserve (item 4.a
minus 4.b and 4.c)........................... 2125 12,968,455 4.d.
5. Assets held in trading accounts ................ 2146 3,109,630 5.
6. Premises and fixed assets (including
capitalized leases) .......................... 2145 497,559 6.
7. Other real estate owned
(from Schedule RC-M) ........................ 7 2150 101,446 7.
8. Investments in unconsolidated subsidiaries
and associated -98 companies
(from Schedule RC-M) ......................... 2130 6,375 8.
9. Customers' liability to this bank on
acceptances outstanding....................... 2155 477,130 9.
10. Intangible assets (from Schedule RC-M) ......... 2143 147,257 10.
11. Other assets (from Schedule RC-F) .............. 2160 2,607,308 11.
12. Total assets (sum of items 1 through 11) ....... 2170 34,491,462 12.
<FN>
- -----------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date:12/31/93 ST-BK:17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Schedule RC-Continued
<FN>
</TABLE>
<TABLE>
<CAPTION>
Dollar C400
Amounts in ------------
Thousands BIL MIL THOU
---------- --- --- ----
<S> <C> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals
of columns A and C from Schedule
RC-E, part 1)............................... RCON 2200 15,870,533 13.a.
(1) Noninterest-bearing(1) ................. RCON 6631 7,494,138 13.a.(1)
(2) Interest-bearing ....................... RCON 6636 8,376,395 13.a.(2)
b. In foreign offices, Edge and Agreement
subsidiaries, and IBFs (from Schedule
RC-E, part II) ................................ RCFN 2200 7,254,022 13.b.
(1) Noninterest bearing........................ RCFN 6631 352,283 13.b.(1)
(2) Interest-bearing .......................... RCFN 6636 6,901,739 13.b.(2)
14. Federal funds purchased and securities
sold under agreements to repurchase in
domestic offices of the bank and of its
Edge and Agreement subsidiaries,
and in IBFs:
a. Federal funds purchased..................... RCFD 0278 2,649,907 14.a.
b. Securities sold under agreements
to repurchase ................................. RCFD 0279 171,899 14.b.
15. Demand notes issued to the U.S. Treasury RCON 2840 106,087 15.
16. Other borrowed money .......................... RCFD 2850 1,782,869 16.
17. Mortgage indebtedness and obligations
under capitalized leases ...................... RCFD 2910 267,000 17.
18. Bank's liability on acceptance
executed and outstanding ...................... RCFD 2920 477,130 18.
19. Subordinated notes and debentures.............. RCFD 3200 1,175,000 19.
20. Other liabilities (from Schedule RC-G) ........ RCFD 2930 2,049,329 20.
21. Total liabilities
(sum of items 13 through 20) .................. RCFD 2948 31,803,776 21.
22. Limited-Life preferred stock
and related surplus............................ RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and
related surplus................................ RCFD 3838 0 23.
24. Common stock .................................. RCFD 3230 200,858 24.
25. Surplus (exclude all surplus
related to preferred stock).................... RCFD 3839 2,254,940 25.
26. a. Undivided profits and
capital reserves .............................. RCFD 3632 232,478 26.a.
b. LESS: Net unrealized loss on
marketable equity securities .................. RCFD 0297 (299) 26.b.
27. Cumulative foreign currency
translation adjustments........................ RCFD 3284 (889) 27.
28. Total equity capital
(sum of items 23 through 27) .................. RCFD 3210 2,687,686 28.
29. Total liabilities, limited-life
preferred stock, and equity capital
(sum of items 21, 22, and 28).................. RCFD 3300 34,491,462 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below
that best describes the most comprehensive level of auditing work
performed for the bank by independent external auditors as of any date
during 1992 .................................. RCFA 6724 N/A M.1.
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm
which submits a report on the bank
2 = Independent audit of the bank's parent holding company
conducted in accordance with generally accepted auditing
standards by a certified public accounting firm which
submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
4 = Directors' examination of the bank performance by other
external auditors (may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preperation work)
8 = No external audit work
- ---------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
</TABLE>
EXHIBIT 26.5
CONFORMED COPY
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
------------------------
THE CIT GROUP HOLDINGS, INC.
(Exact name of obligor as specified in its charter)
Delaware 13-2994534
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1211 Avenue of the Americas
New York, New York 10036
(Address of principal executive offices) (Zip code)
______________________
Senior/Senior Subordinated Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the 2 Rector Street, New York,
State of New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20549
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an exhibit
hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of
1939 (the"Act") and Rule 24 of the Commission's Rules of Practice.
1. A copy of the Organization Certificate of The Bank of New
York (formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No.33-31019.)
(2)
<PAGE>
-2-
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by
the Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
(3)
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of
New York, a corporation organized and existing under the laws of the State of
New York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of New
York, and State of New York, on the 11th day of March, 1994.
THE BANK OF NEW YORK
By: S.D. MINEO
----------------------
Name: S.D. Mineo
Title: Vice President
(4)
<PAGE>
- -----------------------------------------------------------------------------
EXHIBIT 7
---------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
December 31, 1993, published in accordance with a call made by the
Federal Reserve Bank of this District pursuant to the provisions
of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository
institutions:
Noninterest-bearing balances and
currency and coin .................. $ 4,393,393
interest-bearing balances .......... 652,315
Securities ........................... 3,809,834
Federal funds sold in domestic offices
of the bank ........................ 331,075
Loans and lease financing receivables:
Loans and leases, net of unearned
income .................23,708,678
Less Allowance for loan and lease
losses .....................773,597
Less allocated transfer risk
reserve .....................28,427
Loans and leases, net of unearned
income, allowance and reserve .... 22,906,654
Assets held in trading accounts ...... 851,615
Premises and fixed assets (including
capitalized leases) ................ 657,247
Other real estate owned .............. 60,806
Investments in unconsolidated subsi-
diaries and associated companies ... 170,378
Customers liability to this bank on
acceptances outstanding ............ 885,751
Intangible assets .................... 42,689
Other assets 1,326,362
-----------
Total assets $36,088,119
===========
LIABILITIES
Deposits:
In domestic offices ................ $19,486,153
Noninterest-bearing .......7,388,636
Interest-bearing .........12,097,517
In foreign offices, Edge and Agree-
ment Subsidiaries, and IBFs ........ 8,230,444
Noninterest-bearing ..........53,571
Interest-bearing ..........8,176,873
Federal funds purchased and securities
sold under agreements to repurchase
in domestic offices of the bank and
of its Edge and Agreement subsi-
diaries, and in IBFs:
Federal funds purchased ............ 1,207,881
Securities sold under agreements to
repurchase ....................... 350,492
Demand notes issued to the U.S.
Treasury ........................... 300,000
Other borrowed money ................. 530,559
Bank's liability on acceptances exe-
cuted and outstanding .............. 897,899
Subordinated notes and debentures .... 1,064,780
Other liabilities .................... 1,139,025
-----------
Total liabilities .................... 33,207,233
-----------
EQUITY CAPITAL
Perpetual preferred stock and related
surplus ........................... 75,000
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,342,860
Cumulative foreign Currency transla-
tion adjustments .................. ( 4,924)
-----------
Total equity capital ................ 2,880,886
-----------
Total liabilities, limited-life pre-
ferred stock, and equity capital .. $36,088,119
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of
the above-named bank do hereby declare that this Report of
Condition has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and
to the best of our knowledge and belief has been prepared in
conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true and correct.
J. Carter Bacot |
Alan R. Griffith | Directors
Samuel F. Chevalier |
---------------------------------------
EXHIBIT 26.6
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------------
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b) (2)_____
BANKAMERICA NATIONAL TRUST COMPANY
(Exact name of trustee as specified in its charter)
95-3804037
(I.R.S. Employer Identification No.)
One World Trade Center, New York, New York 10048-1191
(Address of principal executive offices) (Zip Code)
General Counsel
BankAmerica National Trust Company
335 Madison Avenue, 7th Floor
New York, NY 10017
(212) 503-8297
(Name, address and telephone number of agent for services)
--------------------
THE CIT GROUP HOLDINGS, INC.
(Exact name of obligor as specified in its charter)
Delaware 13-2994534
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1211 Avenue of the Americas
New York, New York 10036
(Address of principal executive offices) (Zip Code)
--------------------
Debt Securities
(Title of the indenture securities)
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of The Federal Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes
Item 2. Affiliations with Obligor and Underwriters.
If the obligor or any underwriter for the obligor is an affiliate of
the trustee, describe each such affiliation.
Neither the obligor nor any underwriter for the
obligor is an affiliate of the trustee. (See Note on Page 5)
Item 3. Voting securities of the Trustee.
Not Applicable.
Item 4. Trusteeships under Other Indentures.
5.65% Notes Due 11/15/95
4.75% Notes Due 3/15/96
$2,020,000,000 Medium-Term Note Program
Item 5. Interlocking Directorates and Similar Relationships
with the Obligor or Underwriters.
Not Applicable.
Item 6. Voting Securities of the Trustee Owned by the Obligor
or its Officials.
Not Applicable.
Item 7. Voting Securities of the Trustee Owned by
Underwriters or their Officials.
Not Applicable.
Item 8. Securities of the Obligor Owned or Held by the
Trustee.
Not Applicable.
<PAGE>
Item 9. Securities of Underwriters Owned or Held by the
Trustee.
Not Applicable.
Item 10. Ownership or Holdings by the Trustee of Voting
Securities of Certain Affiliates or Security Holders of the
Obligor.
Not Applicable.
Item 11. Ownership or Holdings by the Trustee of any Securities of a
Person Owning 50 Percent or More of the Voting Securities of the
Obligor.
Not Applicable.
Item 12. Indebtedness of the Obligor to the Trustee.
Not Applicable.
Item 13. Defaults by the Obligor.
Not Applicable.
Item 14. Affiliations with the Underwriters.
Not Applicable.
Item 15. Foreign Trustee.
Not Applicable.
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this statement of
eligibility and qualification.
Exhibit 1 A copy of the Articles of Association of the Trustee;
incorporated herein by reference to Exhibit 1 filed with
Form T-1 Statement, Registration No. 33-34670
Exhibit 2 A copy of the Certificate of Authority to Commence
Business of the Trustee, incorporated herein by
reference to Exhibit 2 filed with Form T-1 Statement,
Registration No. 2-97868
Exhibit 3 Not applicable, included in Exhibit 1;
Exhibit 4 A copy of the existing by-laws of the Trustee;
incorporated herein by reference to Exhibit 4 filed with
T-1 statement, Registration No. 33-34670
Exhibit 5 Not Applicable.
Exhibit 6 Consents of BankAmerica National Trust Company formerly
Security Pacific National Trust Company (New York)
required by Section 321 (b) of the Trust Indenture Act
of 1939; incorporated herein by reference to Exhibit 6,
filed with Form T-1 Statement, Registration No. 2-97868.
Exhibit 7 A copy of the latest report of the Trustee published
pursuant to the law or the requirements of its
supervising or examining authority.
Exhibit 8 Not applicable.
Exhibit 9 Not applicable.
--------------------
<PAGE>
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base responsive answers to Item 2 the answer to
said Item is based on incomplete information.
Item 2 may be considered correct unless amended by an amendment to
this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, BankAmerica National Trust Company, a national banking association
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of New
York and State of New York, on the 14th day of March, 1994.
BANKAMERICA NATIONAL TRUST COMPANY
By /s/ Mary Fonti
-----------------------------
Mary Fonti
Trust Officer
<PAGE>
BANKAMERICA NATIONAL TRUST Exhibit 7 to
COMPANY Form T-1
One World Trade Center, 18th Floor
New York City, NY 10048-1191
FDIC Certificate Number 24430
Consolidated Report of Condition for
Insured Commercial Banks for January 26, 1994
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC - BALANCE SHEET
Dollar Amounts in Thousands Bil Mil Thou
- -----------------------------------------------------------------
Assets
1. Cash and balances due from depository
institutions (from Schedule RC-A):
a. Noninterest-bearing balances and
currency and coin (1)............................ 393,442
b. Interest-bearing balances (2).................... 22,585
2. Securities (from Schedule RC-B)...................... 6,005
3. Federal funds sold and securities
purchases under agreements to resell:
a. Federal funds sold..............................
b. Securities purchased under
agreements to resell............................ -0-
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned
income (from Schedule RC-C).............348,713
b. LESS: Allowance for loan and
lease losses................................900
c. LESS: Allocated transfer risk
reserve................................
d. Loans and leases, net of unearned
income, allowance, and reserve
(item 4.a minus
4.b and 4.c)................................... 347,813
5. Assets held in trading accounts (from
Schedule RC-D)........................................
6. Premises and fixed assets (including
capitalized leases)................................... 1,328
7. Other real estate owned...............................
8. Investments in unconsolidated subsidiaries and
associated companies..................................
9. Customer's liability to this bank on
acceptances outstanding...............................
10. Intangible assets (from Schedule RC-M)................ 19,029
11. Other assets (from Schedule RC-F)..................... 29,667
12. Total assets (sum of items 1 through 11............... 819,869
- ---------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
<PAGE>
SCHEDULE RC-CONTINUED
Dollar Amounts in Thousands Bil Mil Thou
- -----------------------------------------------------------------
Liabilities
13. Deposits:
a. In domestic offices (sum of totals of columns
A and C from Schedule RC-E)......................... 380,620
(1) Noninterest-bearing (1)......................... 380,620
(2) Interest-bearing ...............................
b. In foreign offices, Edge and Agreement
subsidiaries, and IBFs..............................
(1) Noninterest-bearing.............................
(2) Interest-bearing................................
14. Federal funds purchased and securities sold under
agreements to repurchase:
a. Federal funds purchased............................. 270,000
b. Securities sold under agreements to repurchase...... -0-
15. Demand notes issued to the U.S. Treasury...............
16. Other borrowed money................................... 4,239
17. Mortgage indebtedness and obligations
under capitalized leases...............................
18. Bank's liability on acceptances executed
and outstanding........................................
19. Notes and debentures subordinated to deposits..........
20. Other liabilities (from Schedule RC-G)................. 27,501
21. Total liabilities (sum of items 13 through 20)......... 682,360
22. Limited-life preferred stock...........................
EQUITY CAPITAL
23. Perpetual preferred stock..............................
24. Common Stock........................................... 500
25. Surplus................................................ 130,645
26. Undivided profits and capital reserves................. 6,364
27. Cumulative foreign currency translation adjustments....
28. Total equity capital (sum of items 23 through 27)...... 137,509
29. Total liabilities, limited-life preferred stock,
and equity capital (sum of items 21,22 and 28)......... 819,869
- ---------------
1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
EXHIBIT 26.7
SECURITIES ACT OF 1933 FILE NO: (IF APPLICATION TO
DETERMINE ELIGIBILITY OF TRUSTEE FOR DELAYED OFFERING
PURSUANT TO SECTION 305(b)(2)
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b) (2)_______
----------------------
THE FIRST NATIONAL BANK OF BOSTON
(Exact name of Trustee as specified in its charter)
04-2472499
(I.R.S. Employer Identification No.)
100 Federal Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Gary A. Spiess, Cashier and General Counsel
100 Federal Street, 24th Floor, Boston, Massachusetts 02110 (617) 434-2870
--------------------------
THE CIT GROUP HOLDINGS, INC.
(Exact name of obligor as specified in its charter)
DELAWARE 13-2994534
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1211 Avenue of the Americas
New York, New York 10036
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of Indenture Securities)
================================================================================
<PAGE>
1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
Comptroller of the Currency of the United States, Washington D.C.
Board of Governors of the Federal Reserve System, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Trustee is authorized to exercise corporate trust powers.
2. Affiliations with Obligor and Underwriters.
If the obligor or any underwriter for the obligor is an affiliate of the
trustee, describe each such affiliation.
None with respect to the Trustee.
(See Notes on page 2)
None with respect to Bank of Boston Corporation.
16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility and
qualification.
1. A copy of the articles of association of the trustee as now in effect.
A certified copy of the Articles of Association of the trustee is filed as
Exhibit No. 1 to statement of eligibility and qualification No. 22-9514 and is
incorporated herein by reference thereto.
2. A copy of the certificate of authority of the trustee to commence
business, if not contained in the articles of association.
A copy of the certificate of T. McLean Griffin, Cashier of the trustee,
dated February 3, 1978, as to corporate succession containing copies of the
Certificate of the Comptroller of the Currency that The Massachusetts Bank,
National Association, into which The First National Bank of Boston was merged
effective January 4, 1971, is authorized to commence the business of banking as
a national banking association, as well as a certificate as to such merger is
filed as Exhibit No. 2 to statement of eligibility and qualification No. 22-9514
and is incorporated herein by reference thereto.
3. A copy of the authorization of the trustee to exercise corporate trust
powers, if such authorization is not contained in the documents specified in
paragraph (1) or (2) above.
A copy of a certificate of the Office of the Currency dated February 6,
1978 is filed as Exhibit No. 3 to statement of eligibility and qualification No.
22-9514 and is incorporated herein by reference thereto.
4. A copy of the existing by-laws of the trustee, or instruments
corresponding thereto.
A certified copy of the existing By-Laws of the trustee dated December
23,1993 is filed as Exhibit No. 4 to statement of eligibility and qualifications
No. 22-25754 and is incorporated herein by reference thereto.
5. The consent of the trustee required by Section 321(b) of the Act.
The consent of the trustee required by Section 321(b) of the Act is
annexed hereto and made a part hereof.
6. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining authority.
A copy of the latest report of condition of the trustee published pursuant
to law or the requirements of its supervising or examining authority is annexed
hereto as Exhibit 7 and made a part hereof.
<PAGE>
NOTES
In answering any item in this Statement of Eligibility and Qualification
which relates to matters peculiarly within the knowledge of the obligor or any
underwriter for the obligor, the trustee has relied upon information furnished
to it by the obligor and the underwriters, and the trustee disclaims
responsibility for the accuracy or completeness of such information.
The answer furnished to Item 2 of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee,
The First National Bank of Boston, a national banking association organized and
existing under the laws of The United States of America, has duly caused this
statement of eligibility and qualification to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Boston and
Commonwealth of Massachusetts, on the 11th Day of March, 1994.
THE FIRST NATIONAL BANK OF BOSTON, Trustee
By
---------------------------
Patrick Thebado
Senior Account Manager
EXHIBIT 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act of
1939, in connection with the proposed issue of CIT Group Holdings, Inc. Debt
Securities, we hereby consent that reports of examinations by Federal, State,
Territorial, or District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor.
THE FIRST NATIONAL BANK OF BOSTON, Trustee
By
---------------------------
Patrick Thebado
Senior Account Manager
<PAGE>
CONSOLIDATED REPORT OF CONDITION, INCLUDING DOMESTIC AND FOREIGN
SUBSIDIARIES, OF
THE FIRST NATIONAL BANK OF BOSTON
In the Commonwealth of Massachusetts, at the close of business on December
31, 1993. Published in response to call made by Comptroller of the Currency,
under Title 12, United States Code, Section 161. Charter number 200. Comptroller
of the Currency Northeastern District.
ASSETS
Dollar
Amounts in
Thousands
----------
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin .......... $ 1,896,648
Interest-bearing balances .............................. 989,983
Securities ....................................................... 2,120,299
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold .......................................... 786,594
Securities purchased under agreements to resell ............. 0
Loans and lease financing receivables:
Loans and leases, net of unearned income ...... $21,760,082
LESS: Allowance for loan and lease losses ..... 488,235
LESS: Allocated transfer risk reserve ......... 0
Loans and leases, net of unearned income,
allowance and reserve ....................................... 21,271,847
Assets held in trading accounts .................................. 303,841
Premises and fixed assets (including capitalized leases) ......... 317,599
Other real estate owned .......................................... 42,600
Investments in unconsolidated subsidiaries and associated
companies ........................................................ 118,921
Customers' liability to this bank on acceptances outstanding ..... 374,873
Intangible assets ................................................ 307,582
Other assets ..................................................... 1,020,881
-----------
Total Assets .............................................. $29,551,668
===========
LIABILITIES
Deposits:
In domestic offices ......................................... $13,331,731
Noninterest-bearing ........................... $ 3,780,365
Interest-bearing .............................. 9,551,366
In foreign offices, Edge and Agreement subsidiaries,
and IBF's ...................................................... 7,295,863
Noninterest-bearing ........................... 525,888
Interest-bearing .............................. 6,769,975
Federal funds purchased and securities sold
under agreements to repurchase in domestic
offices of the bank and of its Edge and
Agreement subsidiaries, and in IBF's:
Federal funds purchased ..................................... 1,302,034
Securities sold under agreements to repurchase .............. 199,132
Demand notes issued to the U.S. Treasury ......................... 48,780
Other borrowed money ............................................. 3,590,568
Mortgage indebtedness and obligations under capitalized leases ... 14,180
Bank's liability on acceptances executed and outstanding ......... 375,153
Subordinated notes and debentures ................................ 598,835
Other liabilities ................................................ 723,480
-----------
Total Liabilities ........................................... $27,479,757
===========
Limited-life preferred stock and equity capital .................. 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus .................... $ 0
Common stock ..................................................... 75,200
Surplus .......................................................... 893,227
Undivided profits and capital reserves ........................... 1,076,870
LESS: Net unrealized loss on marketable equity securities ........ (34,746)
Cumulative foreign currency translation adjustments .............. (8,132)
Total equity capital ............................................. 2,071,911
-----------
Total Liabilities, Limited-life preferred stock, and equity $29,551,668
===========
<PAGE>
I, Robert T. Jefferson, Comptroller of the above-named bank, do hereby
declare that this Report of Condition is true and correct to the best of my
knowledge and belief.
Robert T. Jefferson
February 9, 1994
We, the undersigned directors, attest to the correctness of this statement
of resources and liabilities. We declare that it has been examined by us, and to
the best of our knowledge and belief has been prepared in conformance with the
instructions and is true and correct.
Charles G. Gifford
Ira Stepanian
Paul C. O'Brien
Directors
February 9, 1994
<PAGE>
NOTES
In answering any item in this Statement of Eligibility and Qualification
which relates to matters peculiarly within the knowledge of the obligor or any
underwriter for the obligor, the trustee has relied upon information furnished
to it by the obligor and the underwriters, and the trustee disclaims
responsibility for the accuracy or completeness of such information.
The answer furnished to Item 2 of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee,
The First National Bank of Boston, a national banking association organized and
existing under the laws of The United States of America, has duly caused this
statement of eligibility and qualification to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Boston and
Commonwealth of Massachusetts, on the 11th Day of March, 1994.
THE FIRST NATIONAL BANK OF BOSTON, Trustee
By /s/ Patrick Thebado
______________________
Patrick Thebado
Senior Account Manager
EXHIBIT 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act of
1939, in connection with the proposed issue of CIT Group Holdings, Inc. Debt
Securities we hereby consent that reports of examinations by Federal, State,
Territorial, or District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor.
THE FIRST NATIONAL BANK OF BOSTON, Trustee
By /s/ Patrick Thebado
--------------------
Patrick Thebado
Senior Account Manager
EXHIBIT 26.8
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FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT
OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) X
---
PNC BANK, NATIONAL ASSOCIATION
(Exact Name of Trustee as Specified in its Charter)
NOT APPLICABLE
(Jurisdiction of incorporation or
organization if not a U.S. national bank)
25-1197336
(I.R.S. Employer Identification No.)
Pittsburgh National Building
Fifth Avenue and Wood Street, Pittsburgh, Pennsylvania 15222
(Address of principal executive offices - Zip code)
F. J. Deramo, Vice President, PNC Bank, National Association
23rd Floor, One Oliver Plaza, Pittsburgh, Pennsylvania 15222
(412) 762-3666
(Name, address and telephone number of agent for service)
The CIT Group Holdings, Inc.
(Exact name of obligor as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
13-2994534
(I.R.S. Employer Identification No.)
1211 Avenue of the Americas
New York, New York 10036
(Address of principal executive offices - Zip code)
DEBT SECURITIES
(Title of the indenture securities)
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- -------------------------------------------------------------------------------
<PAGE>
Item 1. General information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank of Cleveland Cleveland, Ohio
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes. (See Exhibit T-1-3)
Item 2. Affiliations with obligor and underwriters.
If the obligor or any underwriter for the obligor is an affiliate of the
trustee, describe each such affiliation.
Neither the obligor nor any underwriter for the obligor is an
affiliate of the trustee.
Item 3 through Item 14.
The issuer currently is not in default under any of its outstanding
securities for which PNC Bank is trustee. Accordingly, responses to Items 3
through 14 of Form T-1 are not required pursuant to Form T-1 General
Instructions B.
Item 15. Foreign trustee.
Identify the order or rule pursuant to which the foreign trustee is
authorized to act as sole trustee under the indentures qualified or to be
qualified under the Act.
Not applicable (trustee is not a foreign trustee).
Item 16. List of exhibits.
List below all exhibits filed as part of this statement of eligibility.
Exhibit T-1-1 - Articles of Association of the trustee, with all
amendments thereto, as presently in effect.
Exhibit T-1-2 - Copy of Certificate of the Authority of the trustee to
Commence Business, filed as Exhibit 2 to trustee's
Statement of Eligibility and Qualification,
Registration No. 2- 58789 and incorporated herein by
reference.
-2-
<PAGE>
Exhibit T-1-3 - Copy of Certificate as to Authority of the trustee to
Exercise Trust Powers, filed as Exhibit 3 to Trustee's
Statement of Eligibility and Qualification,
Registration No. 2-58789, and incorporated herein by
reference.
Exhibit T-1-4 - The By-Laws of the trustee, as presently in effect.
Exhibit T-1-5 - The consent of the trustee required by Section 321(b)
of the Act.
Exhibit T-1-6 - The copy of the latest Report of Condition of the
trustee published in response to call made by
Comptroller of the Currency under Section 5211 U.S.
Revised Statutes.
NOTE
The answers to this statement, insofar as such answers relate to (a) what
persons have been underwriters for any securities of the obligor within three
years prior to the date of filing this statement, or are owners of 10% or more
of the voting securities of the obligor, or are affiliates or directors or
executive officers of the obligor, and (b) the voting securities of the trustee
owned beneficially by the obligor and each director and executive officer of the
obligor, are based upon information furnished to the trustee by the obligor and
also, in the case of (b) above, upon an examination of the trustee's records.
While the trustee has no reason to doubt the accuracy of any such information
furnished by the obligor, it cannot accept any responsibility therefor.
----------------------------------
Signature appears on next page
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the trustee,
PNC Bank, National Association, a corporation organized and existing under the
laws of the United States of America, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Pittsburgh, and Commonwealth of Pennsylvania on
the 15th day of March, 1994.
PNC BANK, NATIONAL ASSOCIATION
(Trustee)
By /s/ F. J. Deramo
---------------------------------
F. J. Deramo
Vice President
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<PAGE>
Exhibit T-1-1
ARTICLES OF ASSOCIATION
(as most recently amended February 4, 1993)
FIRST: The title of this Association shall be "PNC Bank, National
Association."
SECOND: The main office of the Association shall be in the City of
Pittsburgh, Allegheny County, Pennsylvania. The general business of the
Association shall be conducted at its main office and its regularly established
branches.
THIRD: The Board of Directors of the Association shall consist of not less
than five (5) nor more than twenty-five (25) shareholders, the exact number of
Directors within such minimum and maximum limits to be fixed and determined from
time to time by a resolution of a majority of the full Board of Directors or by
resolution of the shareholders at any annual or special meeting thereof. Unless
otherwise provided by the laws of the United States, any vacancy in the Board of
Directors for any reason, including an increase in the number thereof, may be
filled by action of the Board of Directors.
A majority of the Board of Directors shall be necessary to constitute a
quorum for the transaction of business at any Directors' meeting.
FOURTH: The annual meeting of the shareholders for the election of
Directors and the transaction of whatever other business may be brought before
said meeting shall be held at the main office or such other place as the Board
of Directors may designate, on the day of each year specified therefor in the
By-laws, but if no election is held on that day, it may be held on any
subsequent day according to the provisions of law; and all elections shall be
held according to such lawful regulations as may be prescribed by the Board of
Directors. Any action which may be taken at a meeting of the shareholders of the
Association may be taken without a meeting if a consent in writing setting forth
<PAGE>
the action so taken is signed by all the shareholders who would be entitled to
vote at a meeting for such purpose.
FIFTH: The amount of the authorized capital stock of this Association shall
be Forty Million Dollars ($40,000,000) divided into 4,000,000 shares of common
stock of the par value of Ten Dollars ($10) each, but said capital stock may be
increased or decreased from time to time in accordance with the provisions of
the laws of the United States.
No holder of shares of the capital stock of any class of the Association
shall have any preemptive or preferential right of subscription to any shares of
any class of stock of the Association, whether now or hereafter authorized, or
to any obligations convertible into stock of the Association, issued or sold,
nor any right of subscription to any thereof other than such, if any, as the
Board of Directors, in its discretion, may from time to time determine and at
such price as the Board of Directors may from time to time fix.
The Association, at any time and from time to time, may authorize and issue
debt obligations, whether or not subordinated, without the approval of the
shareholders.
SIXTH: The Board of Directors shall appoint one of its members President of
the Association who shall be Chairman of the Board; but the Board of Directors
may appoint a Director, in lieu of the President, to be Chairman of the Board,
who shall perform such duties as may be designated by the Board of Directors.
The Board of Directors shall have the power to appoint one or more Vice
Presidents; to appoint a Cashier, a Secretary, and such other officers and
employees as may be required to transact the business of the Association; to fix
the salaries to be paid such officers and employees; to dismiss such officers
and employees and to appoint others to take their place.
-2-
<PAGE>
The Board of Directors shall have the power to define the duties of
officers and employees of the Association and to require adequate bonds from
them for the faithful performance of their duties; to make all By-laws that may
be lawful for the general regulation of the business of the Association and the
management of its affairs, including the manner of election or appointment of
Directors and the appointment of judges of election, and generally to do and
perform all acts that may be lawful for a Board of Directors to do and perform.
SEVENTH: Any person, his heirs, executors or administrators, may be
indemnified or reimbursed by the Association for reasonable expenses actually
incurred in connection with any action, suit, or proceeding, civil or criminal,
to which he or they shall be made a party by reason of his being or having been
a director, officer, or employee of the Association or of any firm, corporation,
or organization which he served in any such capacity at the request of the
Association; provided, however, that no person shall be so indemnified or
reimbursed in relation to any matter in such action, suit or proceeding as to
which he shall finally be adjudged to have been guilty of or liable for gross
negligence, willful misconduct or criminal acts in the performance of his duties
to the Association; and, provided further, that no such person shall be so
indemnified or reimbursed in relation to any matter in such actions, suit or
proceeding which has been made the subject of a compromise settlement except
with the approval of a court of competent jurisdiction, or the holders of record
of a majority of the outstanding shares of the Association, or the Board of
Directors, acting by vote of Directors not parties to the same or substantially
the same action, suit, or proceeding, constituting a majority of the whole
number of Directors. The foregoing right of indemnification or reimbursement
-3-
<PAGE>
shall not be exclusive of other rights to which such person, his heirs,
executors or administrators, may be entitled as a matter of law.
EIGHTH: The Board of Directors shall have the power, without the approval
of the shareholders, to change the location of the main office to any other
place within the limits of the City of Pittsburgh, Allegheny County,
Pennsylvania, and to establish or change the location of any branch or branches
of the Association subject to the approval of the Comptroller of the Currency.
NINTH: The corporate existence of the Association shall continue until
terminated in accordance with the laws of the United States.
TENTH: The Board of Directors of the Association, or any three (3) or more
shareholders owning, in the aggregate, not less than ten (10%) percentum of the
stock of the Association, may call a special meeting of the shareholders at any
time. Unless otherwise provided by the laws of the United States, a notice of
the time, place, and purpose of every annual and every special meeting of the
shareholders shall be given by first-class mail, postage prepaid, mailed at
lease ten (10) days prior to the date of such meeting to each shareholder of
record at his address as shown upon the books of the Association.
ELEVENTH: These Articles of Association may be amended at any regular or
special meeting of the shareholders by the affirmative vote of the holders of a
majority of the stock of this Association, unless the vote of the holders of a
greater amount of stock is required by law, and in that case by the vote of the
holders of such greater amount.
-4-
<PAGE>
Exhibit T-1-4
PNC BANK, NATIONAL ASSOCIATION
BY-LAWS
(as amended and restated on 2/4/93)
Article I. Meetings of Shareholders
Section 1. Annual Meeting. The annual meeting of the shareholders of the Bank
for the election of Directors and the transaction of all other business that may
properly come before the meeting shall be held at the Pittsburgh National
building or other convenient place selected by the Directors, on the Tuesday
that next follows the annual meeting of the shareholders of PNC Bank Corp. If
for any reason no such election of Directors is made on that day, the Board of
Directors shall order the election to be held on some subsequent day, as soon
thereafter as practicable.
Section 2. Special Meetings. Special meetings of the shareholders shall be held
when called by the Board of Directors or when called in writing by one or more
shareholders owning in the aggregate not less than ten per centum of the
outstanding shares of stock of the Bank.
Section 3. Notice and Record Date. Notice of shareholders' meetings shall be
given in the manner set forth in Article VIII, Section 5, not less than ten days
nor more than sixty prior to the meeting. The Board of Directors may fix a date
not less than ten nor more than forty days prior to the annual meeting or any
special meeting of the shareholders as the record date for the determination of
shareholders entitled to notice of and to vote at any such meeting, or any
adjournment thereof, and only shareholders of record on the date so fixed shall
be entitled to notice of and to vote at any meeting, or any adjournment thereof.
In no event shall the record date as fixed by the Board of Directors be prior to
the date on which the action is taken fixing such record date.
Section 4. Quorum, Shareholder Action. A majority of the shares outstanding
represented in person or by proxy shall constitute a quorum. Less than a quorum
may adjourn any meeting from time to time and the meeting may be held as
adjourned without further notice. A majority of the votes cast shall decide
every question or matter submitted to the shareholders at any duly convened
meeting unless otherwise provided by law. Shareholders may vote in person or by
proxy duly authorized in writing, but no officer or employee of the Bank may act
as proxy.
Section 5. Written Action of Shareholders. Any action which may be taken at a
meeting of the shareholders of the Bank may be taken without a meeting if a
consent in writing setting forth the action so taken, signed by all the
shareholders who would be entitled to vote at a meeting for such purpose, and
such written consent shall be filed with the Secretary of the Bank.
<PAGE>
By-Laws PNC Bank, National Association
Page -2-
Article II. Directors
Section 1. Board of Directors. The Board of Directors shall have the power to
manage and administer the business and affairs of the Bank. Except as expressly
limited by law, all corporate powers of the Bank shall be vested in and may be
exercised by the Board of Directors.
Section 2. Number. The Board of Directors shall consist of not less than five
nor more than twenty-five individuals, the exact number within such minimum and
maximum limits to be fixed and determined from time to time by resolution of a
majority of the Board or by resolution of a majority of the shareholders.
Between annual meetings of shareholders, the Board of Directors, by vote of a
majority of the Board, may increase the membership of the Board, within the
maximum above prescribed, by not more than four members and, by like vote,
appoint individuals to fill the vacancies created thereby.
Section 3. Election; Term of Office. The Board of Directors shall be elected at
each annual meeting of the shareholders. Each Director shall hold office from
the time of his election and his qualification to serve as such and until the
election and qualification of his successor or until such Director's earlier
death, resignation, disqualification or removal.
Section 4. Organizational Meeting. A meeting of the Board of Directors for the
purpose of organizing the new Board, appointing the officers of the Bank for the
ensuing year and transaction other business shall be held without notice
immediately following the annual election of the Directors or as soon thereafter
as is practicable at such time and place as the Secretary may designate.
Section 5. Regular Meetings. The regular meetings of the Board of Directors
shall be held, without notice, at such times and places as the Board of
Directors shall by resolution determine.
Section 6. Special Meetings. Special meetings of the Board of Directors may be
called by the Chairman of the Board or the President and shall be called at the
request of any three Directors. Notice of special meetings shall be given in the
manner set forth in Article VIII, Section 5.
Section 7. Quorum; Board Action. A majority of the Directors then in office
shall constitute a quorum for the transaction of business at any meeting. Unless
otherwise provided by law, any action of the Board of Directors may be taken
upon the affirmative vote of a majority of the Directors present at a duly
convened meeting.
Section 8. Vacancies. Any vacancy in the Board of Directors may be filled by
appointment by a majority of the remaining Directors at any regular meeting or
at a special meeting called for that purpose.
Section 9. Participation Other Than By Attendance. To the extent permitted by
law, any Director may participate in any regular or special meeting of the Board
of Directors or of any committee of the Board of Directors by means of a
<PAGE>
By-Laws PNC Bank, National Association
Page -3-
conference telephone or similar communications equipment by means of which all
persons participating in the meeting are able to hear each other.
Section 10. Written Action of Directors. Any action which may be taken by the
Directors at a duly convened meeting may be taken upon the unanimous written
consent of the Directors.
Section 11. Compensation. Each director, advisory director, and member of an
Advisory Board of a branch office, who is not a salaried officer, shall receive
compensation in such amount and in such manner as the Board of Directors may
from time to time determine.
Section 12. Resignation; Removal. Any Director may resign by submitting his
resignation to the Chief Executive Officer, the Chairman, the President or the
Secretary. Such resignation shall become effective upon its submission or at any
later time specified. Any Director may be removed from office by action of the
shareholders or the Board taken in accordance with applicable law.
Section 13. Personal Liability for Monetary Damages.
(a) To the fullest extent permitted by applicable law, each Director shall
be indemnified and held harmless by the Bank for all actions taken by him or her
and for all failures to take action to the fullest extent permitted by
Pennsylvania law against all expense, liability and loss (including without
limitation attorneys' fees, judgments, fines, taxes, penalties, and amounts paid
or to be paid in settlement) reasonably incurred or suffered by him or her. no
indemnification pursuant to this Section 13 shall be made, however, in any case
where the act or failure to act giving rise to the claim for indemnification is
determined by a court of competent jurisdiction to have constituted willful
misconduct or recklessness.
(b) This Section 13 shall not apply to any administrative proceeding or
action instituted by a federal Bank regulatory agency which proceeding or action
results in a final order assessing civil money penalties or requiring
affirmative action by the Director in the form of making payments to the Bank.
(c) The provisions of this Section 13 shall be deemed to be a contract with
each Director of the Bank who serves as such at any time while this Section 13
is in effect and each such Director shall be deemed to be doing so in reliance
on the provisions of this Section 13. Any amendment or repeal of this Section 13
or adoption of any other provision of the By- Laws or the Articles of the
Association which has the effect of increasing Director liability shall operate
prospectively only and shall not affect any action taken, or any failure to act,
prior to the adoption of such amendment, repeal or other provision.
Article III. Committees
<PAGE>
By-Laws PNC Bank, National Association
Page -4-
Section 1. Appointment; Powers. In addition to the Committees described in this
Article III, the Board may appoint one or more standing or temporary committees
consisting of two or more Directors. The Board may invest such committees with
such power and authority, subject to such conditions, as it may see fit.
Section 2. Executive Committee. The Board may appoint from among its members an
Executive Committee which, to the maximum extent permitted by law or as
otherwise provided herein shall have and exercise in the intervals between the
meetings of the Board of Directors all the powers of the Board of Directors. All
acts done and powers conferred by the Executive Committee from time to time
shall be deemed to be, and may be certified as being, done and conferred under
authority of the Board of Directors. Four directors shall constitute a quorum
regardless of whether the directors present shall have been formally appointed
to the Executive Committee, and the action of a majority of the directors
present at a meeting, unless a majority of such Directors are officers of the
Bank, shall decide any matter or question submitted to the Executive Committee.
Section 3. Examining Committee. The Board shall appoint from among its members
an Examining Committee which shall be composed of not less than three directors,
non of whom shall be officers of the Bank. The Board of Directors shall select a
Chairman from the Committee's membership and the Committee may appoint a
Secretary who need not be a director. The Committee shall meet on call of its
Chairman. The duties and responsibilities of the Committee shall be as required
by law and as assigned from time to time by the Board of Directors.
Section 4. CRA Policy Committee. The Board of Directors shall appoint from among
its members a Community Reinvestment Act Policy Committee which shall consist of
not less than three directors, and such other officers who shall from time to
time be appointed by the Board of Directors. The duties and responsibilities of
the Committee shall be as assigned from time to time by the Board of Directors.
Section 5. Personnel and Compensation Committee. The Board may appoint from
among its members a Personnel and Compensation Committee. The duties and
responsibilities of the Committee shall be as assigned by the Board of
Directors.
Section 6. Nominating Committee. The Board may appoint from among its members a
Nominating Committee. The duties and responsibilities of the Committee shall be
as assigned by the Board of Directors.
Section 7. Fiduciary Committee. The Board may appoint from among its members a
Fiduciary Committee. The duties and responsibilities of the Committee shall be
as assigned by the Board of Directors.
Section 8. Loan and Investment Committee. The Board may appoint from among its
<PAGE>
By-Laws PNC Bank, National Association
Page -5-
members a Loan and Investment Committee. The duties and responsibilities of the
Committee shall be as assigned by the Board of Directors.
Section 9. Organization. All committees shall determine their own organization,
procedures and times and places of meeting, unless otherwise directed by the
Board and except as otherwise provided in these By-Laws. A majority of the
Directors appointed to a committee shall constitute a quorum for the transaction
of business at any meeting unless as otherwise provided in these By-Laws. In the
case of committees with an even number of Directors appointed to the committees,
one-half of the Directors shall constitute a quorum. Unless otherwise prevented
by law or by the procedures established by the committee, any action of a
committee may be taken upon the affirmative vote of a majority or one-half, as
the case may be, of the Directors present at a duly convened meeting or upon the
unanimous written consent of all Director members.
Section 10. Advisory Boards. Any branch office, with the approval of the Board
of Directors or the Chief Executive Officer, may have an Advisory Board
consisting of Directors, officers or members of the public, who may from time to
time be appointed by the Board of Directors or the Chief Executive Officer or
his designee. The Chairman of each Advisory Board shall be designated by the
Board of Directors or the Chief Executive Officer. Each Advisory Board shall
meet at such time or times as shall be determined by the chairman of such
Advisory Board. Advisory Boards shall be established for informational and
marketing purposes only and shall not have any duties, powers or
responsibilities.
Article IV. Officers
Section 1. Officers Generally. The officers of the Bank, in order of precedence
or rank, shall be a Chairman of the Board; one or more Vice Chairmen, if any; a
President; one or more Vice Presidents, of whom one or more may be designated,
in order of precedence or rank, Senior Executive, Executive or Senior Vice
Presidents, and one of whom may be designated as responsible to direct, manage
and supervise all fiduciary activities; a Cashier; a Secretary; a Controller; an
Audit Director; and such other officers and functional officer titles, as the
Board of Directors, the Chairman, the Vice Chairman or the President may from
time to time designate. The Board of Directors shall from time to time designate
from among the Chairman of the Board, the Vice Chairmen and the President, one
of these officers to be the Chief Executive Officer.
Section 2. Elections; Appointment. All officers having the rank of Senior Vice
President or higher, shall be elected by the Board of Directors and shall hold
office during the pleasure of the Board of Directors. All other Vice Presidents
and other officers shall be appointed by the Chairman of the Board, a Vice
Chairman or President or other officer authorized by the Board of Directors to
appoint officers, and such action shall be reported to the Board of Directors.
Section 3. Chief Executive Officer. The Chief Executive Officer shall have the
<PAGE>
By-Laws PNC Bank, National Association
Page -6-
general supervision of the policies, business and operations of the Bank; shall
have general executive powers as well as those duties and powers as may be
assigned by the Board of Directors; and shall have all other powers and duties
as are usually incident to the chief executive officer of a national Bank. In
the absence of the Chief Executive Officer his powers and duties shall be
performed by such other officer or officers as shall be designated by the Board
of Directors.
Section 4. Chairman. The Chairman of the Board shall have general executive
powers, shall preside at all meetings of the shareholders and shall have such
other powers and duties as may be assigned to him from time to time by the Board
of Directors.
Section 5. Vice Chairman. A Vice Chairman shall have general executive powers
and shall have such duties and powers as shall be assigned from time to time by
the Board of Directors or the Chief Executive Officer.
Section 6. President. The President shall have general executive powers and
shall have such duties and powers as may be assigned to him from time to time by
the Board of Directors.
Section 7. Senior Officers; Vice Presidents. The Senior Executive, Executive,
and Senior Vice Presidents as well as all other Vice Presidents shall have such
duties and powers as may from time to time be assigned to them by the Board of
Directors or by the Chief Executive Officer. Any reference in these By-Laws to a
Vice President shall apply equally to a Senior Executive, Executive, or a Senior
Vice President unless the context otherwise requires.
Section 8. Vice President in Charge of Trusts. The Vice President in Charge of
Trusts, if any, under the direction of the Chief Executive Officer, shall
direct, manage and supervise all fiduciary activities of the Bank and shall be
responsible to the Board of Directors, the Chief Executive Officer and the
Fiduciary Committee for the administration of the Bank's fiduciary powers. He
shall have such other duties and powers as may be assigned to him by the Board
of Directors or the Chief Executive Officer.
Section 9. Cashier. Unless otherwise delegated to another officer or officers by
the Board of Directors, the Cashier shall be responsible for all moneys, funds,
securities, fidelity and indemnity bonds and other valuables belonging to the
Bank, exclusive of the assets held by the Bank in a fiduciary capacity; shall
cause to be kept proper records of the transactions of the Bank; and shall
perform such other duties as may be assigned to him by the Board of Directors or
the Chief Executive Officer.
Section 10. Secretary. The Secretary shall attend the meetings of the
shareholders, of the Board of Directors, and of the Executive Committee, if any,
and shall keep minutes thereof in suitable minute books. He shall have charge of
the corporate records, papers, and the corporate seal of the Bank. He shall have
charge of the stock and transfer records of the Bank and shall keep a record of
all shareholders and give notices of all meetings of shareholders and special
<PAGE>
By-Laws PNC Bank, National Association
Page -7-
meetings of the Board of Directors. He shall perform such other duties as may be
assigned to him by the Board of Directors or the Chief Executive Officer.
Section 11. Trust Officers. The Officers performing fiduciary functions, being
all officers assigned to the Trust, Trust and Investment Management or other
Fiduciary Department, Division, or other unit of the Bank, shall execute and
perform all actions desirable to carry out the fiduciary functions of the Bank,
and shall perform such other duties as may be assigned by the Board of
Directors, the Chief Executive Officer, or the Vice President in charge of
Trusts, if any.
Section 12. Controller. The Controller shall be the chief accounting officer and
shall supervise systems and accounting records and shall be responsible for the
preparation of financial reports.
Section 13. Audit Director. The Audit Director shall have charge of auditing the
books, records and accounts of the Bank. He shall report directly to the Board
of Directors or a committee thereof.
Section 14. Assistant Officers. Each Assistant Officer shall assist in the
performance of the duties of the officer to whom he is assistant and shall
perform such duties in the absence of the officer. He shall perform such
additional duties as the Board of Directors, the Chief Executive Officer, or the
officer to whom he is assistant, may from time to time assign to him.
Section 15. Tenure of Office. The Chief Executive Officer, the Chairman, and the
President shall each hold office for the year for which the Board was elected
and until the appointment and qualification of his successor or until his
earlier death, resignation, disqualification or removal by the Board of
Directors. All other officers and employees shall hold office at the pleasure of
the appropriate appointing authority.
Section 16. Resignation. An officer may resign at any time by delivering written
notice to the Bank. A resignation is effective when the notice is given unless
the notice specifies a later effective date.
Article V. Fidelity Bonds
Section 1. Fidelity Bonds, for the faithful performance of their duties, shall
be carried on all officers and employees in such form and amounts as the Board
of Directors or Chief Executive Officer may require.
<PAGE>
By-Laws PNC Bank, National Association
Page -8-
Article VI. General Powers of Officers
Section 1. The corporate seal of the Bank may be imprinted or affixed by any
process. The Secretary and any other officers authorized by resolution of the
Board of Directors shall have authority to affix and attest the corporate seal
of the Bank.
Section 2. The authority of officers and employees of this Bank to execute
documents and instruments on its behalf in cases not specifically provided for
in these By-Laws shall be as determined from time to time by the Board of
Directors, or, in the case of employees, by officers in accordance with
authority given them by the Board of Directors.
Section 3. Each of the Chairman of the Board, any Vice Chairman, the President,
any one of the Vice Presidents, the Cashier or the Secretary of this Bank is
hereby authorized to pledge assets of the Bank as security for the safekeeping
and prompt payment of deposits of public funds, or other funds, as required or
permitted by law. Such officers may also pledge assets of the Bank as may be
authorized from time to time by the Board of Directors;
Article VII. Stock Certificates
Section 1. Certificates of stock of the Bank shall be signed by the Chairman of
the Board, or a Vice Chairman, or the President, or a Vice President, and
countersigned by the Cashier or an Assistant Cashier, or by the Secretary or an
Assistant Secretary, and shall be sealed with the seal of the Bank. The seal may
be a facsimile. Where any such certificate is manually countersigned by two
authorized officers, or is manually countersigned by one authorized officer and
manually signed by a Registrar, the signature of the Chairman of the board, or a
Vice Chairman,or the President, or Vice President upon such certificate may be a
facsimile. In case any such officer who has signed or countersigned, or whose
facsimile signature has been placed upon such certificate shall have ceased to
be an officer before such certificate is issued, it may be issued by the Bank
with the same effect as if such officer were still an officer at the time of
this issue.
Section 2. The shares of stock of the Bank shall be transferable only on its
books upon surrender of the stock certificate for such shares properly endorsed.
Section 3. Transfers of stock shall not be suspended preparatory to the
declaration of dividends, but dividends shall be paid to the shareholders in
whose name the stock is standing on the records of the Bank at the close of
business on such day subsequent to the date of declaration of the dividend as
the Board of Directors may designate.
Section 4. If a stock certificate shall be lost, stolen, or destroyed, the
shareholder may file with the Bank an affidavit stating the circumstances of the
loss, theft or destruction and may request the issuance of a new certificate. He
shall give to the Bank a bond which shall be in such sum, contain such terms and
provisions and have such surety or sureties as the Board of Directors may
<PAGE>
By-Laws PNC Bank, National Association
Page -9-
direct. The Bank may thereupon issue a new certificate replacing the certificate
lost, stolen or destroyed.
Article VIII. General
Section 1. Exercise of Authority During Emergencies. The Board of Directors or
the Executive Committee may from time to time adopt resolutions authorizing
certain persons and entities to exercise authority on behalf of this Bank in
time of emergency, and in the time of emergency any such resolutions will be
applicable, notwithstanding any provisions to the contrary contained in these
By-Laws.
Section 2. Charitable Contributions. The Board of Directors may authorize
contributions to community funds, or to charitable, philanthropic, or benevolent
instrumentalities conducive to public welfare in such sums as the Board of
Directors may deem expedient and in the interest of the Bank.
Section 3. Fiscal Year. The fiscal year of the Bank shall be the calendar year.
Section 4. Amendments. These By-Laws may be altered, amended, added to or
repealed by a vote of a majority of the Board of Directors at any regular
meeting of the Board of Directors, or at any special meeting of the Board of
Directors called for that purpose.
Section 5. Notice; Waiver of Notice. Any notice required to be given to any
shareholder or director may be given either personally or by sending a copy
thereof through the mail, or by telegram, charges prepaid, or by facsimile to
his or her address or telephone number, as the case may be, appearing on the
books of the Bank, or supplied by him to her to the Bank for the purpose of
notice. If the notice is sent by mail or by telegraph, it shall be deemed to
have been given to the person entitled thereto when deposited in the United
States mail or with a telegraph office for transmission to such person. Each
notice shall specify the place, day, and hour of the meeting, and, in the case
of a special meeting, the general nature of the business to be transacted.
Unless otherwise provided by law, whenever any notice is required to be given to
any shareholder or Director under the provisions of these By-Laws or under the
provisions of the Articles of Association, a waiver thereof in writing, signed
by the person or persons entitled to such notice, whether before or after the
time stated therein, will be deemed equivalent to he given of such notice.
Except in the case of a special meeting of shareholders or Directors, nether the
business to be transacted nor the purpose of the meeting need by specified in
the waiver of notice of such meeting. Attendance of a person either in person or
by proxy, when permitted, will constitute a waiver of notice of such meeting,
except where such person attends a meeting for the express purpose of objecting
to the transaction of any business because the meeting was not lawfully called
or convened.
<PAGE>
EXHIBIT T-1-5
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act
of 1939, as amended by the Trust Indenture Reform Act of 1990, in connection
with the proposed issuance by The CIT Group Holdings, Inc. (a Delaware
Corporation) of Debt Securities, we hereby consent that reports of examination
by Federal, State, Territorial, or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon request therefor.
PNC BANK, NATIONAL ASSOCIATION
(Trustee)
By /s/ F. J. Deramo
---------------------------
F. J. Deramo
Vice President
Dated: March 15, 1994
<PAGE>
EXHIBIT T-1-6
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of
PNC BANK, NATIONAL ASSOCIATION
of PITTSBURGH in the state of PENNSYLVANIA
at the close of business on
December 31, 1993
published in response to call made by
Comptroller of the Currency,
under title 12, United States Code, Section 161
Charter Number 540
Comptroller of the Currency Northeastern District
STATEMENT OF RESOURCES AND LIABILITIES
Thousands
of Dollars
-----------
ASSETS
Cash and balances due from depository institutions
Noninterest-bearing balances and
currency and coin ................................................ $ 1,160,249
Interest-Bearing Balances ......................................... 1,645
Securities ......................................................... 16,582,928
Federal funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBFs:
Federal funds sold .............................................. 58,400
Securities purchased under agreements to resell ................ 0
Loans and lease financing receivables:
Loans and leases, net of unearned income $22,091,957
LESS: Allowance for loan and lease losses 595,220
-----------
Loans and leases, net of unearned income,
allowance and reserve ........................................... 21,496,737
Assets held in trading accounts .................................... 303
Premises and fixed assets (including capitalized leases) ........... 424,701
Other real estate owned ............................................ 24,477
Investments in unconsolidated subsidiaries and
associated companies .............................................. 54,075
Customers' liability to this bank on acceptances
outstanding ....................................................... 121,955
Intangible assets .................................................. 89,344
Other assets ....................................................... 599,319
-----------
Total Assets ...................................................... $40,614,133
===========
<PAGE>
LIABILITIES
Deposits:
In domestic offices ............................................... $20,420,561
Noninterest-bearing $ 4,979,661
Interest-bearing 15,440,900
In foreign offices, Edge and Agreement subsidiaries,
and IBFs ........................................................ 576,634
Noninterest-bearing $ 5,811
Interest-bearing 570,823
Federal funds purchased and
securities sold under agreements
to repurchase in domestic offices
of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
Federal funds purchased ......................................... 1,713,356
Securities sold under agreements to repurchase .................. 3,623,827
Demand notes issued to U.S. Treasury ............................... 2,695,436
Other borrowed money ............................................... 6,393,427
Mortgage indebtedness and obligations under
capitalized leases ................................................ 6,416
Bank's liability on acceptances executed and outstanding ........... 121,955
Notes and debentures subordinated to deposits ...................... 155,000
Other liabilities .................................................. 2,140,868
-----------
Total liabilities .................................................. 37,847,480
EQUITY CAPITAL
Common Stock ....................................................... 30,850
Surplus ............................................................ 835,220
Undivided profits and capital reserves ............................. 1,900,583
-----------
Total equity capital ............................................... 2,766,653
-----------
Total liabilities and equity capital ............................... $40,614,133
===========
I, D. Paul Beard, Senior Vice President and Controller of the above-named
bank do hereby declare that this Report of Condition is true and correct to the
best of my knowledge and belief.
D. PAUL BEARD
January 28, 1994
We, the undersigned directors, attest to the correctness of this statement
of resources and liabilities. We declare that it has been examined by us, and to
the best of our knowledge and belief has been prepared in conformance with the
instructions and is true and correct.
B. R. BROWN
T. A. McCONOMY
ROBERT C. MILSOM
Directors
EXHIBIT 26.9
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a Trustee
pursuant to Section 305 (b)(2) ____
------------------------
CITIBANK, N.A.
(Exact name of trustee as specified in its charter)
13-5266470
(I.R.S. employer
identification no.)
399 Park Avenue, New York, New York 10043
(Address of principal executive office) (Zip Code)
-----------------------
THE CIT GROUP HOLDINGS, INC.
(Exact name of obligor as specified in its charter)
Delaware 13-2994534
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no)
1211 Avenue of the Americas
New York, New York 10036
(Address of principal executive offices) (Zip Code)
-------------------------
Debt Securities
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
Name Address
---- -------
Comptroller of the Currency Washington,D.C.
Federal Reserve Bank of New York New York, NY
Federal Deposit Insurance Corporation Washington,D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. List of Exhibits.
Exhibit 1 - Copy of Articles of Association of the Trustee, as now in
effect. (Exhibit 1 to T-1 to Registration Statement No. 2-79983)
Exhibit 2 - Copy of certificate of authority of the Trustee to commence
business. (Exhibit 2 to T-1 to Registration Statement No. 2-29577).
Exhibit 3 - Copy of authorization of the Trustee to exercise corporate
trust powers. (Exhibit 3 to T-1 to Registration Statement No. 2-55519)
Exhibit 4 - Copy of existing By-Laws of the Trustee. (Exhibit 4 to T-1
to Registration Statement No. 33-34988)
Exhibit 5 - Not applicable.
Exhibit 6 - The consent of the Trustee required by Section 321(b) of the
Trust Indenture Act of 1939. (Exhibit 6 to T-1 to Registration Statement
No. 33-19227.)
<PAGE>
Exhibit 7 - Copy of the latest Report of Condition of Citibank, N.A.
(as of December 31, 1993 - attached)
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
------------------
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Citibank, N.A., a national banking association organized and existing
under the laws of the United States of America, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York and State of New York, on the 15th day
of March, 1994.
CITIBANK, N.A.
By /s/ CAROL NG
------------------
Carol Ng
Assistant Vice President
<PAGE>
Charter No. 1461
Comptroller of the Currency
Northeastern District
REPORT OF CONDITION
CONSOLIDATING
DOMESTIC AND FOREIGN
SUBSIDIARIES OF
Citibank, N. A.
of New York in the State of New York, at the close of business on December 31,
1993 published in response to call made by Comptroller of the Currency, under
Title 12, United States Code, Section 161. Charter Number 1461 Comptroller of
the Currency Northeastern District.
ASSETS
Thousands
of dollars
-----------
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin..... $ 5,863,000
Interest-bearing balances.............................. 7,137,000
Securities............................................... 11,442,000
Federal funds sold and securities purchased under
agreements to resell in domestic offices of the bank
and of its Edge and Agreement subsidiaries, and in IBFs:
Federal funds sold..................................... 1,467,000
Securities purchased under agreements to resell........ 1,261,000
Loans and lease financing receivables:
Loans and leases, net of
unearned income............... $115,952,000
LESS: Allowance for loan
and lease losses.............. 3,471,000
------------
Loans and leases, net of unearned income and allowance.. 112,481,000
Assets held in trading accounts........................... 15,529,000
Premises and fixed assets (including capitalized leases).. 3,041,000
Other real estate owned................................... 3,371,000
Investments in unconsolidated subsidiaries and
associated companies.................................... 983,000
Customers' liability to this bank
on acceptances outstanding.............................. 1,512,000
Intangible assets......................................... 29,000
Other assets.............................................. 11,866,000
-----------
TOTAL ASSETS.............................................. $175,712,000
============
LIABILITIES
Deposits:
In domestic offices ................................... $ 34,236,000
Noninterest-bearing...................... $11,921,000
Interest-bearing......................... 22,315,000
-----------
In foreign offices, Edge and Agreement subsidiaries,
and IBFs.............................................. 94,076,000
Noninterest-bearing...................... 6,515,000
Interest-bearing......................... 87,561,000
------------
Federal funds purchased and securities
sold under agreements to repurchase in
domestic offices of the bank and of its
Edge and Agreement subsidiaries, and in IBFs:
Federal funds purchased................................ 4,113,000
Securities sold under agreements to repurchase......... 1,190,000
Other borrowed money..................................... 12,053,000
Mortgage indebtedness and obligations
under capitalized leases................................ 285,000
Bank's liability on acceptances executed
and outstanding......................................... 1,530,000
Notes and debentures subordinated to deposits............ 4,700,000
Other liabilities........................................ 12,462,000
------------
TOTAL LIABILITIES........................................ $164,645,000
------------
EQUITY CAPITAL
Common stock............................................. $ 751,000
Surplus.................................................. 5,912,000
Undivided profits and capital reserves................... 5,066,000
Cumulative foreign currency translation adjustments...... (662,000)
------------
TOTAL EQUITY CAPITAL..................................... $ 11,067,000
------------
TOTAL LIABILITIES AND EQUITY CAPITAL..................... $175,712,000
============
I, Roger W. Trupin, Controller of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and
belief.
ROGER W. TRUPIN
We, the undersigned directors, attest to the correctness of this Report of
Condition. We declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance the instructions and is
true and correct.
CHRISTOPHER J. STEFFEN
PEI-YUAN CHIA Directors
PAUL J. COLLINS
EXHIBIT 26.10
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
20549
FORM T-1
- --------------------------------------------------------------------------------
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
- --------------------------------------------------------------------------------
SOCIETY NATIONAL BANK
---------------------
(Exact name of Trustee as specified in its charter)
National Banking Association 34-0797057
- ---------------------------------- -----------------------------------
(State of Incorporation (I.R.S. Employer Identification No.)
if not a National Bank)
127 Public Square, Cleveland, Ohio 44114
- ---------------------------------- ------------------------------------
(Address of principal executive (Zip Code)
offices)
THE CIT GROUP HOLDINGS, INC.
- --------------------------------------------------------------------------------
(Exact Name of Obligor 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
- --------------------------------------- -----------------------------------
(Address of principal executive offices) (Zip Code)
Debt Securities
- --------------------------------------------------------------------------------
(Title of the Indenture Securities)
<PAGE>
Item 1. General Information
- ------- -------------------
Furnish the following information as to the trustee-
(a) Name and address of each examining or supervising authority
to which it is subject.
Comptroller of the Currency, Washington, D.C. Federal
Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers
Yes.
Item 2. Affiliations with Obligor and Underwriters
- ------- ------------------------------------------
If the obligor is an affiliate of the trustee, describe such
affiliation.
The obligor is not an affiliate of the trustee.
No responses are included for Items 3-15 of this Form T-1 because the Obligor is
not in default as provided under Item 13.
Item 16. List of Exhibits
- -------- ----------------
List below all exhibits filed as a part of this statement of
eligibility and qualification.
1. Exhibit T1A(a) A copy of the Amended Articles of Association
of Society National Bank as now in effect.
2. Exhibit T1A(b) Certificate of Authority of Trustee to
Commence Business.
3. Exhibit T1A(c) Authorization of the Trustee to exercise
Corporate Trust Powers.
4. Exhibit T1B A copy of By-Laws of Society National Bank as
now in effect.
5. Exhibit T1C A copy of each Indenture referred to in Item
4. Not Applicable.
---------------
6. Exhibit T1D The Trustee's consent required by Section
321(b) of the Trust Indenture Act of 1939.
2
<PAGE>
7. Exhibit T1E A copy of the latest report of condition of
the Trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Exhibit T1F A copy of any order pursuant to which the
foreign trustee is authorized to act as sole
trustee under indentures qualified or to be
qualified under the Act. Not Applicable.
---------------
9. Exhibit T1G Foreign trustees are required to furnish a
consent to service of process (see Rule 10a-4
under the Act). Not Applicable.
---------------
3
<PAGE>
SIGNATURE
---------
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Society National Bank, a national banking association organized and
existing under the laws of the United States of America, has duly caused this
statement of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Cleveland, and State of Ohio on
the 15th day of March, 1994.
SOCIETY NATIONAL BANK
By: C.M. Nagy
---------------------------------
C.M. Nagy
Its: Vice President
[Corporate Seal]
ATTEST:
By: D. Kovach
--------------------------------
D. Kovach
Its: Assistant Secretary
4
<PAGE>
EXHIBIT T1A
EXHIBIT A
SOCIETY NATIONAL BANK
AMENDED
ARTICLES OF ASSOCIATION
First. The title of this Association shall be Society National Bank.
Second. The main office of this Association shall be in Cleveland,
Ohio, County of Cuyahoga. The general business of this Association shall be
conducted at its main office and its branches.
Third. The Board of Directors of this Association shall consist of not
less than five nor more than twenty-five members, the exact number of Directors
within such minimum and maximum limits to be fixed and determined from time to
time by resolution of a majority of the full Board of Directors or by resolution
of the shareholders at any annual or special meeting thereof. In accordance with
12 U.S.C. Section 72, each director, during the full term of his or her
directorship, shall own in his or her own right either shares of capital stock
of the Association the aggregate par value of which is not less than $1,000 or
an equivalent interest, as determined by the Comptroller of the Currency, in any
company which has control over the Association within the meaning of 12 U.S.C.
Section 1841. Unless otherwise provided by the laws of the United States, any
vacancy in the Board of Directors for any reason, including an increase in the
number thereof, may be filled by action of the Board of Directors.
Fourth. The annual meeting of the shareholders for the election of
Directors and the transaction of whatever other business may be brought before
said meeting shall be held at the main office or such other place as the Board
of Directors may designate, on the day of each year specified therefor in the
Bylaws, but if no election is held on that day, it may be held on any subsequent
day according to the provisions of law, and all elections shall be held
according to such lawful regulations as may be prescribed by the Board of
Directors.
Fifth. The amount of authorized capital stock of this Association shall
be Two Hundred and Six Million Eight Hundred and Sixty-Two Thousand and Five
Hundred Dollars ($206,862,500) divided into 2,068,625 shares of common stock of
the par value of One Hundred Dollars ($100) per share but said capital stock may
be increased or decreased from time to time, in accordance with the provisions
of the laws of the United States.
No holder of shares of capital stock of any class of this Association
shall have any pre-emptive or preferential right of subscription to any shares
of any class of stock of this Association, whether now or hereafter authorized,
or to any obligations convertible into stock of this Association, issued or
sold, nor any right of subscription to any thereof other than such, if any, as
9
<PAGE>
the Board of Directors, in its discretion, may from time to time determine and
at such price as the Board of Directors may from time to time fix.
This Association, at any time and from time to time, may authorize and
issue debt obligations, whether or not Subordinated, without the approval of
shareholders.
Sixth. The Board of Directors shall appoint one of its members
President of this Association, who shall be Chairman of the Board, unless the
Board appoints another Director to be the Chairman. The Board of Directors shall
have the power to appoint one or more Vice Presidents and to appoint a Cashier
and such other officers and employees as may be required to transact the
business of this Association.
The Board of Directors shall have the power to define the duties of the
officers and employees of this Association; to fix the salaries to be paid to
them; to dismiss them; to require bonds from them and to fix the penalty
thereof; to regulate the manner in which any increase of the capital of this
Association shall be made; to manage and administer the business and affairs of
this Association; to make all Bylaws that it may be lawful for them to make; and
generally to do and perform all acts that it may be legal for a Board of
Directors to do and perform.
Seventh. The Board of Directors shall have the power to change the
location of the main office to any other place within the limits of Cleveland,
Ohio, without the approval of the shareholders but subject to the approval of
the Comptroller of the Currency, and shall have the power to establish or change
the location of any branch or branches of the Association to any other location,
without the approval of the shareholders but subject to the approval of the
Comptroller of the Currency.
Eighth. The corporate existence of this Association shall continue
until terminated in accordance with the laws of the United States.
Ninth. The Board of Directors of this Association, or any shareholders
owning, in the aggregate, not less than 10 percent (10%) of the stock of this
Association, may call a special meeting of shareholders at any time. Unless
otherwise provided by the laws of the United States, a notice of time, place,
and purpose of every annual and special meeting of the shareholders shall be
given by first-class mail, postage prepaid, mailed at least ten days prior to
the date of such meeting to each shareholder of record at his address as shown
upon the books of this Association, except as to any shareholder who has
specifically waived notice of such meeting.
Tenth. (a) This Association shall indemnify, to the full extent
permitted or authorized by the Ohio General Corporation Law as it may from time
to time be amended, any person made or threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, or investigative, by reason of the fact that he is or
was a director, officer, or employee of this Association, or is or was serving
at the request of this Association as a director, trustee, officer, or employee
of another association, corporation, partnership, joint venture, trust, or other
10
<PAGE>
enterprise; in the case of a person serving at the request of this Association,
such request shall be evidenced by a resolution of the Board of Directors or a
duly-authorized committee thereof or by a writing executed by an officer of this
Association pursuant to a resolution of the Board of Directors or a
duly-authorized committee thereof. In the case of a merger into this Association
of a constituent association which, if its separate existence had continued,
would have been required to indemnify directors, officers, or employees in
specified situations prior to the merger, any person who served as a director,
officer, or employee of the constituent association, or served at the request of
the constituent association as a director, trustee, officer, or employee of
another association, corporation, partnership, joint venture, trust, or other
enterprise, shall be entitled to indemnification by this Association (as the
surviving association) for acts, omissions, or other events or occurrences prior
to the merger to the same extent he would have been entitled to indemnification
by the constituent association if its separate existence had continued. The
indemnification provided by this TENTH shall not be deemed exclusive of any
other rights to which any person seeking indemnification may be entitled by law
or under these Articles or the Bylaws, or any agreement, vote of shareholders or
disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director, trustee, officer,
or employee and shall inure to the benefit of the heirs, executors, and
administrators of such a person.
(b) Notwithstanding division (a) of this TENTH, no director, officer,
or employee of this Association shall be indemnified against expenses, including
attorneys' fees, penalties or other payments incurred in an administrative
proceeding or action instituted by the Comptroller of the Currency or other
appropriate bank regulatory agency when such proceeding or action results in a
final order assessing civil money penalties against, or requiring affirmative
action of, such director, officer, or employee in the form of payments to this
Association.
(c) This Association may purchase and maintain insurance or furnish
similar protection, including but not limited to trust funds, letters of credit,
or self-insurance on behalf of or for any person who is or was a director,
officer, employee, or agent of this Association, or is or was serving at the
request of this Association as a director, trustee, officer, employee, or agent
of another association, corporation, partnership, joint venture, trust, or other
enterprise, against any liability asserted against him and incurred by him in
any capacity, or arising out of his status as such, whether or not this
Association would have the power to indemnify him against liability under the
provisions of this TENTH or of the Ohio General Corporation Law; provided,
however, such insurance shall explicitly exclude insurance coverage for a formal
order assessing civil money penalties against a director, officer, or employee
of this Association as a result of an administrative proceeding or action
instituted by the Comptroller of the Currency or other appropriate bank
regulatory agency. Insurance may be purchased from or maintained with a person
in which this Association has a financial interest.
(d) Expenses (including attorney's fees) incurred by a director in
defending any action, suit, or proceeding referred to in division (a) of this
TENTH commenced or threatened against the director for any action or failure to
act as a director shall be paid by this Association, as they are incurred, in
11
<PAGE>
advance of final disposition of the action, suit, or proceeding upon receipt of
an undertaking by or on behalf of the director in which he agrees both (i) to
repay the amount if it is proved by clear and convincing evidence in a court of
competent jurisdiction that his action or failure to act involved an act or
omission undertaken with deliberate intent to cause injury to this Association
or undertaken with reckless disregard for the best interests of this Association
and (ii) to reasonably cooperate with this Association concerning the action,
suit, or proceeding. The provisions of this paragraph shall not apply if the
only liability asserted against the director in such action, suit, or proceeding
is for (i) the payment of a dividend or distribution, or the making of a
distribution of assets to shareholders, or the purchase or redemption of this
Association's own shares, contrary in any such case to law or these Articles of
Association, or (ii) a distribution of assets to shareholders during the winding
up of the affairs of the Association, on dissolution or otherwise, without the
payment of all known obligations of the Association, or without making adequate
provision therefor.
Expenses (including attorney's fees) incurred by a director (to the extent the
expenses are not required to be advanced pursuant to the preceding paragraph),
officer, or employee in defending any action, suit, or proceeding referred to in
division (a) of this TENTH may be paid by this Association, as they are
incurred, in advance of final disposition of the action, suit, or proceeding, as
authorized by the Board of Directors in the specific case, upon receipt of an
undertaking by or on behalf of the director, officer, or employee to repay the
amount if it is ultimately determined that he is not entitled to be indemnified
by this Association.
(e) Notwithstanding division (d) of this TENTH, expenses, including
attorneys' fees, incurred by a present or former director, officer, or employee
of this Association in defending an administrative proceeding or action
instituted by the Comptroller of the Currency or other appropriate bank
regulatory agency that seeks a final order assessing civil money penalties or
requiring affirmative action by an individual or individuals in the form of
payments to this Association, may be paid by this Association as they are
incurred in advance of the final disposition of the action, suit, or proceeding,
only in the event that:
(i) the Board of Directors of this Association, in good faith,
determines in writing that all of the following conditions are
met:
(A) the director, officer, or employee has a substantial
likelihood of prevailing on the merits;
(B) in the event the director, officer, or employee does not
prevail, he will have the financial capability to reimburse
this Association;
(C) all applicable laws and regulations affecting loans to the
director, officer, or employee will be complied with in the
event reimbursement is required;
(D) payment of expenses by this Association will not adversely
affect this Association's safety and soundness; and
12
<PAGE>
(ii) the director, officer, or employee enters into an agreement with
this Association to repay such amount if:
(A) such administrative proceeding or action instituted by the
Comptroller of the Currency or other appropriate bank
regulatory agency results in a final order assessing civil
money penalties against, or requiring affirmative action of,
such director, officer, or employee in the form of payments
to this Association; or
(B) the Board of Directors of this Association finds that the
director, officer, or employee willfully misrepresented
factors relevant to the Board of Directors' determination of
conditions (A) or (B) set forth in (i), above.
If at any time the Board of Directors of this Association believes
that any of the conditions set forth in (i) above are no longer
met, such expenses will no longer be paid by this Association.
(f) Notwithstanding divisions (a) through (e) of this TENTH, all of the
provisions of this TENTH are subject to the authority of the Office of the
Comptroller of the Currency to direct a modification of a specific
indemnification by a national bank through appropriate administrative action.
Eleventh. These Articles of Association may be amended at any regular
or special meeting of the shareholders by the affirmative vote of the holders of
a majority of the stock of this Association, unless the vote of the holders of a
greater amount of stock is required by law, and in that case by the vote of the
holders of such greater amount.
13
<PAGE>
EXHIBIT T1B
The following Bylaws were adopted by the Board of Directors of Society
National Bank on July l6, l992.
BYLAWS OF
SOCIETY NATIONAL BANK
ARTICLE I
MEETING OF SHAREHOLDERS
Section 1. Annual Meeting. The annual meeting of shareholders for the election
of Directors, and the transaction of whatever other business may properly come
before the meeting, shall be held at the main office of the Bank, or such other
place authorized by the Board of Directors or the Chairman of the Board, on the
Thursday after the third Wednesday in January of each year, or such other date
authorized by the Board of Directors or the Chairman of the Board. If, for any
cause, the election of Directors is not held on that day, the Board of Directors
shall order the election to be held on some subsequent day, as soon thereafter
as practicable, according to the provisions of law, and notice thereof shall be
given in the manner herein provided for the annual meeting.
Section 2. Special Meetings. Except as otherwise specifically provided by
statute, special meetings of the shareholders may be called for any purpose at
any time by the Chairman of the Board, the President, the Board of Directors, or
by any shareholder or shareholders owning, in the aggregate, not less than ten
per centum (10%) of the stock of the Bank.
Section 3. Notice of Meetings. Unless otherwise provided by law, these Bylaws,
or the Articles of Association, a notice of the time, place, and purpose of
every annual meeting and every special meeting of the shareholders shall be
given by first-class mail, postage prepaid, mailed not less than ten days nor
more than sixty days prior to the date of such meeting, to each shareholder of
record at such shareholder's address as shown upon the books of the Bank. The
attendance of any shareholder at a shareholder meeting without protesting, prior
to or at the commencement of the meeting, the lack of proper notice, shall be
deemed a waiver by such shareholder of notice of such meeting.
Section 4. Proxies. Shareholders may vote at any meeting of the shareholders by
proxies duly authorized in writing, but no officer or employee of this Bank may
act as a proxy. Proxies shall be valid only for one meeting, to be specified
therein, and any adjournments of such meeting. Proxies shall be dated and shall
be filed in the Bank's records. The person appointed as proxy need not be a
shareholder. Unless the writing appointing a proxy otherwise provides, the
presence at a meeting of the person who appointed a proxy shall not operate to
revoke the appointment. Notice to the Bank, in writing or in open meeting, of
the revocation of the appointment of a proxy shall not affect any vote or act
previously taken or authorized by such proxy.
<PAGE>
Section 5. Quorum; Adjournment. Except as may otherwise be provided by law, at
any meeting of the shareholders, the holders of shares entitling them to
exercise a majority of the voting power of the Bank present in person or by
proxy shall constitute a quorum for such meeting; provided, however, that no
action required by law to be authorized or taken by a designated proportion of
the shares may be authorized or taken by a lesser proportion; provided, further,
that, if a quorum is not present, the holders of a majority of the voting shares
represented thereat may adjourn such meeting or any adjournment thereof. If any
meeting is adjourned, notice of such adjournment need not be given if the time
and place to which such meeting is adjourned are fixed and announced at such
meeting.
Section 6. Voting Power; Cumulative Voting. In voting on issues at meetings of
shareholders, except on the election of Directors, each shareholder shall be
entitled to one vote for each share of stock held. A majority of votes cast
shall decide each issue submitted to the shareholders at any meeting, except in
cases where by law or by the Articles of Association a larger vote is required.
In all elections of Directors, each shareholder shall have the right to vote the
number of shares owned by such shareholder for as many persons as there are
Directors to be elected, or to cumulate such shares and give one candidate as
many votes as the number of Directors multiplied by the number of such
shareholder's shares shall equal, or to distribute them on the same principle
among as many candidates as such shareholder chooses.
Section 7. Record of Shareholders and Votes. At any meeting of the shareholders,
a record showing the names of shareholders present and the number of shares of
stock held by each, the names of shareholders represented by proxy and the
number of shares held by each, and the names of the proxies shall be made. This
record also shall show the number of shares voted on each action taken,
including the number of shares voted for each candidate for the Board of
Directors. This record shall be included in the minute book of the Bank.
ARTICLE II
BOARD OF DIRECTORS
Section 1. Authority. The Board of Directors shall have power to manage and
administer the business and affairs of the Bank. Except as expressly limited by
law, all corporate powers of the Bank shall be vested in and exercised by or
under the authority of the Board of Directors.
Section 2. Number. The Board of Directors shall consist of not less than five
nor more than twenty-five members; the exact number within such minimum and
maximum limits shall be fixed and determined from time to time by resolution of
a majority of the full Board of Directors or by resolution of the shareholders
at any meeting thereof; provided, however, that a majority of the full Board of
Directors may not increase the number of Directors to a number which exceeds by
more than: (i) two the number of Directors last fixed and determined by the
shareholders where such number was fifteen or less, or (ii) four the number of
Directors last fixed and determined by the shareholders where such number was
sixteen or more.
<PAGE>
Section 3. Election of Directors; Vacancies. The Directors shall be elected at
each annual meeting of shareholders or at a special meeting called for the
purpose of electing Directors. Any vacancy or vacancies occurring in the Board
of Directors, including vacancies created by an increase in the numbers of
Directors, shall be filled by appointment by the remaining Directors at any
regular or special meeting of the Board, and any Director or Directors so
appointed shall hold office until the next election. Each person elected or
appointed a Director must take the oath of such office in the form prescribed by
the Comptroller of the Currency. No person elected or appointed a Director shall
exercise the functions of such office until he has taken such oath. The Bank
shall transmit evidence of such oath or oaths to the Comptroller of the
Currency.
Section 4. Term of Office; Resignations. Directors shall hold office until the
next annual meeting of shareholders or until their successors are elected and
have qualified, or until their earlier resignation, removal from office, or
death. Any Director may resign at any time by oral statement to that effect made
at a meeting of the Board of Directors, or in a writing to that effect delivered
to the Secretary or an Assistant Secretary of the Bank; such resignation shall
take effect immediately or at such other time as the Director may specify at
such meeting or in such writing. At a meeting of shareholders called expressly
for that purpose, any director or the entire Board of Directors may be removed,
with or without cause, by a vote of the holders of a majority of the shares then
entitled to vote at an election of directors. If permitted by law, the majority
of the Board of Directors may remove a director for cause.
Section 5. Organization Meeting. Following the annual meeting of shareholders,
the Directors-elect shall hold an organization meeting for the purpose of
appointing officers and transacting such other business as properly may come
before the meeting. Such organization meeting shall be held on the day of the
election or as soon thereafter as practicable and, in any event, within thirty
days thereof. Notice of such meeting need not be given if held on the day of the
election.
Section 6. Regular Meetings. Regular meetings of the Board of Directors shall be
held, without notice, on the Thursday after the third Wednesday of each month,
at the main office of the Bank or at such other times and places authorized by
the Board of Directors, the Chairman of the Board, or in such person's absence,
a Vice Chairman of the Board. When any regular meeting of the Board falls upon a
holiday, the meeting shall be held on the next banking business day unless the
Board shall designate some other day.
Section 7. Special Meetings. Special meetings of the Board of Directors may be
called by the Chairman of the Board, by the President, or at the request of
three or more Directors. Notice of special meetings, stating the time and place
thereof, and whether telephone or similar communications equipment will be
utilized, shall be given in person or by mailing, telephoning, or telegraphing
such notice at least 24 hours prior to the meeting; provided, however, that
attendance of any Director at such meeting without protesting, prior to or at
the commencement of the meeting, the lack of proper notice, shall be deemed a
waiver by such Director of notice of such meeting. Notice of a meeting may be
waived in writing or by telegram either before or after such meeting. Unless
otherwise indicated in the notice of the meeting, any business may be transacted
at such meeting.
<PAGE>
Section 8. Quorum; Adjournment. A quorum of the Board of Directors shall consist
of a majority of the Directors then in office; provided that a majority of the
Directors then present at a meeting duly held, whether or not a quorum is
present, may adjourn such meeting from time to time. If any meeting is
adjourned, notice of such adjournment need not be given if the time and place to
which such meeting is adjourned are fixed and announced at such meeting. At each
meeting of the Board of Directors at which a quorum is present, all issues shall
be determined by a majority vote of those present except as otherwise expressly
provided in these Bylaws or by law. A Director cannot vote or otherwise act by
proxy at a meeting of the Board of Directors.
ARTICLE III
OFFICERS
Section 1. Election and Designation of Officers. The Board of Directors shall
elect or appoint a Chairman of the Board, a President, one or more Vice
Presidents, a Secretary, and such other officers as the Board may deem
necessary. The Chairman of the Board and the President shall be members of the
Board of Directors. The Board of Directors may delegate the authority to appoint
and dismiss officers to officers of the Bank or to a committee composed of such
officers. Any two or more offices may be held by the same person, but no officer
shall execute, acknowledge, or verify any instrument in more than one capacity
if the instrument is required to be executed, acknowledged, or verified by two
or more officers. The Board of Directors shall approve the compensation of
officers, except that the Board of Directors may delegate to a committee of the
Board of Directors, or to officers of the Bank, authority for approving
officers' compensation.
Section 2. Term of Office; Vacancies. The officers of the Bank shall hold office
until their successors are elected or appointed and qualified, except in the
case of resignation, dismissal or removal from office, or death. The Board of
Directors may dismiss or remove any officer at any time, with or without cause,
by a majority vote of the Directors then in office, without prejudice to the
contract rights of such officer; an election or appointment of an officer shall
not of itself create any contract rights. Any vacancy in any office may be
filled in the manner provided herein for the election or appointment of office.
The Board of Directors is not required to annually elect or appoint officers.
Section 3. Chairman of the Board. The Chairman of the Board shall preside at all
meetings of shareholders and the Board of Directors. He also shall serve the
Bank in such capacity and perform such other duties as may be assigned to him,
from time to time, by the Board of Directors. In the absence of, or at the
direction of, the Chairman of the Board, the President, or such other Director
designated by the Chairman of the Board, shall preside at a meeting of the
shareholders or the Board of Directors, as the case maybe.
Section 4. President. The President shall have general executive powers over the
management and business of the Bank, subject to the direction of the Board of
Directors and the Chairman of the Board.
<PAGE>
Section 5. Vice Presidents. Each Vice President shall have such powers and
duties as may be assigned to him by the Board of Directors or as otherwise
provided for herein; the Board of Directors may authorize one of the Vice
Presidents to perform the duties of the President in the President's absence or
if the President is unable to act.
Section 6. Secretary. The Board of Directors shall appoint a Secretary or other
designated officer (who, in the absence of a Cashier, shall have all the powers
and duties of a Cashier) who shall be Secretary of the Board and of the Bank.
The Secretary shall give or provide for giving of all notices required by law or
these Bylaws to be given, shall be custodian of the corporate seal, records,
documents, and papers of the Bank, shall keep accurate minutes of all meetings
covered by these Bylaws, and shall perform such other duties as may be assigned
from time to time by the Board of Directors.
Section 7. Other Officers. Other officers shall have such powers and duties as
may be assigned by the Board of Directors.
Section 8. Delegation of Duties. The Board of Directors is authorized to
delegate the assignment of the duties of any officer, to control the action of
the officers, and to require the performance of duties in addition to those
mentioned herein, to any other officer.
ARTICLE IV
COMMITTEES
Section 1. Executive Committee. The Board of Directors may appoint an Executive
Committee which shall consist of the Chairman of the Board, the President, and
not less than three other Directors. Each member of the Board of Directors who
is not a member of the Committee shall be an alternate and, at the request of
the officer who is to preside at the meeting, may serve in the place of any
regular member who is unable to attend a committee meeting for any reason. The
Chairman of the Board shall preside at all meetings of the Committee; if such
officer is absent, a Vice Chairman shall preside. If none of these officers is
available, the President shall preside. If none of the foregoing persons is
available, the non-officer Director members of the Executive Committee shall
select a Director, who need not be an officer, to preside.
Section 2. Powers of Executive Committee. The Executive Committee shall have and
may exercise, as far as permitted by law, all the powers and authority of the
Board of Directors and other committees of the Board of Directors between
meetings of such Board or such committees. At each meeting of the Board of
Directors, the minutes of all previous meetings of the Executive Committee not
theretofore submitted to the Board shall be presented for review and
ratification by the Board. Any action of the Board disapproving any prior action
of the Executive Committee shall not affect the rights of third parties dealing
with the Bank, if such rights have attached by virtue of action of the Executive
Committee within the scope of the corporate powers of the Bank.
<PAGE>
Section 3. Other Committees. The Board of Directors may, by resolutions adopted
by a majority of the full Board, establish one or more other committees; each
committee shall consist of two or more members of the Board of Directors which,
to the extent provided in such resolution or resolutions or in these Bylaws,
shall have and may exercise the powers of the Board of Directors in the
management of the business and affairs of the Bank and may have the power to
authorize the seal of the Bank to be affixed to all papers which may require it.
Such committee or committees shall have such name or names as may be stated in
these Bylaws or as may be determined from time to time by resolution adopted by
the Board of Directors. The Board of Directors may designate one or more
Directors as alternate members of any committee, who may serve in the place of
any regular member who is unable to attend a committee meeting for any reason.
Each committee shall keep regular minutes of its meetings and present such
minutes for review to the Board of Directors.
Section 4. Notice of Meetings. Meetings of the Board committees shall be held at
the principal office of the Bank in the City of Cleveland, or at such other
place as may be designated in the notice of the meeting at any time upon call by
the Chairman of the Board, the Vice Chairman of the Board, the President, or the
Chairman of the Committee. Notice of each such meeting shall be given to each
member of the Committee in person or by mailing, telephoning, or telegraphing
such notice at least 24 hours prior to the meeting; provided, however, that
attendance by any Director at such meeting, without protesting prior to or at
the commencement of such meeting, the lack of proper notice shall be deemed a
waiver by such Director of the notice of such meeting. Notice of the meeting may
be waived in writing or by telegram by any member either before or after such
meeting. Unless otherwise indicated in the notice of the meeting, any business
may be transacted at such meeting.
ARTICLE V
TRUSTS
------
Section 1. Trust Department. There shall be a department of the Bank known as
the Trust Department or similar name which shall perform the fiduciary
responsibilities of the Bank.
Section 2. Trust Department Files. There shall be maintained in the Trust
Department files containing all fiduciary records necessary to assure that its
fiduciary responsibilities have been properly undertaken and discharged.
Section 3. Trust Investments. Funds held in a fiduciary capacity shall be
invested in accordance with the instrument establishing the fiduciary
relationship and local law. Where such instrument does not specify the character
and class of investments to be made and does not vest in the Bank discretion in
the matter, funds held pursuant to such instrument shall be invested in
investments in which corporate fiduciaries may invest under local law.
<PAGE>
ARTICLE VI
RECORD DATES
------------
The Board of Directors may fix, or authorize the Chairman of the Board or the
President to fix, a record date for any lawful purpose. The record date for the
purpose of the determination of the shareholders who are entitled to receive
notice of or to vote at a meeting of shareholders shall continue to be the
record date for all adjournments of such meeting. The Board of Directors may
close the share transfer books against transfer of shares during the whole or
any part of the period provided for in this Article, including the date of the
meeting of shareholders and the period ending with the date, if any, to which
the meeting is adjourned.
ARTICLE VII
CERTIFICATES FOR SHARES
-----------------------
Section 1. Form of Certificates and Signatures. Each holder of shares shall be
entitled to one or more certificates signed by the Chairman of the Board, the
President or a Vice President, and by the Secretary or an Assistant Secretary.
The signature of any of such officers of the Bank may be a facsimile, engraved,
stamped, or printed. In case any such officer whose legal or facsimile signature
has been placed upon such certificate ceases to be such officer before the
certificate is delivered, such certificate nevertheless shall be effective in
all respects when delivered.
Section 2. Transfer of Shares. Shares of the Bank shall be transferable upon the
books of the Bank by the holders thereof, in person, or by a duly authorized
attorney, upon surrender and cancellation of certificates for a like number of
shares of the same class, with duly executed assignment and power of transfer
endorsed thereon or attached thereto, and with such proof of the authenticity of
such signatures to such certificates and power of transfer as the Bank or its
agents may reasonably require.
Section 3. Corporate Seal. The following is an impression of the seal adopted by
the Board of Directors of the Bank.
(to be inserted)
Any officer shall have authority to affix the corporate seal to any document
requiring such seal and to attest the same. Failure to affix the seal to any
instrument executed on behalf of the Bank shall not affect the validity of such
instrument unless such action is required by law.
<PAGE>
ARTICLE VIII
BANKING HOURS
-------------
The main office and branch offices of the Bank shall be open for business upon
such days of the year and for such hours as the Board of Directors or the
officers of the Bank may from time to time determine.
ARTICLE IX
MISCELLANEOUS
-------------
Section 1. Fiscal Year. The fiscal year of the Bank shall be the calendar year.
Section 2. Definitions. The word "person" wherever used in these Bylaws shall be
taken to mean and include individuals, partnerships, associations, and
corporations when the text so requires. "Vice President", as used in these
Bylaws, shall include Vice Chairman and such titles as Senior Executive Vice
President, Executive Vice President, and Senior Vice President. Words of the
singular number shall be taken to include the plural and those of the plural
number shall be taken to include the singular whenever appropriate. Nouns and
pronouns of the masculine gender shall include the feminine whenever
appropriate.
Section 3. Execution of Instruments. The Chief Executive Officer may from time
to time prescribe in writing the authority of the officers, employees, and
agents of the Bank with respect to the making, execution, and delivery in the
name and on behalf of the Bank of documents and instruments in writing necessary
to the transaction of its business, whether in a fiduciary capacity or
otherwise, and with respect to the approval orally, or by conduct other than
signing of agreements, of transactions in the name and on behalf of the Bank
necessary to the carrying out of the business of the Bank; provided, however,
that if the Chief Executive Officer fails to take such action, the Board of
Directors shall, by resolution, establish such authorities in writing. Where any
such resolution or any such writing has been certified by the Secretary or an
Assistant Secretary as to its full force and effect, any instrument executed or
transaction effected in conformity with such resolution or such writing may be
relied upon by any person. Authority granted to officers, employees, and agents
of the Bank, pursuant to this Section 3 shall apply to all documents,
instruments, and conduct relating to any entity for which the Bank is a
successor in interest, whether by merger or otherwise.
Section 4. Use of Communications Equipment at Meetings. Members of the Board of
Directors may participate in regular or special meetings of the Board of
Directors, and members of committees appointed by the Board of Directors may
participate in regular or special meetings of those committees, through use of
conference telephone or similar communications equipment, as long as all members
participating in such meeting can hear one another.
<PAGE>
Section 5. Action Without a Meeting. Any action which may be taken at a meeting
of the Bank's shareholders, Board of Directors, or committee of the Board of
Directors, may be taken without a meeting by the unanimous vote of approval of,
and in a writing or writings signed by, all of the Bank's shareholders,
Directors, or committee members, respectively, entitled to notice of such
meeting; such writing or writings shall be included in the minute book of the
Bank.
Section 6. Waivers of Notice. Any shareholder or Director may waive the giving
of any notice required to be given to him under these Bylaws.
Section 7. Telegram. Any action required or permitted to be taken hereunder by
telegram may be taken by telex, fax, or similar communication equipment.
Section 8. Records. The Articles of Association, these Bylaws, and the
proceedings of all meetings of the shareholders, the Board of Directors, and
committees of the Board, shall be recorded in appropriate minute books provided
for that purpose. The minutes of each meeting shall be signed by the Secretary,
an Assistant Secretary, or other officer appointed to act as secretary of the
meeting.
Section 9. Interest Rates and Assessments and Loans. The Bank may assess and
collect from borrowers interest at any rate agreed upon by the Bank and the
borrower as specified in the loan agreement. In addition to such interest, the
Bank may assess and collect any dues, fines, premiums, or other assessments on
loans made in such amount as may be agreed upon in the loan agreement,
including, but not limited to, the following: origination fees; guarantee fees
or charges for any insurance protecting a creditor against a borrower's default
or other credit loss; late, default, or delinquency charges; deferment charges;
annual or other periodic membership fees; charges for returned checks and other
forms of payment; overlimit charges; cash advance fees; stop payment fees; ATM,
electronic, or similar interchange access fees; transaction fees; currency
conversion charges; fees for replacement of credit cards, access checks, or
other access devices; minimum charges; research charges; charges for providing
documentation or other evidence; credit, property, or other types of insurance
premiums, including premiums for insurance in lieu of perfecting a security
interest; collection costs; court costs; attorney's fees; applications fees;
credit report fees; investigation fees; commitment fees; finder's fees; broker
fees; assumption fees; processing fees; credit report fees; investigation fees;
points; survey and appraisal fees; title examination and report fees; title
insurance premiums; abstract of title fees; escrow fees; trustee fees; official
fees and taxes; filing and recording fees; fees for taking or releasing a
security interest; document preparation and notarization fees; prepayment fees.
ARTICLE X
AMENDMENTS
----------
These Bylaws may be amended, altered, or repealed, at any regular or special
meeting of the Board of Directors, by a vote of a majority of the whole number
of the Directors.
<PAGE>
[Certificate of Authority of Trustee to Commence Business December 17, 1958]
<PAGE>
EXHIBIT T1D
Consent for Records of Governmental Agencies
to be Made Available to the Commission
The undersigned, Society National Bank, of Cleveland, Ohio pursuant to
Section 321(b) of The Trust Indenture Act of 1939, hereby authorizes the Board
of Governors of the Federal Reserve System, the Federal Reserve Banks, the
Treasury Department, the Comptroller of the Currency and the Federal Deposit
Insurance Corporation, under such conditions as they may have available with
respect to the undersigned as a prospective trustee under an indenture to be
qualified under the aforesaid Trust Indenture Act of 1939 and to make through
their examiners or other employees for the use of the Commission, examinations
of the undersigned prospective Trustee.
The undersigned also, pursuant to Section 321(b) of said Trust Indenture
Act of 1939, consents that reports of examination by the Federal, State,
Territorial or District authorities may be furnished by such authorities to the
Commission upon request therefor.
Date this 15th day of March, 1994
SOCIETY NATIONAL BANK
By: /s/ C.M. Nagy
-----------------------------------
C.M. Nagy, Vice President
[Corporate Seal]
ATTEST:
/s/ D. Kovach
------------------------------------
D. Kovach, Assistant Secretary
<PAGE>
Exhibit T1E
Legal Title of Bank: Society National Bank Call Date: 12/31/93
Address: 127 Public Square ST-BK: 39-1495 FFIEC 031
City, State Zip: Cleveland, OH 44114-1306 Page RC-1
FDIC Certificate No.: 17534
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31, 1993
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
C400
Dollar Amounts in Thousands RCFD Bil Mil Thou
- ----------------------------------------------------------------------------------------------------------------------
Assets
<S> <C> <C> <C>
1. Cash and balances due from depository institutes (from Schedule RC-A):
a. Noninterest-bearing balances and currency and coin(1) ................................. 0081 1,170,605 1.a.
b. Interest-bearing balances(2) .......................................................... 0071 147 1.b.
2. Securities (from Schedule RC-B) .......................................................... 0390 4,697,949 2.
3. Federal funds sold and securities purchased under the agreements to resell
in domestic offices of the bank and of its Edge and Agreement subsidiaries, and
in IBFs:
a. Federal funds sold .................................................................... 0267 199,485 3.a.
b. Securities purchased under agreements to resell ....................................... 0277 228,652 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RC-C) .. RCFD 2122 14,856,796 4.a.
b. LESS: Allowance for loan and lease losses ...................... RCFD 3123 407,938 4.b.
c. LESS: Allocated transfer risk reserve .......................... RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and 4.c) ................................... 2125 14,448,858 4.d.
5. Assets held in trading accounts .......................................................... 2146 35,462 5.
6. Premises and fixed assets (including capitalized leases) ................................. 2145 333,562 6.
7. Other real estate owned (from Schedule RC-M) ............................................. 2150 36,419 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) . 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding ............................. 2155 9,218 9.
10. Intangible assets (from Schedule RC-M) ................................................... 2143 109,209 10.
11. Other assets (from Schedule RC-F) ........................................................ 2160 538,631 11.
12. Total assets (sum of items 1 through 11) ................................................. 2170 21,808,197 12.
</TABLE>
- ------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
11
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: Society National Bank Call Date: 12/31/93 ST-BK: 39-1495 FFIEC 031
Address: 127 Public Square Page RC-2
City, State Zip: Cleveland, OH 44114-1306
FDIC Certificate No.: 17534
</TABLE>
Schedule RC--Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) .. RCON 2200 13,710,001 13.a.
(1) Noninterest-bearing (1) ............. RCON 6631 3,370,845 13.a.(1)
(2) Interest-bearing .................... RCON 6636 10,339,156 13.a.(2)
b. In foreign officer, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E,
part II) RCFN 2200 2,495,533 13.b.
(1) Noninterest-bearing (1) ............. RCFN 6631 0 13.b.(1)
(2) Interest-bearing .................... RCFN 6636 2,495,533 13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase in domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased ............................................................ RCFD 0278 1,760,997 14.a.
b. Securities sold under agreements to repurchase ..................................... RCFD 0279 393,857 14.b.
15. Demand notes issued to the U.S. Treasury ............................................... RCON 2840 405,000 15.
16. Other borrowed money ................................................................... RCFD 2850 802,185 16.
17. Mortgage indebtedness and obligations under capitalized leases ......................... RCFD 2910 10,399 17.
18. Bank's liability on acceptances executed and outstanding ............................... RCFD 2910 9,218 18.
19. Subordinated notes and debentures ...................................................... RCFD 2930 344,646 19.
20. Other liabilities (from Schedule RC-G) ................................................. RCFD 2930 344,425 20.
21. Total liabilities (sum of items 13 through 20) ......................................... RCFD 2948 20,330,261 21.
22. Limited-life preferred stock and related surplus ....................................... RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus .......................................... RCFD 3838 0 23.
24. Common stock ........................................................................... RCFD 3230 206,863 24.
25. Surplus (exclude all surplus related to preferred stock) ............................... RCFD 3839 707,165 25.
26. a. Undivided profits and capital reserves ............................................. RCFD 3632 563,908 26.a.
b. LESS: Net unrealized loss on marketable equity securities ......................... RCFD 0297 0 26.b.
27. Cumulative foreign currency translation adjustments .................................... RCFD 3284 0 27.
28. Total equity capital (sum of items 23 through 27) ...................................... RCFD 3210 1,477,936 28.
29. Total liabilities, limited-life preferred stock, and equity capital (sum of items 21, 22,
and 28) ................................................................................ RCFD 3300 21,808,197 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the
most comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1992 ..................................................... RCFD 6724 N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ---------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
