<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 2, 1994
REGISTRATION NO. 33-54183
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------------
THE HERTZ CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
Delaware 13-1938568
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR IDENTIFICATION NO.)
ORGANIZATION)
</TABLE>
225 Brae Boulevard
Park Ridge, New Jersey 07656-0713
(201) 307-2000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
PAUL M. TSCHIRHART, ESQ.
Senior Vice President and General Counsel
The Hertz Corporation
225 Brae Boulevard
Park Ridge, New Jersey 07656-0713
(201) 307-2000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------------------
Copy to:
JOSEPH McLAUGHLIN, ESQ.
Brown & Wood
One World Trade Center, 58th Floor
New York, New York 10048
(212) 839-5300
(Counsel for the Underwriters)
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 SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE> 2
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 DECEMBER 2, 1994
PROSPECTUS [LOGO]
THE HERTZ CORPORATION
DEBT SECURITIES
------------------------
The Hertz Corporation (the "Corporation") may offer from time to time in
one or more series its unsecured debt securities (the "Debt Securities"), which
may be senior (the "Senior Debt Securities"), senior subordinated (the "Senior
Subordinated Debt Securities") or junior subordinated (the "Junior Subordinated
Debt Securities") in priority of payment. The aggregate offering price of Debt
Securities offered hereby will not exceed $1,000,000,000. The Debt Securities
may be offered as separate series in amounts, at prices and on terms to be
determined at the time of sale and to be set forth in supplements to this
Prospectus.
The Debt Securities may be denominated in and sold for U.S. dollars,
foreign currency or ECU, and principal of and any interest on the Debt
Securities may likewise be payable in U.S. dollars, foreign currency or ECU. The
currency for which the Debt Securities may be purchased and the currency in
which principal of and any interest on the Debt Securities may be payable will
be specifically designated by the Corporation. The specific designation,
priority of payment, aggregate principal amount, authorized denominations,
maturity, rate or method of calculation and time of payment of any interest,
purchase price, any redemption terms, other special terms, and any listing on a
securities exchange of the Debt Securities in respect of which this Prospectus
is being delivered, and the net proceeds to the Corporation from the sale
thereof, will be set forth in an accompanying Prospectus Supplement (the
"Prospectus Supplement").
------------------------
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 Debt Securities will be sold directly or through agents designated from
time to time or through underwriters or dealers or a group of underwriters. If
agents of the Corporation or underwriters are involved in the sale of the Debt
Securities in respect of which this Prospectus is being delivered, the names of
such agents or underwriters and any applicable commissions or discounts shall be
set forth in the Prospectus Supplement with respect to such Debt Securities.
, 1994
<PAGE> 3
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "Exchange Act") and in accordance therewith
files reports and other information with the Securities and Exchange Commission
(the "Commission"). Reports and other information filed by the Corporation can
be inspected and copied at the public reference facilities maintained by the
Commission at Judiciary Plaza, 450 5th Street, N.W., Washington, D.C. 20549, and
at the following Regional Offices of the Commission: Chicago Regional Office,
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60621; and New York Regional Office, Seven World Trade Center, New
York, New York 10048. Copies of such materials can be obtained from the Public
Reference Section of the Commission at Judiciary Plaza, 450 5th Street, N.W.,
Washington, D.C. 20549 at prescribed rates. Copies of such materials may also be
inspected and copied at the offices of the New York Stock Exchange, Inc., 20
Broad Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Corporation's Annual Report on Form 10-K for the year ended December
31, 1993, its Quarterly Reports on Form 10-Q for the quarter ended September 30,
1994, for the quarter ended June 30, 1994 and for the quarter ended March 31,
1994, the Current Reports on Form 8-K dated February 3, 1994, February 9, 1994,
April 5, 1994 and June 23, 1994 and Amendment No. 1 to the Current Report on
Form 8-K dated April 5, 1994 on Form 8-K/A dated July 14, 1994 are hereby
incorporated by reference into this Prospectus.
All documents subsequently filed by the Corporation pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of the
offering of the Debt Securities shall be deemed to be incorporated by reference
in this Prospectus 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 and the Prospectus Supplement to the extent that
a statement contained herein, therein or in any other subsequently filed
document which also is incorporated or deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus or the Prospectus Supplement.
The Corporation will provide without charge to each person to whom this
Prospectus is delivered, on written or oral request of such person, a copy
(without exhibits) of any or all documents incorporated by reference into this
Prospectus. Requests for such copies should be directed to The Hertz
Corporation, Attention: Investor Relations, at its mailing address or its
telephone number.
The mailing address of the Corporation's principal executive office is 225
Brae Boulevard, Park Ridge, New Jersey 07656-0713 and its telephone number is
(201) 307-2000.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS AND THE PROSPECTUS SUPPLEMENT
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED. THE DELIVERY OF THIS PROSPECTUS AND ANY
PROSPECTUS SUPPLEMENT AT ANY TIME DOES NOT IMPLY THAT INFORMATION HEREIN OR
THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE OF ANY PROSPECTUS
SUPPLEMENT.
2
<PAGE> 4
THE CORPORATION
The Corporation and its subsidiaries ("Hertz"), affiliates, independent
licensees and associates are engaged principally in the business of renting
automobiles and renting and leasing trucks, without drivers, to customers in the
United States and in over 140 foreign countries. Collectively, they operate what
the Corporation believes is the largest rent a car business in the world and one
of the largest one-way truck rental businesses in the United States. In
addition, through its wholly-owned subsidiary, Hertz Equipment Rental
Corporation ("HERC"), the Corporation operates what it believes to be the
largest rental, lease and sale of construction and materials handling equipment
business in the United States. Other activities of Hertz include the sale of its
used vehicles; the leasing of automobiles, primarily in Europe, Australia and
New Zealand; operating car dealerships in Belgium; and providing claim
management and telecommunication services in the United States.
The Corporation, which was incorporated in Delaware in 1967, is a successor
to corporations which were engaged in the automobile and truck leasing and
rental business since 1924. UAL Corporation ("UAL") (formerly Allegis
Corporation) purchased all of the Corporation's outstanding capital stock from
RCA Corporation ("RCA") on August 30, 1985. Park Ridge Corporation ("Park
Ridge") purchased all of the Corporation's outstanding capital stock from UAL on
December 30, 1987. On July 19, 1993, Park Ridge (which had no material assets
other than the Corporation) was merged with and into the Corporation, with the
prior stockholders of Park Ridge becoming the stockholders of the Corporation.
In March 1994, Ford Motor Company ("Ford") acquired the Corporation's common
stock owned by Commerzbank Aktiengesellschaft. On April 29, 1994, Ford purchased
all of the common stock of the Corporation owned by Park Ridge Limited
Partnership. The Corporation then redeemed the preferred and common stock of the
Corporation owned by AB Volvo, borrowing the funds to pay for the redemption. In
addition, a subordinated promissory note of the Corporation held by Ford Motor
Credit Company ("FMCC") was exchanged for an equivalent amount of preferred
stock of the Corporation.
Currently, 100% of the outstanding common stock of the Corporation is owned
by Ford and 100% of the outstanding preferred stock of the Corporation is owned
by FMCC. The Debt Securities will not be obligations of, or guaranteed by,
either stockholder of the Corporation. The terms of the Corporation's debt
agreements limit the payment of cash dividends. At June 30, 1994, $64 million of
consolidated shareholders' equity was free of such limitations.
USE OF PROCEEDS
The net proceeds from the sale of the Debt Securities will be added to the
general funds of the Corporation. It is anticipated that the proceeds will be
used for general corporate purposes and to reduce short-term borrowings. The
Corporation expects to issue additional long-term and short-term debt, subject
to the covenants contained in its debt agreements, and the proportionate amounts
of each can be expected to vary from time to time as a result of business
requirements, market conditions and other factors. At June 30, 1994, the
Corporation was permitted to issue up to an additional $103 million of senior
debt and an additional $170 million of senior subordinated debt under the most
restrictive covenants contained in its existing financing agreements.
3
<PAGE> 5
SELECTED FINANCIAL DATA OF THE CORPORATION
(IN MILLIONS OF DOLLARS)
The following table presents selected consolidated financial information of
the Corporation, which is unaudited for the six months ended June 30, 1994 and
1993, and which is extracted from the audited financial statements for the years
ended December 31, 1993, 1992, 1991, 1990 and 1989. The operating results for
the six months ended June 30, 1994 and 1993 include all adjustments (consisting
only of normal recurring adjustments) that the Corporation considers necessary
for a fair presentation of the results for such interim periods. The interim
results are not necessarily an indication of the results for the full year. The
information in the table and the notes thereto should be read in conjunction
with the financial statements and the related notes thereto contained in the
Corporation's Annual Report on Form 10-K for the year ended December 31, 1993,
its Current Report on Form 8-K/A No. 1 dated July 14, 1994, and its Quarterly
Reports on Form 10-Q for the quarter ended September 30, 1994, for the quarter
ended June 30, 1994 and for the quarter ended March 31, 1994.
<TABLE>
<CAPTION>
Six Months
Ended
June 30, Years Ended December 31,
--------------- --------------------------------------------------
1994 1993 1993 1992 1991 1990 1989
------ ------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
(Unaudited)
REVENUES.................................... $1,520 $1,375 $2,855 $2,816 $2,626 $2,667 $2,253
------ ------ ------ ------ ------ ------ ------
EXPENSES:
Direct operating.......................... 846 824 1,647 1,627 1,486 1,470 1,239
Depreciation of revenue earning
equipment............................... 322 256 524(a) 497(b) 493 526 463
Selling, general and administrative....... 179 169 336 353 339 348 290
Interest, net of interest income of $4,
$10, $11, $4, $10, $25 and $20.......... 129 114 246 307 304 300 253
------ ------ ------ ------ ------ ------ ------
1,476 1,363 2,753 2,784 2,622 2,644 2,245
------ ------ ------ ------ ------ ------ ------
INCOME (LOSS) BEFORE INCOME TAXES........... 44 12 102 32 4(b) 23 8
PROVISION (BENEFIT) FOR TAXES ON INCOME..... 19 6 49(a) 22(b) (1)(b) (11)(c) (1)
------ ------ ------ ------ ------ ------ ------
INCOME (LOSS) BEFORE CUMULATIVE EFFECT OF
CHANGES IN ACCOUNTING PRINCIPLES.......... 25 6 53 10 5 34 9
CUMULATIVE EFFECT ON PRIOR YEARS OF CHANGES
IN METHOD OF ACCOUNTING FOR --
Postretirement Benefits (d)............... -- -- -- (4) -- -- --
Vehicle Warranties (e).................... -- -- -- -- (4) -- --
Income Taxes (f).......................... -- -- -- -- -- -- (2)
------ ------ ------ ------ ------ ------ ------
NET INCOME (LOSS)........................... $ 25 $ 6 $ 53 $ 6 $ 1 $ 34 $ 7
====== ====== ====== ====== ====== ====== ======
Ratio of Earnings to Fixed Charges (g)...... 1.3 1.1 1.3 1.1 1.0 1.1 1.0
Balance Sheet Data at End of Period:
Total Assets.............................. $6,747 $5,368 $4,688 $4,222 $4,294 $4,334 $4,152
Total Debt................................ 4,655 3,694 2,940 2,550 2,702 2,798 2,716
Shareholders' Equity...................... 663 575 617 580 599 600 542
Ratio of Total Debt to Shareholders'
Equity.................................. 7.0 6.4 4.8 4.4 4.5 4.7 5.0
</TABLE>
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(a) Depreciation of revenue earning equipment for the year 1993 includes net
credits of $28.1 million as compared to net credits of $16.9 million in
1992, primarily attributable to higher proceeds received in 1993 on disposal
of the equipment. The tax provision for the year 1993 includes a $1.1
million charge relating to the increase in net deferred tax liabilities as
of January 1, 1993 due to changes in the tax laws enacted in August 1993,
and a $2.0 million credit resulting from adjustments made to tax accruals in
connection with tax audit evaluations and the effects of prior years' tax
sharing arrangements between the Corporation and its former parent
companies, UAL and RCA.
Effective January 1, 1993, the Corporation adopted the provisions of
Statement of Financial Accounting Standards No. 109, Accounting for Income
Taxes, which did not have a material effect on the Corporation's
consolidated financial position, results of operations or cash flows.
(b) Depreciation of revenue earning equipment for the year 1992 includes net
credits of $16.9 million as compared to net charges of $5.4 million in
1991, primarily attributable to higher proceeds received in 1992 on
disposal of the equipment and the elimination of losses incurred in 1991
due to the increase in
4
<PAGE> 6
1992 of "non-risk" vehicles acquired which are returned to the vehicle
manufacturers at pre-established prices.
The tax provision includes credits of $9.8 million, $16.7 million, and
$38.8 million for the years 1992, 1991 and 1990, respectively, resulting
from adjustments made to tax accruals in connection with tax audit
evaluations and the effects of prior years' tax sharing arrangements
between the Corporation and its former parent companies, UAL and RCA, and
the reversal of tax accruals no longer required and benefits realized
relating to certain foreign operations. The tax provision for the year 1991
also includes benefits of $5.5 million related to the close down and sale
of certain unprofitable foreign operations.
The decrease in income before income taxes for the year ended December 31,
1991, as compared to the prior year, was due to provisions made in 1991 of
approximately $20 million primarily incurred to close down certain
unprofitable foreign operations and depreciation adjustments made to
residual values of certain vehicles, $15 million of lower interest income
in 1991 primarily relating to refunds of prior years' income taxes, and the
adverse effects of the decrease in travel due to the war in the Persian
Gulf and a slowdown in the economy. The decrease was partly offset by net
credits of $8.9 million relating to the sale and disposition of certain
properties.
(c) The tax provision for the year 1990 includes credit adjustments of $38.8
million, resulting from adjustments made to tax accruals in connection with
tax audit evaluations and the effects of prior years' tax sharing
arrangements between the Corporation and its former parent companies, UAL
and RCA.
(d) Effective January 1, 1992, the Corporation adopted the provisions of
Statement of Financial Accounting Standards No. 106, Employers' Accounting
for Postretirement Benefits Other than Pensions ("FAS No. 106"), which
requires that postretirement health care and other non-pension benefits be
accrued during the years the employee renders the necessary service. Prior
to 1992, the Corporation accrued for such benefits on a pay-as-you-go
basis. As of January 1, 1992, the Corporation recorded a cumulative
decrease in net income of $4.3 million (net of $2.7 million tax benefit) as
a result of implementing FAS No. 106.
(e) Effective January 1, 1991, the Corporation adopted the provisions of FASB
Technical Bulletin No. 90-1, Accounting for Separately Priced Extended
Warranty and Product Maintenance Contracts ("FAS No. 90-1"), which requires
that proceeds received from warranty contracts should be deferred and
recognized in income on a straight line basis over the contract period, and
costs of services performed under the contract should be charged to expense
as incurred. Prior to 1991, when vehicles were sold under an extended
warranty contract, the proceeds received by the Corporation under such
contract, net of estimated costs to be incurred in fulfilling obligations
under those contracts, were recorded in income when the sale occurred. As
of January 1, 1991, the Corporation recorded a cumulative decrease in net
income of $3.5 million (net of $2.2 million tax benefit) as a result of
implementing FAS No. 90-1.
(f) Effective January 1, 1989, the Corporation adopted the provisions of
Statement of Financial Accounting Standards No. 96, Accounting for Income
Taxes ("FAS No. 96"), which requires the use of the liability method in
accounting for income taxes. Deferred tax assets and liabilities are
recorded based on the differences between the financial statement and tax
bases of assets and liabilities and the tax rates in effect when these
differences are expected to reverse. In addition, deferred tax amounts are
recorded with respect to assets and liabilities acquired in business
combinations prior to adoption, when prior years' financial statements are
not restated to reflect adoption of FAS No. 96. The cumulative decrease in
net income as a result of implementing FAS No. 96 was $2 million.
(g) Earnings have been calculated by adding interest expense and the portion of
rentals estimated to represent the interest factor to income before income
taxes. Fixed charges include interest charges (including capitalized
interest) and the portion of rentals estimated to represent the interest
factor. The ratio of earnings to fixed charges for the nine months ended
September 30, 1994 was 1.5.
CERTAIN RELATIONSHIPS
Hertz is a party to a cooperative advertising agreement with Ford (see
"Item 1 -- Business -- Advertising" in the Corporation's Annual Report on Form
10-K for the year ended December 31, 1993). In addition, for each of the five
years ended December 31, 1993, Hertz' domestic revenue earning vehicles
consisted of approximately 70% Ford products and 2% Volvo products. In its
foreign operations, Hertz utilizes vehicles manufactured abroad by subsidiaries
of Ford (which for the five years ended December 31, 1993 represented in the
aggregate approximately 40% of Hertz' fleet) and by other manufacturers. Ford
products are acquired from dealers who are independent from Ford. The
percentages of Ford and Volvo products
5
<PAGE> 7
acquired by Hertz are expected to continue at approximately this level in the
future, pursuant to long-term supply contracts between the Corporation and Ford
and the Corporation and Volvo. Hertz will purchase or lease the vehicles from
Ford dealers and Volvo.
In 1992, the Corporation entered into a lease agreement with a third party
lessor, Hertz Funding Corp. ("HFC"), providing for the lease of vehicles
purchased by HFC under a repurchase program offered by Ford. Although the
officers of HFC are employees of the Corporation, HFC is wholly owned by PAZ ABS
Corp., an entity unaffiliated with the Corporation or any of its subsidiaries,
and the Board of Directors of HFC is controlled by directors unaffiliated with
the Corporation or any of its subsidiaries. Under the lease, which is accounted
for as an operating lease, the Corporation makes payments equal to the monthly
depreciation and all expenses (including interest) of the third party lessor and
is responsible for the remaining net cost on any vehicles that become ineligible
under the repurchase program. At June 30, 1994, the net cost of the vehicles
leased under this agreement was approximately $357 million.
On June 8, 1994, the Corporation and Ford entered into a revolving loan
agreement under which Hertz may borrow from Ford from time to time in amounts of
up to $250 million outstanding at any one time. Obligations of the Corporation
under the agreement would rank pari passu with the Corporation's Senior Debt
Securities. This agreement by its terms expires on June 30, 1999, on which date
any amounts then outstanding thereunder are required to be repaid.
DESCRIPTION OF DEBT SECURITIES
The Senior Debt Securities are to be issued under an indenture, dated as of
December 1, 1994 (the "Senior Indenture"), between the Corporation and First
Fidelity Bank, National Association, as Trustee (the "Senior Trustee"). The
Senior Subordinated Debt Securities are to be issued under an indenture, dated
as of June 1, 1989 (the "Senior Subordinated Indenture"), between the
Corporation and The Bank of New York, as Trustee (the "Senior Subordinated
Trustee"). The Junior Subordinated Debt Securities are to be issued under an
indenture, dated as of July 1, 1993 (the "Junior Subordinated Indenture"),
between the Corporation and Citibank, N.A., as trustee (the "Junior Subordinated
Trustee"). The Senior Subordinated Indenture and the Junior Subordinated
Indenture are referred to herein collectively as the "Subordinated Indentures,"
the Senior Subordinated Securities and the Junior Subordinated Securities are
referred to herein collectively as the "Subordinated Securities," and the Senior
Subordinated Trustee and the Junior Subordinated Trustee are referred to herein
collectively as the "Subordinated Trustees."
A copy of the Senior Indenture, the Senior Subordinated Indenture and the
Junior Subordinated Indenture are exhibits to the Registration Statement of
which this Prospectus forms a part. The Senior Indenture, the Senior
Subordinated Indenture and the Junior Subordinated Indenture are sometimes
referred to collectively as the "Indentures" and the Senior Trustee, the Senior
Subordinated Trustee and the Junior Subordinated Trustee are sometimes referred
to collectively as the "Trustees."
The following summaries of certain provisions of the Indentures do not
purport to be complete and are subject to and are qualified in their entirety by
reference to all the provisions of the Indentures, including the definitions
therein of certain terms. References to Sections are applicable to each
Indenture, except (i) references to sections included under the caption
"Subordination of Senior Subordinated Debt Securities" are applicable to the
Senior Subordinated Indenture only, (ii) references to sections included under
the caption "Subordination of Junior Subordinated Debt Securities" are
applicable to the Junior Subordinated Indenture only, (iii) references to
sections included under the caption "Certain Covenants -- Dividend Restrictions
and Limitations on Certain Loans and Advances" are applicable to the
Subordinated Indentures only, and (iv) as otherwise expressly provided. The
following sets forth certain general terms and provisions of the Senior Debt
Securities, the Senior Subordinated Debt Securities and the Junior Subordinated
Debt Securities (together the "Debt Securities") offered hereby. Further terms
of the Debt Securities shall be set forth in applicable Prospectus Supplements.
6
<PAGE> 8
GENERAL
The Debt Securities to be offered by this Prospectus are limited to
$1,000,000,000 in aggregate principal amount. However, the Indentures do not
limit the amount of Debt Securities which can be issued thereunder and provide
that additional securities may be issued thereunder up to the aggregate
principal amount which may be authorized from time to time by the Corporation.
(Section 301)
While the covenants contained in each Indenture may provide limited
protection to debt holders in the event of a highly leveraged transaction
involving the Corporation, the Indentures do not prohibit the incurrence of
additional Senior, Senior Subordinated or Junior Subordinated Debt. Subject to
certain exceptions described below under "Limitations on Secured Debt,"
outstanding Debt Securities and other qualified indebtedness shall be secured
equally and ratably (subject, however, to applicable priorities of payment) with
any additional Secured Debt incurred by the Corporation. (Section 1004) Unless
otherwise indicated in the applicable Prospectus Supplement, the Debt Securities
will not have the benefit of any covenant requiring redemption or repurchase of
the Debt Securities by the Corporation, or adjustment to any terms of the Debt
Securities, upon any change in control or recapitalization of the Corporation.
Reference is made to the applicable Prospectus Supplement for the following
terms of the particular series of Debt Securities being offered thereby: (i) the
designation and any limitation on the aggregate principal amount of the series;
(ii) whether the securities are Senior Debt Securities, Senior Subordinated Debt
Securities, or Junior Subordinated Debt Securities; (iii) the currency or
currencies for which Debt Securities may be purchased and currency or currencies
in which principal and any interest may be payable; (iv) if the currency for
which Debt Securities may be purchased or in which principal and any interest
may be payable is at the purchaser's election, the manner in which such an
election may be made; (v) the percentage of principal amount at which the series
will be issued; (vi) the date or dates on which the principal of the series will
be payable; (vii) the rate or rates per annum, if any, at which the series will
bear interest or the method of calculation thereof; (viii) the date or dates
from which any interest will accrue and the times at which any interest will be
payable; (ix) the place or places where the principal and interest, if any, on
Debt Securities of the series shall be payable; (x) the terms, if any, on which
Debt Securities of the series may be redeemed at the option of the Corporation;
(xi) the obligation, if any, of the Corporation to redeem, purchase or repay
Debt Securities of the series; (xii) the minimum denomination in which Debt
Securities of the series will be issued; (xiii) if other than the principal
amount, the portion of the principal amount of the Debt Securities of the series
that will be payable upon a declaration of acceleration of the maturity thereof;
(xiv) whether the Debt Securities of the series may be issuable in the form of
one or more global securities; and (xv) any other special terms.
Debt Securities may be issued as discounted Debt Securities (bearing no
interest or interest at a rate which at the time of issuance is below market
rates) to be sold at a substantial discount below their stated principal amount.
Federal income tax consequences and other special considerations applicable to
any such discounted Debt Securities will be described in the applicable
Prospectus Supplement relating thereto.
The Debt Securities will be issued only in registered form without coupons
and will be unsecured obligations of the Corporation. The Senior Debt Securities
will rank on a parity with other senior debt securities of the Corporation. The
Senior Subordinated Debt Securities will rank on a parity with other senior
subordinated debt securities and be subordinated in right of payment to the
prior payment in full of Senior Indebtedness (as defined in the Senior
Subordinated Indenture) of the Corporation, as described below under
"Subordination of Senior Subordinated Debt Securities." The Junior Subordinated
Debt Securities will rank on a parity with other junior subordinated debt
securities and be subordinated in right of payment to the prior payment in full
of Senior Indebtedness (as defined in the Junior Subordinated Indenture) of the
Corporation (which term, when used in connection with Junior Subordinated Debt
Securities, includes Senior Debt Securities and Senior Subordinated Debt
Securities), as described under "Subordination of Junior Subordinated Debt
Securities."
Unless otherwise provided in the applicable Prospectus Supplement relating
to a particular series of Debt Securities being offered thereby, principal,
premium, if any, and interest, if any, will be payable at an office or agency to
be maintained by the Corporation in such place or places described in the
applicable Prospectus
7
<PAGE> 9
Supplement, which place is currently contemplated to be in The City of New York,
except that, at the option of the Corporation, interest may be paid by check
mailed to the person entitled thereto. The Debt Securities may be presented to
the corporate trust office of the applicable Trustee for registration of
transfer or exchange. Senior Debt Securities of any series subject to repayment
prior to their stated maturity at the option of the Holder thereof may be so
repaid by submitting the appropriate form to the place of payment specified in
the terms of such debt security and as provided in the applicable Prospectus
Supplement. Debt Securities of a particular series may be exchanged for a like
aggregate amount of Debt Securities of such series of other authorized
denominations without service charge, except for any tax or other governmental
charge that may be imposed. (Sections 301, 302, 305 and 1002)
BOOK-ENTRY
If so indicated in the applicable Prospectus Supplement, upon issuance, all
Debt Securities will be represented by one or more fully registered global
securities (the "Global Notes"). In any such case, the Depository Trust Company
(the "Depository"), New York, New York, will act as securities depository for
such issue of Debt Securities. Any such Debt Securities will be issued as
fully-registered Global Notes registered in the name of Cede & Co. (the
Depository's partnership nominee). One fully-registered Global Note will be
issued for each such issue of Debt Securities, in the aggregate principal amount
of such issue, and will be deposited with the Depository; provided, however,
that if the aggregate principal amount of any such issue exceeds $150 million,
one Global Note will be issued with respect to each $150 million of principal
amount and an additional Global Note will be issued with respect to any
remaining principal amount of such issue.
The Depository has advised the Company as follows: The Depository is a
limited-purpose trust company organized under the New York Banking Law, a
"banking organization" within the meaning of the New York Banking Law, a member
of the Federal Reserve System, a "clearing corporation" within the meaning of
the New York Uniform Commercial Code, and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Securities Exchange Act of
1934. The Depository holds securities that its participants ("Participants")
deposit with the Depository. The Depository also facilitates the settlement
among Participants of securities transactions, such as transfers and pledges, in
deposited securities through electronic computerized book-entry changes in
Participants' accounts, thereby eliminating the need for physical movement of
securities certificates. Participants include securities brokers and dealers,
banks trust companies, clearing corporations, and certain other organizations.
The Depository is owned by a number of its Participants and by the New York
Stock Exchange, Inc., the American Stock Exchange, Inc. and the National
Association of Securities Dealers, Inc. Access to the Depository's book-entry
system is also available to others such as securities brokers and dealers,
banks, and trust companies that clear through or maintain a custodial
relationship with a Participant, either directly or indirectly ("Indirect
Participants"). The Rules applicable to the Depository and its Participants are
on file with the Securities and Exchange Commission.
Purchases of Debt Securities represented by one or more Global Notes under
the Depository's book-entry system must be made by or through Participants,
which will receive a credit for such Debt Securities on the Depository's
records. The ownership interest of each actual purchaser of each Debt Security
(a "Beneficial Owner") is in turn to be recorded on the Participants' and
Indirect Participants' records. Beneficial Owners will not receive written
confirmation from the Depository of their purchases, but each Beneficial Owner
is expected to receive written confirmation providing details of the
transaction, as well as periodic statements of its holdings, from the
Participant or Indirect Participant through which such Beneficial Owner entered
into the transaction. Transfers of ownership interests in such Debt Securities
will be accomplished by entries made on the books of Participants acting on
behalf of Beneficial Owners. Beneficial Owners will not receive certificates
representing their ownership interests in any Debt Securities, except in the
event that use of the book-entry system for the Debt Securities is discontinued.
To facilitate subsequent transfers, all Debt Securities represented by one
or more Global Notes deposited by Participants with the Depository will be
registered in the name of the Depository partnership nominee, Cede & Co. The
deposit of one or more Global Notes with the Depository and their registration
in the name of Cede & Co. effect no change in beneficial ownership. The
Depository will have no knowledge of the actual Beneficial Owners of any Debt
Securities represented by Global Notes; the Depository records will reflect only
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the identity of the Participants to whose accounts the Debt Securities
represented by such Global Notes are credited, which may or may not be the
Beneficial Owners. The Participants will remain responsible for keeping account
of their holdings on behalf of their customers.
Conveyance of notices and other communications by the Depository to
Participants, by Participants to Indirect Participants, and by Participants and
Indirect Participants to Beneficial Owners will be governed by arrangements
among them, subject to any statutory or regulatory requirements as may be in
effect from time to time. Neither the Depository nor Cede & Co. will consent or
vote with respect to any Debt Securities represented by one or more Global
Notes.
Principal and interest payments on the Debt Securities represented by one
or more Global Notes will be made to the Depository. The Depository's practice
is to credit Participants' accounts on payable date in accordance with their
respective holdings shown on the Depository's records unless the Depository has
reason to believe that it will not receive payment on payable date. Payments by
Participants to Beneficial Owners will be governed by standing instructions and
customary practices, as is the case with securities held for the accounts of
customers in bearer form or registered in "street name," and will be the
responsibility of such Participant and not of the Depository, or the Company,
subject to any statutory or regulatory requirements as may be in effect from
time to time. Payment of principal and interest to the Depository will be the
responsibility of the Company, disbursement of such payments to Participants
shall be the responsibility of the Depository, and disbursement of such payments
to the Beneficial Owners shall be the responsibility of Participants and
Indirect Participants.
The Depository may discontinue providing its services as securities
depository with respect to any issue of Debt Securities represented by one or
more Global Notes at any time by giving reasonable notice to the Company. Under
such circumstances, in the event that a successor securities depository is not
obtained, definitive certificates representing Debt Securities will be required
to be printed and delivered. The Company may decide to discontinue use of the
system of book-entry transfers through the Depository (or a successor securities
depository). In such event definitive certificates representing Debt Securities
will be printed and delivered.
The information in this section concerning the Depository's book-entry
system has been obtained from sources that the Company believes to be reliable,
but the Company takes no responsibility for the accuracy thereof.
SUBORDINATION OF SENIOR SUBORDINATED DEBT SECURITIES
Payment of the principal of, premium, if any, and interest on the Senior
Subordinated Debt Securities is expressly subordinated in right of payment, as
set forth in the Senior Subordinated Indenture, to payment when due of all
Senior Indebtedness of the Corporation, as such term is defined with respect to
the Senior Subordinated Debt Securities. (Section 1401) "Senior Indebtedness" is
used under this caption "Subordination of Senior Subordinated Debt Securities"
as defined in the Senior Subordinated Indenture. "Senior Indebtedness" is
defined in the Senior Subordinated Indenture as (a) outstanding indebtedness of
the Corporation listed on Schedule A to the Senior Subordinated Indenture, (b)
any promissory notes (other than any referred to in the foregoing clause (a))
issued by the Corporation pursuant to any agreement between the Corporation and
any bank or banks and any commercial paper issued by the Corporation, (c) all
indebtedness incurred by the Corporation after the date of the Senior
Subordinated Indenture for money borrowed which is, in the discretion of the
Corporation, specifically designated by the Corporation as superior to
subordinated debt (senior debt) of the Corporation in the instruments evidencing
said indebtedness at the time of the issuance thereof, (d) all indebtedness
previously incurred by the Corporation outstanding at the date of the Senior
Subordinated Indenture for money borrowed which is, in the discretion of the
Corporation, specifically designated by the Corporation as Senior Indebtedness
for the purposes of the Senior Subordinated Indenture at the date of the Senior
Subordinated Indenture (all of such indebtedness is set forth on Schedule B
attached to the Senior Subordinated Indenture), (e) indebtedness of the
Corporation for money borrowed from or guaranteed to persons, firms or
corporations which engage in lending money, including, without limitation,
banks, trust companies, insurance companies and other financing institutions and
charitable trusts, pension trusts and other investing organizations, evidenced
by notes or similar obligations, unless such indebtedness
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shall, in the instrument evidencing the same, be specifically designated as not
being superior to the Senior Subordinated Debt Securities and (f) any
amendments, modifications, supplements, deferrals, renewals or extensions of any
such Senior Indebtedness. Senior Indebtedness will not include, and the Senior
Subordinated Debt Securities will rank pari passu in right of payment to, the
Corporation's 8 3/4% Senior Subordinated Promissory Notes due October 1, 1997,
9 1/8% Senior Subordinated Notes due August 1, 1996, 10 1/8% Senior Subordinated
Notes due March 1, 1997 and 9 1/2% Senior Subordinated Notes due May 15, 1998.
(Section 101)
No payment on account of principal, premium, if any, sinking fund, or
interest on the Senior Subordinated Debt Securities may be made, nor may any
property or assets of the Corporation be applied to the purchase or other
acquisition or retirement of the Senior Subordinated Debt Securities, unless
full payment of amounts then due for principal, premium, if any, sinking fund,
and interest on Senior Indebtedness has been made or duly provided for in money
or money's worth. No payment by the Corporation on account of principal,
premium, if any, sinking fund, or interest on the Senior Subordinated Debt
Securities may be made, nor may any property or assets of the Corporation be
applied to the purchase or other acquisition or retirement of the Senior
Subordinated Debt Securities, if, at the time of such payment or application or
immediately after giving effect thereto, (i) there exists under the Senior
Indebtedness referred to in clause (a) of the immediately preceding paragraph or
any agreement pursuant to which any such Senior Indebtedness is issued any
default or any condition, event or act, which with notice or lapse of time, or
both, would constitute a default or (ii) there exists under any other Senior
Indebtedness or any agreement pursuant to which such other Senior Indebtedness
is issued any event of default permitting the holders of such other Senior
Indebtedness (or a trustee on behalf of such holders) to accelerate the maturity
thereof; provided, however, that in the case of such an event of default (other
than in payment of such other Senior Indebtedness when due) the foregoing
provisions of this clause (ii) will not prevent any such payment or application
for a period longer than 90 days after the date on which the holders of such
Senior Indebtedness (or such trustee) shall have first obtained written notice
of such event of default from the Corporation or the holder of any Senior
Subordinated Debt Securities, if the maturity of such other Senior Indebtedness
is not so accelerated within such 90 day period. (Section 1402)
Subject to the foregoing, if there shall have occurred any Event of Default
on the Senior Subordinated Debt Securities as described below under "Events of
Default and Notice Thereof," other than with respect to certain events of
bankruptcy, insolvency or reorganization, then unless and until either such
Event of Default shall have been cured or waived or shall have ceased to exist
or the principal of, premium, if any, and interest on all Senior Indebtedness
shall have been paid in full in money or money's worth, no payment shall be made
by the Corporation on account of the principal of, premium, if any, or interest
on the Senior Subordinated Debt Securities or on account of the purchase or
other acquisition of Senior Subordinated Debt Securities, except (a) payments at
the expressed maturity of the Senior Subordinated Debt Securities (subject to
the next paragraph), (b) current interest payments as provided in the Senior
Subordinated Debt Securities, (c) payments for the purpose of curing any such
Event of Default, and (d) payments pursuant to the required sinking fund for the
Senior Subordinated Debt Securities. (Section 1402)
Upon any payment or distribution of assets of the Corporation to creditors
upon any dissolution or winding-up or total or partial liquidation or
reorganization of the Corporation or similar proceeding relating to the
Corporation or its property, whether voluntary or involuntary and whether or not
the Corporation is a party thereto, or in bankruptcy, insolvency, receivership
or other proceedings, all principal, premium, if any, and interest due upon all
Senior Indebtedness must be paid in full before the holders of the Senior
Subordinated Debt Securities are entitled to receive or retain any assets so
paid or distributed. Subject to the payment in full of all Senior Indebtedness,
the holders of the Senior Subordinated Debt Securities are to be subrogated to
the rights of holders of Senior Indebtedness to receive payments or
distributions of assets of the Corporation or other payments applicable to
Senior Indebtedness to the extent of the application to Senior Indebtedness of
moneys or other assets which would have been received by the holders of the
Senior Subordinated Debt Securities but for the subordination provisions
contained in the Senior Subordinated Indenture until the Senior Subordinated
Debt Securities are paid in full. (Sections 1403 and 1405)
At June 30, 1994, the outstanding principal amount of Senior Indebtedness
aggregated approximately $3,098 million and senior subordinated debt aggregated
approximately $250.8 million. The Corporation
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expects to issue from time to time additional indebtedness constituting Senior
Indebtedness and senior subordinated debt (see "Use of Proceeds"). None of the
Indentures prohibits or limits the incurrence of additional Senior Indebtedness.
By reason of the subordination provisions contained in the Senior
Subordinated Indenture, in the event of insolvency, creditors of the Corporation
who are holders of Senior Indebtedness, as well as certain general creditors of
the Corporation, may recover more, ratably, than the holders of the Senior
Subordinated Debt Securities.
SUBORDINATION OF JUNIOR SUBORDINATED DEBT SECURITIES
Payment of the principal of, premium, if any, and interest on the Junior
Subordinated Debt Securities is expressly subordinated in right of payment, as
set forth in the Junior Subordinated Indenture, to payment when due of all
Senior Indebtedness of the Corporation, as such term is defined with respect to
the Junior Subordinated Debt Securities. (Section 1401) "Senior Indebtedness" is
defined in the Junior Subordinated Indenture as (a) any promissory notes issued
by the Corporation pursuant to any agreement between the Corporation and any
bank or banks and any commercial paper issued by the Corporation, (b) all
existing and future indebtedness for borrowed money of the Corporation
(including guarantees by the Corporation of indebtedness for borrowed money of
others), (c) all obligations of the Corporation specified on Schedule A to the
Junior Subordinated Indenture, (d) indebtedness of the Corporation for money
borrowed from or guaranteed to persons, firms or corporations which engage in
lending money, including, without limitation, banks, trust companies, insurance
companies and other financing institutions and charitable trusts, pension trusts
and other investing organizations, evidenced by notes or similar obligations,
unless such indebtedness shall, in the instrument evidencing the same, be
specifically designated as not being superior to the Junior Subordinated Debt
Securities of any series, (e) all other existing and future obligations of the
Corporation (including but not limited to (x) obligations under interest rate
and currency swaps, caps, collars, options and similar arrangements and (y)
guarantees by the Corporation of obligations of others) that are designated in
the instruments evidencing said obligations as being superior in right of
payment to the Junior Subordinated Debt Securities, and (f) any amendments,
modifications, supplements, deferrals, renewals or extensions of any such Senior
Indebtedness; provided, that Senior Indebtedness shall not include (x) the
Junior Subordinated Debt Securities of any series and (y) any other indebtedness
for borrowed money or other obligation of the Corporation (including guarantees
by the Corporation of such indebtedness of others) which is expressly
subordinated in right of payment to all senior subordinated debt securities that
are or may be outstanding under the Senior Subordinated Indenture. (Section 101)
No payment on account of principal, premium, if any, sinking fund, or
interest on the Junior Subordinated Debt Securities may be made, nor may any
property or assets of the Corporation be applied to the purchase or other
acquisition or retirement of the Junior Subordinated Debt Securities, unless
full payment of amounts then due for principal, premium, if any, sinking fund,
and interest on Senior Indebtedness has been made or duly provided for in money
or money's worth. No payment by the Corporation on account of principal,
premium, if any, sinking fund, or interest on the Junior Subordinated Debt
Securities may be made, nor may any property or assets of the Corporation be
applied to the purchase or other acquisition or retirement of the Junior
Subordinated Debt Securities, if, at the time of such payment or application or
immediately after giving effect thereto, there exists under any Senior
Indebtedness or any agreement pursuant to which such Senior Indebtedness is
issued any event of default permitting the holders of such Senior Indebtedness
(or a trustee on behalf of such holders) to accelerate the maturity thereof;
provided, however, that in the case of such an event of default (other than in
payment of such Senior Indebtedness when due) the foregoing provisions of this
sentence will not prevent any such payment or application for a period longer
than 90 days after the date on which the holders of such Senior Indebtedness (or
such trustee) shall have first obtained written notice of such event of default
from the Corporation or the holder of any Junior Subordinated Debt Securities,
if the maturity of such Senior Indebtedness is not so accelerated within such 90
day period. (Section 1402)
Subject to the foregoing, if there shall have occurred any Event of Default
on the Junior Subordinated Debt Securities as described below under "Events of
Default and Notice Thereof," other than with respect to certain events of
bankruptcy, insolvency or reorganization, then unless and until either such
Event of Default
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shall have been cured or waived or shall have ceased to exist or the principal
of, premium, if any, and interest on all Senior Indebtedness shall have been
paid in full in money or money's worth, no payment shall be made by the
Corporation on account of the principal of, premium, if any, or interest on the
Junior Subordinated Debt Securities or on account of the purchase or other
acquisition of Junior Subordinated Debt Securities, except (a) payments at the
expressed maturity of the Junior Subordinated Debt Securities (subject to the
next paragraph), (b) current interest payments as provided in the Junior
Subordinated Debt Securities, (c) payments for the purpose of curing any such
Event of Default, and (d) payments pursuant to the required sinking fund for the
Junior Subordinated Debt Securities. (Section 1402)
Upon any payment or distribution of assets of the Corporation to creditors
upon any dissolution or winding-up or total or partial liquidation or
reorganization of the Corporation or similar proceeding relating to the
Corporation or its property, whether voluntary or involuntary and whether or not
the Corporation is a party thereto, or in bankruptcy, insolvency, receivership
or other proceedings, all principal, premium, if any, and interest due upon all
Senior Indebtedness must be paid in full before the holders of the Junior
Subordinated Debt Securities are entitled to receive or retain any assets so
paid or distributed. Subject to the payment in full of all Senior Indebtedness,
the holders of the Junior Subordinated Debt Securities are to be subrogated to
the rights of holders of Senior Indebtedness to receive payments or
distributions of assets of the Corporation or other payments applicable to
Senior Indebtedness to the extent of the application to Senior Indebtedness of
moneys or other assets which would have been received by the holders of the
Junior Subordinated Debt Securities but for the subordination provisions
contained in the Junior Subordinated Indenture until the Junior Subordinated
Debt Securities are paid in full. (Sections 1403 and 1405)
At June 30, 1994, Junior Subordinated Debt (as defined in the Junior
Subordinated Indenture) aggregated approximately $400 million and Senior
Indebtedness (as defined in the Junior Subordinated Indenture) aggregated
approximately $3,349 million. The Corporation expects to issue from time to time
additional indebtedness constituting Senior Indebtedness (see "Use of
Proceeds"). None of the Indentures prohibits or limits the incurrence of
additional Senior Indebtedness.
By reason of the subordination provisions contained in the Junior
Subordinated Indenture, in the event of insolvency, creditors of the Corporation
who are holders of Senior Indebtedness, as well as certain general creditors of
the Corporation, may recover more, ratably, than the holders of the Junior
Subordinated Debt Securities.
CERTAIN COVENANTS
Dividend Restrictions. Each Subordinated Indenture provides that the
Corporation may not (a) declare or pay any dividend or make any other
distribution (other than dividends or distributions made in capital stock of the
Corporation) on or in respect of any capital stock of the Corporation, (b)
purchase, redeem or otherwise acquire for value any shares of the capital stock
of the Corporation, except shares acquired upon the conversion thereof into
other shares of capital stock of the Corporation, or (c) permit any Restricted
Subsidiary to purchase, redeem or otherwise acquire for value any shares of
capital stock of the Corporation; if immediately thereafter the aggregate amount
of all such dividends, distributions, purchases, redemptions, acquisitions or
payments (other than dividends or distributions payable in shares of capital
stock of the Corporation) during the period from and after December 31, 1985,
plus the amount of total investments in Unrestricted Subsidiaries made during
such period, would exceed the sum of (1) $185,000,000 plus (or minus in the case
of a deficit), (2) the consolidated net income (or net loss) of the Corporation
and its Restricted Subsidiaries earned subsequent to December 31, 1985, plus (3)
the aggregate net proceeds received by the Corporation in respect of the issue,
sale or exchange after December 31, 1985, of (i) any shares of capital stock of
the Corporation and any rights or warrants entitling the holders to purchase or
subscribe for shares of such capital stock, or (ii) any indebtedness of the
Corporation which is converted into shares of its capital stock after December
31, 1985. (Section 1007)
The foregoing will not prohibit the Corporation from paying any management,
administrative, general overhead or similar charge to any controlling
stockholder or other Affiliate of the Corporation, or paying to any member of
the same consolidated group for tax purposes any amounts in lieu of taxes.
(Section 1007)
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Limitations on Mergers. The Indentures provide that the Corporation may
not consolidate with, merge into, or sell, convey or transfer its properties and
assets substantially as an entirety to, another Person, if, as a result thereof,
any property owned by the Corporation or a Restricted Subsidiary immediately
prior thereto would become subject to any Security Interest, unless (i)(x) in
the case of the Senior Indenture, the Senior Debt Securities (equally and
ratably with any other indebtedness of the Corporation then entitled thereto)
shall be secured by a prior lien on such property, (y) in the case of the Senior
Subordinated Indenture, the Senior Subordinated Debt Securities (equally and
ratably with any other indebtedness of the Corporation then entitled thereto)
shall be secured equally and ratably with (or prior to) the debt secured by such
Security Interest or (z) in the case of the Junior Subordinated Indenture, the
Junior Subordinated Debt Securities (equally and ratably with any other
indebtedness of the Corporation entitled thereto) shall be secured equally and
ratably with (or prior to) the debt secured by such Security Interest or (ii)
such Security Interest would otherwise be permitted under the Indentures.
(Section 803) (See "Limitations on Secured Debt")
Limitations on Certain Loans and Advances. Each Subordinated Indenture
provides that the Corporation may not, and may not permit any Restricted
Subsidiary to, make any loan or advance to any Person owning more than 50% of
the outstanding voting stock of the Corporation or to any Affiliate of such
Person (other than the Corporation or a Restricted Subsidiary) if the aggregate
outstanding amount of Senior Debt of the Corporation and its Restricted
Subsidiaries exceeds 400% of Consolidated Net Worth and Subordinated Debt, as
defined in the applicable Indenture. (Section 1005) The term Senior Debt for
purposes of this limitation shall mean Senior Indebtedness when referring to the
Senior Subordinated Indenture or the Junior Subordinated Indenture as such term
is used in each such Indenture.
Limitations on Secured Debt. Each Indenture provides that the Corporation
will not at any time create, incur, assume or guarantee, and will not cause,
suffer or permit a Restricted Subsidiary to create, incur, assume or guarantee,
any Secured Debt without making effective provisions whereby the Debt Securities
then outstanding under such Indenture and any other indebtedness of or
guaranteed by the Corporation or such Restricted Subsidiary then entitled
thereto, subject to applicable priorities of payment, shall be secured by the
Security Interest securing such Secured Debt equally and ratably with any and
all other obligations and indebtedness thereby secured (subject, however, to
applicable priorities of payment) so long as such Secured Debt remains
outstanding; provided, however, that the foregoing prohibition shall not be
applicable to (a) any Security Interest in favor of the Corporation or a
Restricted Subsidiary; (b) Security Interests existing on December 1, 1994 in
the case of Senior Debt Securities, Security Interests existing on June 1, 1989
in the case of Senior Subordinated Debt Securities and Security Interests
existing on July 1, 1993 in the case of Junior Subordinated Debt Securities; (c)
Security Interests existing on property at the time it is acquired by the
Corporation or a Restricted Subsidiary, provided such Security Interest is
limited to all or part of the property so acquired; (d)(i) any Security Interest
existing on the property of or on the outstanding shares or indebtedness of a
corporation at the time such corporation shall become a Restricted Subsidiary,
or (ii) subject to the provisions referred to above under "Limitations on
Mergers," any Security Interest on property of a corporation existing at the
time such corporation is merged into or consolidated with the Corporation or a
Restricted Subsidiary or at the time of a sale, lease or other disposition of
the properties of a corporation as an entirety or substantially as an entirety
to the Corporation or a Restricted Subsidiary, provided, in each such case, that
such Security Interest does not extend to any property owned prior to such
transaction by the Corporation or any Restricted Subsidiary which was a
Restricted Subsidiary prior to such transaction; (e) mechanics', materialmen's,
carriers' or other like liens, arising in the ordinary course of business; (f)
certain tax liens or assessments, and certain judgment liens; (g) certain
Security Interests in favor of the United States of America or any state or any
agency thereof; (h) Security Interests on Business Equipment; (i) in the case of
property (other than Rental Equipment) acquired after December 1, 1994 as it
pertains to Senior Debt Securities, after June 1, 1989, as it pertains to Senior
Subordinated Debt Securities and after July 1, 1993, as it pertains to Junior
Subordinated Debt Securities, by the Corporation or any Restricted Subsidiary,
any Security Interest which secures an amount not in excess of the purchase
price or fair value of such property at the time of acquisition, whichever, in
the opinion of the Corporation, shall be less, provided that such Security
Interest is limited to the property so acquired; (j) Security Interests on
properties financed through tax-exempt municipal obligations, provided that such
Security Interest is limited to the property so financed; or (k) any refunding,
renewal, extension or replacement (or successive refunding,
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renewals, extensions, or replacements), in whole or in part, of any Security
Interest referred to in the foregoing clauses (a) through (j), provided that the
principal amount of indebtedness secured in such refunding, renewal, extension
or replacement does not exceed that secured at the time by such Security
Interest and that such renewal, refunding, extension or replacement of such
Security Interest is limited to all or part of the same property subject to the
Security Interest being refunded, renewed, extended or replaced.
Notwithstanding the foregoing provisions, the Corporation and any one or
more Restricted Subsidiaries may issue, assume, or guarantee Secured Debt which
would otherwise be subject to the foregoing restrictions in an aggregate amount
which, together with all other Secured Debt of the Corporation and its
Restricted Subsidiaries which would otherwise be subject to the foregoing
restrictions (not including Secured Debt permitted to be secured under
subparagraphs (a) through (k) above), and the aggregate value of the Sale and
Leaseback Transactions in existence at such time (not including Sale and
Leaseback Transactions the proceeds of which have been or will be applied in
accordance with subsection (b) under "Limitations on Sale and Leaseback
Transactions" below), do not at the time of incurrence exceed 10% of
Consolidated Net Worth and Subordinated Debt (as defined in the applicable
Indenture). (Section 1004)
Limitations on Sale and Leaseback Transactions. Each Indenture provides
that the Corporation may not, and may not permit any Restricted Subsidiary to,
engage in any Sale and Leaseback Transaction unless (a) the Corporation or such
Restricted Subsidiary would be entitled, without reference to the provisions of
Section 1004 described in subparagraphs (a) through (k) above, to incur Secured
Debt in an amount equal to the amount realized or to be realized upon the sale
or transfer involved in such Sale and Leaseback Transaction, secured by a
Security Interest on the property to be leased without equally and ratably
securing the Debt Securities outstanding under such Indenture as provided under
"Limitations on Secured Debt," or (b) the Corporation or a Restricted Subsidiary
shall apply, within 120 days after such sale or transfer, an amount equal to the
fair value of the property so leased (as determined by the Board of Directors of
the Corporation) to the repayment of Senior Debt of the Corporation or of any
Restricted Subsidiary (other than Senior Debt owed to the Corporation or any
Restricted Subsidiary) then prepayable, on a pro rata basis, according to the
respective principal amounts of Senior Debt then held by the various holders
thereof. (Senior Indenture Section 1005; Subordinated Indentures Section 1006)
The term Senior Debt for purposes of this limitation shall mean Senior
Indebtedness when referring to the Senior Subordinated Indenture or the Junior
Subordinated Indenture as such term is used in each such Indenture.
CERTAIN DEFINITIONS
"Business Equipment" shall mean all motor vehicles, tractors and trailers,
construction equipment, factory, commercial and office equipment and other
revenue-earning personalty owned, financed or otherwise held by or for the
Corporation or any of its Restricted Subsidiaries for rental, lease, sale or
disposition in the ordinary course of the business of the Corporation and its
Restricted Subsidiaries, other than Rental Equipment. "Consolidated Net Worth
and Subordinated Debt" shall mean the aggregate of (i) the capital and surplus
accounts of the Corporation and its Restricted Subsidiaries, as shown in the
most recent consolidated balance sheet of the Corporation and its Restricted
Subsidiaries, prepared in accordance with generally accepted accounting
principles, plus (ii) the aggregate outstanding principal amount of Subordinated
Debt (as defined in the Indentures) of the Corporation and its Restricted
Subsidiaries, as reflected on the same consolidated balance sheet. "Principal
Property" shall mean any building, structure or other facility (including land
or fixtures) owned by the Corporation or any Restricted Subsidiary having a
gross book value in excess of 2% of Consolidated Net Worth and Subordinated
Debt, other than any such building, structure or other facility which, in the
opinion of the Board of Directors of the Corporation, is not of material
importance to the total business conducted by the Corporation and its
subsidiaries as an entirety. "Rental Equipment" shall mean all automobiles
owned, financed or otherwise held by the Corporation or any of its Restricted
Subsidiaries which, in the ordinary course of business, are offered for rental
within the United States of America for periods of less than 30 days.
"Restricted Subsidiary" shall mean certain identified Subsidiaries of the
Corporation, and any other Subsidiaries designated after the date of the
Indentures as a Restricted Subsidiary by the Board of Directors of the
Corporation, subject to redesignation by the Board of Directors
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<PAGE> 16
and to certain other restrictions. "Sale and Leaseback Transaction" shall mean
any sale or transfer by the Corporation or one or more Restricted Subsidiaries
(except a sale or transfer to the Corporation or one or more Restricted
Subsidiaries) of any Principal Property, made more than 180 days after the later
of the acquisition of such Principal Property or the completion of construction
or full commencement of operations thereof, if such sale or transfer is made
with the intention of, or as part of an arrangement involving, the lease of such
Principal Property to the Corporation or a Restricted Subsidiary (with certain
exceptions). "Secured Debt" shall mean all indebtedness for borrowed money of
the Corporation or a Restricted Subsidiary which is secured by a Security
Interest upon any assets of the Corporation or any Restricted Subsidiary,
including any capital stock or indebtedness of any Restricted Subsidiary.
"Security Interest" shall mean any mortgage, pledge, lien, encumbrance,
conditional sales contract, title retention agreement or other similar
arrangement which secures payment or performance of an obligation. (Section 101)
MODIFICATION OF THE INDENTURES
Subject to certain exceptions, each Indenture contains provisions
permitting the Corporation and the Trustee, with the consent of the Holders of
not less than a majority in principal amount of all securities at the time
outstanding, or of the Holders of the then outstanding Debt Securities of each
series to be affected thereby, to modify the Indentures or any supplemental
Indentures or the rights of the Holders of all Debt Securities, or of the Debt
Securities of a particular series, as the case may be; provided that no such
modification shall (i) change the fixed maturity of the principal of, or any
installment of principal or interest on, any Debt Security, or reduce the
principal amount thereof or the rate of interest, if any, thereon, or change the
place of payment or the currency in which any Debt Security or the interest, if
any, thereon is payable, without the consent of the Holder of each Debt Security
affected, or (ii) reduce the aforesaid percentage of Debt Securities the consent
of the holders of which is required for any such modification, without the
consent of the Holder of each Debt Security affected. (Section 902)
EVENTS OF DEFAULT AND NOTICE THEREOF
The following events are defined in the Senior Indenture as Events of
Default with respect to the Senior Debt Securities of a particular series:
failure for 30 days to pay interest on any Senior Debt Securities of such series
when due; failure to pay principal of any Senior Debt Securities of such series
when due at maturity thereof or otherwise, which failure shall continue
unremedied for 5 Business Days; failure to deposit any sinking fund payment when
and as due, which failure shall continue unremedied for 5 Business Days; the
acceleration of any other indebtedness in excess of $25 million of the
Corporation, including another series of Senior Debt Securities, under its
terms, if such acceleration is not rescinded or annulled within 10 days after
written notice thereof to the Corporation; failure to perform any other covenant
in the Senior Debt Securities of such series within 90 days after written notice
thereof to the Corporation specifying the failure and requiring its remedy;
certain events of bankruptcy, insolvency or reorganization and any other Event
of Default provided with respect to the Senior Debt Securities of such series.
(Section 501) The Corporation is required to file annually with the Senior
Trustee an officer's certificate as to the absence of certain defaults under the
terms of the Senior Indenture. (Section 1006)
The following events are defined in each Subordinated Indenture as Events
of Default with respect to the Subordinated Debt Securities of a particular
series: failure for 30 days to pay interest on any Subordinated Debt Securities
of such series when due; failure to pay principal of any Subordinated Debt
Securities of such series when due at maturity; the acceleration of any other
indebtedness in excess of $10 million of the Corporation, including another
series of Subordinated Debt Securities, under its terms, if such acceleration is
not rescinded or annulled with 10 days after written notice thereof to the
Corporation; failure to perform any other covenant in the Subordinated Debt
Securities of such series or in the applicable Subordinated Indenture within 60
days after written notice thereof to the Corporation specifying the failure and
requiring its remedy; certain events of bankruptcy, insolvency or reorganization
and any other Event of Default provided with respect to the Subordinated Debt
Securities of such series. (Section 501) The Corporation is required to file
with each Trustee annually an officer's certificate as to the absence of certain
defaults under the terms of the applicable Subordinated Indenture. (Section
1008)
15
<PAGE> 17
Upon any Event of Default with respect to Debt Securities of a particular
series, the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Debt Securities of such series then outstanding may declare the
principal of all the Debt Securities of such series (or, in the case of any
series of discounted Debt Securities, such lesser principal amount as may be
provided for in such series of discounted Debt Securities) to be due and
payable. (Section 502)
Each Indenture provides that the Holders of not less than a majority in
principal amount of the Debt Securities of any series may on behalf of the
Holders of all of the Debt Securities of such series waive any past default
under such Indenture with respect to such series and its consequences, except a
default (i) in the payment of the principal of or interest, if any, on any of
the Debt Securities of such series or (ii) in respect of a covenant or provision
of such Indenture which, under the terms of such Indenture, cannot be modified
or amended without the consent of the Holders of all of the Debt Securities of
such series affected thereby. The terms of the Senior Indenture do not permit
any such waiver with respect to Debt Securities of any such series subsequent to
the acceleration of principal thereof. (Section 513)
Each Indenture provides that the Trustee may withhold notice to the Holders
of the Debt Securities of any default (except a default in the payment of
principal or interest) if it determines that the withholding of such notice is
in the interest of the Holders of the Debt Securities. (Section 602)
Subject to provisions of each Indenture relating to the duties of the
Trustee in case an Event of Default shall occur and be continuing, the Trustee
will be under no obligation to exercise any of its rights or powers under such
Indenture at the request of any of the Holders of the Debt Securities issued
thereunder, unless they shall have offered to the Trustee reasonable indemnity.
(Sections 601(a) and 603(e)) Subject to such provisions for the indemnification
of the Trustee and to certain other limitations, the Holders of a majority in
principal amount of the Debt Securities of a particular series at the time
outstanding shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Debt Securities
of such series. (Section 512)
DEFEASANCE OF DEBT SECURITIES
Unless the Prospectus Supplement relating to the applicable Senior Debt
Securities provides otherwise, the Corporation at its option (a) will be deemed
to have paid and discharged the entire indebtedness represented by the
outstanding Senior Debt Securities of such series, and to have satisfied all its
other obligations under such Senior Debt Securities (except for obligations
relating to the rights of Holders to receive payments from the trust fund,
certain obligations to register the transfer and exchange of Senior Debt
Securities, replace stolen, lost or mutilated Senior Debt Securities, maintain
paying agencies, hold moneys for payment in trust and the Corporation's
obligations with respect to Global Securities and defeasance and covenant
defeasance generally) or (b) shall be released from its obligations described
above under "Certain Covenants -- Limitations on Mergers," "-- Limitations on
Secured Debt" and "-- Limitations on Sale and Leaseback Transactions" with
respect to the outstanding Senior Debt Securities of such series, if the
Corporation irrevocably deposits or causes to be deposited with the Senior
Trustee money or U.S. Government Obligations or a combination thereof
sufficient, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Senior
Trustee, to pay and discharge (i) the principal of (and premium, if any) and
interest, if any, on the outstanding Senior Debt Securities of such series and
(ii) any mandatory sinking fund payments applicable to the outstanding Senior
Debt Securities of such series. Among the conditions to exercising any such
option, the Corporation is required to deliver to the Senior Trustee an opinion
of counsel (which opinion shall state, in the case of a defeasance described in
clause (a) above, that (x) the Corporation has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since the date of
the first issuance by the Corporation of Senior Debt Securities pursuant to the
Senior Indenture, there has been a change in the applicable Federal income tax
law) to the effect that the Holders of the outstanding Senior Debt Securities of
such series will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as would have
been the case if such defeasance or covenant defeasance, as the case may be, had
not occurred. (Sections 1401, 1402, 1403 and 1404)
16
<PAGE> 18
If the Corporation, at its option, deposits or causes to be deposited with
the applicable Subordinated Trustee as trust funds, for the purpose hereinafter
stated, an amount, in money or the equivalent in securities of the government
which issued the currency in which the Subordinated Debt Securities of any then
outstanding series are denominated or securities issued by government agencies
backed by the full faith and credit of such government, sufficient to pay and
discharge the entire indebtedness on the Subordinated Debt Securities of such
series for principal and interest, if any, to the date or dates of maturity of
the Subordinated Debt Securities of such series, and if the Corporation has paid
or caused to be paid all other sums payable by it under the Subordinated
Indenture with respect to such series, then the Subordinated Indenture will
cease to be of further effect with respect to such series (except as to the
Corporation's obligations to compensate, reimburse and indemnify the
Subordinated Trustee pursuant to the Subordinated Indenture with respect to such
series), and the Corporation will be deemed to have satisfied and discharged the
Indenture with respect to such series; provided, however, that no series of
Subordinated Debt Securities may be so defeased unless all of the securities of
such series will become due and payable at their Stated Maturity within one year
of such defeasance. (Section 401) In the event of any such defeasance, holders
of such Subordinated Debt Securities would be able to look only to such trust
funds for payment of principal and premium, if any, and interest, if any on
their Subordinated Debt Securities.
With respect to the Subordinated Indentures, if securities have been
deposited with the applicable Subordinated Trustee as trust funds, the
Corporation, in order to exercise its option, is required to deliver to the
Trustee an opinion of counsel to the effect that the deposit and related
defeasance (a) will not cause the holders of the Subordinated Debt Securities of
such series to recognize income, gain or loss for Federal income tax purposes
and (b) will not result in the delisting of the Subordinated Debt Securities of
such series from any nationally-recognized exchange on which they are listed, if
any.
Unless the Prospectus Supplement relating to the applicable Subordinated
Debt Securities provides otherwise, the Corporation at its option (a) will be
discharged from any and all obligations in respect of such Subordinated Debt
Securities (except for certain obligations to register the transfer or exchange
of Subordinated Debt Securities, replace stolen, lost or mutilated Subordinated
Debt Securities, maintain paying agencies and hold moneys for payment in trust)
or (b) need not comply with certain restrictive covenants of the applicable
Subordinated Indenture (including all or some of those described above under
"Certain Subordinated Covenants"), if there is deposited with the applicable
Subordinated Trustee money or, in the case of Subordinated Debt Securities
denominated in U.S. dollars, U.S. Government Obligations or, in the case of
Subordinated Debt Securities denominated in a foreign currency, Foreign
Government Securities, which through the payment of interest thereon and
principal thereof in accordance with their terms will provide money (or a
combination of money and U.S. Government Obligations or Foreign Government
Securities, as the case may be) in an amount sufficient to pay in the currency,
currencies or currency unit or units in which such Subordinated Debt Securities
are payable all the principal of, and interest on, such Subordinated Debt
Securities on the dates such payments are due in accordance with the terms of
such Subordinated Debt Securities. Among the conditions to the Corporation
exercising any such option, the Corporation is required to deliver to the
applicable Subordinated Trustee an opinion of counsel to the effect that the
deposit and related defeasance would not cause the holders of such Subordinated
Debt Securities to recognize income, gain or loss for United States Federal
income tax purposes, and that the holders will be subject to United States
Federal income tax in the same amounts, in the same manner and at the same times
as would have been the case if such deposit and related defeasance had not
occurred. (Section 403)
THE TRUSTEES
First Fidelity Bank, National Association is the Senior Trustee under the
Senior Indenture. Chemical Bank (successor by merger to Manufacturers Hanover
Trust Company) is trustee under an Indenture dated as of April 1, 1986, as
amended by a First Supplemental Indenture dated as of April 2, 1990, pursuant to
which approximately $1,513.4 million aggregate principal amount of the
Corporation's senior debt securities remained outstanding at September 30, 1994,
and is also trustee under an Indenture dated as of May 1, 1983 pursuant to which
approximately $2.7 million aggregate principal amount of the Corporation's
senior debt securities remained outstanding at September 30, 1994. The Bank of
New York is the Senior
17
<PAGE> 19
Subordinated Trustee under the Senior Subordinated Indenture. Citibank, N.A. is
the Junior Subordinated Trustee under the Junior Subordinated Indenture. Each
Trustee may act as depository for funds of, provide lines of credit to and
perform other services for, the Corporation and its subsidiaries in the normal
course of business.
PLAN OF DISTRIBUTION
The Corporation may sell the Debt Securities in any of four ways: (i)
through underwriters or dealers, (ii) directly to a limited number of
institutional purchasers or to a single institutional purchaser, (iii) through
agents or (iv) through a combination of any such methods of sale. The Prospectus
Supplement with respect to the Debt Securities of a particular series sets forth
the terms of the offering of such Debt Securities, including the name or names
of any underwriters or agents, the purchase price of such Debt Securities and
the proceeds to the Corporation from such sale, any underwriting discounts and
other items constituting underwriters' compensation, any initial public offering
price, any discounts or concessions allowed or reallowed or paid to dealers and
any securities exchanges on which such Debt Securities may be listed.
If underwriters are used in the sale of Debt Securities of a particular
series, such Debt Securities will be acquired by the underwriters for their own
account and may be resold from time to time in one or more transactions,
including negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of sale. The Debt Securities of a
particular series may be offered to the public through underwriting syndicates
represented by managing underwriters.
If so indicated in any Prospectus Supplement, the Corporation will
authorize the underwriters and agents to solicit offers by certain institutions
to purchase the Debt Securities described in such Prospectus Supplement from the
Corporation at the public offering price set forth therein pursuant to Delayed
Delivery Contracts ("Contracts"), which will provide for payment and delivery on
the date stated in such Prospectus Supplement. Each of the Contracts will be for
an amount not less than, and unless the Corporation otherwise agrees the
aggregate principal amount of Debt Securities sold pursuant to Contracts shall
be not more than, the respective amounts stated in such Prospectus Supplement.
The underwriters, dealers and 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, or to contribution to payments that the underwriters,
dealers and agents may be required to make in respect thereof.
LEGAL OPINIONS
Certain legal matters in connection with the Securities will be passed upon
for the Corporation by Paul M. Tschirhart, Esq., 225 Brae Boulevard, Park Ridge,
New Jersey, Senior Vice President and General Counsel of the Corporation, and
for any underwriters or agents by Brown & Wood, One World Trade Center, New
York, New York.
EXPERTS
The consolidated financial statements and supporting schedules of the
Corporation included in the Corporation's Annual Report on Form 10-K for the
year ended December 31, 1993, incorporated by reference in this Prospectus and
the Registration Statement of which this Prospectus forms a part, have been
audited by Arthur Andersen & Co., independent public accountants, at December
31, 1993 and 1992 and for each of the three years in the period ended December
31, 1993, as indicated in their reports incorporated by reference herein.
Reference is made to said reports, which include explanatory paragraphs with
respect to the changes in the methods of accounting for postretirement benefits
other than pensions in 1992 and warranty contracts in 1991, as discussed in Note
1 to each of such consolidated financial statements. The consolidated financial
statements and supporting schedules referred to above have been incorporated by
reference herein in reliance upon the authority of said firm as experts in
giving said reports.
18
<PAGE> 20
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses in connection with
the offering described in this Registration Statement:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............ $344,830
Legal fees and expenses*....................................... 90,000
Blue Sky filing fees and expenses*............................. 50,000
Fees and expenses of Trustee*.................................. 52,500
Printing expenses*............................................. 150,000
Accounting fees*............................................... 75,000
Rating Agency fees*............................................ 175,000
Miscellaneous*................................................. 37,670
--------
Total.......................................................... $975,000
========
</TABLE>
- ---------------
*Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware provides that a
corporation has the power to indemnify a director, officer, employee or agent of
the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he is or is threatened to be
made a party by reason of such position, if such person shall have 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, in any criminal proceeding, if such person
had no reasonable cause to believe his conduct was unlawful; provided that, in
the case of actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the
extent that the adjudicating court determines that such indemnification is
proper under the circumstances.
Article IX of the By-Laws of the Corporation provides as follows:
"The Corporation shall indemnify, to the fullest extent permitted under the
laws of the State of Delaware from time to time in effect, any person who was or
is a party or is threatened to be made a party to or is otherwise involved in
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that such
person or such person's testator or intestate is or was a director, officer,
employee or agent of the Corporation or any corporation absorbed in a
consolidation or merger with the Corporation, which if its separate existence
had continued, would have had power and authority to indemnify such person, or
by reason of the fact that such person or such person's testator or intestate is
or was serving at the request of the Corporation as director, officer, employee
or agent of any corporation or any partnership, joint venture, trust or other
enterprise or as a fiduciary of any employee benefit plan, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding.
Costs, charges, and expenses (including attorneys' fees) incurred by an
officer or director of the Corporation in defending any such civil, criminal,
administrative, or investigative action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit, or
proceeding; provided, however, that the payment of such costs, charges, and
expenses incurred by a director or officer in such person's capacity as a
director or officer (and not in any other capacity in which service was or is
rendered while a director or officer) in advance of the final disposition of
such action, suit, or proceeding shall be made
II-1
<PAGE> 21
only upon receipt of an undertaking by or on behalf of the director or officer
to repay all amounts so advanced in the event that it shall ultimately be
determined that such person is not entitled to be indemnified by the Corporation
as authorized under the laws of the State of Delaware from time to time in
effect. Such costs, charges, and expenses (including attorneys' fees) incurred
by other employees and agents may be so paid upon such terms and conditions, if
any, as the Board deems appropriate.
The right of indemnification provided hereunder shall not be deemed
exclusive of any other right to which any person may be entitled under the
Certificate of Incorporation or otherwise, or of any other indemnification that
may lawfully be granted to any person in addition to the indemnification
provided hereunder. Indemnification provided hereunder shall continue as to a
person who has ceased to be a director, officer, employee or agent of the
Corporation and, in the case of death of a person indemnified, inure to the
benefit of such person's heirs, executors or other lawful representatives.
The indemnification provided or permitted under this Article IX shall apply
in respect of any costs, charges and expenses (including attorneys' fees)
whether or not the claim or cause of action in respect thereof occurred or arose
before or after the effective date of this Article IX.
The right of indemnification provided hereunder shall be a contract right
and any repeal or modification of the foregoing provisions of this Article IX
shall not adversely affect any right or protection hereunder of any person in
respect of any act or omission occurring prior to the time of such repeal or
modification."
The Corporation carries directors' and officers' liability insurance that
covers certain liabilities and expenses of the Corporation's directors and
officers.
Reference is also made to the indemnification provisions in the form of
Underwriting Agreement Basic Provisions and the form of Distribution Agreement
filed as Exhibits 1(a) and 1(b), respectively, to this Registration Statement
and to undertaking "(c)" in Item 17 of this Registration Statement.
ITEM 16. EXHIBITS.
<TABLE>
<C> <S>
1(a) Form of Terms Agreement (including Underwriting Agreement Basic Provisions).*
1(b) Form of Distribution Agreement.*
4(a) Indenture dated as of April 1, 1986 between the Corporation and Chemical Bank,
as successor by merger to Manufacturers Hanover Trust Company, as Trustee
(incorporated herein by reference from the Corporation's Registration Statement
No. 33-4725 on Form S-3). The form or forms of Debt Securities with respect to
each particular offering of Debt Securities to be registered hereunder will be
filed as an exhibit to a Current Report on Form 8-K and shall be deemed
incorporated herein by reference.**
4(b) First Supplemental Indenture dated as of April 2, 1990 between the Corporation
and Chemical Bank, as successor by merger to Manufacturers Hanover Trust
Company, as Trustee (incorporated herein by reference from the Corporation's
Current Report on Form 8-K dated April 5, 1990).**
4(c) Indenture dated as of June 1, 1989 between the Corporation and The Bank of New
York, as Trustee (incorporated herein by reference from the Corporation's
Registration Statement No. 33-29319 on Form S-3). The form or forms of Debt
Securities with respect to each particular offering of Debt Securities to be
registered hereunder will be filed as an exhibit to a Current Report on Form 8-K
and shall be deemed incorporated herein by reference.**
4(d) Form of Indenture dated as of July 1, 1993 between the Corporation and Citibank,
N.A., as Trustee. The form or forms of Debt Securities with respect to each
particular offering of Debt Securities to be registered hereunder will be filed
as an exhibit to a Current Report on Form 8-K and shall be deemed incorporated
herein by reference (incorporated herein by reference from the Corporation's
Registration Statement No. 33-62902 on Form S-3).**
</TABLE>
II-2
<PAGE> 22
<TABLE>
<C> <S>
4(e) Form of Indenture dated as of December 2, 1994 between the Corporation and First
Fidelity Bank, National Association, as Trustee. The form or forms of Debt
Securities with respect to each particular offering of Debt Securities to be
registered hereunder will be filed as an exhibit to a Current Report on Form 8-K
and shall be deemed incorporated herein by reference.***
5 Opinion and consent of Paul M. Tschirhart, Esq.*
12(a) Computation of Consolidated Ratio of Earnings to Fixed Charges of the
Corporation for each of the five years in the period ended December 31, 1993
(incorporated herein by reference to Exhibit 12 to the Corporation's Annual
Report on Form 10-K for the year ended December 31, 1993).**
23(a) Consent of Arthur Andersen & Co.***
23(b) Consent of Paul M. Tschirhart, Esq., included in Exhibit 5.*
24 Powers of Attorney (contained on signature page).*
25(a) Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of
Chemical Bank.*
25(b) Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of The
Bank of New York.*
25(c) Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of
Citibank, N.A.*
25(d) Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of First
Fidelity Bank, National Association.***
</TABLE>
- ---------------
*Previously filed.
**Incorporated by reference.
***Filed herewith.
ITEM 17. UNDERTAKINGS.
(a) 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;
(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
registration statement is on Form S-3 or Form S-8 and 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 of 1933, 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.
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<PAGE> 23
(b) The registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, 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 Act
and is, therefore, unenforceable. In the event that a claim for 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 Act and will be governed by the final adjudication of
such issue.
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<PAGE> 24
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 Post-effective
Amendment No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Borough of Park Ridge, and State
of New Jersey, on the 2nd day of December, 1994.
THE HERTZ CORPORATION
By: /s/ WILLIAM SIDER
---------------------------------
WILLIAM SIDER
Executive Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Post-effective Amendment No. 1 to the Registration Statement has been signed
below by the following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------- ------------------------------------ -------------------
<C> <S> <C>
* Chairman of the Board, Chief December 2, 1994
- ------------------------------------- Executive Officer & Director
FRANK A. OLSON (Principal Executive Officer)
* President & Chief Operating Officer December 2, 1994
- -------------------------------------
CRAIG R. KOCH
/s/ WILLIAM SIDER Executive Vice President, Chief December 2, 1994
- ------------------------------------- Financial Officer & Director
WILLIAM SIDER (Principal Financial Officer)
* Staff Vice President & Controller December 2, 1994
- ------------------------------------- (Principal Accounting Officer)
LEO A. MASSAD, JR.
* Director December 2, 1994
- -------------------------------------
MALCOLM S. MACDONALD
* Director December 2, 1994
- -------------------------------------
DAVID N. MCCAMMON
* Director December 2, 1994
- -------------------------------------
PETER J. PESTILLO
*By: /s/ ROBERT H. RILLINGS
-------------------------------------
ROBERT H. RILLINGS
Attorney-in-fact
</TABLE>
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<PAGE> 25
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER EXHIBIT PAGES
- ------- ------------------------------------------------------------------------- ------------
<C> <S> <C>
1(a) Form of Terms Agreement (including Underwriting Agreement Basic
Provisions).*
1(b) Form of Distribution Agreement.*
4(a) Indenture dated as of April 1, 1986 between the Corporation and Chemical
Bank, as successor by merger to Manufacturers Hanover Trust Company, as
Trustee (incorporated herein by reference from the Corporation's
Registration Statement No. 33-4725 on Form S-3). The form or forms of
Debt Securities with respect to each particular offering of Debt
Securities to be registered hereunder will be filed as an exhibit to a
Current Report on Form 8-K and shall be deemed incorporated herein by
reference.**
4(b) First Supplemental Indenture dated as of April 2, 1990 between the
Corporation and Chemical Bank, as successor by merger to Manufacturers
Hanover Trust Company, as Trustee (incorporated herein by reference from
the Corporation's Current Report on Form 8-K dated April 5, 1990).**
4(c) Indenture dated as of June 1, 1989 between the Corporation and The Bank
of New York, as Trustee (incorporated herein by reference from the
Corporation's Registration Statement No. 33-29319 on Form S-3). The form
or forms of Debt Securities with respect to each particular offering of
Debt Securities to be registered hereunder will be filed as an exhibit to
a Current Report on Form 8-K and shall be deemed incorporated herein by
reference.**
4(d) Form of Indenture dated as of July 1, 1993 between the Corporation and
Citibank, N.A., as Trustee (incorporated herein by reference from the
Corporation's Registration Statement No. 33-62902 on Form S-3). The form
or forms of Debt Securities with respect to each particular offering of
Debt Securities to be registered hereunder will be filed as an exhibit to
a Current Report on Form 8-K and shall be deemed incorporated herein by
reference.**
4(e) Form of Indenture dated as of December 2, 1994 between the Corporation
and First Fidelity Bank, National Association, as Trustee. The form or
forms of Debt Securities with respect to each particular offering of Debt
Securities to be registered hereunder will be filed as an exhibit to a
Current Report on Form 8-K and shall be deemed incorporated herein by
reference.***
5 Opinion and consent of Paul M. Tschirhart, Esq.*
12(a) Computation of Consolidated Ratio of Earnings to Fixed Charges of the
Corporation for each of the five years in the period ended December 31,
1993 (incorporated herein by reference to Exhibit 12 to the Corporation's
Annual Report on Form 10-K for the year ended December 31, 1993).**
23(a) Consent of Arthur Andersen & Co.***
23(b) Consent of Paul M. Tschirhart, Esq., included in Exhibit 5.*
24 Powers of Attorney (contained on signature page).*
25(a) Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939
of Chemical Bank.*
</TABLE>
<PAGE> 26
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER EXHIBIT PAGES
- ------- ------------------------------------------------------------------------- ------------
<C> <S> <C>
25(b) Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939
of The Bank of New York.*
25(c) Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939
of Citibank, N.A.*
25(d) Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939
of First Fidelity Bank, National Association.***
</TABLE>
- ---------------
*Previously filed.
**Incorporated by reference.
***Filed herewith.
<PAGE> 1
THE HERTZ CORPORATION
and
FIRST FIDELITY BANK, NATIONAL ASSOCIATION
Trustee
------------------
INDENTURE
Dated as of December 1, 1994
------------------
Senior Debt Securities
<PAGE> 2
THE HERTZ CORPORATION
RECONCILIATION AND TIE BETWEEN INDENTURE
DATED AS OF [ , 1994]
AND
TRUST INDENTURE ACT OF 1939
<TABLE>
<CAPTION>
TRUST INDENTURE INDENTURE
ACT SECTION Section
- ----------- -------
<S> <C>
310(a) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608
(a) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608
(a) (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a) (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
312(a) 701
702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(c)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
703(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(c)
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704
(c) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c) (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602
703(a) (6)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)
(d) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c) (1)
(d) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c) (2)
(d) (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c) (3)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514
316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
(a) (1) (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512
(a) (1) (B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
317(a) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
- ----------
</TABLE>
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE> 3
i
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate; control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request; Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Consolidated Net Worth and
Subordinated Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Depository . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Discounted Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Dollar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Floating Rate Formula . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Principal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Principal Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Rental Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
</TABLE>
<PAGE> 4
ii
<TABLE>
<S> <C> <C>
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Restricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Sale and Leaseback Transaction . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Secured Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Security; Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Security Co-Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Security Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Security Register; Security
Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Subordinated Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trust Indenture Act; TIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Unrestricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 102. Compliance Certificates and
Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 103. Form of Documents Delivered to
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 105. Notices, etc., to Trustee and
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 106. Notices to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 107. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 108. Effect of Headings and Table of
Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 110. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 111. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 112. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 113. Indenture and Securities Solely
Corporate Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 114. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE TWO
Security Forms
Section 201. Forms of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 202. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
</TABLE>
<PAGE> 5
iii
<TABLE>
<S> <C> <C>
ARTICLE THREE
The Securities
Section 301. Title; Payment and Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 303. Execution, Authentication and
Delivery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 305. Registration, Registration of
Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 306. Mutilated, Destroyed, Lost or
Stolen Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 307. Payment of Interest; Interest
Rights Preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 403. Repayment of Moneys Held by
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 404. Repayment of Moneys Held by
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE FIVE
Remedies
Section 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 502. Acceleration of Maturity;
Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 503. Collection of Indebtedness and
Suits for Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 505. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 508. Unconditional Right of Holders
to Receive Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . 34
</TABLE>
<PAGE> 6
iv
<TABLE>
<S> <C> <C>
Section 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 513. Waiver of Past Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE SIX
The Trustee
Section 601. Certain Duties and
Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 604. Not Responsible for Recitals or
Issuance of Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 608. Corporate Trustee Required;
Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 609. Resignation and Removal;
Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 610. Acceptance of Appointment by
Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 611. Merger, Conversion, Consolidation,
or Succession to Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names
and Addresses of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 702. Preservation of Information;
Communications to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE EIGHT
Consolidation, Merger, Conveyance or Transfer
Section 801. Company May Consolidate, etc.,
under Certain Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 802. Successor Corporation Substituted . . . . . . . . . . . . . . . . . . . . . . . . . 48
</TABLE>
<PAGE> 7
v
<TABLE>
<S> <C> <C>
Section 803. Limitations on Mergers, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 804. Opinions of Counsel and
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures without
Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 902. Supplemental Indentures with
Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 903. Execution of Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 905. Conformity with Trust Indenture
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 906. Reference in Securities to
Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 907. Notice of Supplemental Indenture . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 908. Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE TEN
Covenants
Section 1001. Payment of Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 1003. Money for Security Payments to
be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 1004. Limitations on Secured Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 1005. Limitations on Sale and
Leaseback Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 1006. Statement by Officer as to Default . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 1007. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 1102. Election to Redeem; Notice to
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 1103. Selection by Trustee of Securities
to be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 1106. Securities Payable on Redemption
Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
</TABLE>
<PAGE> 8
vi
<TABLE>
<S> <C> <C>
ARTICLE TWELVE
Repayment at Option of Holders
Section 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 1202. Repayment of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 1203. Exercise of Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 1204. When Securities Presented for
Repayment Become Due and Payable . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 1205. Securities Repaid in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE THIRTEEN
Sinking Fund
Section 1301. Applicability of This Article . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 1302. Satisfaction of Sinking Fund
Payments with Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 1303. Redemption of Securities for
Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE FOURTEEN
Defeasance and Covenant Defeasance
Section 1401. Applicability of Article; Company's
Option to Effect Defeasance or
Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 1402. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 1403. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 1404. Conditions to Defeasance or
Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 1405. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 1406. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE FIFTEEN
Immunity of Incorporators, Stockholders, Officers,
Directors and Employees
Section 1501. Exemption from Individual
Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
ACKNOWLEDGMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
</TABLE>
<PAGE> 9
1
Indenture dated as of [ , 1994], between THE HERTZ
CORPORATION, a Delaware corporation (hereinafter called the "Company") having
an office at 225 Brae Boulevard, Park Ridge, New Jersey 07656, and FIRST
FIDELITY BANK, NATIONAL ASSOCIATION, a national banking association
(hereinafter called the "Trustee").
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its
lawful purposes securities (hereinafter called the "Securities") evidencing its
senior unsecured indebtedness and has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of the
Securities, unlimited as to principal amount, to have such titles, to bear such
rates of interest, to mature at such time or times and to have such other
provisions as shall be fixed as hereinafter provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done, and the Company proposes
to do all things necessary to make the Securities, when executed by the Company
and authenticated and delivered by the Trustee hereunder and duly issued by the
Company, the valid obligations of the Company, as hereinafter provided.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises hereof and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
<PAGE> 10
2
(2) all other terms used herein which are defined in the Trust
Indenture Act, as amended from time to time, either directly or by reference
therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles as of the date of this Indenture; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import, refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in those
Articles.
"Act" when used with respect to any Holder has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company 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", when used with respect to any particular Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment are authorized
or obligated by law to be closed.
"Business Equipment" means any and all motor vehicles, tractors and
trailers, construction equipment, factory, commercial and office equipment and
other revenue-earning personally owned, financed or otherwise held by or for
the Company or any of its Restricted Subsidiaries for rental, lease, sale or
disposition in the ordinary course of the business of the Company and its
Restricted Subsidiaries, other than Rental Equipment.
<PAGE> 11
3
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order,
respectively, signed in the name of the Company by the Chairman of the Board,
the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.
"Consolidated Net Worth and Subordinated Debt" means the aggregate of
(i) the capital and surplus accounts of the Company and its Restricted
Subsidiaries as shown in the most recent consolidated balance sheet of the
Company and its Restricted Subsidiaries, prepared in accordance with generally
accepted accounting principles, plus (ii) the aggregate outstanding principal
amount of Subordinated Debt of the Company and its Restricted Subsidiaries, as
reflected on the same consolidated balance sheet.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee, at which at any particular time its corporate trust business shall
be administered, which office at the date of the execution of this instrument
is located at 765 Broad Street, 5th Floor, Newark, New Jersey 07102 Attention:
Corporate Trust Department.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" means with respect to securities of any series for which
the Company shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, New York, New York, another clearing
agency or any successor registered under the Securities and Exchange Act of
1934, as amended, or other applicable statute of regulation.
<PAGE> 12
4
"Discounted Security" means any Security which provides for an amount
(excluding any amounts attributable to accrued but unpaid interest thereon)
less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 502.
"Dollar" means such coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
"Event of Default" has the meaning specified in Article Five.
"Floating Rate Formula" means a formula or provision, specified in a
resolution of the Board of Directors, providing for the determination and
periodic adjustment of the interest rate per annum borne by a Security or
series of Securities issued under this Indenture.
"Global Security" means with respect to any series of Securities, one
or more Securities executed by the Company and authenticated and delivered by
the Trustee to the Depository or pursuant to the Depository's instruction, all
in accordance with this Indenture and pursuant to a Company Order, which (i)
shall be registered in the name of the Depository or its nominee and (ii) shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of such of the Outstanding Securities of such series as shall
be specified therein.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the applicable Securities.
"Maturity" when used with respect to any Security means the date on
which the principal of that Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, request for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or
an Assistant Secretary of the Company, and delivered to the Trustee.
<PAGE> 13
5
"Opinion of Counsel" means a written opinion of counsel who may be an
employee of the Company or other counsel acceptable to the Trustee, delivered
to the Trustee.
"Outstanding" when used with respect to Securities means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities or portions thereof for whose payment or redemption
money (or its equivalent as provided in Section 401) in the necessary
amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying
Agent) for the Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made; and
(iii) Securities in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture, or
which have been paid pursuant to Section 306, unless proof
satisfactory to the Company and the Trustee is presented that any such
Securities are held by bona fide purchasers;
provided, however, that in determining whether the Holders of the requisite
principal amount of Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to such Securities
and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company.
<PAGE> 14
6
"Person" means any individual corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to Securities of any
particular series, means the place or places where the principal of and
interest, if any, on the Securities of that series are payable, as specified as
contemplated by Section 301; except that, at the option of the Company,
interest, if any, shall always be payable by check mailed to the person
entitled thereto.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and for the purposes of this definition, any Security
authenticated and delivered under Section 306 in lieu of a lost, destroyed,
mutilated or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed, mutilated, or stolen Security.
"Principal" of a debt security (including the Securities) means the
principal (including any installment of principal) of the security plus, when
appropriate, the premium, if any, on the Security.
"Principal Property" means any building, structure or other facility
(including land and fixtures) owned by the Company or any Restricted Subsidiary
having a gross book value in excess of 2% of Consolidated Net Worth and
Subordinated Debt, other than any such building, structure or other facility
which, in the opinion of the Board of Directors of the Company, is not of
material importance to the total business conducted by the Company and its
subsidiaries as an entirety.
"Redemption Date" when used with respect to any Security to be
redeemed means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means an amount equal to the principal amount thereof, plus when
appropriate the premium, if any, together with accrued interest, if any, to the
Redemption Date.
"Regular Record Date" for the interest payable on any Security means
the date, if any, specified in such Security as the "Regular Record Date."
<PAGE> 15
7
"Rental Equipment" shall mean all automobiles owned, financed or
otherwise held by the Company or any of its Restricted Subsidiaries which, in
the ordinary course of business, are offered for rental within the United
States of America for periods of less than 30 days.
"Repayment Date", when used with respect to any Security to be repaid
at the option of the Holder, the date fixed for such repayment by or pursuant
to this Indenture.
"Responsible Officer" when used with respect to the Trustee means any
officer within the Trustee's Corporate Trust Office (or successor group)
including without limitation any Vice President, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, the cashier, any assistant
cashier, any trust officer, any assistant trust officer, the controller, any
assistant controller or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary which is identified as a
Restricted Subsidiary on Exhibit A or which after the date of this Indenture is
designated by the Board of Directors as a Restricted Subsidiary, which
designation shall be evidenced by a Board Resolution, provided that any
Subsidiary so designated may be redesignated by the Board of Directors as an
Unrestricted Subsidiary in accordance with the provisions of this definition.
Any such designation or redesignation may be made more than once with respect
to any Subsidiary. Notwithstanding the foregoing, (i) no Restricted Subsidiary
may be designated an Unrestricted Subsidiary unless such Subsidiary, at the
time of designation as an Unrestricted Subsidiary, does not own, directly or
indirectly, any capital stock of any other Restricted Subsidiary or have any
lien upon any of the assets of any other Restricted Subsidiary; and (ii) no
Unrestricted Subsidiary may be designated a Restricted Subsidiary unless (A) at
the time of such designation, the Company would be permitted to incur the
Secured Debt, if any, of such Subsidiary under Section 1004 (without reference
to subsection (a) or (c) thereof) without securing the Securities as provided
in Section 1004, and (B) at the time of such designation, such Subsidiary does
not have outstanding any obligations with respect to a Sale and Leaseback
Transaction which would have been prohibited under Section 1005 had such
Subsidiary been a Restricted Subsidiary at the time of such transaction.
<PAGE> 16
8
"Sale and Leaseback Transaction" means any sale or transfer by the
Company or one or more Restricted Subsidiaries (except a sale or transfer to
the Company or one or more Restricted Subsidiaries) of any Principal Property,
made more than 180 days after the later of the acquisition of such Principal
Property or the completion of construction or full commencement of operations
thereof, if such sale or transfer is made with the intention of, or as part of
an arrangement involving, the lease of such Principal Property to the Company
or a Restricted Subsidiary (except a lease for a period not exceeding 36
months, made with the intention that the use of the leased Principal Property
by the Company or such Restricted Subsidiary will be discontinued on or before
the expiration of such period).
"Secured Debt" means all indebtedness for borrowed money, whether
evidenced by a bond, debenture, note, contract right or otherwise, whether or
not the Company or a Restricted Subsidiary is liable for the payment thereof,
which is secured by a Security Interest upon any assets of the Company or any
Restricted Subsidiary, including any capital stock or indebtedness of any
Restricted Subsidiary. For this purpose, Secured Debt for which neither the
Company nor a Restricted Subsidiary is liable for payment shall not be
considered outstanding in an amount greater than the net book value of the
property of the Company or its Restricted Subsidiaries which secures such
Secured Debt.
"Security" or "Securities" means any security or securities evidencing
senior unsecured indebtedness of the Company authenticated and delivered under
this Indenture.
"Security Co-Registrar" has the meaning specified in Section 305.
"Security Interest" means any mortgage, pledge, lien, encumbrance,
conditional sales contract, title retention agreement or other similar
arrangement which secures payment or performance of an obligation.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Debt" means all indebtedness of the Company or any Restricted
Subsidiary for money borrowed or capitalized lease obligations (including the
indebtedness hereunder and, without duplication, any liability of the Company
or a Restricted Subsidiary pursuant to any guarantee of or agreement to
purchase the indebtedness of any other person), whether evidenced by a bond,
debenture, note, contract right or otherwise, other than Subordinated Debt.
<PAGE> 17
9
A "series" of Securities means all Securities of a similar tenor
authorized by a particular Board Resolution.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" when used with respect to any Security or any
installment of interest thereon means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subordinated Debt" means any indebtedness of the Company either (i)
existing on the date hereof and designated as senior or junior subordinated
debt in a certificate of the Company delivered to the Trustee on or prior to
the date hereof or if incurred after the date hereof, designated as senior or
junior subordinated debt in the instruments evidencing such indebtedness at the
time of issuance thereof, (ii) containing provisions providing for the
subordination of such indebtedness to the Securities, (iii) the subordination
provisions of which are at least as restrictive as those governing the
indebtedness issued pursuant to the Indenture dated June 1, 1989 between the
Company and The Bank of New York, as trustee relating to the issuance of the
Company's senior subordinated debt securities, (iv) the subordination
provisions of which are at least as restrictive as those governing the
indebtedness issued pursuant to the Indenture dated July 1, 1993 between the
Company and Citibank, N.A., as trustee relating to the issuance of the
Company's junior subordinated debt securities, or (v) that ranks pari passu
with or is subordinated in right of payment to such junior subordinated debt
securities.
"Subsidiary" means any corporation of which at the time of
determination the Company or one or more Subsidiaries, or the Company and one
or more Subsidiaries, own or control directly or indirectly sufficient
securities having general voting power under ordinary circumstances to elect a
majority of the board of directors of such corporation (irrespective of whether
or not at the time of determination securities of any other class or classes
shall have or might have voting power by reason of the happening of any
contingency).
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
<PAGE> 18
10
"Trust Indenture Act" or "TIA" means, subject to Section 905, the
Trust Indenture Act of 1939, as amended from time to time, as in force at the
date this instrument is executed.
"Unrestricted Subsidiary" means any Subsidiary of the Company which is
not a Restricted Subsidiary.
"Vice President" when used with respect to the Company or the Trustee
means any vice president elected by the board of directors of the Company or
the Trustee, respectively, whether or not designated by a number or a word or
words added before or after the title "Vice President".
"Yield to Maturity", when used with respect to any Discounted
Security, means the yield to maturity, if any, set forth on the face thereof.
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate
or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
<PAGE> 19
11
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders.
(a) Whenever in this Indenture it is provided that the Holders of a
specified percentage in aggregate principal amount of the Securities or of the
Securities of any particular series may take any action (including the making
of any demand or request, the giving of any direction, 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 have joined therein
may be evidenced by (1) any instrument or any number of instruments of similar
tenor executed by Holders in person or by agent or proxy appointed in writing,
(2) the record of the Holders of Securities or of Securities of such series
voting in favor thereof at any meeting of Holders of Securities or of
<PAGE> 20
12
Securities of such series duly called or (3) a combination of such instrument
or instruments and any such record of such a meeting of Holders of Securities
or of Securities of such series. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Section
601) conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is other than in an individual capacity, such
certificate or affidavit shall also constitute sufficient proof of the
authority of the executing individual.
(c) The fact and date of the execution by any Person of any such
instrument or writing or the authority of the Person executing the same may
also be proved in any other manner which the Trustee deems sufficient and in
accordance with such reasonable rules and regulations as the Trustee may
determine.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) In determining whether the Holders of the requisite principal
amount of Outstanding Securities or Outstanding Securities of a particular
series have given any request, demand, authorization, direction, notice,
consent or waiver under this Indenture, the principal amount of a Discounted
Security that may be counted in making such determination and that shall be
deemed to be Outstanding for such purposes shall be equal to the amount of the
principal thereof that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 at the time the
taking of such action by the Holders of such requisite principal amount is
evidenced to the Trustee.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof, in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made
upon such Security.
<PAGE> 21
13
Section 105. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided, or permitted by this Indenture to
be made upon, given or furnished to, or filed with:
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder if in writing and mailed, first-class postage
prepaid (except as otherwise provided in Sections 501(4) and 501(7)), to the
Company addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously furnished
in writing to the Trustee by the Company.
Section 106. Notices to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears on the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders, and any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given. Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
<PAGE> 22
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Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the TIA, such required provision shall control.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 110. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under or in respect of this Indenture, all covenants and conditions
herein contained being for the sole benefit of the parties hereto and the
Holders.
Section 111. Governing Law.
This Indenture and each Security shall be construed in accordance with
and governed by the laws of the State of New York.
Section 112. Legal Holidays.
In any case where any Interest Payment Date or Redemption Date, or the
Stated Maturity of any Security of any particular series shall not be a
Business Day at any Place of Payment with respect to Securities of that series,
then (notwithstanding any other provision of the Securities or this Indenture)
payment of interest or principal with respect to the Security need not be made
at such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date or Redemption Date, or at the Stated Maturity, and
no interest shall accrue for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be.
<PAGE> 23
15
Section 113. Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of principal of or interest on any
Security or for any claim based on any Security or this Indenture shall be had
against any director or officer or stockholder, past, present or future, of the
Company. Any such claim against any such Person is expressly waived as a
condition of, and as consideration for, the execution and delivery of this
Indenture and the issue of the Securities.
Section 114. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal, or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
ARTICLE TWO
Security Forms
Section 201. Forms of Securities.
The Securities shall be in such form or forms as shall be established
by or pursuant to a Board Resolution or Board Resolutions, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture or any indenture supplemental
hereto and may have such letters, numbers or other marks of identification and
such legends or endorsements placed thereon as may be required to comply with
the rules of any securities exchange on which any series of the Securities may
be listed, or as may, consistently herewith, be determined by the officers
executing such Securities, as conclusively evidenced by their execution of such
Securities.
Prior to the delivery of a Security in any such form to the Trustee
for authentication, the Company shall deliver to the Trustee the following:
(1) The Board Resolution by or pursuant to which such form of
Security has been approved;
(2) An Officers' Certificate dated the date such Certificate is
delivered to the Trustee stating that all conditions precedent provided for in
this Indenture relating to the authentication and delivery of Securities in
such form have been complied with;
<PAGE> 24
16
(3) the Company Order referred to in Section 303; and
(4) An Opinion of Counsel stating that Securities in such form, when
completed by appropriate insertions and executed and delivered by the Company
to the Trustee for authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance with this Indenture
within the authorization as to aggregate principal amount established from time
to time by the Board of Directors, and sold in the manner specified in such
Opinion of Counsel, will be the legal, valid and binding obligations of the
Company, subject to applicable bankruptcy, reorganization, moratorium,
insolvency and other similar laws generally affecting creditors' rights, to
general equitable principles and to such other qualifications as such counsel
shall conclude do not materially affect the rights of Holders of such
Securities.
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these methods on a steel engraved border or
steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as conclusively evidenced
by their execution of such Securities.
Section 202. Form of Trustee's Certificate of Authentication.
"This is one of the Securities of the series designated herein, issued
under the Indenture described herein.
FIRST FIDELITY BANK,
NATIONAL ASSOCIATION,
as Trustee
By
-----------------------------
Authorized Signatory"
ARTICLE THREE
The Securities
Section 301. Title; Payment and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is not limited. The
Securities may be issued up to the aggregate principal amount of Securities
from time to time authorized by or pursuant to a Board Resolution.
<PAGE> 25
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The Securities may be issued in one or more series, each of which
shall be issued pursuant to a Board Resolution. With respect to any particular
series of Securities, the Board Resolution relating thereto shall specify:
(1) the title of the Securities of that series (which shall
distinguish the Securities of that series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
that series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of that series pursuant to Section 304, 305, 306, 906, 1107
or 1205);
(3) the date or dates on which the principal of the Securities of
that series is payable and the currency in which payable;
(4) the rate or rates at which the Securities of that series shall
bear interest (if any), or the Floating Rate Formula pursuant to which
such rates are determined, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest shall
be payable and the Regular Record Date for the interest payable on any
Interest Payment Date;
(5) the Place of Payment for Securities of that series;
(6) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of that series may
be redeemed, in whole or in part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem or purchase
Securities of that series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or
periods within which, the price or prices at which and the terms and
conditions upon which Securities of that series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of that series shall be
issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of that series which shall be payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502;
<PAGE> 26
18
(10) if other than such coin or currency of the United States of
America as at the time of payment is legal tender for payment of
public or private debts, the coin or currency in which payment of the
principal of and interest, if any, on the Securities of that series
shall be payable;
(11) if the principal of or interest, if any, on the Securities of
that series are to be payable, at the election of the Company or a
Holder thereof, in a coin or currency other than that in which the
Securities are stated to be payable, the period or periods within
which, and the terms and conditions upon which, such election may be
made;
(12) if the amount of payments of principal of or interest, if any,
on the Securities of the series may be determined with reference to an
index, formula or other method based on a coin or currency other than
that in which the Securities are stated to be payable, the manner in
which such amounts shall be determined; and
(13) whether the Securities of that series may be issued in whole or
in part in the form of one or more Global Securities and, in such
case, the Depository for such Global Security or securities and the
terms and conditions, if any, upon which interests in such Global
Security or securities, may be exchanged in whole or in part for the
individual securities represented thereby; and
(14) any other terms of that series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any particular series shall be substantially
identical except as to denomination, rate or rates of interest, if any, and
maturity, except as may otherwise be provided in or pursuant to the Board
Resolution relating thereto. All Securities of any particular series need not
be issued at the same time and, except as otherwise provided, a series may be
reopened for issuances of additional Securities of such series.
Section 302. Denominations.
The Securities of each series shall be issuable only in registered
form without coupons in such denominations as shall be specified as
contemplated by Section 301.
<PAGE> 27
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Section 303. Execution, Authentication and Delivery.
The Securities shall be executed on behalf of the Company by any one
of the Chairman of the Board, the President, a Vice President, the Treasurer or
any Assistant Treasurer and shall have its corporate seal reproduced thereon.
Such execution shall be attested to by the Secretary or any Assistant
Secretary. The signature of any of these officers on the Securities may be
manual or facsimile, and the seal of the Company may be in the form of a
facsimile thereof.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication or delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, up to the
aggregate principal amount and containing terms from time to time authorized by
or pursuant to a Board Resolution, executed by the Company, to the Trustee for
the authentication of such Securities, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee shall
authenticate and deliver such Securities as in this Indenture provided and not
otherwise.
Each security shall be dated the date of its authentication.
Promptly after the execution and delivery of this Indenture, the
Company shall deliver to the Trustee an Officers' Certificate as to the
incumbency and specimen signatures of officers authorized to give instructions
under this Section 303 and, as long as Securities are Outstanding under this
Indenture, shall deliver a similar Officers' Certificate promptly upon any
change in such authorized officers. The Trustee may conclusively rely on the
documents delivered and instructions given pursuant to this Section 303 (unless
resolved by superseding comparable documents) as to the authorization of any
Securities delivered hereunder, and as to the authority of the instructing
officers referred to in this Section 303 so to act.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
manually executed by the Trustee and such certificate upon any Security shall
be conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder.
<PAGE> 28
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Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and, upon receipt by the Trustee of the items specified in Section
201, the Trustee shall authenticate and deliver in the manner provided in
Section 303, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities of like series in lieu
of which they are issued, with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities
may determine, as conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of such definitive Securities, the temporary Securities shall be
exchangeable for such definitive Securities upon surrender of the temporary
Securities at the office of the Security Registrar, maintained for the purpose,
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Securities of any particular series, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of authorized denominations of the
same series. Until so exchanged the temporary Securities shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at an office or agency to be
maintained by the Company as to each series of Securities in accordance with
Section 1002 a register (the register maintained in such office and in any
other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration and registration of transfers of Securities of
such series as herein provided. The Trustee at the Corporate Trust Office is
hereby appointed as the Company's office or agency (the "Security Registrar")
for the purpose of registering Securities and transfers of Securities as herein
provided. Upon written notice to the Trustee and any acting Security Registrar
(if the Trustee shall not be the Security Registrar), the Company may appoint a
successor Security
<PAGE> 29
21
Registrar. The Company may appoint one or more Security Co-Registrars for such
purposes. At all reasonable times, the Security Register shall be open for
inspection by the Trustee.
Upon due presentment for registration of transfer of any Security of
any particular series at the office or agency of any Security Registrar or
Security Co-Registrar for such series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of any authorized
denominations, of the same series and aggregate principal amount, all as
requested by the Person presenting the Security to be transferred.
At the option of the Holder, Securities of any particular series may
be exchanged for other Securities of any authorized denominations, of the same
series and aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued in exchange for or upon registration of transfer
of Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered for such exchange or registration of transfer.
Every Security presented or surrendered for registration of transfer
or exchange shall (if so required by the Company or the Security Registrar or
any Security Co-Registrar) be duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar or such Security Co-Registrar duly executed by, the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Sections 304, 906, 1107 or 1205 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Securities during a period of 15 days preceding the
selection of Securities for redemption or (ii) to register the transfer of or
exchange any Securities so selected
<PAGE> 30
22
for redemption in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not to be redeemed. Upon delivery by any
Security Co-Registrar of a Security in exchange for a Security surrendered to
it in accordance with the provisions of this Indenture, the Security so
delivered shall, subject to the provisions of the final paragraph of Section
303, for all purposes of this Indenture be deemed to be duly registered in the
Security Register, provided, however, in making any determination as to the
identity of Persons who are Holders, the Trustee shall, subject to the
provisions of Section 601, be fully protected in relying on the Security
Register at the Corporate Trust Office.
Section 306. Mutilated, Destroyed, Lost or Stolen Securities.
A mutilated Security may be surrendered and, after the delivery to the
Company and the Trustee of such security or indemnity as may be required by
them to save each of them harmless, the Company in its discretion may execute,
and the Trustee, in the event of such execution, shall authenticate and deliver
in exchange therefor a new Security of the same series, tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there be delivered to the Company and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft
of any Security, and
(ii) such security or indemnity as may be required by them to save
each of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company in its discretion may
execute and the Trustee, in the event of such execution, shall authenticate and
deliver in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series, tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
<PAGE> 31
23
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of the same series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall if so provided in such
Security, be paid to the Person in whose name such Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest.
Any interest on any Security of any particular series which is payable
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date by virtue of having been
such Holder; and such Defaulted Interest shall be paid by the Company to the
Persons in whose names the Securities of that series affected (or their
respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest. The Company
shall fix the Special Record Date and the date of the proposed payment. The
Company shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of the Securities of such series at his address as it appears in
the Security Register not less than 15 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered on such Special Record
Date. The Company may make payment of any Defaulted Interest in any other
lawful manner.
<PAGE> 32
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Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment for registration of transfer or exchange, the
Company, the Trustee, the Security Registrar, any Security Co-Registrar and any
agent of the Company or the Trustee may treat the Person in whose name any
Security is registered in the Security Register as the owner of such Security
for the purpose of receiving payment of principal of and (subject to Section
307) interest on, such Security and for all other purposes whatsoever, whether
or not such Security be overdue, and neither the Company, the Trustee, the
Security Registrar, any Security Co-Registrar nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
Section 309. Cancellation.
All Securities surrendered for payment, redemption, repayment at the
option of the Holder, registration of transfer or exchange shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever. All Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee
shall be destroyed by the Trustee which shall deliver to the Company a
certificate of destruction.
The repayment of any principal amount of Securities pursuant to an
option of the Holder to require repayment of Securities before their Maturity
shall not, for purposes of this Section 309, operate as a payment, redemption
or satisfaction of the indebtedness represented by such Securities unless and
until the Company, at its option, shall deliver or surrender the Securities to
the Trustee with a Company Order that such Securities shall be cancelled.
<PAGE> 33
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Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any particular series, interest on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
rights of transfer or exchange of Securities herein provided for), and the
Trustee, on Company Order and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indentures,
when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section
306 and (ii) Securities money for whose payment has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company,
are to be called for redemption under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company, and the Company, in case of
(i), (ii) or (iii) above, has deposited or caused to be deposited with
the Trustee as trust funds in trust for the purpose an amount,
sufficient to pay and discharge the entire indebtedness on the
Securities not theretofore delivered to the Trustee for cancellation,
for principal and interest, if any, to the date of such deposit (in
the case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
<PAGE> 34
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(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture with respect to the Securities of such series have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture with respect
to the Securities of any series, the obligations of the Company with respect to
the Securities of any other series and to the Trustee under Section 607 shall
survive.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money or securities deposited with the Trustee pursuant to Section 401 shall be
held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) to the
Persons entitled thereto, of the principal and interest, if any, for whose
payment such money or securities have been deposited with the Trustee; but such
money or securities need not be segregated from other funds except to the
extent required by law.
Section 403. Repayment of Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this Indenture
all moneys then held by any Paying Agent (other than the Trustee, if the
Trustee be a Paying Agent) under the provisions of this Indenture shall, upon
demand of the Company, be repaid to it or paid to the Trustee and thereupon
such Paying Agent shall be released from all further liability with respect to
such moneys.
Section 404. Repayment of Moneys Held by Trustee.
Any moneys deposited with the Trustee or any Paying Agent for the
payment of the principal of (or premium, if any, on) or interest, if any, on
any Security of any series and not applied but remaining unclaimed by the
Holders for two years after the date upon which the principal of (or premium,
if any, on) or interest, if any, on such Security shall have become due and
payable, shall be repaid to the Company by the Trustee or such
<PAGE> 35
27
Paying Agent on written demand; and the Holder of any of the Securities
entitled to receive such payment shall thereafter look only to the Company for
the payment thereof and all liability of the Trustee or such Paying Agent with
respect to such moneys shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be mailed to each such Holder or
published once a week for two successive weeks (in each case on any day of the
week) in a newspaper published in the English language, customarily published
on each Business Day and of general circulation in New York, New York, or both,
a notice that said moneys have not been so applied and that after a date named
therein any unclaimed balance of said moneys then remaining will be returned to
the Company. It shall not be necessary for more than one such publication to
be made in the same newspaper.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
"Events of Default", wherever used herein with respect to any
particular series of Securities, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) the failure of the Company to pay an installment of interest on
any Security of that series when and as the same shall become payable, which
failure shall have continued unremedied for a period of 30 days; or
(2) the failure of the Company to pay the principal of any Security
of that series at the Maturity thereof, which failure shall have continued
unremedied for a period of 5 Business Days; or
(3) the failure of the Company to deposit any sinking fund payment,
when and as due by the terms of a Security of that series, which failure shall
have continued unremedied for a period of 5 Business Days; or
(4) the failure of the Company to observe and perform any other of
the covenants or agreements on the part of the Company contained in the
Securities of such series or this Indenture, which failure shall have continued
unremedied to the
<PAGE> 36
28
satisfaction of the Trustee, for a period of 90 days after written notice shall
have been given to the Company by the Trustee, by registered or certified mail,
or shall have been given to the Company and the Trustee by the Holders of 25%
or more in principal amount of the Securities of that series Outstanding,
specifying such failure and requiring the Company to remedy the same and
stating that such notice is a "Notice of Default" hereunder; or
(5) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Company in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Company or for any substantial part
of its property, or ordering the winding-up or liquidation of its affairs, and
such decree or order shall remain unstayed and in effect for a period of 90
consecutive days; or
(6) the Company shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
shall consent to the entry of an order for relief in any involuntary case under
any such law, or shall consent to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or for any substantial part of its property, or shall
make any general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due or shall take any corporation
action in furtherance of any of the foregoing; or
(7) default as defined in any mortgage, indenture (including this
Indenture), note agreement or instrument, under which there may be outstanding,
or by which there may be secured or evidenced, any indebtedness of the Company
in excess of $25,000,000, whether such indebtedness now exists or shall
hereafter be created, shall happen and shall result in such indebtedness
becoming or being declared due and payable prior to the date on which it would
otherwise become due and payable (including a default in respect of any other
series of Securities under this Indenture), and such acceleration shall not be
rescinded or annulled within ten days after written notice shall have been
given to the Company by the Trustee, by registered or certified mail, or shall
have been given to the Company and the Trustee by the Holders of 25% or more in
principal amount of the Outstanding Securities of that series; or
(8) any other Event of Default provided with respect to Securities of
that series.
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Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any particular series of
Securities occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the entire principal amount, or (in the
case of Discounted Securities) such lesser amount as may be provided for in
such Securities, of all the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal or such lesser
amount, as the case may be, together with accrued interest, if any, and all
other amounts owing hereunder or thereunder, shall become immediately due and
payable.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal amount of the Outstanding Securities of that series, by written
notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on all
Securities of that series,
(B) the principal of any Securities of that series which
has become due otherwise than by such declaration of acceleration and
interest thereon at the rate borne by such Securities (or, in the case
of Discounted Securities, such Securities' Yield to Maturity),
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest, if any, at the
rate borne by such Securities (or, in the case of Discounted
Securities, such Securities' Yield to Maturity), and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;
and
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(2) all Events of Default, other than the non-payment of principal of
Securities of that series which have become due solely by such
acceleration, have been cured or waiver as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on any of the Securities, when and as the same shall become
payable, and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of any of
the Securities at the Maturity thereof or otherwise, and such default
continues for 5 Business Days,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest, if any, with interest upon the overdue
principal and, to the extent that payment of such interest shall be legally
enforceable, upon overdue installments of interest, at the rate borne by such
Securities (or, in the case of Discounted Securities, such Securities' Yield to
Maturity); and, in addition thereto, such further amount as shall be sufficient
to cover the cost and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default with respect to Securities of a particular
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
that series by such
<PAGE> 39
31
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal and
interest, if any, owing and unpaid in respect of the Securities and to
file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and of the Holders allowed in
such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same.
Any receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
<PAGE> 40
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Section 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name and as trustee of an express trust and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or interest,
upon presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
607;
Second: To the payment of the amounts then due and unpaid upon the
Securities for principal and interest, if any, on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities, for
principal and interest, if any, respectively; and
Third: The remainder, if any, shall be paid to the Company, its
successors or assigns, or to whosoever may be lawfully entitled to
receive the same, or as a court of competent jurisdiction may direct.
Section 507. Limitation on Suits.
No Holder of any Security of any particular series shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) an Event of Default with respect to that series shall
have occurred and be continuing and such Holder shall give written
notice thereof to the Trustee;
<PAGE> 41
33
(2) the Holders of not less than a majority in principal
amount of the Outstanding Securities of that series shall have made
written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more Holders of Securities of
that series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other Holders of Securities of that series, or to obtain or
to seek to obtain priority or preference over any other Holders of Securities
of that Series or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all the Holders
of Securities of that series.
Section 508. Unconditional Right of Holders to Receive Principal and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right which is absolute and unconditional to
receive payment of the principal and (subject to Section 307) interest, if any,
on such Security on the respective Stated Maturities expressed in such Security
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the
<PAGE> 42
34
Holder shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee with
respect to the Securities of that series or exercising any trust or power
conferred on the Trustee with respect to such Securities, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) subject to the provisions of Section 601, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Officers of
the Trustee, determine that the proceeding so directed would be
unjustly prejudicial to the Holders not
<PAGE> 43
35
joining in any such direction or would involve the Trustee in personal
liability, and
(3) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Default.
Prior to acceleration of Maturity of the Securities of a particular
series under the provisions of Section 502, the Holders of not less than a
majority in principal amount of the Outstanding Securities of that particular
series may on behalf of the Holders of all the Securities of that series waive
any past default hereunder with respect to that series and its consequences,
except a default in the payment of the principal of or interest, if any, on any
Security of that series or in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of that series affected. Upon any such
waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken
or omitted by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% of the principal amount of the Outstanding
Securities of any particular series or to any suit instituted by any Holder for
the enforcement of the payment of the principal of or interest on any Security
on or after the respective Stated Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date).
<PAGE> 44
36
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereinafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage
of any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
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(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good-faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of a majority in principal amount of
the Outstanding Securities of any particular Series, relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to the Securities
of that series; 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.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to Securities of any particular series, the Trustee shall transmit by
mail to all Holders of Securities of that series, as their names and addresses
appear in the Security Register, notice of such default hereunder known to the
Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of or interest, if any, on any Security of that series, 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 determines that the withholding of such
notice is in the interests of the Holders of Securities of that series; and
provided, further, that in the case of any default of
<PAGE> 46
38
the character specified in Section 501 (4) no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default.
Section 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report notice, request, direction,
consent, order, bond, note, debenture or other paper or document but
the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit; and
<PAGE> 47
39
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, Paying Agent, Security Registrar, Security Co-Registrar
or any other agent of the Company or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
TIA Sections 310(b) and 311, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent, Security Registrar,
Security Co-Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time 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);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the
<PAGE> 48
40
Trustee in accordance with any provision of this Indenture (including
the reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust or any other duties
hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under this
Section the Trustee shall have a lien prior to the Securities upon all property
and funds held or collected by the Trustee as such, except funds held in trust
for the benefit of the Holders of particular Securities.
Section 608. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America or of any State, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $5,000,000, subject
to supervision or examination by Federal or state authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 609. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 610.
<PAGE> 49
41
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered
to the Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of any particular series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of that series, delivered to the
Trustee and to the Company.
(d) If at any time
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security of the particular
series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 608 and
shall fail to resign after written request therefor by the Company or
by any such Holder of any series, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all
of such series and that at any time there shall be
<PAGE> 50
42
only one Trustee with respect to the Securities of any particular series). If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any particular series shall be appointed by Act of the Holders of a majority
in principal amount or the Outstanding Securities of that series delivered to
the Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
and supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has been a bona
fide Holder of a Security of that series for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of that series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any particular series
and each appointment of a successor Trustee with respect to the Securities of
that series by mailing written notice of such event by first-class mail,
postage prepaid, to the Holders of Securities of that series as their names and
addresses appear in the Security Register. Each notice shall include. the name
of the successor Trustee with respect to the Securities of that series and the
address of its Corporate Trust Office.
Section 610. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to-such successor Trustee all property
and money held by such retiring Trustee hereunder.
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(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1)
shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and each such Trustee shall be trustee of a trust
or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in Subsection (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
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Section 611. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of
Holders.
With respect to each particular series of Securities, the Company will
furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular
Record Date relating to that series (or, if there is no Regular Record
Date relating to that series, not more than 15 days after each June 30
and December 31), a list, in such form as the Trustee may reasonable
require, of the names and addresses of the Holders of that series as
of such date or dates and
(b) at such other times as the Trustee may request in writing,
within 30 days after receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished.
except that so long as the Trustee is the Security Registrar and there shall be
no Security Co-Registrar, no such lists shall be required to be furnished.
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Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses received by the Trustee in its capacity as Security Registrar. The
Trustee may destroy any list furnished to it as provided in Section 701 upon
receipt of a new list so furnished.
(b) If three or more Holders of Securities of any particular series
(hereinafter referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant has owned a
Security of that series for a period of at least six months preceding the date
of such application, and such application states that the applicants desire to
communicate with other Holders of Securities of that series with respect to
their rights under this Indenture or under the Securities of that series and is
accompanied by a copy of the form of Proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five business
days after the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved at
the time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of
Holders of Securities of that series whose names and addresses appear
in the information preserved at the time by the Trustee in accordance
with Section 702(a) and as to the approximate cost of mailing to such
Holders the form of proxy or other communication, if any, specified in
such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of Securities of that series whose name and
address appear in the information preserved at the time by the Trustee in
accordance with Section 702(a), a copy 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 mailing, unless within
five days after such tender, the Trustee shall mail to such applicants and file
with the Commission together with a copy of the material to be mailed a written
statement to the effect that, in the opinion of the
<PAGE> 54
46
Trustee, such mailing would be contrary to the best interests of the Holders of
Securities of that series or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the 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 such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for
hearing, that all the 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 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.
(c) Each and every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any Paying Agent nor any Security Registrar shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders in accordance with Section 702(b), 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 Section 702(b).
Section 703. Reports by Trustee.
Within 60 days after May 15, of each year commencing with the year
19 , the Trustee shall transmit to all Holders, in the manner and to the extent
provided in TIA Section 313(c), and to the Company, a brief report dated as of
such May 15, and required by TIA Section 313(a).
Section 704. Reports by Company.
The Company will:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; or, if the
Company is not required to file information, documents or reports
pursuant to either of said Sections, then it will file with the
Trustee and the Commission, in accordance with rules
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and regulations prescribed from time to time by the Commission, such
of the supplementary and periodic information, documents and reports
which may be required pursuant to 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 from time to time
in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit by mail to the Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents
and reports required to be filed by the Company pursuant to paragraphs
(1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, or Transfer
Section 801. Company May Consolidate, etc., under Certain Conditions.
Subject to the provisions of Section 803, the Company may consolidate
with or merge into any other corporation or sell, convey or transfer its
properties and assets substantially as an entirety to any Person, provided
that:
(1) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Company substantially as an
entirety shall be a corporation organized and existing under the laws
of the United States of America or any state or the District of
Columbia and shall, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee,
expressly assume the due and punctual payment of the principal of and
interest, if any, on all the Securities and the performance of every
covenant of this Indenture on the part of the Company to be performed
or observed; and
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48
(2) immediately after giving effect to such transaction, no Event
of Default with respect to any series of Securities, and no event
which, after notice or lapse of time, or both, would become an Event
of Default with respect to any series of Securities, shall have
happened and be continuing.
Section 802. Successor Corporation Substituted.
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety in accordance
with Section 801, and upon compliance with Section 803, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation had been
named as the Company herein; and in the event of any such conveyance or
transfer, the Company (which term shall for this purpose mean the Person named
as the "Company" in the first paragraph of this Indenture or any successor
corporation which shall theretofore have become such in the manner prescribed
in Section 801) shall be discharged from all liability under this Indenture and
in respect of the Securities and may be dissolved and liquidated.
Section 803. Limitations on Mergers, etc.
The Company may not consolidate with, merge into, or sell, convey or
transfer its properties and assets substantially as an entirety to, another
Person, if, as a result of such consolidation, merger, sale, conveyance or
transfer, any property owned by the Company or a Restricted Subsidiary
immediately prior thereto would be subjected to a Security Interest, unless (a)
simultaneously therewith or prior thereto effective provision shall be made for
the securing (equally and ratably with any other indebtedness of or guaranteed
by the Company then entitled thereto) of the due and punctual payment of the
principal of and interest on all of the Securities by a prior lien upon such
property, or (b) the Company would be permitted to create such Security
Interest pursuant to Section 1004 without equally and ratably securing the
Securities.
Section 804. Opinions of Counsel and Officers' Certificate.
The Company shall deliver to the Trustee an Officers' Certificate and
an Opinion of Counsel as conclusive evidence for and stating that any such
consolidation, merger, sale or conveyance and assumption complies with the
provisions of this
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Article Eight, that all conditions precedent herein provided for relating to
such transaction have been complied with and that it is proper for the Trustee
under the provisions of this Indenture to join in the execution of the
supplemental indenture provided for in Section 901.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holder, the Company, 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 the following purposes:
(1) to evidence the succession of another corporation to the
Company, and the assumption by any such successor of the covenants,
agreements and obligations of the Company pursuant to Article Eight
hereof and contained in the Securities;
(2) to add to the covenants of the Company, for the benefit of
the Holders of all or any particular series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are being included solely for
the benefit of such series), or to surrender any right or power herein
conferred upon the Company;
(3) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such Events of
Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are expressly being
included solely for the benefit of such series); provided, however,
that in respect of any such additional Events of Default such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to
the Trustee upon such default or may limit the right of the Holders of
a majority in aggregate principal amount of that or those series of
Securities to which such additional Events of Default apply to waive
such default;
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(4) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided such other provisions
shall not adversely affect the interest of the Holders of the then
Outstanding Securities or of the then Outstanding Securities of any
particular series in any material respect;
(5) to add to, delete from or revise the conditions, limitations
and restrictions upon which Securities may from time to time be
issued, authenticated and delivered, as herein set forth;
(6) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 610(b);
(8) to secure the Securities pursuant to Section 1004; or
(9) to add any provision to or change in any manner or eliminate
any of the provisions of this Indenture but only if such addition,
change or elimination will apply only to series of Securities that are
not then Outstanding.
Section 902. Supplemental Indentures with Consent of Holders.
The Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders under this Indenture, but only with the consent (i) of the Holders of
not less than a majority in principal amount of the Securities Outstanding, or
(ii) in case less than all of the several series of Securities then Outstanding
are affected by the addition, change, elimination or modification, of the
Holders of not less
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than a majority in principal amount of the Outstanding Securities of each
series so affected, in each case by Act of said Holders delivered to the
Company and the Trustee; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Security Outstanding affected
thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal or interest on, any Security, or reduce the
principal amount thereof or the rate of interest, if any, thereon, or
reduce the amount of the principal of a Discounted Security that would
be due and payable upon a declaration of the Maturity thereof pursuant
to Section 502, or change the coin or currency in which any Security
or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the
Redemption Date),
(2) reduce the percentage in principal amount of the Outstanding
Securities or the Outstanding Securities of any particular series, the
consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver
of compliance with certain provisions of this Indenture or certain
defaults hereunder or their consequences provided for in this
Indenture, or
(3) modify any of the provisions of this Section or Section 513,
except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof
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Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the TIA as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any particular series authenticated and delivered after
the execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Board of Directors, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
Section 907. Notice of Supplemental Indenture.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture with respect to any particular series of Securities
pursuant to this Article, the Company shall transmit by mail to all Holders of
Securities of such series, as
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their names and addresses appear in the Security Register, a notice setting
forth in general terms the substance of such supplemental indenture. Any
failure of the Company to mail such notice, or any defect in such notice, shall
not, however, in any way impair or affect the validity of any such supplemental
indenture.
Section 908. Record Date.
If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company
may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to consent to any supplemental indenture,
agreement or instrument or any waiver, and shall promptly notify the Trustee of
any such record date. If a record date is fixed, those Persons who were
Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to consent to such supplemental indenture, agreement
or instrument or waiver or to revoke any consent previously given, whether or
not such Persons continue to be Holders after such record date. The record
date shall be a date no more than 30 days prior to the first solicitation of
Holders generally in connection therewith and no later than the date such
solicitation is completed. No such consent shall be valid or effective for
more than 90 days after such record date and no action shall be taken in
respect of such record consent after such 90 day period.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal and Interest.
The Company agrees, for the benefit of each particular series of
Securities, that it will duly and punctually pay the principal of and interest,
if any, on each Security in that series in accordance with the terms of the
Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any particular
series of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and of any change in the
location, of any such office or agency. Unless otherwise designated by the
Company in a written notice to
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the Trustee, such agency for any series of Securities for which the Place of
Payment shall be the same as the location of the Corporate Trust Office for all
such purposes shall be the Corporate Trust Office. If at any time the Company
shall fail to maintain such office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office, and the Company
hereby appoints the Trustee its agent to receive all such presentations,
surrenders, notices and demands.
In addition to such office or agency, the Company may from time to
time designate one or more other offices or agencies (in or outside the Place
of Payment) where the Securities of one or more series may be presented for any
of or all the purposes specified above in this Section 1002 and may from time
to time rescind such designations, as the Company may deem desirable or
expedient; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligations to maintain such office and
agency in each Place of Payment for the purposes above mentioned. The Company
will give prompt written notice to the Trustee of any such designation and any
change in the location of any such other office or agency.
Section 1003. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any particular series of Securities, it will, on or before each due
date of the principal of or interest, if any, on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal or interest, if any, so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and will promptly notify the Trustee of its action or failure
so to act.
Whenever the Company shall have one or more Paying Agents for any
particular series of Securities, it will, on each due date of the principal of
or interest, if any, on any Securities, deposit with a Paying Agent a sum
sufficient to pay the principal or interest, if any, so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such principal
or interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any particular series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
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(1) hold all sums held by it for the payment of the principal of
or interest, if any, on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities) in the making of any payment of
principal or interest, if any, on Securities of that series; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such Payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Section 1004. Limitations on Secured Debt.
The Company will not at any time create, incur, assume or guarantee,
and will not cause, suffer or permit a Restricted Subsidiary to create, incur,
assume or guarantee, any Secured Debt, without making effective provision
whereby all Securities then outstanding of any series and any other
indebtedness of or guaranteed by the Company or such Restricted Subsidiary then
entitled thereto, subject to applicable priorities of payment, shall be secured
by the Security Interest securing such Secured Debt equally and ratably with
any and all other obligations and indebtedness thereby secured (subject,
however, to applicable priorities of payment), so long as any such Secured Debt
remains outstanding; provided, however, that the foregoing covenants shall not
apply to:
(a) any Security Interest existing on the date of this Indenture;
(b) any Security Interest existing on property at the time such
property is acquired by the Company or a Restricted Subsidiary;
provided such Security Interest is limited to all or part of the
property so acquired;
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(c)(i) any Security Interest existing on the property or on the
outstanding shares or indebtedness of a corporation at the time such
corporation becomes a Restricted Subsidiary, or (ii) subject to the
provisions of Section 803, any Security Interest on property of a
corporation existing at the time such corporation is merged into or
consolidated with the Company or a Restricted Subsidiary or at the
time of a sale, lease or other disposition of the properties of a
corporation or firm as an entirety or substantially as an entirety to
the Company or a Restricted Subsidiary; provided, in each such case,
that such Security Interest does not extend to any property owned
prior to such transaction by the Company or any Restricted Subsidiary
which was a Restricted Subsidiary prior to such transaction;
(d) any Security Interest in favor of the Company or any
Restricted Subsidiary;
(e) Mechanics', materialmen's, carriers' or other like liens,
arising in the ordinary course of business;
(f) Liens of taxes or assessments for the then current year not at
the time due, or the liens of taxes or assessments already due but the
validity of which is being contested in good faith and against which
adequate reserves have been established;
(g) Judgment liens, so long as the finality of such judgment is
being contested in good faith and execution thereon is stayed;
(h) Security Interests in property of the Company or a Restricted
Subsidiary in favor of the United States of America or any state or
agency or instrumentality thereof to secure partial, progress, advance
or other payments, pursuant to any contract or statute or to secure
any indebtedness incurred for the purpose of financing all or any part
of the purchase price or the cost of construction of the property
subject to such Security Interests;
(i) Security Interests on Business Equipment;
(j) any Security Interest given or executed by the Company or any
Restricted Subsidiary to secure an amount not in excess of the
purchase price or fair value at the time of acquisition, whichever, in
the opinion of the Company, shall be less, on, any property (other
than Rental Equipment) which may be acquired after the date of this
Indenture by the Company or any Restricted Subsidiary; provided, that
such Security Interest is limited to the property so acquired;
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(k) Security Interests on properties financed through tax-exempt
municipal obligations; provided, that such Security Interest is
limited to the property so financed; or
(l) any refunding, renewal, extension or replacement (or
successive refundings, renewals, extensions or replacements), in whole
or in part, of any Security Interest referred to in the foregoing
clauses (a) to (k) inclusive; provided, however, that the principal
amount of indebtedness secured in such refunding, renewal, extension
or replacement does not exceed that secured at the time by such
Security Interest and, provided, further, that such renewal,
refunding, extension or replacement of such Security Interest is
limited to all or part of the same property subject to such Security
Interest being refunded, renewed, extended or replaced.
Notwithstanding the foregoing provisions of this Section 1004, the
Company and any one or more Restricted Subsidiaries may issue, assume or
guarantee Secured Debt which would otherwise be subject to the foregoing
restrictions in an aggregate amount which, together with all other Secured Debt
of the Company and its Restricted Subsidiaries which would otherwise be subject
to the foregoing restrictions (not including Secured Debt permitted to be
secured under subparagraphs (a) through (1), inclusive above) and the aggregate
value of the Sale and Leaseback Transactions in existence at such time (not
including Sale and Leaseback Transactions the proceeds of which have been or
will be applied in accordance with Section 1005), does not at the time of
incurrence exceed 10% of Consolidated Net Worth and Subordinated Debt.
Section 1005. Limitations on Sale and Leaseback Transactions.
The Company will not, and will not permit any Restricted Subsidiary
to, engage in any Sale and Leaseback Transaction unless (a) the Company or such
Restricted Subsidiary would be entitled, pursuant to the provisions of Section
1004 hereof (without reference to subsections (a) through (l) thereof), to
incur Secured Debt equal in amount to the amount realized or to be realized
upon the sale or transfer involved in such Sale and Leaseback Transaction,
secured by a Security Interest on the property to be leased without securing
all Securities then outstanding of any series as provided in Section 1004 or
(b) the Company or a Restricted Subsidiary shall apply, within 120 days after
such sale or transfer, an amount equal to the fair value of the property so
leased (as determined by the Board of Directors of the Company) to the
repayment of Senior Debt of the Company or of any Restricted Subsidiary (other
than Senior Debt owed to the Company or any Restricted Subsidiary) then
prepayable, on a pro rata basis, according to the respective principal amounts
of Senior Debt then held by the various holders thereof.
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Section 1006. Statement by Officer as to Default.
The Company will deliver to the Trustee, on or before a date not more
than four months after the end of each fiscal year of the Company ending after
the date hereof, a statement of an officer which shall be either the principal
executive officer, principal financial officer of the principal accounting
officer of the Company stating whether or not to the best of his knowledge the
Company is in default in the performance and observance of any of the terms,
provisions and conditions hereof, and, if the Company shall be in default,
specifying all such defaults and the nature thereof of which he may have
knowledge.
The Company will deliver to the Trustee five days after the occurrence
thereof, written notice of any acceleration which with the giving of notice and
the lapse of time would become an Event of Default pursuant to clause (6) of
Section 501.
Section 1007. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any right or franchise if
the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the
loss thereof is not disadvantageous in any material respect to the Holders.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Redemption of Securities (whether by operation of a sinking fund or
otherwise) as permitted or required by any form of Security issued pursuant to
this Indenture shall be made in accordance with such form of Security and this
Article; provided, however, that if any provision of any such form of Security
shall conflict with any provision of this Article, the provision of such form
of Security shall govern.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at
the election of the Company of less than all of the
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Securities of any particular series with the same issue date, interest rate and
Stated Maturity, the Company shall, at least 60 days prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee) notify the Trustee by Company Request of such Redemption Date and of
the principal amount of Securities of that series to be redeemed and shall
deliver to the Trustee such documentation and records as shall enable the
Trustee to select the Securities to be redeemed pursuant to Section 1103. In
the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities are to be redeemed, the Company may
select the series to be redeemed, and if less than all the Securities of any
series are to be redeemed with the same issue date, interest rate, and Stated
Maturity, the particular Securities of that series to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee from
the Outstanding Securities of that series not previously called for redemption,
by such method as it shall deem fair and appropriate and which may provide for
the selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series, or any integral multiple thereof)
of the principal of Securities of that series of a denomination larger than the
minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Security selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal of such Security which has been or is to be redeemed.
Section 1104. Notice of Redemption
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date to each Holder of Securities to be redeemed at his address appearing in
the Security Register.
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All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of a particular
series are to be redeemed, the identification by serial number (and,
in the case of partial redemption, the respective principal amounts)
of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each Security or portion thereof, and that
interest thereon shall cease to accrue on and after said date,
(5) the place where such Securities are to be surrendered for
payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name of and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of all the Securities which are to
be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price) such Securities
shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with such notice, such Security shall be paid by the
Company at the Redemption Price; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities registered as such on the relevant
Record Dates according to their terms and the provisions of Section 307.
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If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and, to the extent that
interest thereon shall be lawful, the interest, if any, thereon, shall, until
paid, bear interest from the Redemption Date at a rate per annum equal to the
rate borne by the Security (or, in the case of Discounted Securities, the
Security's Yield to Maturity).
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at the Place of Payment (with, if the Company, the Security Registrar, any
Paying Agent or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar, such Paying Agent and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge a new Security or Securities, of any authorized
denomination or denominations as requested by such Holder, of the same series
and in an aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
Repayment at Option of Holders
Section 1201. Applicability of Article.
Repayment of Securities of any series before their Stated Maturity at
the option of Holders thereof shall be made in accordance with the terms of
such Securities and (except as otherwise specified as contemplated by Section
301 for Securities of any series) in accordance with this Article.
Section 1202. Repayment of Securities.
Securities of any series subject to repayment in whole or in part at
the option of the Holders thereof will, unless otherwise provided in the terms
of such Securities, be repaid at a price equal to the principal amount thereof,
together with interest thereon accrued to the Repayment Date specified in the
terms of such Securities. The Company covenants that on or before the
Repayment Date the Company will deposit with the Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold in
trust as provided in Section 1003) an amount of money sufficient to pay the
principal (or, if so
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provided by the terms of the Securities of any series, a percentage of the
principal) of, and (except if the Repayment Date shall be an Interest Payment
Date) accrued interest, if any, on, all the Securities or portions thereof, as
the case may be, to be repaid on such date.
Section 1203. Exercise of Option.
Securities of any series subject to repayment at the option of the
Holders thereof will contain an "Option to Elect Repayment" form on the reverse
of such Securities. To be repaid at the option of the Holder, any Security so
providing for such repayment, with the "Option to Elect Repayment" form on the
reverse of such Security duly completed by the Holder, must be received by the
Company at the Place of Payment therefor specified in the terms of such
Security (or at such other place or places of which the Company shall from time
to time notify the Holders of such Securities) not earlier than 30 days nor
later than 15 days prior to the Repayment Date. If less than the entire
principal amount of such Security is to be repaid in accordance with the terms
of such Security, the principal amount of such Security to be repaid, in
increments of $1,000 unless otherwise specified in the terms of such Security,
and the denomination or denominations of the Security or Securities to be
issued to the Holder for the portion of the principal amount of such Security
surrendered that is not to be repaid must be specified. The principal amount
of any Security providing for repayment at the option of the Holder thereof may
not be repaid in part if, following such repayment, the unpaid principal amount
of such Security would be less than the minimum authorized denomination of
Securities of the series of which such Security to be repaid is a part. Except
as otherwise may be provided by the terms of any Security providing for
repayment at the option of the Holder thereof, exercise of the repayment option
by the Holder shall be irrevocable unless waived by the Company.
Section 1204. When Securities Presented for Repayment Become Due and
Payable.
If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by the terms of such Securities, such Securities or the portions
thereof, as the case may be, to be repaid shall become due and payable and
shall be paid by the Company on the Repayment Date therein specified, and on
and after such Repayment Date (unless the Company shall default in the payment
of such Securities on such Repayment Date) interest on such Securities or the
portions thereof, as the case may be, shall cease to accrue.
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Section 1205. Securities Repaid in Part.
Upon surrender of any Security which is to be repaid in part only, the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security, without service charge and at the expense of the
Company, a new Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so
surrendered which is not to be repaid.
ARTICLE THIRTEEN
Sinking Funds
Section 1301. Applicability of This Article.
Redemption of Securities through operation of a sinking fund as
permitted or required by any form of Security issued pursuant to this Indenture
shall be made in accordance with such form of Security and this Article;
provided, however, that if any provision of any such form of Security shall
conflict with any provision of this Article, the provision of such form of
Security shall govern.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any particular series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the term of Securities of any particular series is
herein referred to as an "optional sinking fund payment". If provided for by
the terms of Securities of any particular series, the cash amount of any
sinking fund payment may be subject to reductions as provided in Section 1302.
Each sinking fund payment shall be applied to the redemption of Securities of
any particular Series as provided for by the terms of Securities of that
series.
Section 1302. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) theretofore purchased or otherwise
acquired by the Company and (2) may apply as a credit Securities of a series
which have been redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of such
Securities as
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provided for by the terms of such series; provided, however, that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 1303. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
particular series of Securities, the Company 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
Securities of that series pursuant to Section 1302 and will also deliver to the
Trustee any Securities to be so delivered. The Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner provided
in Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1401. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, defeasance of the Securities of a series under
Section 1402, or covenant defeasance of a series under Section 1403 shall be
made in accordance with the terms of such Securities and in accordance with
this Article.
Section 1402. Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this
Section, the Company shall be deemed to have been discharged from its
obligations with respect to the Outstanding Securities of such series on the
date the conditions set forth below are satisfied (hereinafter, "defeasance").
For this purpose, such defeasance means that the Company shall be deemed to
have paid
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and discharged the entire indebtedness represented by the Outstanding
Securities of such series, which shall thereafter be deemed to be "Outstanding"
only for the purposes of Section 1405 and the other Sections of this Indenture
referred to in (A) and (B) below, and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following which
shall survive until otherwise terminated or discharged hereunder: (A) the
rights of Holders of Outstanding Securities of such series to receive, solely
from the trust fund described in Section 1404 and as more fully set forth in
such Section, payments in respect of the principal of (and premium, if any) and
interest, if any, on such Securities when such payments are due, (B) the
Company's obligations with respect to Global Securities and such Securities
under Sections 305, 306, 1002 and 1003, (C) the rights, powers, trusts, duties,
and immunities of the Trustee hereunder and (D) this Article Fourteen. Subject
to compliance with this Article Fourteen, the Company may exercise its option
under this Section 1402 notwithstanding the prior exercise of its option under
Section 1403 with respect to the Securities of such series.
Section 1403. Covenant Defeasance.
Upon the Company's exercise of the above option applicable to this
Section, the Company shall be released from its obligations under Sections 803,
1004 and 1005, and, if specified pursuant to Section 301, the Company shall be
released from its obligations under any other covenant, with respect to the
Outstanding Securities of such series on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance"), and the
Securities of such series shall thereafter be deemed to be not "Outstanding"
for the purposes of any direction, waiver, consent or declaration or Act of the
Holders (and the consequences of any thereof) in connection with Section 803,
1004 or 1005, or such other covenant, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to the Outstanding Securities of
such series, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section or
such other covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or such other covenant or by reason of any
reference in any such Section or such other covenant to any other provision
herein or in any other document and such omission to comply shall not
constitute a default or an Event of Default under subsection 501(4) or
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subsection 501(8) of this Indenture, as the case may be, but, except as
specified above, the remainder of this Indenture and such Securities shall be
unaffected thereby.
Section 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
1402 or Section 1403 to the Outstanding Securities of such series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 608 who shall agree to comply with the
provisions of this Article Fourteen applicable to it) as trust funds
in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities, (A) money in an amount, or
(B) U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof, sufficient,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of (and premium, if any) and interest, if any, on the
Outstanding Securities of such series on the Stated Maturity of such
principal or installments of principal or interest and (ii) any
mandatory sinking fund payments or analogous payments applicable to
the Outstanding Securities of such series on the day on which such
payments are due and payable in accordance with the terms of this
Indenture and of such Securities. For this purpose, "U.S. Government
Obligations" means securities that are (x) direct obligations of the
United States of America for the payment of which its full faith and
credit is pledged or (y) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States of America,
which, in either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act of
1933, as amended) as custodian with respect to any such U.S.
Government Obligation or a specific payment of principal of or
interest on any such U.S. Government Obligation held by such custodian
for the account of the holder of such depository receipt, provided
that (except as required by law)
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such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount
received by the custodian in respect of the U.S. Government Obligation
or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
(2) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the
date of such deposit or, insofar as subsections 501(5) and (6) are
concerned, at any time during the period ending on the 91st day after
the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not cause the
Trustee for the Securities of such series to have a conflicting
interest as defined in the Trust Indenture Act with respect to any
securities of the Company.
(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture
or any other material agreement or instrument to which the Company is
a party or by which it is bound.
(5) In the case of an election under Section 1402, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x)
the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of the first
issuance by the Company of Securities pursuant to this instrument,
there has been a change in the applicable Federal income tax law, in
either case to the effect that, and based thereon such opinion shall
confirm that, the Holders of the Outstanding Securities of such series
will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such defeasance had not occurred.
(6) In the case of an election under Section 1403, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that
the Holders of the Outstanding Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred.
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(7) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with
any additional or substitute terms, conditions or limitations which
may be imposed on the Company in connection therewith pursuant to
Section 301.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 1402 or the covenant defeasance under Section 1403 (as
the case may be) have been complied with.
Section 1405. Deposited Money and U.S. Government Obligations to be
Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee pursuant to Section 1404 in respect of the
Outstanding Securities of such series shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Securities of such series.
Anything in this Article Fourteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company, from time to time upon Company
Request, any monies or U.S. Government Obligations held by it as provided in
Section 1404 which, in the opinion of a nationally recognized firm of
independent public accountants written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent "defeasance" or "covenant defeasance".
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Section 1406. Reinstatement.
If the Trustee is unable to apply any money or U.S. Government
Obligations in accordance with Section 1405 with respect to the Securities of
any series by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the obligations of the Company under
this Indenture and such Securities shall be revived and reinstated as though no
deposit had occurred with respect to the Securities of such series pursuant to
Section 1404 until such time as the Trustee is permitted to apply all such
money or U.S. Government Obligations in accordance with Section 1405.
ARTICLE FIFTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS,
DIRECTORS AND EMPLOYEES
Section 1501. Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Security, or for any claim based thereon or otherwise
in respect thereof, shall be had against any incorporator, stockholder,
officer, director or employee, as such, past, present or future, of the Company
or of any successor corporation, either directly or through the Company,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations of the Company, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers, directors or employees, as such, of the Company or of
any successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom; and that any and all such personal liability, either at
common law or in equity or by constitution or statute, of, and any and all such
rights and claims against, every such incorporator, stockholder, officer,
director or employee, as such, because of the creation of the indebtedness
hereby authorized, or under or by reason of the obligations, covenants or
agreements contained in this Indenture or in any of the Securities or implied
therefrom, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of such
Securities.
<PAGE> 78
70
* * * * * * *
This instrument 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.
<PAGE> 79
71
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
THE HERTZ CORPORATION
SEAL
--------------------------
By Robert H. Rillings
Treasurer
-------------------------
Attest: Allen E. Danzig
Assistant Secretary
FIRST FIDELITY BANK, NATIONAL
ASSOCIATION, Trustee
[SEAL]
By
--------------------------
Attest:
Trust Officer
State of New Jersey ) ss.:
County of Bergen )
On this 1st day of December, 1994, before me personally came Robert H.
Rillings to me known, who, being by me duly sworn, did depose and say that he
resides at Washington Township; that he is Treasurer of The Hertz Corporation,
one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that it was so affixed by order of
the Board of Directors of said corporation, and that he signed his name thereto
by like authority.
Notarial Seal
Notary Public
<PAGE> 80
72
State of New Jersey )
County of Essex ) ss.:
On this 1st day of December, 1994, before me personally came
, to me known, who, being by me duly sworn, did depose and say that he resides
at ; that he is an of FIRST FIDELITY
BANK, NATIONAL ASSOCIATION, the bank described in and which executed the above
instrument; that he knows the seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that it was so affixed by authority
of the Board of Directors of said corporation, and that he signed his name
thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Notarial Seal
Notary Public
<PAGE> 81
73
EXHIBIT A
RESTRICTED SUBSIDIARIES
<TABLE>
<CAPTION>
Percentage
Jurisdiction Outstanding Owned of
in Which Stock Each Class
Corporation Incorporated Owned by of Stock
- ----------- ------------ -------- --------
<S> <C> <C> <C>
Hertz System, Inc. Delaware Company 100%
Hertz Equipment Rental
Corporation ("Herc") Delaware Company 100%
Hertz Canada Limited Ontario Company 100%
Hertz Claim
Management Corporation Delaware Company 100%
Hertz International
RE Limited Ireland Company* 100%
Hertz Technologies, Inc. Delaware Company 100%
</TABLE>
- ------------------------
* Consistent with the requirements of local law, one share stands in the name
of Hertz International, Ltd. and is beneficially owned by the Company.
<PAGE> 1
EXHIBIT 23(A)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated February 7, 1994
included in The Hertz Corporation's Annual Report on Form 10-K for the year
ended December 31, 1993, and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN & CO.
December 2, 1994
New York, New York
<PAGE> 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)
----
------------
FIRST FIDELITY BANK, NATIONAL ASSOCIATION
(Name of Trustee)
22-1147033
(Jurisdiction of Incorporation or (I.R.S. Employer
Organization if not a U.S. National Bank) Identification No.)
101 NORTHSIDE PLAZA, ELKTON, MARYLAND 21921
(Address of Principal Executive Offices) (Zip Code)
------------
THE HERTZ CORPORATION
(Name of Obligor)
DELAWARE 13-1938568
(State of Incorporation) (I.R.S. Employer
Identification No.)
225 BRAE BOULEVARD, PARK RIDGE, NEW JERSEY 07656-0713
(Address of Principal Executive Offices) (Zip Code)
------------
DEBT SECURITIES
(Title of Indenture Securities)
<PAGE> 2
1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISORY AUTHORITY TO WHICH IT IS SUBJECT:
Comptroller of the Currency
United States Department of the Treasury
Washington, D.C. 20219
Board of Governors of the Federal
Reserve System
Washington, D.C.
Federal Deposit Insurance Corporation
Washington, D.C. 20429
(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.
3. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS
STATEMENT OF ELIGIBILITY.
1. Copy of Articles of Association of the
trustee as now in effect. Incorporated
herein by reference to Exhibit 1 filed with
Form T-1, Registration No. 22-73340.
2. Copy of Certificate of the Comptroller of
the Currency dated January 11, 1994,
evidencing the authority of the trustee to
transact business. Incorporated herein by
reference to Exhibit 2 filed with Form T-1,
Registration No. 22-73340.
3. Copy of the authorization of the trustee to
exercise corporate trust powers has
heretofore been filed with the Securities
and Exchange Commission as Exhibit 3 filed
with Form T-1, Registration Number
22-73340, has not been amended since filing
and is incorporated herein by reference.
4. Copy of existing by-laws of the trustee.
Incorporated herein by reference to Exhibit
4 filed with Form T-1, Registration No.
22-73340.
2
<PAGE> 3
5. Copy of each indenture if the obligor is in
default.
Not applicable.
6. Consent of the trustee required by
Section 321(b) of the Act. Incorporated
herein by reference to Exhibit 6 filed with
Form T-1, Registration No. 22-73340.
7. Copy of report of condition of the trustee
at the close of business on September 30,
1994, published pursuant to the
requirements of its supervising authority.
NOTE
The trustee disclaims responsibility for the accuracy or completeness
of information contained in this Statement of Eligibility and Qualification
not known to the trustee and not obtainable by it through reasonable
investigation and as to such information it has obtained from the obligor and
has had to rely or will obtain from the principal underwriters and will have to
rely.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 (as
amended), the trustee, First Fidelity 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 Newark
and State of New Jersey on the 28th day of November, 1994.
FIRST FIDELITY BANK, NATIONAL
ASSOCIATION
By: /s/ Donald J. Quiles
-------------------------
Donald J. Quiles
Assistant Vice President
3
(Form T1)
(Ford) (8)
<PAGE> 4
EXHIBIT T-7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the First
Fidelity Bank, National Association of Salem in the state of New Jersey,
at the close of business on September 30, 1994, published in response to
call made by Comptroller of the Currency, under title 12, United States
Code, Section 161. Charter Number 33869 Comptroller of the
Currency Northeastern District.
<TABLE>
<CAPTION>
STATEMENT OF RESOURCES AND LIABILITIES
ASSETS
Thousand of Dollars
-------------------
<S> <C>
Cash and balance due from depository institutions:
Noninterest-bearing balances and currency and coin.......... 1,346,661
Interest-bearing balances................................... 411,672
Securities.................................................... /////////
Hold-to-maturity securities................................. 3,235,557
Available-for-sale securities............................... 3,287,987
Federal funds sold and securities purchased under agreements //////////
to resell in domestic offices of the bank and of it //////////
Edge and Agreement subsidiaries, and in IBFs: //////////
Federal funds sold...................................... 12,494
Securities purchased under agreements to resell......... 325,542
Loans and lease financing receivables:
Loan and leases, net of unearned income......18,895,117
LESS: Allowance for loan and lease losses.......502,752
LESS: Allocated transfer risk reserve.................0
Loans and leases, net of unearned income, allowance, and
reserve................................................. 18,392,365
Assets held in trading accounts............................... 111,334
Premises and fixed assets (including capitalized leases)...... 338,489
Other real estate owned....................................... 125,867
Investment in unconsolidated subsidiaries and associated //////////
companies..................................................... 12,646
Customer's liability to this bank on acceptances outstanding.. 202,327
Intangible assets............................................. 284,003
Other assets.................................................. 733,174
Total assets.................................................. 28,820,118
LIABILITIES
Deposits:
In domestic offices..................................... 21,926,652
Noninterest-bearing..........................4,373,924
Interest-bearing............................17,552,728
In foreign offices, Edge and Agreement subsidiaries,
and IBFs................................................ 1,434,456
Noninterest-bearing.............................12,570
Interest-bearing.............................1,421,886
Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of its
Edge and Agreement subsidiaries, and IBFs
Federal fund purchased.................................. 662,248
Securities sold under agreements to repurchase.......... 1,259,079
Demand notes issued to the U.S. Treasury...................... 0
Trading liabilities........................................... 0
Other borrowed money:......................................... /////////
With original maturity of one year or less.............. 176,938
With original maturity of more than one year............ 740
Mortgage indebtedness and obligations under capitalized leases 6,963
Bank's liability on acceptances executed and outstanding...... 205,111
Subordinated notes and debentures............................. 175,000
Other liabilities............................................. 452,172
Total liabilities............................................. 26,299,359
Limited-life preferred stock and related surplus.............. 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus................. 0
Common Stock.................................................. 430,000
Surplus....................................................... 985,034
Undivided profits and capital reserves........................ 1,144,089
Net unrealized holding gains (losses) on available-for-sale /////////
securities................................................... (38,364)
Cumulative foreign currency translation adjustments........... 0
Total equity capital.......................................... 2,520,759
Total liabilities, limited-life preferred stock and equity.... //////////
capital..................................................... 28,820,118
</TABLE>
4
